Opinion
Civil Action 4:21-cv-0139-JD-TER
03-30-2023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SURFSIDE REALTY CO., INC., Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
This case has been brought by the U.S. Equal Employment Opportunity Commission (“Plaintiff”) on behalf of Defendant's former employee, Donna Logan, who alleges Defendant discriminated against her because of her age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. Presently before the Court is Defendant's Motion for Summary Judgment (ECF No. 35). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(g), DSC. This report and recommendation is entered for review by the district judge.
II. FACTS
Defendant hired Donna Logan as a Community Manager in 1994, when she was 56 years old. Logan Dep. 25, 32 (ECF No. 35-4). E. J. “Mil” Servant III is the Broker in Charge, President, and CEO of Defendant. Servant Dep. 8 (ECF No. 35-2). As a Community Manager, Logan provided management services to various Homeowners Associations (HOA) which were Defendant's clients. In her role as a Community Association Manager, Logan was expected to serve as Surfside's primary contact for a number of HOAs and assist the elected boards in managing the associations. Howland Dep. 14, 18 (ECF No. 36-2); Gardner Dep. 9,10 (ECF No. 36-4); Logan Dep. 107, Logan Dep. Ex. 5 (ECF No. 35-5); Sluss Dep. 9-10 (ECF No. 36-8). Services provided by Surfside to client HOAs included: Assisting the Board of Directors in the administration of the community; prepare, review and analyze monthly financial reports for Board review; responsibility for processing and paying all expenses and obligations of the HOA, based on budgetary figures and Board approvals; attending various Board meetings as well as one Annual Members meeting as well as providing administrative back-up necessary and preparing the minutes for these meetings; maintain HOA minute book, membership list, and other required records; review all forms of insurance and assist the Board in soliciting insurance proposals; negotiate and manage, at the direction of the Board and on the behalf of the HOA, maintenance and service contracts; assisting HOA in remaining in compliance with the covenants and restrictions as well as enforce rules and regulations adopted by the HOA; processing transfers of lot/unit ownership and maintain owner database; providing periodic property inspections relative to common area maintenance and, if needed, reporting findings to the Board; and responsibility for communication with individual homeowners regarding various issues through daily phone calls and emails. Logan Dep. 107; Logan Dep. Ex. 5 p. SRCI 117; Sluss Dep. 24.
The HOA division is open from 8:30 am to 5:00 pm. Servant Dep. 21; Gardner Dep. 11; Logan Dep. 156. HOA employees are generally expected to be there when the doors are open. Servant Dep. 20. Community Managers are on call for emergencies, 24/7. Sluss Dep. 8; Gardner Dep. 11. Logan testified that she often began her workdays onsite at client properties. Logan Dep. 156; Logan Decl. ¶ 4 (ECF No. 45-2). After visiting clients on-site, Logan would go into the office and work through lunch. Logan Dep. 158; Logan Decl. ¶¶ 5-7. Most of her time in the office was spent on the phone, fielding queries and addressing HOA needs raised by board members or homeowners and communicating with contractors working on the properties. Logan Decl. ¶¶ 5-7. On a busy day, Logan engaged in around 50 to 75 work-related calls or emails. On slower days as few as 25. Logan Decl. ¶7. When possible, Logan headed home between 4:30 p.m. and 4:45 p.m. to beat traffic. Logan Dep. 158. Once at home, Logan often continued working. Logan Dep. 157; Logan Decl. ¶11. Logan supplied most of her assigned HOAs with her personal phone number so they were always able to reach her in an emergency. Logan Dep. 253; Logan Decl. ¶9. Not a week passed that Logan did not receive one or more calls after hours. Logan Decl. ¶11.
Community Managers generated revenue for Defendant in three ways. First, Defendant charged management fees through contracts with the HOAs. Rule 30(b)(6) Dep. 9 (ECF No. 36-6). Next, it charged separate professional fees as needed for large projects that required more Community Manager hours. Rule 30(b)(6) Dep. 25. Finally, it increased revenue by accepting new clients.
