United States District Court, W.D. North Carolina, Charlotte Division
KENNETH D. BELL M UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant Lowe's
Companies, Inc. (“Lowe's”) Motion for Summary
Judgment (Doc. No. 71), which Plaintiff Michael Jones
(“Jones”) opposes, and various motions related to
the sealing and unsealing of the summary judgment record
(Doc. Nos. 100, 104, 106, 138). The Court has carefully
reviewed the motion and considered the parties' briefs
and exhibits. For the reasons discussed below, the Court
GRANTS Lowe's Motion for Summary
Judgment. The Court GRANTS IN PART
Plaintiff's Motion to Unseal (Doc. No. 100),
DENIES Lowe's Motion to Seal Document 72
(Doc. No. 106), DENIES Lowe's Motions to
Seal Document 105 (Doc. No. 104), and GRANTS IN
PART Lowe's Motion to Seal Document 137 (Doc.
an employment discrimination action based on 42 U.S.C. §
1981 and analogous North Carolina law. Plaintiff originally
filed this case in Mecklenburg County Superior Court on
February 15, 2017, alleging three causes of action: (1)
discrimination in the termination of employment, in violation
of 42 U.S.C. § 1981; (2) retaliation in the termination
of employment, in violation of 42 U.S.C. § 1981; and (3)
state law wrongful discharge, in violation of N.C. Gen. Stat.
§ 143-422.2. (Doc. No. 1-1, at ¶¶ 105-120.)
Plaintiff subsequently amended his Complaint to include a
claim of defamation. (Doc. No. 1-1, at 33-34, ¶¶
121-25). On March 17, 2017, Defendant removed the entire
action under 28 U.S.C. §§ 1331 and 1441(a). (Doc.
No. 1.) The Court has supplemental jurisdiction over the
state law claims.
undisputed facts are as follows: Lowe's originally hired
Plaintiff, an African American male, in January 2013 in the
position of Chief Merchandising Officer. (Doc. No. 72, at 2.)
The following year, Lowe's promoted Plaintiff to the
position of Chief Customer Officer (“CCO”).
(Id.) In his new position, Plaintiff reported
directly to Robert Niblock, Lowe's CEO and president at
the time, and was part of the executive team. (Id.)
Plaintiff performed his role well, and in 2015 Niblock
informed the Lowe's board of directors of his decision to
name Plaintiff as his “hit-by-the-bus successor,
” i.e., the person who would take over as Lowe's
CEO if Niblock became suddenly incapacitated. (Doc. No. 73-3,
2015, at the request of its board of directors, Lowe's
hired an outside consultant to perform an assessment of
certain Lowe's executives. (Id. at 3.) The
purpose of the assessment is disputed: Plaintiff contends
that its purpose was to perform an “outside assessment
of Plaintiff” and another Lowe's executive, Richard
Maltsbarger, a Caucasian male, “as potential CEO
successors.” (Doc. No. 79, at 6.) Lowe's contends
that this assessment was “designed to evaluate
[Plaintiff] and other high-powered executives for their
leadership qualities so that the executives could develop in
certain areas” and notes that “there was no plan
or announcement by Niblock during [Plaintiff's]
employment that Niblock intended to retire.” (Doc. No.
72, at 2-3.) Lowe's states that a total of six
individuals were assessed. (Id., at 10.) At minimum,
the parties agree that results of the assessment were
intended to be used “as a component of leadership
succession planning, ” a process which the Lowe's
board of directors undertook annually. (Id.) Jones
and Maltsbarger were both identified as executives with
“long-term potential” for possible CEO
succession. (Id.) There is no evidence that Niblock
ever expressed any intention to retire or otherwise step down
from his role at Lowe's prior to March 2018, more than
two years after the assessment began and seventeen months
after Plaintiff was terminated.
part of the assessment process, the outside consultant met
with Plaintiff and Maltsbarger and interviewed a selection of
their peers, subordinates, and Niblock. (Doc. No. 79, at
8-9.) The outside consultant compiled her results into
reports that assessed the preparedness and capabilities of
the two candidates. (Id. at 9.) She also created a
“CEO Profile” report which was intended to create
an objective standard by which Plaintiff and Maltsbarger were
measured. (Doc. No. 79, at 12.)
outside consultant first reviewed the assessment results with
Niblock and two members of Lowe's Human Resources
department in early March 2016. (Doc. No. 79, at 9.) Evidence
demonstrates that following this meeting, Niblock requested
that the outside consultant make revisions to the objective
“CEO Profile” and conduct additional interviews
of peers and subordinates. (Id. at 12, 15.)
the presentation of the outside consultant's initial
report, Plaintiff had a series of meetings with the outside
consultant, Niblock, and individuals in Lowe's HR
department to review his assessment results. The parties
dispute what occurred during these meetings, but agree that
Plaintiff took issue with the assessment results because he
felt that they unfairly maligned his capabilities as an
executive. Plaintiff testified that during these meetings, he
repeatedly informed Lowe's HR that he would rather
separate amicably “from the company with a package than
be discredited in the assessment process.”
(Id. at 13.) Plaintiff testified he informed Niblock
that he would like a separation package at least twice. (Doc.
