United States District Court, W.D. North Carolina, Asheville Division
WANDA S. LEONARD, Plaintiff,
THE TRUSTEES OF CLEVELAND COMMUNITY COLLEGE CLEVELAND COMMUNITY COLLEGE, Defendants.
Cogburn Jr., Judge
MATTER is before the Court on Defendants' Motion
for Summary Judgment. Plaintiff Wanda Leonard filed this
action on October 30, 2017, alleging she was terminated from
her employment because of her age, in violation of state and
federal law. Defendants deny Plaintiff's allegation of
age discrimination and argue that they terminated her
employment for a legitimate business reason. On December 1,
2018, Defendants filed the present motion and supporting
memorandum, which has been fully briefed and is ripe for
review. The Court heard oral arguments on the motion on March
7, 2019. This Court is aware that some companies
today attempt to disguise an unconstitutional reason for
termination using a pretextual “legitimate business
reason” for their decision. However, that is not what
we have in this case. Having considered the matter, the Court
enters the following findings, conclusions, and Order
granting summary judgment in favor of Defendant.
1, 2004, Plaintiff Wanda Leonard (“Plaintiff”)
entered into an employment contract with Cleveland Community
College (“Cleveland-CC”) and The Trustees of
Cleveland Community College (collectively
“Defendants”) to serve as Discipline Coordinator
of the Foothills Surgery Technology Consortium-a surgical
technology training program with classroom and clinical
components that pulls students from Cleveland-CC, Isothermal
Community College, and McDowell Technical College (the
“Consortium”). The Discipline Coordinator of the
Foothills Surgery Technology Consortium is employed by
Cleveland-CC and is responsible for overseeing the program.
As Discipline Coordinator, Plaintiff was responsible for
overseeing, among other things, the program and providing a
high-quality learning experience for students, recruiting
students to the program, assuring compliance with state and
national accreditation standards, and working cooperatively
with others in a collegial environment.
direct supervisor was Dr. Becky Sain, Vice President of
Academic Programs at Cleveland-CC (“Dr. Sain”).
Dr. Sain was responsible for, among other things, completing
Plaintiff's annual employment evaluations and working
with Plaintiff on ways to improve her performance and improve
the surgical technology program. Consistent with
Cleveland-CC's general policy for full-time employees,
Plaintiff's employment contracts were issued on a
year-to-year-basis and required renewal upon expiration of
the previous employment term. Plaintiff's final
employment agreement lasted through June 30, 2016. On June
15, 2016, Plaintiff was notified that her employment contract
would not be renewed for the upcoming year.
assert that they terminated Plaintiff's employment
because of her continuous “unprofessional treatment of
students and the unhealthy learning environment she created[,
which] resulted in low retention rates.” Defs.'
Mem. (#20) at 8. Defendants assert that these problems were
longstanding and systemic, impacting both the students and
the Consortium's relationship with clinical and collegial
affiliates. See Defs.' Mem. (#20) at 3
(indicating Dr. Sain first became aware of issues with
Plaintiff's work performance as Discipline Coordinator as
early as 2010).
specifically, Defendants allege,
Plaintiff was not satisfactorily performing the essential
functions of her job; she had poor interactions with students
spurring years of student complaints about her behavior; the
Surgical Technology Program suffered from poor recruitment
and low retention/graduation of students; relationships with
clinical sites failed and some were ultimately lost; and
sustainability of the program with partnering colleges in the
See Defs.' Mem. (#20) at 3. Defendants claim
they informed Plaintiff about her performance problems
several times, counseled her on ways to improve, and gave her
numerous opportunities to adjust her attitude, behavior, and
methods. Defendants claim that by June 2016 Plaintiff's
work performance still had not improved, and Dr. Sain advised
against renewing her employment contract.
Summary Judgment Standard
judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A factual dispute is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is
material only if it might affect the outcome of the suit
under governing law. Id. The movant has the
“initial responsibility of informing the district court
of the basis for its motion, and identifying those portions
of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal citations omitted). Once
this initial burden is met, the burden shifts to the
nonmoving party. That party “must set forth specific
facts showing that there is a genuine issue for trial.”
Id. at 322 n.3. The nonmoving party may not rely
upon mere allegations or denials of allegations in his
pleadings to defeat a motion for summary judgment.
Id. at 324. Instead, that party must present
sufficient evidence from which “a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; accord Sylvia Dev.
Corp. v. Calvert Cnty., Md., 48 F.3d 810, 818 (4th Cir.
ruling on a summary judgment motion, a court must view the
evidence and any inferences from the evidence in the light
most favorable to the nonmoving party. Anderson, 477
U.S. at 255; Educ. Media Co. at Va. Tech, Inc. v.
Insley, 731 F.3d 291, 297 (4th Cir. 2013). “Where
the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party, there is no genuine
issue for trial.” Ricci v. DeStefano, 557 U.S.
557, 586 (2009) (quoting Matsushita v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). However, “[t]he
mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient [to create a
genuine dispute]; there must be evidence on which the jury
could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252. In the end, the question
posed by a summary judgment motion is whether the evidence
“is so one-sided that one party must prevail as a
matter of law.” Id.