The management fee is initially specified in a contract with the HOA. Howland Dep. 39. It is generally based upon the number of doors, i.e., condominiums or single family dwellings, in the HOA. The management fee is subject to negotiated increases during the budgeting process. Howland Dep. 77; Gardner Dep. 28; Rule 30(b)(6) Dep. 9, 17. Community Managers are responsible for seeking increases, and increases must be approved by the HOA board before taking effect. Logan Dep. 112-113; Howland Dep. 73-74; Gardner Dep. 28, 35; Rule 30(b)(6) Dep. 9. However, whether to raise management fees was fully within the Community Manager's discretion, Community Managers were never mandated to raise fees, Howland Dep. 73-74. Defendant provided no rules, policies or guidelines addressing whether, when, or how much management fees should be raised, and community service managers were not privy to financial information to know whether a fee raise was warranted. Rule 30(b)(6) Dep. 17, 22, 59.
With respect to Community Managers' attempts to generate professional fees, Howland testified that no Community Managers stood out in this area. Defendant is not in the business of selling or marketing services that generate professional fees. Rule 30(b)(6) Dep. 27-28. Whether a Community Manager generates professional fees is strictly based on the needs of their HOA clients. Rule 30(b)(6) Dep. 27-28. If the HOA client does not require additional services, Defendant would not expect there to be professional fees generated. Id. Professional fees were charged for major projects that required more hours from Community Managers than they usually spent attending to routine HOA client matters. Howland Dep. 25. Examples include, time spent managing a roof replacement, hurricane damage, major repairs to a building, or time spent in court. Howland Dep. 26. Following Hurricane Matthew in 2017, Logan's HOA clients paid substantial professional fees in excess of $21,000, though Defendant did not retain records of the payments. Def. Resp. to Pl. Sec. Req. for Prod. (ECF No. 45-9).
In 25 years of employment, Logan represents she was never disciplined for performance issues, though the record reveals that concerns were raised with her on a few occasions. In November of 2013, Lois Skelton met with Logan to remind her of the need to charge professional fees for special projects. Servant Dep. Ex. 9 (ECF No. 35-3), p. SRCI 240. In April of 2015, Servant met with Logan to again remind her of the need to charge professional fees when necessitated and to increase management fees. Servant Dep. Ex. 9 p. SRCI 241. Servant advised Logan that she would not receive an increase in salary until improvement was seen. Logan Dep. 84. Logan did not receive an increase in salary from that point forward. Logan Dep. Ex. 11 (ECF No. 35-3); Servant Dep. 103. Over the last ten years of her employment, between 2009-2019, Logan never sought an increase in the management fees paid by her HOAs. Logan Dep. 270 and Ex. 6.
With retirement of Dianne Corkum effective December 31, 2016, Elizabeth Howland assumed the mantle of Director of HOA, in addition to continuing to serve as Community Association Manager. Howland Dep. 13-14. Howland was nominally Logan's direct supervisor. Howland Dep. 63. However, she was not incredibly comfortable with managing Logan or Susan Pendergrass, both long-tenured employees with great relationships with Mil Servant. Howland Dep. 63-64. Howland would not have made any decision regarding these individuals long-term without consulting Servant. Howland Dep. 53-54. Other than asking Logan to let her know when she going to be late or leave early, Howland had little interaction with Logan. Howland Dep. 65, 93-95; Logan Dep. 111-112.
Over the years, Logan began arriving late, working through lunch, and departing early. Logan Dep. 156-158. She would show up and leave when she wanted. Howland Dep. 95. When in the office, she would shut her door and generally not interact with others. Howland Dep. 95; Logan Dep. 111, 159.
When transitioning the Director of HOA duties to Howland, Corkum advised her that neither Logan or Pendergrass wanted to take on new associations and as a result Corkum increased the number of HOAs in her own portfolio. Howland Dep. 121-122. Howland also was advised that Logan did not want to take on single family HOAs. Howland Dep. 91; Gardner Dep. 54, 80. However, Logan testified that she never turned down any new assignments, and was willing to take on anything assigned to her. Logan Dep. 262-63.