No. 72-2, at 36.) Plaintiff further testified that following
one of these meetings, at the end of May 2016, he moved
personal belongings out of his office. (Id., at 33.)
Plaintiff testified that by June of 2016, he had “made
recruiters aware that [he] would listen to
opportunities” and “fully intended to continue
listening to opportunities.” (Id., at 36.)
takes the position that Plaintiff, through his statements in
these meetings and actions in the office, “left little
doubt that [he] had resigned from Lowe's, mentally and
passive aggressively, if not formally.” (Doc. No. 72,
at 8.) Niblock testified that in the months following
Lowe's receipt of the consultant's initial report,
Plaintiff grew increasingly disengaged from his work at
Lowe's. (Id. at 9). Specifically, Niblock stated
that Plaintiff stopped “checking in, ” that his
“hours in the office dropped, ” and his
participation declined at key off-site meetings.
(Id.) Niblock testified he asked Plaintiff to
“decide whether he was committed to Lowe's or
not” after Plaintiff moved belongings out of his
personal office. (Doc. No. 72, at 13.) He also testified he
later called Plaintiff and asked why he was not listed on the
agenda of a meeting that Niblock expected Plaintiff to
attend. (Doc. No. 97, at 10.) Niblock testified that in
August 2016, he informed the Lowe's board of directors
that Plaintiff had concerns about the assessment process and
had indicated his preference for a severance package. (Doc.
No. 72-3, at 5.) Niblock testified he told the board he would
continue to monitor the situation. (Id.)
October 16, 2016, the outside consultant delivered a new
draft report accounting for the additional work on the
assessments and CEO profile that occurred over the summer of
2016. (Doc. No. 79, at 17.) Plaintiff testified that Niblock
set a meeting with him to discuss the results of the revised
assessment on October 27, 2016. (Id. at 18.) It is
undisputed that Niblock terminated Plaintiff during this
meeting. (Id.; Doc. No. 72, at 10.) Niblock
testified he wished to terminate Plaintiff prior to a meeting
of the Lowe's board of directors in November 2016 because
Niblock “really didn't think I wanted to see
[Plaintiff] have to go through a board meeting interacting
with board members, knowing that there was some concern about
his future with the organization.” (Doc. No. 72-3, at
summarized supra, Plaintiff filed this lawsuit on
February 15, 2017. After Plaintiff filed suit, Lowe's
issued a public statement that Plaintiff's lawsuit was
“unfounded and irresponsible” and had “no
basis in reality.” (Doc. No. 88-20, at 1).
Subsequently, Plaintiff amended his Complaint to add his
claim for defamation.
for this action is governed by a Protective Order entered by
Magistrate Judge David Cayer on October 23, 2017. (Doc. No.
18.) The Protective Order provides for designation of
documents that fall within the following categories as
confidential: (1) non-public financial, trade secret, or
proprietary business or technical information that may be of
value to a competitor; (2) any information of a personal or
intimate nature regarding any individual and/or information
protected by the right to privacy; and (3) any other category
of information hereinafter given “Confidential”
status by the Parties, upon written agreement, or the Court.
Id. ¶ 5.
Protective Order specifically states that a party may
challenge confidentiality designation of any document at any
time. Id. ¶ 12. It also provides that each
party must file documents designated as confidential under
seal, unless the filing party receives written permission
from the designating party for public filing. Id.
¶ 19. However, in the same paragraph, it clarifies:
“It is understood by the Parties that any documents
which become part of an official judicial proceeding or which
are filed with the court are public documents, and that such
documents can and will be sealed by the Court only upon
motion and in accordance with applicable law. This Protective
Order does not provide for automatic sealing of the
October 31, 2018, Defendant filed its Motion for Summary
Judgment, (Doc. Nos. 71- 72), under seal. Defendant did not
submit a motion to seal its memorandum and exhibits prior to
filing them, in violation of Local Rule 6.1. On November 19,
2018, Plaintiff filed his Opposition to Defendant's
Motion for Summary Judgment under seal, attaching 83
exhibits. (Doc. No. 79.) Unlike Defendant, Plaintiff did file
an unopposed motion to seal prior to filing his Opposition
and exhibits (Doc. No. 78), which Magistrate Judge Cayer
granted in a text-only order without elaboration on November
20, 2018. Plaintiff's Motion to Seal states that
“[g]iven the Protective Order in place to maintain
confidentiality of certain information, Plaintiff's
counsel believes that much of the Response and Exhibits falls
within the Order.” Id.
subsequently filed a sealed Reply in support of its Motion
for Summary Judgment (Doc. No. 97), this time appropriately
preceded by a Motion to Seal (Doc. No. 96). The motion to
seal stated that Lowe's sought the seal because the
“Reply and exhibits contain sensitive business and
other confidential and proprietary information that is
subject to the Protective Order.” Magistrate Judge
Cayer granted the Motion to Seal on December 4, 2018 in a
December 12, 2018, Plaintiff filed a Motion to Unseal Summary
Judgment Filings and to Open Hearing (“Motion to
Unseal”). (Doc. No. 100.) He also filed a supporting
memorandum. (Doc. No. 101.) Plaintiff did not move to seal
these filings. Defendant filed an Opposition to
Plaintiff's Motion to Unseal on December 26, 2018, (Doc.