Statutory Framework for Age Discrimination
alleges age discrimination under both federal and state law.
The federal claim is based on the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621,
and the state claim is based on the North Carolina Equal
Employment Practices Act (“NCEEPA”), N.C. Gen.
Stat. § 143-422.2. The ADEA makes it “unlawful for
an employer . . . to discharge any individual or otherwise
discriminate against any individual . . . because of such
individual's age.” 29 U.S.C. § 623(a)(1). The
NCEEPA prohibits discrimination based on age as against
public policy, and provides:
[I]t is the public policy of this State to protect and
safeguard the right and opportunity of all persons to seek,
obtain and hold employment without discrimination or
abridgement on account of race, religion, color, national
origin, age, sex or handicap by employers which regularly
employ 15 or more employees.
N.C. Gen. Stat. § 143-422.2 (1977). The statute provides
a cause of action for those alleging wrongful discharge based
on age. Rishel v. Nationwide Mut. Ins. Co., 297
F.Supp.2d 854, 875 (M.D. N.C. 2003). When considering a
wrongful discharge claim based on age under North Carolina
law, the court applies the same standards that apply under
the ADEA. Id.; accord Moser v. Driller's
Serv., Inc., 988 F.Supp.2d 559, 565 (W.D. N.C. 2013);
Matthews v. Novant Health, Inc., No. 3:09CV494, 2010
WL 2131559, at *7 (W.D. N.C. Apr. 29, 2010) (report and
recommendation adopted) (“Regarding Plaintiff's
state public policy claim, North Carolina courts “look
to federal decisions [in employment discrimination cases] for
guidance in establishing evidentiary standards and principles
of law to be applied in discrimination cases.”)
(quoting N.C. Dep't of Corr. v. Gibson, 308 N.C.
131, 136 (1983)).
plaintiff may prove age discrimination in one of two ways: by
proving a “prima facie case” of age
discrimination, which establishes a rebuttable presumption
that the employer violated the ADEA; or by offering direct or
circumstantial evidence of an employer's discriminatory
animus. Arthur v. Pet Dairy, 593 Fed.Appx. 211, 216
(4th Cir. 2015) (unpublished); see Hill v. Lockheed
Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th
Cir. 2004) (en banc), abrogated in part by Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167 (2009). Regardless of
the method chosen, it remains the plaintiff's ultimate
burden to prove that his age was the but-for cause of the
adverse employment action. See Gross, 557 U.S. at
180. Here, Plaintiff claims she provided evidence
establishing a genuine dispute as to whether she can make out
a prima facie case of age discrimination.
Prima Facie Case
plaintiff may establish a presumption of discrimination by
making out a prima facie case of age discrimination under
McDonnell Douglas Corp. v. Green and its progeny.
411 U.S. 792, 802 (1973); see Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
506-07 (1993); Arthur, 593 Fed.Appx. at 216-17.
Though “the plaintiff's burden is not onerous,
” she must nevertheless prove her prima facie case by a
preponderance of the evidence. Warch v. Ohio Cas. Ins.
Co., 435 F.3d 510, 515 (4th Cir. 2006). To establish a
prima facie case for termination on the basis of age, the
plaintiff must show (1) she was a member of the protected
class, namely, “individuals who are at least 40 years
of age, ” 29 U.S.C. § 631(a); (2) she was
performing her job duties according to her employer's
legitimate expectations at the time of termination; (3) she
was terminated; and (4) she was replaced by a substantially
younger individual. Hill, 354 F.3d at 285;
Arthur, 593 Fed.Appx. at 216-17.
an employee met her employer's legitimate expectations at
the time of termination depends on the “perception of
the decision maker . . ., not the self-assessment of the
plaintiff, ” and not the opinions of the
plaintiff's coworkers. Hawkins v. PepsiCo, Inc.,
203 F.3d 274, 280 (4th Cir. 2000). And because it is the
plaintiff's burden to persuade the trier of fact that she
met her employer's legitimate subjective employment
expectations, at the prima facie stage, the Court must
consider the employer's “evidence that the employee
was not meeting those expectations.” Arthur,
593 Fed.Appx. at 217 (quoting Warch, 435 F.3d at
516). Otherwise, it would be “difficult to imagine a
case where an employee could not satisfy the . . . legitimate
expectation element.” Id.
Over 40 Years of Age.
Plaintiff was 62 years old at the time of the adverse
employment action. See Pl.'s Resp. Mem. (#25) at
2. This element is not in dispute.
Employer's Legitimate Expectations.
As to the second element, Defendants argue Plaintiff was not
performing her job duties pursuant to Cleveland-CC's
legitimate expectations when she was told her contract would
not be renewed. Plaintiff contends her “evaluations
from her managers over the years reflected her success in the
program, ” and that “through her last evaluation
in May, 2016, plaintiff's performance in her position was
not questioned.” See Pl.'s Resp. Mem.