Pam Furlong, the Assistant Community Association Manager responsible for assisting Logan from 2014 through May 17, 2019, testified that Logan played favorites with HOAs and board members. Furlong Dep. 9, 20, 26 (36-1); Gardner Dep. 81. She returned calls of those she liked, but ignored those she did not like. Furlong Dep. 20.
Generally, Logan and Furlong had a good relationship. Logan Dep. 118. However, Furlong was the person who received calls and complaints when Logan would not respond to inquiries. Furlong Dep. 20. These calls were from both board members and residents. Furlong Dep. 20-21. Furlong reminded Logan to return calls. Furlong Dep. 24. On at least one occasion, Logan told Furlong, “I'm not going to call them back.” Furlong Dep. 42.
At least one HOA member put her complaint in writing. Logan Dep. Ex 8 (ECF No. 35-5). Lynn Dangelmaier, a resident of Surfwatch, complained about Surfside/Logan's failure to provide periodic updates regarding pool repairs. Logan Dep. 135 and Ex. 8. Similarly, a few months later, another association complained about Logan's failure to inform it in advance of professional fee charges, as the invoice for her Hurricane Matthew-related services was a complete surprise. Logan Dep. pp. 140-141; Logan Dep. Ex. 9 p. SRCI 61.
Furlong became frustrated and stressed out by Logan, so she complained to Howland. Furlong Dep. 22, 28; Howland Dep. 104-105. It is uncontroverted that Furlong was crying and extremely upset. Howland Dep. 105. Furlong felt she was being placed in the middle of it and work was being dumped on her, as she did not know where certain projects were going but was expected to maintain them. Howland Dep. 105; Furlong Dep. 30. Howland, in turn, spoke with Servant. Howland Dep. 106; Servant Dep. 44. Furlong was concerned that Logan was forgetful and that Logan's performance was putting extra work on Furlong. Servant Dep. Ex. 9, p. SRCI 24. Howland and Servant were concerned that Furlong would quit due to burn out. Howland Dep. 106; Servant Dep. 49. Furlong was in fact looking for a new job because of the stress. Furlong Dep. 43. Logan not only knew Furlong felt overworked and was looking, but tried to assist her in seeking new employment, though she did not realize that she was a source of Furlong's stress. Furlong Dep. 43; Logan Dep. 94, 264.
Servant asserts that he met with Logan to discuss these concerns in November 2017, though he cannot recall the exact date. Servant Dep. 84, 86, and Ex. 9, p. SRCI 241. He asserts that Logan denied any problems and said she was doing a good job. Servant Dep. 85 at Ex. 9, p. SRCI 241. However, Logan does not recall this meeting. Logan Decl. ¶ 13. Within a month of this meeting, John Gogal, a resident of the Hermitage, wrote Logan about her lack of response to his calls or emails. Logan Dep. 132-134 and Ex 7. Gogal copied Tyler Servant on his email to Logan. Logan Dep. Ex. 7.
Plaintiff argues that the only documentation of this meeting is a handwritten note, Servant Dep. Ex. 9 p. SRCI 241, by Servant that he admits, albeit indirectly, was not created contemporaneously with the meeting. Servant Dep. 84 (“November 2017, then I don't have the exact date in there ‘cause I couldn't remember when it was. These are notes to file later.”).
In June 2018, Servant visited Logan's office. Logan was then 80-years old and had been in her position for nearly 25 years. Logan Dep. 25. Servant asked Logan when she planned to retire. Logan Dep. 48-49, 77. Logan responded that she did not know. Logan Dep. 48-49. Plaintiff testified that Servant informed Logan the company had a new employee handbook coming out that would contain a mandatory retirement age that was “nowhere near” her age. Logan Dep. 48-49. Other office employees admitted to hearing gossip about a possible mandatory retirement age. Furlong Dep. 48-49; Gardner Dep. 39. Servant denies that the company was ever considering a mandatory retirement age or that he ever told Logan that it was. Servant Dep. 30.