No. 105.) It also filed a motion to seal its
Opposition. (Doc. No. 104.) On February 2, 2019, the
Court ordered the parties “to meet and confer to
identify the specific documents which the parties would like
the Court to examine to determine whether they should remain
sealed. Additionally, the parties are encouraged to identify
any portions of relevant documents which can be redacted to
protect confidential and proprietary information.”
April 22, 2019, Plaintiff filed a report “on the status
of the dispute of unsealing summary judgment documents”
(Doc. No. 122), preceded by a motion to seal the report (Doc.
No. 121). Defendant filed a response to Plaintiffs'
report on May 6, 2019 (Doc. No. 126), as well as a motion to
seal its response (Doc. No. 127). Along with its response,
Defendant attached an exhibit charting the parties'
positions on unsealing the various summary judgment exhibits.
Lowe's report identified a total of twenty-six exhibits
on which the parties could not reach an
Court considered the Parties' oral arguments on
Lowe's Motion for Summary Judgment at a hearing on July
19, 2019. At the conclusion of the hearing, the Court ordered
Lowe's to submit a brief within 30 days addressing
whether or not the exhibits still subject to dispute should
be sealed or unsealed in accordance with the established
Fourth Circuit standard on sealing summary judgment filings.
Lowe's filed the requested brief on August 19, 2019.
(Doc. No. 137.) Lowe's also filed a motion to seal its
brief (Doc. No. 138.)
Motions for Summary Judgment
judgment must 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 factual dispute is considered 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 if it might affect the outcome of
the suit under the governing law.” Vannoy v.
Federal Reserve Bank of Richmond, 827 F.3d 296, 300 (4th
Cir. 2016) (quoting Libertarian Party of Va. v.
Judd, 718 F.3d 308, 313 (4th Cir. 2013)).
party seeking summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of material fact
through citations to the pleadings, depositions, answers to
interrogatories, admissions or affidavits in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Bouchat v. Baltimore Ravens Football Club,
Inc., 346 F.3d 514, 522 (4th Cir.
2003). “The burden on the moving party
may be discharged by ‘showing' ... an absence of
evidence to support the nonmoving party's case.”
Celotex, 477 U.S. at 325. Once this initial burden
is met, the burden shifts to the nonmoving party. The
nonmoving 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.
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. Tolan v.
Cotton, 572 U.S. 650, 657 (2014); see also
Anderson, 477 U.S. at 255. “Summary judgment
cannot be granted merely because the court believes that the
movant will prevail if the action is tried on the
merits.” Jacobs v. N.C. Admin. Office of the
Courts, 780 F.3d 562, 568-69 (4th Cir. 2015) (quoting
10A Charles Alan Wright & Arthur R. Miller et al.,
Federal Practice & Procedure § 2728 (3d ed.1998)).
“The court therefore cannot weigh the evidence or make
credibility determinations.” Id. at 569
(citing Mercantile Peninsula Bank v. French (In
re French), 499 F.3d 345, 352 (4th Cir. 2007)).
“[w]here 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) (internal citations
omitted). “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that
are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248. Also, the mere argued
existence of a factual dispute does not defeat an otherwise
properly supported motion. Id. If the evidence is
merely colorable, or is not significantly probative, summary
judgment is appropriate. Id. at 249-50.
end, the question posed by a summary judgment motion is
whether the evidence as applied to the governing legal rules
“is so one-sided that one party must prevail as a
matter of law.” Id. at 252.
Motions to Seal the Summary Judgment Record
general, the public has a right of access to judicial
proceedings that stems from two sources: the common law and
the First Amendment. Rushford v. New Yorker Magazine,
Inc., 846 F.2d 249, 253 (4th Cir. 1988); see also
Press-Enterprise Co. v. Superior Court of Cal., 464 U.S.
501, 508-09 (1984) (discussing the importance of an open
trial as a means of both ensuring and giving the appearance
of fairness in the judicial process). Under the more rigorous
First Amendment standard, “denial of access must be
necessitated by a compelling government interest and narrowly
tailored to serve that interest.” Id.; see also
Press-Enterprise Co., 464 U.S. at 509 (“The
presumption of openness may be overcome only by an overriding
interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that
interest.”); Globe Newspaper Co. v. Superior
Court, 457 U.S. 596, 606-07 (1982) (“[I]t must be
shown that the denial is necessitated by a compelling
governmental interest, and is narrowly tailored to serve that
Fourth Circuit applies the First Amendment right of access to
documents summitted in support of summary judgment motions in
civil cases. See Rushford, 846 F.2d at 252 (applying
the First Amendment right of access standard to summary
judgment filings and noting “summary judgment
adjudicates substantive rights and serves as a substitute for
a trial”). See also, e.g., Painter v. Doe, No.