(#25) at 4. “While her disciplined teaching and testing
style drew some complaints, primarily from students who could
not succeed, it was recognized, at least implicitly, that her
performance was beyond satisfactory. In fact, plaintiff never
received any specific criticism for her performance.”
do not dispute that Plaintiff was well qualified for the
Discipline Coordinator role, nor do they repudiate
Plaintiff's knowledge or skill in the area of surgical
technology. In fact, Defendants commended Plaintiff's
competency during oral arguments and expressed appreciation
for her years of service in the position. Defendants
maintain, however, that there were several problems with her
methods and practices as a surgical technology instructor
which prevented her from meeting Cleveland-CC's
“legitimate expectations” when she was
presented evidence showing Plaintiff's performance issues
were well-documented and that complaints about Plaintiff were
brought to Dr. Sain's attention several times over the
years. See generally Leonard Performance Evaluations
(#23-18) (showing all but three of Leonard's annual
employment evaluations from 2005 through 2016); see
also Sain Dep. (#20-1) at 34:6-24, 104:25-105:4 (noting
that complaints about Plaintiff “became more
frequent” in 2010 and that she “had coached Ms.
Leonard for the last six years, strongly coached Ms. Leonard
into changing her behavior, her reputation with the clinical
sites, and . . . the way that she worked with her
colleagues”). This evidence contradicts Plaintiff's
assertion that she “never received any specific
criticism for her performance.” Pl.'s Resp. Mem.
(#25) at 4.
claim Plaintiff did not meet their legitimate expectations
because her “unprofessional and disruptive”
behavior made the school's program and reputation suffer.
They claim her behavior garnered complaints from students,
fellow Cleveland-CC instructors, hospitals/clinical sites
that participated in the program, and even administrators
from partnering colleges. See Defs.' Mem. (#20)
at 3-9. According to her annual employment evaluations,
Plaintiff was at least generally aware that complaints had
been made against her. See, e.g., Defs.' Reply
Mem. (#26) at 4-6 (citing various complaints that were noted
in Plaintiff's annual employment
evaluations); see generally Leonard
Performance Evaluations (#23-18); but see
supra section B.1. The employment evaluations also
indicate Plaintiff was informed about the school's
dissatisfaction with her low recruitment and retention rates,
advised that she need to increase her performance in both
areas, and “continuously coached” by Dr. Sain on
improving student interactions. See Defs.' Mem.
(#20) at 5.
overall, Plaintiff's annual employment reviews were
generally very positive. Throughout her employment, Plaintiff
received encouraging feedback from Dr. Sain about her
performance as Discipline Coordinator. Though she received
poor markings in areas such as “Interpersonal
Skills/Professionalism” and upholding the integrity of
the college, see Leonard Performance Evaluations
(#23-18) at 14-15, 29, she received satisfactory markings in
most other areas, such as “Facilitating
Instruction” and “Instructional Support.”
See id. at 13, 27. Thus, while her evaluations
contained negative comments, they gave an overarching
impression of general satisfaction mixed with constructive
criticism. The Court is mindful that “an employee's
perception of [her] own performance cannot establish a
genuine issue of material fact as to whether the employee was
meeting [her] employer's legitimate expectations, ”
Wood v. Town of Warsaw, N.C. , 914 F.Supp.2d 735,
744 (E.D. N.C. 2012) (citing King v. Rumsfeld, 328
F.3d 145, 149 (4th Cir. 2003)), but the Court must likewise
be mindful of how well Defendants conveyed their expectations
to Plaintiff. And given the generally positive nature of
Plaintiff's employment reviews, the Court is hard-pressed
to conclude there is no evidence upon which a reasonable jury
could find Plaintiff was meeting Cleveland-CC's
legitimate expectations when she was terminated. In the light
most favorable to Plaintiff, the second element is
Adverse Employment Action (Termination).
A plaintiff must prove she suffered an “adverse
employment action” to bring an ADEA claim. “An
adverse employment action is a discriminatory act which
adversely affects the terms, conditions or benefits of the
plaintiff's employment, ” James v. Booz-Allen
& Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004),
and “constitutes a significant change in employment
status.” Darnell v. Tyson Foods, Inc., No.
3:11CV473, 2012 WL 6093076, at *5 (W.D. N.C. Dec. 7, 2012),
aff'd, 536 Fed.Appx. 366 (4th Cir. 2013).
Termination, failure to hire, and failure to renew an
employment agreement all constitute adverse employment
actions. Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 761 (1998).
argue that Plaintiff was not “terminated” because
she was employed under a year-to-year contract and was paid
through the remainder of her final term. Defendants contend
that Plaintiff had no continued interest in the position or
right to employment beyond the expiration of the term and
they argue this matter should be evaluated as a
“failure to hire” case. However, as previously
stated, see supra note 3, whether the adverse
employment action is labelled as a “termination”
or a “failure to hire” is “not critical to
the legal analysis.” Leibowitz, 584 F.3d at
501. Plaintiff must establish only that an adverse employment
action has taken place, which she has done. And while
Defendants do not concede that Plaintiff was
“terminated, ” they do not dispute that failing
to renew her employment contract was an adverse employment
action. As such, the third element is