In the spring or summer of 2018, Furlong received a complaint from Neil Smith, president of Surfwatch II, an HOA managed by Logan. Furlong Dep. 19, 21; Logan Dep. 126. Smith reached out to Furlong because he was not happy with Logan. Furlong Dep. 21. Smith complained that Logan was not returning his calls. Furlong Dep. 22. There was also an incident observed by Furlong in which Logan threw papers across the table to Smith. Furlong Dep. 22-23.
Smith also contacted Tyler Servant, who he knew through Surfside's vacation rental program. Howland Dep. 165. Smith threatened to move his HOA from Surfside. Howland Dep. 71-72. It was not only a long-time HOA relationship, but one that also impacted Surfside's rental program. Howland Dep. 72. Tyler Servant contacted Howland. Howland Dep. 165. Howland called Smith and possibly met with him. Howland Dep. 165. The decision was made by Mil Servant, Tyler Servant, and Howland to transfer Surfwatch II to an another community association manager. Howland Dep. 72, 111. At Smith's request, and for continuity sake, Furlong continued to serve the HOA as the assistant Community association manager. Howland Dep. 110-111. It was highly unusual, never having occurred before. Howland Dep. 110. After this incident, Howland was not comfortable assigning other properties to Logan. Howland Dep. 71.
In the latter part of 2018 Servant asserts that he spoke with Howland about Logan's performance. Servant Dep. 42-43 and Ex. 9, p. SRCI 241. As a result of his meeting with Howland, Servant understood things were not changing with Logan. Servant Dep. 42-43. While the internal personality issues expressed by Furlong did play some part in his ultimate decision, they were not as important to Servant as association complaints about Logan, Logan's failure to seek increases in management fees, production, and failure to recognize her problems. Servant Dep. 46.
Servant asserts he met with Logan in November 2018 to tell her that things were not working out and Defendant was starting to look for her replacement. Servant Dep. 40, 43 and Ex. 9, p. SRCI 241. However, Logan testified that she never heard about being discharged until May 1, 2019. Logan Dep. 59.
When Defendant issued its new employee handbook in March 2019, Servant Dep. 26-27, it did not have a mandatory retirement age as previously represented by Servant. Logan Dep. 48-51. Nevertheless, Servant continued to question Logan about her plans to retire. Logan Dep. 57-58. The last time he raised the issue with Logan was in March 2019 when he again asked her when she would retire and Ms. Logan told him that with her husband deceased and her family up North, “I have nobody here . . . this job, this is my life and as long as I'm able to work . . . I'm going to continue working.” Logan Dep. 57-58.
Julie Sluss interviewed with Tyler Servant for a position with Surfside's vacation rental division. Sluss Dep. 36-37; Servant Dep. 89. Although she did not get the position, Tyler thought enough of Sluss from the interview to refer her to his father, Mil Servant, for consideration for the Community Manager position. Servant Dep. 89. Sluss was 44 at the time of her hire. Rule 30(b)(6) Dep. Ex. 8. On May 1, 2019, Logan asserts she first learned that Defendant was planning to replace her with Sluss. Servant asked Logan to train her replacement. Servant Dep. 85. Because Logan agreed to stay and train her replacement, she was given four weeks of severance pay. Servant Dep. 52. Prior to Logan's last day of work on May 17, 2019, Defendant emailed her former clients praising her “stellar” career. Logan Decl. ¶14 and Att. A. There was no indication to Logan that Defendant was unhappy with her performance until Defendant opposed her eligibility for unemployment benefits. Logan Dep. 164.
Servant testified that this conversation took place in November of 2018, but Logan disputes that she was told Defendant was seeking or had found a replacement for her until May 2, 2019. Logan Dep. 59.
III. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 87475 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
IV. DISCUSSION
Plaintiff alleges that Defendant terminated Logan's employment based upon her age in violation of the ADEA. The ADEA makes it unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. 29 U.S.C. § 623(a)(1).
The Fourth Circuit has held that the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) applies to claims under the ADEA. Under this burden-shifting scheme, Plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. To make out a prima facie case of discriminatory discharge under the ADEA, a plaintiff must show “that (1) at the time of her firing, she was at least 40 years of age; (2) she was qualified for the job and performing in accordance with her employer's legitimate expectations; (3) her employer nonetheless discharged her; and (4) a substantially younger individual with comparable qualifications replaced her.” Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019).