3:15-CV-369-MOC-DCK, 2016 WL 3766466, at *3 (W.D. N.C. July
13, 2016) (“When a judicial document or record sought
to be sealed is filed in connection with a dispositive
motion, the public's right of access to the document in
question arises under the First Amendment.”) (citing
Rushford, 846 F.2d at 253). See also Rosenfeld
v. Montgomery Cty. Pub. Sch., 25 Fed.Appx. 123, 127 (4th
Cir. 2001) (reversing and remanding case for application of
the Rushford procedure to the sealing of summary
judgment filings). Accordingly, “a party moving to seal
documents filed in support of a motion for summary judgment
in a civil case bears a heavy burden.” Jennings v.
Univ. of N. Carolina at Chapel Hill, 340 F.Supp.2d 679,
681 (M.D. N.C. 2004).
limit access to documents submitted in connection with a
summary judgment motion, the party seeking to seal the
documents must make a showing “that the denial [of
access] serves an important governmental interest and that
there is no less restrictive way to serve that governmental
interest.” Rushford, 846 F.2d at 253. However,
courts have recognized that in certain circumstances,
“private interests might also implicate higher values
sufficient to override (or, in an alternative mode of
analysis, to except the proceeding or materials at issue
from) the First Amendment presumption of public
access.” Level 3 Commc'ns, LLC v.
Limelight Networks, Inc., 611 F.Supp.2d 572, 580 (E.D.
Va. 2009). .See also Morris v. Cumberland Cty. Hosp.
Sys., Inc., No. 5:12-CV-629-F, 2013 WL 6116861, at *3
(E.D. N.C. Nov. 13, 2013) (“In the past, this court and
others have concluded that the need to keep confidential
proprietary business information or trade secrets may
constitute a “higher value” that can overcome
both the common law and the First Amendment rights of access
in appropriate circumstances.”).
before sealing the documents, “the district court must
follow the procedural requirements as laid out in In re
Knight Publ'g Co., 743 F.2d 231 (4th Cir.
1984).” Id. These are:
1. The district court must give the public adequate notice
that the sealing of documents may be ordered. In re
Knight, 743 F.2d at 234.
2. The district court must provide interested persons
“an opportunity to object to the request before the
court ma[kes] its decision.” Id. at 235.
3. If the district court decides to close a hearing or seal
documents, “it must state its reasons on the record,
supported by specific findings.” Id. at 234.
4. The court must state its reasons for rejecting
alternatives to closure. Id.
See generally Rushford, 846 F.2d at 253-54.
MOTION FOR SUMMARY JUDGEMENT
Plaintiff's Federal Discrimination Claim
U.S.C. § 1981 “prohibits racial discrimination in
the making and enforcement of contracts.” “In a
typical discriminatory discharge case, the plaintiff
establishes a prima facie case by showing ‘(1) that he
is a member of a protected class; (2) that he suffered from
an adverse employment action; (3) that . . . he was
performing at a level that met his employer's legitimate
expectations; and (4) that the position was filled by a
similarly qualified applicant outside the protected
class.'” Guessous v. Fairview Prop.
Investments, LLC, 828 F.3d 208, 219 (4th Cir. 2016)
(quoting King v. Rumsfeld, 328 F.3d 145, 149 (4th
Cir. 2003)). The elements of a prima facie claim of
discrimination under § 1981 and a discrimination claim
under Title VII are the same. Gairola v. Commonwealth of
Virginia Dep't of General Serv., 753 F.2d 1281,
1285- 86 (4th Cir. 1985).
discrimination claims filed under 42 U.S.C. § 1981 are
analyzed using the burden-shifting framework established by
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under this framework, Plaintiff must first establish
a prima facie case of discrimination or retaliation.
Id. at 802. If Plaintiff establishes a prima facie
case of unlawful discrimination, “a presumption of
illegal discrimination arises, and the burden of production
shifts to the employer” to produce evidence of a
legitimate, non-discriminatory reason for its adverse
employment action. Hoyle v. Freightliner, LLC, 650
F.3d 321, 336 (4th Cir. 2011). “If the defendant
carries this burden of production, the presumption raised by
the prima facie case is rebutted.” Texas Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981).
In that circumstance, “the McDonnell Douglas
framework-with its presumptions and burdens-is no longer
relevant, ” and “simply drops out of the
picture.” St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 510-511 (1993). The plaintiff must then prove,
by a preponderance of evidence, “that the proffered
reason was not the true reason for the employment decision,
” and that the plaintiff “has been the victim of
intentional discrimination.” Burdine, 450 U.S.
at 256; see also St. Mary's Honor Ctr., 509 U.S.
at 516-20; Adams v. Trustees of Univ. of North
Carolina-Wilmington, 640 F.3d 550, 560 (4th Cir. 2011)
(“[I]n demonstrating the Defendants' decision was
pretext, [plaintiff] had to prove ‘both that
the reason was false, and that discrimination was
the real reason.'”) (quoting Jiminez v. Mary
Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995)
(emphasis in original)).
Plaintiff states a prima facie case of discriminatory
argues that he has stated a prima facie case for
discriminatory discharge by demonstrating that (1) he is
African American; (2) had eminent qualifications for the job
and performed his duties at a high level for over three
years; (3) was fired; and (4) his position as CCO was filled
immediately by a white person. (Doc. No. 79, at 19.) In its
briefing, Lowe's does not clearly make an argument to
refute this. For this reason, the Court proceeds with the
assumption that Plaintiff has adequately stated a prima facie
case for discriminatory termination.
