Opinion
No. 5:07-CV-219-D.
November 17, 2008
ORDER
Plaintiff Pamela R. Haley ("plaintiff" or "Haley") alleges that defendant Wal-Mart Stores East, L.P. ("Wal-Mart" or "defendant") violated Title VII and North Carolina law in connection with her employment as a Wal-Mart store manager. On November 12, 2008, the court heard oral argument concerning Wal-Mart's motion for summary judgment. At the conclusion of oral argument, the court granted Wal-Mart's motion for summary judgment and explained the rationale for its ruling. The court incorporates that explanation by reference and enters this order to summarize its ruling.
I.
In considering Wal-Mart's motion for summary judgment the court applies the familiar summary judgment standard and views the evidence in the light most favorable to plaintiff. See, e.g., Fed.R.Civ.P. 56; Scott v. Harris, 127 S. Ct. 1769, 1774 (2007); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986);Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
First, plaintiff claims that her supervisor Donald Fann created a sexually hostile work environment from October 2005 until January 2006. However, the evidence (at most) demonstrates that Fann bluntly criticized certain aspects of Haley's performance as store manager and that Fann conducted three investigations of plaintiff (i.e., the Stevens investigation, the Black Friday investigation, and the Corpening investigation). See Fann Aff. ¶¶ 9-68; Fann Aff. Exs. 2, 3, 4. Fann conducted these investigations after receiving independent, unsolicited complaints concerning Haley. Fann did not discipline Haley due to the Stevens investigation or the Black Friday investigation. Moreover, no competent evidence suggests that Fann harassed plaintiff because of her sex or that his alleged harassment was sufficiently severe or pervasive to create an abusive work environment. Thus, the claim fails. See, e.g.,Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Baqir v. Principi, 434 F.3d 733, 745-47 (4th Cir. 2006); Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc); Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773 (4th Cir. 1997); Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996); cf. Smith v. First Union Nat'l Bank, 202 F.3d 234, 238-43 (4th Cir. 2000).
Although the Fourth Circuit decided Ziskie v. Mineta, ___ F.3d ___, 2008 WL 4891202 (4th Cir. Nov. 14, 2008), after this court heard oral argument, the Fourth Circuit's analysis in Ziskie bolsters this court's conclusion that Wal-Mart deserves summary judgment on plaintiff's sexual harassment claim.
Next, plaintiff alleges that Wal-Mart violated Title VII when it (through Fann) terminated her employment. Plaintiff concedes that she has no direct evidence of sex discrimination; therefore, she proceeds under the McDonnell Douglas framework. See, e.g.,Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000); Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 513 (4th Cir. 2006); Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004) (en banc).
Wal-Mart contends that plaintiff has failed to establish a prima facie case. The court, however, need not reach that issue. Rather, the court assumes (without deciding) that plaintiff has met her prima facie case. Further, Wal-Mart has articulated a legitimate non-discriminatory reason for Haley's discharge: intimidating and retaliating against her subordinate Timothy Thomas on January 3, 2006, in violation of Wal-Mart's Open Door Policy for Thomas' participation in the Corpening investigation. See, e.g., Fann Aff. ¶¶ 77-79; Tingler Aff. ¶¶ 23-26; Tingler Aff. Exs. 1, 2, 3. Human resources manager Teresa Tingler prepared a report concerning her investigation of the January 3, 2006 parking lot incident and provided the report to Fann. See Tingler Aff. ¶¶ 17-29; Tingler Aff. Exs. 1, 2, 3. Tingler investigated Haley's conduct in the parking lot on January 3, 2006, because Wal-Mart received an unsolicited complaint from a customer concerning Haley's conduct. See Tingler Aff. ¶¶ 17-29; Tingler Aff. Ex. 1. After Fann received the results of Tingler's investigation, Fann concluded that Haley violated Wal-Mart's Open Door Policy on January 3, 2006, only minutes after she had received discipline via a "Decision-Making Day Coaching" form for directing similar conduct towards another subordinate Arthur Corpening. See Fann Aff. ¶¶ 77-79. Thus, Fann decided to terminate Haley's employment. Id.