The Supreme Court has noted that it “has not definitively decided” whether the McDonnell Douglas framework, first developed in the context of Title VII cases, “is appropriate in the ADEA context.” Gross v. FBL Financial Services, Inc., 557 U.S. 167, 175 n.2, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). In the absence of further direction from the Supreme Court, the Fourth Circuit precedent has consistently applied the McDonnell Douglas framework to ADEA claims. See Hill, 354 F.3d at 285; see also Bodkin v. Town of Strasburg, 386 Fed.Appx. 411, 2010 WL 2640461 at *4-5 (4th Cir. June 29, 2010) (continuing to apply the McDonnell Douglas framework to ADEA claims following the Gross opinion); Loose v. CSRA Inc., No. 19-2394, 2021 WL 4452432, at *2 (4th Cir. Sept. 29, 2021) (continuing to apply the McDonnell Douglas framework to ADEA claims).
If Plaintiff establishes a prima facie case, the burden shifts to Defendant to produce a legitimate, nondiscriminatory reason for the disparate treatment. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). This is merely a burden of production, not of persuasion. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993).
Once Defendant has met its burden of production by producing its legitimate, nondiscriminatory reason, the sole remaining issue is “discrimination velnon.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000)(citing Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)). In other words, the burden shifts back to Plaintiff to demonstrate by a preponderance of the evidence that the legitimate reason produced by the defendant is not its true reasons, but was pretext for discrimination. Reeves, 530 U.S. at 143.
Defendant concedes that Logan was a member of the class of individuals protected by the ADA, that her employment was terminated, and that she was replaced by a substantially younger individual. Defendant also concedes that Logan was qualified for the position as she had performed it for twenty-five years. Nevertheless, Defendant argues that Plaintiff cannot establish a prima facie case of age discrimination because it cannot establish that Logan was performing in accordance with Defendant's legitimate expectations at the time of her termination.
Defendant points to numerous ways in which Logan was not meeting its legitimate expectations. First, Defendant notes that leading up to the time of her termination, Logan was coming in to work late and leaving early. Plaintiff asserts that she generally began her mornings by visiting clients onsite before going into the office. She acknowledged that she usually left the office fifteen to thirty minutes early, but usually worked through lunch and often continued working at home. Servant acknowledges that Community Managers periodically have to be out on the properties. Defendant also acknowledges in its brief that Logan was never counseled about the hours she worked.
However, Defendant also points to the fact that, although Logan testified that she was accessible at anytime, 24/7, Logan's assistant testified that Logan had favorites and did not respond to all clients equally. As discussed above, Defendant received at least four complaints from clients regarding Plaintiff's failure to return calls or emails. Logan's failure to respond to clients led to additional stress on her assistant, Furlong, who frequently fielded the complaints about Logan from clients. In addition, Logan's failure to respond to Smith, the president of Surfwatch II, led to Plaintiff's removal as Community Manager for that property.
In addition, Howland testified that she was told by her predecessor, Diane Corkum, who had worked with Logan for 15 years, that Logan would not take on additional HOAs or single-family HOAs. Even though Plaintiff asserts that this is not true, Howland testified that this is what she was led to believe and Logan's actions and workload gave her no reason to believe otherwise. As of 2013, Logan managed 22 properties. Logan Dep. Ex. 6. She lost Cape Coddages I in 2014 and Sea Timbers in 2015. Logan Dep. 258 and Ex. 6. She lost Surfwatch II in 2018 after its president complained that Logan was not returning phone calls. Howland Dep. 71-72, 110-11. During the last five and a half years of Plaintiff's employment Plaintiff only added one property, Inlet Gardens, which only lasted one year. Howland Dep. 71.