Lowe's articulates a legitimate, non-discriminatory
reason for the adverse employment action.
the McDonald Douglas framework, Lowe's next has
the burden to demonstrate that it has a legitimate,
non-discriminatory reason for terminating Plaintiff.
“This burden, however, is a burden of production, not
persuasion.” Holland v. Washington Homes,
Inc., 487 F.3d 208, 214 (4th Cir. 2007). Here,
Lowe's provides testimony and affidavits demonstrating
that it fired Jones because “Jones chose . . . to
resign when he removed his personal items from his office,
repeatedly asked to be severed with a package, and disengaged
from his role as one of Lowe's top executives.”
(Doc. No. 72, at 13-14.) Accordingly, it has met its burden
of production, and “the McDonnell Douglas
frame-work-with its presumptions and burdens- disappear[s],
and the sole remaining issue [is] discrimination vel
non.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000) (internal
quotation marks and citations omitted). “In other
words, the burden shifts back to [plaintiff] to prove by a
preponderance of the evidence that the employer's stated
reasons ‘were not its true reasons, but were a pretext
for discrimination.'” Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004)
(quoting Reeves, 530 U.S. at 143).
Plaintiff has failed to provide probative evidence that
Lowe's stated reason for firing Plaintiff was a pretext
to mask racial discrimination.
the question comes down to pretext, a plaintiff ‘must
be afforded the opportunity to prove by a preponderance of
the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for
discrimination.'” Holland, 487 F.3d at 214
(quoting Reeves, 530 U.S. at 143 (internal quotation
marks omitted)). “A plaintiff could accomplish this
goal ‘by showing that the employer's proffered
explanation is unworthy of credence.'” Id.
(quoting Burdine, 450 U.S. at 256). On the other
hand, an employer is entitled to summary judgment on the
issue of pretext if the employee “create[s] only a weak
issue of fact as to whether the employer's reason [is]
untrue and there [is] abundant and uncontroverted independent
evidence that no discrimination had occurred.”
Reeves, 530 U.S. at 148. Moreover, “a
plaintiff's own assertions of discrimination in and of
themselves are insufficient to counter substantial evidence
of legitimate nondiscriminatory reasons for a
discharge.” Dockins v. Benchmark Commc'ns,
176 F.3d 745, 749 (4th Cir. 1999) (quotation omitted).
Holland, the Fourth Circuit reviewed the type of
evidence necessary to create an issue of fact as to whether
an employer's proffered explanation is true. Citing
Reeves, 530 U.S. 133, the court explained
In Reeves, the company claimed that Reeves was fired
because he had failed at his responsibility of recording
worker attendance. Reeves, however, offered evidence that he
properly maintained the attendance records. This evidence,
the Supreme Court explained, combined with the strong
evidence supporting Reeves's prima facie case, was enough
to support a jury's verdict of liability.
Reeves, 530 U.S. at 146, 120 S.Ct. 2097. Thus, the
Supreme Court held that “a plaintiff's prima facie
case, combined with sufficient evidence to find that the
employer's asserted justification is false, may
permit the trier of fact to conclude that the employer
unlawfully discriminated.” Id. at 148, 120
S.Ct. 2097 (emphasis added). But the Supreme Court cautioned
that this will not always be the case; for example, judgment
as a matter of law may be appropriate if a “plaintiff
created only a weak issue of fact as to whether the
employer's reasons were untrue and there was abundant and
uncontroverted independent evidence that no discrimination
had occurred.” Id. Thus, a key factor for
courts to consider is “the probative value of the proof
that the employer's explanation is false.”
Id. at 149, 120 S.Ct. 2097.
Id. at 216.
Niblock's perception of Plaintiff's workplace
attitude is clearly documented in the record by his
testimony. Niblock testified that Plaintiff became less
engaged in the office, stopped checking in with Niblock, did
not stay through the end of a strategy group meeting, and did
not join the agenda at another key meeting Niblock thought he
would have been involved in. (Doc. No. 97, at 9-10.) In
addition, both Niblock and Lowe's board member James
Morgan testified that Niblock told the Lowe's board of
directors at its August 2016 meeting that he was concerned
Plaintiff “had lost his focus, was less engaged, had
moved stuff out of his office, was sharing with other people
that he [ ] might be seeking a severance agreement.”
(Doc. No. 97-5 at 5; Doc. No. 72-3 at 5.) Niblock informed
the Lowe's Board that he would continue to monitor Jones
“closely” but that he was “concerned”
and “things needed to get better . . . for Mr. Jones to
remain an executive officer of the company.” (Doc. No.
97-5 at 5.)
Opposition states that there is “record evidence that
Plaintiff was not terminated because he became
disengaged and obsessed with finding another job.”
(Doc. No. 79, at 20.) However, Plaintiff fails describe this
alleged evidence with any particularity. Instead, Plaintiff
attacks the credibility of evidence cited by Lowe's as
proof of Niblock's legitimate, non-discriminatory reason
for firing Plaintiff. For example, Plaintiff states there
“is no documented record of anyone presenting
engagement concerns to Plaintiff before his
termination” and accuses Lowe's of submitting a
false declaration to the Court. (Id. at 21.)