Under the McDonnell Douglas framework, plaintiff must come forward with sufficient evidence from which a rational factfindfer could find that Wal-Mart's proffered non-discriminatory reason was a pretext (i.e., a lie) designated to mask sex discrimination. See, e.g., Reeves, 530 U.S. at 143;King v. Rumsfeld, 328 F.3d 145, 150-154 (4th Cir. 2003). A plaintiff may prove pretext by showing that the alleged non-discriminatory "explanation is unworthy of credence or by offering other forms of circumstantial evidence sufficiently probative of [sex] discrimination." Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004) (quotations omitted).
As explained in open court, plaintiff has not presented sufficient evidence from which a rational factfinder could find that Fann's decision to terminate her employment was a pretext designed to mask sex discrimination. In support of her view that she did create a genuine issue of material fact as to pretext under Reeves, Haley cites three affidavits submitted in opposition to Wal-Mart's motion for summary judgment: Haley's affidavit, the affidavit of Timothy Thomas, and the affidavit of Christy Temple. However, plaintiff's subjective belief that Fann treated her differently and ultimately terminated her employment due to her sex is not sufficient to create a genuine issue of material fact. See, e.g., Holland v. Washington Homes, Inc., 487 F.3d 208, 217-18 (4th Cir. 2007); Williams v. Cerberonics, Inc., 871 F.2d 452, 459 (4th Cir. 1989); Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980). Likewise, the subjective belief of two of Haley's former subordinates (i.e., Temple and Thomas) is not sufficient. See, e.g., King, 328 F.3d at 149; cf. Thomas Aff. ¶¶ 15-17; Temple Aff. ¶ 13.
In contrast to plaintiff's subjective belief about how Fann treated her, the record contains not only voluminous records concerning the four investigations involving the plaintiff, but also evidence concerning a male store manager that Fann also began supervising in October 2005. That male store manager managed a different Wal-Mart store. After receiving a report in October 2005 that the male store manager had sexually harassed two subordinates, Fann investigated. See Fann Aff. ¶¶ 90-97. At the conclusion of the investigation, Fann terminated the male store manager's employment because Fann concluded that the male store manager violated the Wal-Mart Discrimination and Harassment Prevention Policy. See id. ¶¶ 97-99; Fann Aff. Exs. 9, 10. Fann replaced that male store manager with a female store manager. See Fann Aff. ¶ 105; Stewart Aff. ¶ 4. Further, when Fann became the "market manager" for twelve stores in North Carolina in October 2005, there were four female store managers in his "market" (including Haley). See Fann Aff. ¶¶ 8, 101-102. As of March 2008 (when Fann signed his affidavit), Fann remained the market manager for the same market, and there were still four female store managers in Fann's market. Id.
Plaintiff also cites Thomas' description of the manner in which Fann interviewed Thomas during the Corpening investigation. See Thomas Aff. ¶¶ 8-9. Fann's alleged conduct towards Thomas during that interview, however, does not create a genuine issue of material fact concerning pretext. See, e.g., King, 328 F.3d at 153. Critically, Thomas does not assert that what he wrote in his statement to Fann during the Corpening investigation was untrue.Compare Thomas Aff. ¶¶ 8-9 with Fann Aff. Ex. 4 (Corpening Inv. File, including a written statement from Timothy Thomas). Likewise, Thomas does not claim that what he wrote in his statement to Tingler during her investigation of the January 3, 2006 parking lot incident was untrue. Compare Thomas Aff. ¶¶ 11-12 with Tingler Aff. ¶¶ 17-26 Tingler Aff. Ex. 2 (Thomas statement) and Tingler Aff. Ex. 3 (Henderson statement). Rather, Thomas opines in his affidavit that he did not feel like Haley was retaliating against him or violating Wal-Mart's Open Door Policy in the parking lot on January 3, 2006. See Thomas Aff. ¶¶ 11-12. Thomas, however, was not the decisionmaker. Fann was. Fann could review the information that Tingler provided to him concerning her investigation of the parking lot incident and decide whether Haley violated Wal-Mart policy, and, if so, whether to discipline Haley. See, e.g., Holland, 487 F.3d at 217-18; Williams, 871 F.2d at 459; Smith, 618 F.2d at 1067. So long as Fann's decision to discharge Haley was not apretext for sex discrimination, that ends the matter.
