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Jones v. Lowe's Companies, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

August 30, 2019

MICHAEL JONES, Plaintiffs,
v.
LOWE'S COMPANIES, INC., Defendants.

          ORDER

          KENNETH D. BELL M UNITED STATES DISTRICT JUDGE.

         THIS 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. No. 138).

         I. RELEVANT BACKGROUND

         This is 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.

         The 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, at 11.)

         In late 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.

         As a 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.)

         The 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.)

         Following 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.)

         Lowe's 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.)

         On 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 29.)

         As 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.

         Discovery 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.

         The 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 documents.”

Id.

         On 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.[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.

         Defendant 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 text-only order.

         On 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.[2] (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.” (Dkt. 119.)

         On 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 agreement.[3]

         The 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.)

         II. LEGAL STANDARD

         A. Motions for Summary Judgment

         Summary 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)).

         The 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.

         When 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)).

         However, “[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.

         In the 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.

         B. Motions to Seal the Summary Judgment Record

         In 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 interest.”).

         The 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).

         To 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.”).

         Furthermore, 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.

         III. MOTION FOR SUMMARY JUDGEMENT

         A. Plaintiff's Federal Discrimination Claim

         42 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).

         Race 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)).

         1. Plaintiff states a prima facie case of discriminatory discharge.

         Plaintiff 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.

         2. Lowe's articulates a legitimate, non-discriminatory reason for the adverse employment action.

         Under 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).

         3. Plaintiff has failed to provide probative evidence that Lowe's stated reason for firing Plaintiff was a pretext to mask racial discrimination.

         “Once 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).

         In 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.

         Here, 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.)

         Plaintiff's 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.

         Next, 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.”

         The 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.”).

         Even if 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.

         In 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.

         Fourth 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).

         B. Plaintiff's Federal Retaliation Claim

         Title 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 pretextual. Id.

         1. Plaintiff fails to establish a prima facie case of retaliation.

         Plaintiff's 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.

         2. 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 pretextual.

         Even if 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.

         C. Plaintiff's State Law Wrongful Discharge Claim

         Plaintiff 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.

         D. Plaintiff's Defamation Claim

         Plaintiff's 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.

         In 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)).

         Plaintiff 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 ...


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