The record also reflects that Servant reminded Plaintiff in 2013 of the need for her to charge appropriate professional fees and to increase her management fees. She was again reminded of this need in 2015, and Servant informed Logan that she would not receive any additional raises until she demonstrated improvement with respect to these issues. Indeed, Logan received no further raises after the 2015 conversation with Servant because she made no increases in management fees. As stated above, between 2009 and 2019, Plaintiff made no increases in management fees. Logan acknowledged that she did not raise management fees for ten years. Logan Dep. 270. However, Plaintiff argues that Logan's HOAs already paid much higher management fees per “door” than HOAs managed by other Community Managers. Howland Dep. Ex. 3 (ECF No. 36-3).
Plaintiff also argues that, even though Servant appeared to have been concerned with the amount of fees Logan was bringing in, after Logan's termination, one of the largest properties Logan had managed, Horizon East with 49 doors, began having concerns about the service provided by Logan's successor, Sluss, and Defendant lost the contract with that property, losing the $11,799 ($240.80 per door) it generated annually. Horizon East Letter (ECF No. 45-5); Howland Dep. Ex. 3. However, Servant testified Defendant chose to end the contract with Horizon East because it was not a good contract and things were occurring under the contract that could create potential liability for Defendant, such as pool maintenance worker doing repairs inside units. Servant Dep. 95-97.
Defendant argues that there was not one, individual incident that led to Servant's decision to replace Logan, but rather a culmination of issues that evidenced to Servant Logan's apathy towards her position and her duties. Plaintiff has failed to present sufficient evidence to show that Logan was meeting Defendant's legitimate expectations at the time of her termination. Thus, she fails to present sufficient evidence to show a prima facie case of age discrimination.
Nevertheless, even if she has, Defendant has produced a legitimate, non-discriminatory reason for the decision to terminate Logan's employment, namely, the same reasons discussed above for why it felt Logan was not meeting its legitimate expectations for continued employment. Therefore, the burden returns to Plaintiff to show that the reason given for her termination was not the true reason, but pretext for a discriminatory reason.
“Regardless of the method of proof [utilized with a discrimination claim], a plaintiff retains the ultimate burden to prove by a preponderance of the evidence that age ... was ‘the but-for' cause of the challenged employer decision.” Cole v. Family Dollar Stores of Md., Inc., 811 Fed.Appx. 168, 172 (4th Cir. 2020) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)); Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015)). “[A]n employee cannot prevail on an age discrimination claim by showing that age was one of multiple motives for an employer's decision; the employee must prove that the employer would not have fired her in the absence of age discrimination.” Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019) (citing Gross, 557 U.S. at 177). In short, “ADEA plaintiffs face a high causation burden.” Arthur v. Pet Dairy, 593 Fed.Appx. 211, 219 (4th Cir. 2015).
Plaintiff argues that Servant's questions to Logan regarding retirement and his comment that Defendant would be implementing a mandatory retirement age, along with the “flimsy” reasons given for her termination, Pl. Resp. 11, are sufficient to create an issue of fact as to whether she would not have been terminated “but-for” her age. As set forth above, Servant visited Logan's office in June of 2018 to inquire about her retirement plans and to inform her that Defendant would be adopting a mandatory retirement age. He again inquired about her retirement plans in March of 2019. Logan testified that Servant did causally ask her about retirement between June of 2018, and March of 2019, but she cannot recall any specific conversation or the amount of times it came up because “it wasn't a major discussion,” Logan Dep. 78. She also testified that it was “nothing major” to her and it did not offend her because she “wasn't going anywhere.” Logan Dep. 81. Plaintiff asserts that she first learned she was being replaced on May 1, 2019, and her termination was effective on May 17, 2019.