However, Plaintiff's own notes indicate that Niblock and
Plaintiff discussed the fact that Plaintiff cleared out his
office, and that Niblock asked Plaintiff to decide if he was
committed to Lowe's. Furthermore, Niblock testified he
called Plaintiff after observing Plaintiff was not listed on
a meeting agenda to ask whether Plaintiff was planning to
present. The Court finds that this constitutes undisputed
evidence of Niblock presenting engagement concerns to
Plaintiff prior to his termination.
Plaintiff cites praise by coworkers and describes certain
tasks he undertook at work during the summer of 2016 as
evidence that he “remained professional and fully
engaged during the time between the April assessment report
meeting and his termination.” (Doc. No. 79, at 21.)
Specifically, Plaintiff cites praise from an organizer of an
investors' conference, notes that he organized a meeting
between Lowe's executives and Walgreens executives, and
“was up early” working on Labor Day.
(Id.) He also notes that he traveled to two store
locations and met with Lowe's employees at each.
(Id.) However, none of this evidence refutes
Niblock's testimony that Plaintiff stopped checking in
with him, failed to attend other meetings either in part or
full, cleaned out his office, and repeatedly asked for a
severance package. Furthermore, the opinions of co-workers do
not create a material issue of fact concerning pretext.
Iskander v. Dep't of Navy, 116 F.Supp.3d 669,
679 (E.D. N.C. ), aff'd, 625 Fed.Appx. 211 (4th
Cir. 2015). Nor does Plaintiff's personal assessment of
his behavior. Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 960-61 (4th Cir. 1996) (“It is
the perception of the decision maker which is relevant, not
the self-assessment of the Plaintiff.”). Niblock does
not claim that Plaintiff completely stopped working, and
therefore the presented evidence of Plaintiff's work
activity fails to persuade the Court that any factfinder
could find Niblock's stated reasons for terminating
Plaintiff “unworthy of credence.”
Court is similarly unpersuaded that Niblock's alleged
“affinity for Maltsbarger” and alleged
manipulation of the outside assessment is material to the
issue of whether Niblock sincerely believed that Plaintiff
was disengaging from his position at Lowe's. First,
Plaintiff contends that “Plaintiff's termination .
. . accomplished what seven months of efforts could
not-Maltsbarger was the preferred CEO successor.” (Doc.
No. 79, at 18.) However, Plaintiff has not provided any
evidence substantiating his theory that Niblock fired him in
order to force the Lowe's board of directors to name
Maltsbarger as CEO successor. Indeed, there is no evidence
that the outside assessment had any meaningful consequences
at all. Maltsbarger was never promoted to CEO. The outside
consultant who performed the assessment, Dr. Christine
Rivers, testified that “there was no imminent CEO
succession” and that Niblock was “looking at
three to five, perhaps, years.” (Doc. No. 72-6, at 9.)
She testified that the results of the assessment were to be
used for development and long-term planning. (Id.)
Plaintiff provides no evidence refuting this testimony, nor
evidence that indicates Niblock had any intention or plan to
retire. Based on the evidence in the record, “CEO
successor” appears to have been a symbolic title, if
not illusory. Moreover, Plaintiff utterly fails to address
the inconsistency between his theory that Niblock fired him
in order to prevent the Lowe's board of directors from
naming him CEO Successor, and the fact that Niblock
did recommend Plaintiff as his “hit-by-the-bus
successor” in 2015. Plaintiff also fails to reconcile
this theory with the fact that in February 2016, months
before Plaintiff was terminated, Niblock rated Plaintiff as a
“leading performer” in Plaintiff's annual
review. (Doc. No. 79, at 6, n.3.) In summary, the Court finds
Plaintiff's theory that Niblock sought to terminate
Plaintiff so that Maltsbarger could be named “CEO
successor” conclusory and therefore immaterial to the
issue of pretext. Hux v. City of Newport News, Va.,
451 F.3d 311, 315 (4th Cir. 2006) (“Once an employer
has provided a non-discriminatory explanation for its
decision, the plaintiff cannot seek to expose that rationale
as pretextual . . . by raising points that are wholly
irrelevant to it.”).
Plaintiff did present evidence that the title of “CEO
Successor” was a meaningful one, his theory that
Niblock terminated him because of race is still unpersuasive
as the record establishes that Niblock had previously
approved the hiring and promotion of Plaintiff to his role as
CCO in the two years prior to his termination. As Lowe's
points out, the “same-actor” inference undermines
Plaintiff's claim that Niblock discriminated against him.
See Proud v. Stone, 945 F.2d 796, 797 (4th Cir.