This court does not sit to decide whether Fann's conclusion concerning Haley's conduct on January 3, 2006, in fact, violated Wal-Mart's Open Door Policy. See, e.g., Holland, 487 F.3d at 217;Hawkins v. Pepsico, Inc., 203 F.3d 274, 279-80 (4th Cir. 2000). Rather, the issue is whether plaintiff has raised a genuine issue of material fact as to pretext within the meaning of Reeves and its Fourth Circuit progeny. Because plaintiff failed to raise a genuine issue of material fact concerning such pretext, Wal-Mart is entitled to summary judgment. See, e.g., Holland, 487 F.3d at 218; Brockman v. Snow, 217 F. App'x 201, 207-08 (4th Cir. 2007) (unpublished); Cox v. Rumsfeld, 190 F. App'x 329, 331-33 (4th Cir. 2006) (per curiam) (unpublished); Price v. Thompson, 380 F.3d 209, 212-18 (4th Cir. 2004); Brackman v. Fauguier County, Va., 72 F. App'x 887, 895 (4th Cir. 2003) (per curiam) (unpublished); King, 328 F.3d at 150-54; Rowe v. Marley Co., 233 F.3d 825, 830-31 (4th Cir. 2000); Hawkins, 203 F.3d at 279-80;cf. Depaoli v. Vacation Sales Assocs., L.L.C., 489 F.3d 615, 619-20 (4th Cir. 2007); EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 407-09 (4th Cir. 2005).
Next, plaintiff asserts that when Wal-Mart terminated her employment, Wal-Mart unlawfully retaliated against her in violation of Title VII. Plaintiff has no direct evidence of retaliation. Thus, she proceeds under the McDonnell Douglas framework. As with plaintiff's sex discrimination claim, the court assumes without deciding that plaintiff has established a prima facie case. See,e.g., Burlington N. Santa Fe Ry. v. White, 548 U.S. 53, 67-68 (2006); Holland, 487 F.3d at 218; Price, 380 F.3d at 212. Again, however, for the reasons stated in open court, plaintiff has failed to raise a genuine issue of material fact as to whether Fann's decision to terminate her employment was a pretext designed to mask unlawful retaliation. See, e.g., Holland, 487 F.3d at 217-18; Price, 380 F.3d at 212-18; King, 328 F.3d at 150-54; accord Ziskie, ___ F.3d at ___, 2008 WL 4891202, at *9.
Finally, plaintiff asserts two claims under North Carolina law. As for plaintiff's wrongful discharge sex discrimination claim under North Carolina law, plaintiff contends that Wal-Mart wrongfully discharged her due to her sex in violation of North Carolina public policy. Plaintiff cites the North Carolina Equal Employment Practices Act as the source of North Carolina's public policy. See N.C. Gen. Stat. § 143-422.2. However, because plaintiff failed to raise a genuine issue of material fact as to her Title VII sex discrimination discharge claim, her North Carolina claim fails as well. See, e.g., Hughes v. Bedsole, 48 F.3d 1376, 1383-85 (4th Cir. 1995).
As for plaintiff's wrongful discharge retaliation claim under North Carolina law, that claim fails because North Carolina does not recognize a claim for wrongful discharge in violation of public policy grounded in a retaliation theory under the Equal Employment Practices Act. See, e.g., Efird v. Riley, 342 F. Supp. 2d 413, 428 n. 9 (M.D.N.C. 2004) (collecting cases); Stout v. Kimberly Clark Corp., 201 F. Supp. 2d 593, 607 (M.D.N.C. 2002) (same); Bradley v. CMI Indus., Inc., 17 F. Supp. 2d 491, 499 (W.D.N.C. 1998) (same). Alternatively, even if North Carolina recognized such a claim, Wal-Mart would be entitled to summary judgment for the reason stated earlier. See, e.g., Hughes, 48 F.3d at 1383-85.
II.
Accordingly, as explained in open court and summarized above, the court GRANTS Wal-Mart's motion for summary judgment [D.E. 14].
SO ORDERED.