Servant's questions to Logan about her plans for retirement are insufficient to show that the reasons given for her termination were pretext for discrimination. In other words, Servant's questions to Logan about retirement fail to show that Logan's employment would not have been terminated but for her age. See Shumpert v. Mancor Carolina, Inc., No. 300248022, 2005 WL 3088606, at *4 (D.S.C. Jan. 27, 2005) (“even assuming that [the supervisor] had asked the Plaintiff if or when he was going to retire, these comments standing alone do not show the necessary pretext under the applicable caselaw to survive summary judgment”), aff'd, 142 Fed.Appx. 786 (4th Cir.2005); Snyder v. Maryland Dep't of Transportation, No. CV CCB-21-930, 2022 WL 980395, at *11 (D. Md. Mar. 31, 2022) (“[N]o reasonable jury could find a nexus between a brief question regarding Snyder's career path-such as her intended retirement plans-and Snyder's termination.”); Houston v. Kirkland, Case No. GJH-15-2507, 2016 WL 7176580, at *10 (D. Md. 2016) (“Some comments or inquiries about retirement, without more, do not establish direct evidence of age-related discrimination.”); Avant v. S. Maryland Hosp., Inc., No. GJH-13-02989, 2015 WL 435011, at *8 (D. Md. Feb. 2, 2015) (“Passing references to an employee's retirement plans do not, without more, give rise to an inference of age discrimination.”). “‘A company has a legitimate interest in learning its employees' plans for the future, and it would be absurd to deter such inquiries by treating them as evidence of unlawful age discrimination.'” Avant, 2015 WL 435011, at *8 (quoting Colosi v. Elictri-Flex Co., 965 F.2d 500, 502 (7th Cir.1992); see also Wallace v. O.C. Tanner Recognition Co., 299 F.3d 96, 100 (1st Cir.2002) (“company officials are permitted to gather information relevant to personnel planning without raising the specter of age discrimination”); Cox v. Dubuque Bank & Trust Co., 163 F.3d 492, 497 (8th Cir.1998) (“[M]any courts have recognized that an employer may make reasonable inquiries into the retirement plans of its employees.”). Servant's comment that the company was planning to implement a mandatory retirement age gives the court some pause. Servant denies making this comment to Logan, but the court views the facts in the light most favorable to Plaintiff under Rule 56. Nevertheless, this “stray remark,” was made in June of 2018, approximately five months before the decision was first made to terminate Logan's employment and eleventh months before her actual termination. See, e.g., Brown v. First Cmty. Bank, No. 7:18CV00404, 2019 WL 5445300, at *5 (W.D. Va. Oct. 23, 2019), aff'd, 814 Fed.Appx. 788 (4th Cir. 2020) (“A plaintiff may not prove discriminatory intent by pointing only to ‘stray remarks,' which ‘lack a nexus connecting them to' the relevant adverse employment decision.”) (citing Rayyan v. Virginia Dep't of Transportation, 719 Fed.Appx. 198, 202 (4th Cir. 2018); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir. 1994)). Further, as stated by Logan, the statement was followed by a qualifying comment that any mandatory retirement age would be ““nowhere near” her age. Logan Dep. 48-49. In addition, following the mandatory retirement comment, Surfside received a complaint from Smith, the president of Surfwatch II, regarding Logan's failure to return his calls or emails, and he threatened to remove his HOA from Surfside. Surfwatch II ultimately remained with Surfside, but Logan was removed as Community Manager for that property. This intervening performance issue further negates any inference of discriminatory intent that could have been gleaned from Servant's comment. This, accompanied by the other performance issues discussed above, including the unrefuted evidence that Logan was putting stress on her assistant, Furlong, by not being responsive to her clients, and that she did not increase management fees over the course of ten years after being told to do so, leads to the conclusion that no reasonable juror could conclude that but for her age, Logan's employment would not have been terminated.
Ultimately, it is not the “[the Court's] place to second-guess the soundness of scientific or managerial decisions under the guise of the ADEA.” Mereish v. Walker, 359 F.3d 330, 339 (4th Cir. 2004). Instead, the Court's role is “much more circumscribed; [the Court] [is] concerned only with ensuring that decision-makers are not improperly motivated by discriminatory animus.” Id. In sum, Plaintiff fails to present sufficient evidence to create an issue of fact as to whether Logan would have been terminated but-for her age. As such, summary judgment is appropriate.
Accordingly, the court need not address Defendant's argument regarding Logan's failure to mitigate her damages.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant's Motion for Summary Judgment (ECF No. 35) be granted and this case be dismissed.
If the District Judge accepts this recommendation, Defendant's Motion to Strike Jury Demand (ECF No. 37) will be moot.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).