1991) (explaining the fact that the employee was hired and
fired by the same person within a relatively short time span
“creates a strong inference that the employer's
stated reason for acting against the employee is not
pretextual”); see also Howard v. Coll. of the
Albemarle, 262 F.Supp.3d 322, 333 (E.D. N.C. ),
aff'd, 697 Fed.Appx. 257 (4th Cir. 2017)
(considering same-actor inference and finding that no
reasonable jury could find decisionmaker's stated reason
for terminating employee was pretextual to mask sex
discrimination). The fact that Niblock designated Plaintiff
as his “hit-by-the-bus successor” in 2015 and
gave Plaintiff top performance ratings in February 2016 is
relevant here too. First, Plaintiff argues that Niblock
terminated him because he did not want to name an African
American man as CEO Successor, but Niblock had in fact named
Plaintiff as his immediate successor previously. Assuming
arguendo that the designation of CEO Successor had
import, this fact leads to a strong inference that Niblock
did not terminate Plaintiff in order to avoid naming him CEO
Successor based on his race. Moreover, Plaintiff contends in
his Opposition that he realized Niblock had a race-based
preference for Maltsbarger in August 2015, which is the same
period of time when Niblock named Plaintiff his as his
contingent successor and also was so pleased with
Plaintiff's performance he rated him as a “leading
performer.” Accordingly, the Court finds Plaintiff
provides nothing other than his own conclusions to
demonstrate that Niblock acted against him based on his race.
summary, Plaintiff has failed to carry his burden to produce
probative evidence demonstrating that there is any genuine
issue of fact as to whether Niblock's stated reason for
terminating him was a pretext for racial discrimination.
Viewing the record in the light most favorable to Plaintiff,
no rational jury could find that Lowe's, through Niblock,
was dishonest when it terminated him for disengaging from his
role. Plaintiff presents no evidence demonstrating that
Niblock did not sincerely believe that Plaintiff was
withdrawing from his role at work, and even admits he engaged
in several of the behaviors Niblock cites as the basis for
his decision. Plaintiff admits he expressed interest in
leaving Lowe's with a severance package to multiple
individuals over a period of months. He admits he began
seeking other job opportunities. He admits he took personal
effects out of his office. Niblock's testimony and
Plaintiff's notes demonstrate that Niblock did in fact
speak to Plaintiff about his commitment to Lowe's.
Niblock raised concerns about Plaintiff's engagement with
the Lowe's board of directors two months prior to
Plaintiff's termination. Finally, though Plaintiff
presents the theory that Niblock fired Plaintiff in order to
elevate Maltsbarger to the role of “CEO Successor,
” he fails to demonstrate that such a title had any
effective meaning, and moreover fails to account for the fact
that Niblock had, in fact, named Plaintiff as his
“hit-by-the-bus successor” one year prior to his
termination and given Plaintiff top performance ratings the
same year he was terminated.
Circuit law clearly states that “‘when an
employer articulates a reason for discharging the
plaintiff' that the statute does not proscribe, ‘it
is not [the court's] province to decide whether the
reason was wise, fair, or even correct, ultimately, so long
as it truly was the reason for the plaintiff's
termination.'” Villa v. CavaMezze Grill,
LLC, 858 F.3d 896, 901 (4th Cir. 2017) (quoting
DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir.
1998). Considering the record before the Court, Plaintiff has
failed to demonstrate that Niblock's stated reason for
terminating him is “unworthy of credence.” For
this reason, the Court grants Lowe's motion for summary
judgment on Plaintiff's discriminatory discharge claim.
See Marchmon v. Securitas Sec. Servs., 994 F.Supp.2d
742, 748-49 (W.D. N.C. ), aff'd sub nom. Marchmon v.
Securitas Sec. Servs. USA, Inc., 569 Fed.Appx. 183
(4th Cir. 2014) (granting summary judgement in
favor of employer where employee “offer[ed] no facts to
suggest that [defendant decision makers] did not believe
sincerely and in good faith that[she] was not performing her
job satisfactorily”). See also Howard, 262
F.Supp. At 333 (granting summary judgment in favor of
employer where employee failed to present admissible evidence
suggesting that employer's stated reason for discharging
him was a pretext to mask sex discrimination).
Plaintiff's Federal Retaliation Claim
VII prohibits an employer from discriminating against his
employee because he “has opposed any . . . unlawful
employment practice” under Title VII. 42 U.S.C. §
2000e-3(a). To make a prima facie case for a retaliation
claim, Plaintiff must show that “(i) that [he] engaged
in protected activity, (ii) that [his employer] took adverse
action against [him], and (iii) that a causal relationship
existed between the protected activity and the adverse
employment action.” Guessous v. Fairview Prop.
Investments, LLC, 828 F.3d 208, 217 (4th Cir.
2016) (quoting Foster v. Univ. of Md.-Eastern Shore,
787 F.3d 243, 250 (4th Cir. 2015)). Then, if
Defendant offers a legitimate, non-discriminatory reason for
the action in question, Plaintiff must prove by a
preponderance of the evidence that the proffered reason was
Plaintiff fails to establish a prima facie case of
retaliation claim fails as a matter of law because Plaintiff
fails to sufficiently establish a causal connection between
his complaints to HR regarding diversity concerns and his
termination. Plaintiff alleges he complained to the head of
Lowe's HR department about Lowe's alleged unfair
treatment of three other African-American employees.
Plaintiff further alleges that he was fired by Niblock in
retaliation for these complaints. However, during oral
argument for this motion, counsel for Plaintiff was unable to
point to any evidence in the record establishing that Niblock
had any knowledge of Plaintiff's complaints to HR when he
fired Plaintiff. “[B]ecause [Title VII's] focus is
the employer's subjective motivation for the action, the
facts the decision-maker actually perceived matter.”
Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 901
(4th Cir. 2017). See also Dowe v. Total Action
against Poverty in Roanoke Valley, 145 F.3d 653, 657
(4th Cir. 1998) (“[B]y definition, an
employer cannot take action because of a factor of which it
is unaware.”). Accordingly, Plaintiff has failed to
establish the third element of his retaliation claim. The
Court therefore grants summary judgment in favor of
Lowe's on Count II.
Even if Plaintiff did establish a prima facie case of
retaliation, his claim still fails as he cannot demonstrate
that Lowe's stated reason for firing him is
Plaintiff did establish a prima facie case of retaliation, he
has failed to produce evidence demonstrating that Lowe's
stated reason for terminating him is unworthy of credence.
Plaintiff may prove pretext by showing that the alleged
nondiscriminatory “explanation [for termination] is
unworthy of credence or by offering other forms of
circumstantial evidence sufficiently probative of
[retaliation].” Lloyd v. New Hanover Reg'l Med.
Ctr., No. 7:06-CV-130-D, 2009 WL 890470, at *5 (E.D.
N.C. Mar. 31, 2009), aff'd, 405 Fed.Appx. 703
(4th Cir. 2010) (quoting Mereish v.
Walker, 359 F.3d 330, 336 (4th Cir. 2004)).
For the same reasons discussed supra, Plaintiff has
not done so. For this reason this additional reason, his
retaliation claim must fail.
Plaintiff's State Law Wrongful Discharge Claim
also asserts a claim for state law wrongful discharge under
N.C. Gen. Stat. § 143-422.2. North Carolina law relies
on federal authority to establish the standards applicable to
state law wrongful discharge claims. North Carolina
Dep't of Correction v. Gibson, 308 N.C. 131, 141
(1983). See also Mumford v. CSX Transp., 878 F.Supp.
827, 832 (M.D. N.C. 1994), aff'd sub nom. Mumford v.
CSX Transp., Inc., 57 F.3d 1066 (4th Cir.
1995). Because, as discussed above, Plaintiff fails to
establish he is entitled to avoid summary judgment as to
either of his federal claims, the Court also grants
Defendant's motion for summary judgment with respect to
his state law wrongful discharge claim.
Plaintiff's Defamation Claim
defamation claim is governed by North Carolina law. “In
order to recover for defamation, a plaintiff must allege and
prove that the defendant made false, defamatory statements of
or concerning the plaintiff, which were published to a third
person, causing injury to the plaintiff's
reputation.” Boyce & Isley, PLLC v.
Cooper, 211 N.C.App. 469, 478 (2011) (quoting Tyson
v. L'eggs Products, Inc., 84 N.C.App. 1, 10-11
(1987)). The “statement must be a statement of fact,
not opinion, but an individual cannot preface an otherwise
defamatory statement with ‘in my opinion' and claim
immunity from liability.” Id. (citing
Lewis v. Rapp, 725 S.E.2d 597, 603 ( N.C. Ct. App.
2012)). In North Carolina, there are four circumstances in
which a plaintiff may allege that a false publication
constitutes defamation per se: “(1) [when the
publication] charges that a person has committed an infamous
crime; (2) it charges a person with having an infectious
disease; (3) it tends to subject one to ridicule, contempt,
or disgrace, or (4) it tends to impeach one in his trade or
profession.” Ellis v. Northern Star Co., 388
S.E.2d 127, 130 ( N.C. 1990) (quoting Flake v. News
Co., 195 S.E.2d 55, 60-61 ( N.C. 1938)). Plaintiff
contends the last two apply here.
North Carolina, “[t]he truth of a statement is a
complete defense.” Long v. Vertical Techs.,
Inc., 439 S.E.2d 797, 801 ( N.C. Ct. App. 1994).
“Whether a statement constitutes fact or opinion is a
question of law for the trial court to decide.”
Desmond v. News & Observer Pub. Co., 772 S.E.2d
128, 135 ( N.C. Ct. App. 2015). The Court must interpret the
allegedly defamatory statements “in the context of the
document in which they are contained, stripped of all
insinuations, innuendo, colloquium and explanatory
circumstances, ” and within only the “four
corners” of the document. Nucor Corp. v. Prudential
Equity Group, LLC, 659 S.E.2d 483, 486 ( N.C. Ct. App.
2008). “In determining whether a statement can be
reasonably interpreted as stating actual facts about an
individual, courts look to the circumstances in which the
statement is made. Specifically, we consider whether the
language used is loose, figurative, or hyperbolic language,
as well as the general tenor of the article.”
Desmond, 772 S.E.2d at 135 (quoting Lewis v.
Rapp, 725 S.E.2d 597, 603 (2012)). “In other
words, ‘[r]hetorical hyperbole and expressions of
opinion not asserting provable facts are protected
speech.'” Lewis v. Rapp, 725 S.E.2d 597,
603 (2012) (quoting Daniels v. Metro Magazine Holding
Co., L.L.C., 634 S.E.2d 586, 590 (2006)).
bases his defamation claim entirely on the Defendant's
publicized statement it made after Plaintiff instigated the
current suit. Based on Plaintiff's Opposition, the