Opinion
1:99cv75-T
September 4, 2001
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court upon defendant's Motion for Summary Judgment. That motion has now been fully briefed, and oral arguments were presented on March 30, 2000. Having carefully considered defendant's motion and reviewed the pleadings, the undersigned enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Standard
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). By reviewing substantive law, the court may determine what matters constitute material facts. Id. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). Affidavits filed in support of defendant's Motion for Summary Judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979).
II. Factual Background
Issues of fact exist concerning whether plaintiff's conduct, upon which defendant based its adverse employment action, were mistakes, lapses in judgment, or dishonesty. Other facts underlying this action are summarized briefly for the limited purpose of aiding this decision and subsequent review.
At the time defendant terminated his employment, plaintiff had worked for defendant for 29 years and was 48 years old. Plaintiff alleges and defendant admits that plaintiff was one of the best appliance sales associates, was fully commissioned, and made money for defendant.
The termination of plaintiff was based upon one transaction on August 11, 1998, and that transaction also led to the termination of plaintiff's direct supervisor, who was the manager of Sears' Brand Central. Plaintiff was in the market for a computer, a television, and a boom box for his son, who was headed for his freshman year of college in August 1998. Plaintiff's son testified that he fully expected that his father would purchase such items at Sears, because his father had loyally purchased just about everything in their house from Sears. On August 11, 1998, plaintiff noticed that a computer system had been returned to the home electronics department and inquired as to that item with the sales associate on duty. He told the associate to get up with the manager of Sears Brand Central for determination of the price he was to pay for that item, as well as for a boom box and television. The manager determined a price; plaintiff paid the price, signed the receipt, and proceeded to wheel the items to his car during his lunch hour.
While there is differing testimony, plaintiff's car was apparently parked in the employee lot behind the store, which required him to wheel the items through a centralized package disbursement area or loading dock. Upon reaching that area, he noticed the loss prevention manager (or, perhaps, she noticed him), and he handed her his receipt to check against the items on the dolly while he went back to retrieve his car keys. During this time, the loss prevention manager checked the receipt and the items and, upon plaintiff's return, said nothing to him about his purchases. Plaintiff took the items to his car and took them home after work.
The loss prevention manager and other employees reviewed the transaction and determined that the discounts which plaintiff's supervisor had given him were excessive and based upon favoritism. They also found that a printer was not included in a computer package and had never been paid for. Defendant secured from plaintiff's manager a statement that he had priced the items in a manner that violated store policies. Defendant then fired that manager. Plaintiff was later called into the store manager's office, told of the incident, and fired, inasmuch as defendant had by that time concluded that the incident amounted to "dishonesty."
Plaintiff has presented evidence, which the undersigned must accept as true for the limited purpose of making a recommendation as to disposition of the pending motion, that due to his tenure, his annualized benefits package with Sears amounted to an average of $23 per hour at the time he was fired, while the average for other associates was $13. He has also presented evidence that after he was fired, a person substantially outside the protected class was brought into Brand Central doing substantially the same work. In addition, plaintiff has presented evidence that other employees substantiality outside the protected class were treated more favorably when they made analogous mistakes, including the benefit of being allowed to make a statement and explain what happened before disciplinary action was taken. In the incident most akin to plaintiff's situation, a young associate was allowed to return the improperly taken commission and an item that had not been paid for and retain her job. It is plaintiff's contention that he was not afforded the opportunity to explain his actions, as provided for by defendant's policies; pay for the item which defendant contended was not paid for; or reimburse any discount defendant determined to be excessive.
Defendant has presented evidence that the decision to terminate plaintiff was not made at the Asheville store, but was ultimately made in corporate headquarters in Chicago by senior members of Sears' management. In August 1998, Doris Stabingas, the Regional Human Resource Manager for the Southeast Region of Sears, became aware of an incident involving a sale of merchandise to plaintiff. She received from the asset protection manager of the Asheville store a statement, which provided, as follows:
On August 11, 1998, Ms. Moser [the asset protection manager] noticed Mr. Roberts pushing a float [a dolly] loaded with merchandise. He began to pass by Ms. Moser in the package pickup area, when he stopped and told her that he guessed he needed to have someone look at the merchandise. Ms. Moser told Mr. Roberts that they would check out the merchandise when it was shipped through package pickup. Mr. Roberts said that he was taking it out to his car, and Ms. Moser then noticed that the sale was rang as a straight sale, not a package pickup sale. Ms. Moser asked Roberts about this, and he said that it was rang wrong. Ms. Moser noticed that the items on the float had clearance stickers attached, and that the clearance stickers had been rung that same day, the day of the purchase. After Mr. Roberts loaded the merchandise into his car, Ms. Moser looked up the sale and realized that a printer on the float was not rang up. She also determined that the computer had been returned the night before, and that Mr. Bud Dotson was the person who discounted the merchandise Mr. Roberts purchased.
Stabingas Aff., at ¶ 6. The asset protection manager determined from reviewing documentation that it appeared the original price for the computer, if new, was $1399, but Roberts had paid $999 for the returned item, and that the other items were also marked down below what would be expected. Id.
Stabingas also received a statement from the Brand Central manager concerning the transaction he authorized. That manager, Mr. Dotson, admitted that he had taken "additional" markdowns "as an act of favoritism to Gary." He wrote in his statement, "[T]here is no need to lie, I showed partiality to Gary by taking the markdown," and concluded, "I understand that showing partiality or favoritism in markdowns is not acceptable. If I could undo the deed I would. But we know that cannot be done so I merely ask for forgiveness." Id. Stabingas also received a statement from the Asheville store's operation manager, Ms. Priscilla Wise, who stated that she had asked Mr. Dotson why he had taken such low markdowns and he had replied it was favoritism, pure and simple. Stabingas Aff., at ¶ 7.
It is undisputed that the computer originally was priced at $1,399.99 and had been returned by a customer the night before plaintiff's purchase. Plaintiff's manager entered the computer into the SKU table, which resulted in an automatic discount to $1,119.99 — the price, it appears to the court, that Sears would have generally asked the public for the returned item. The manager then changed the price to $999.88. The monitor originally was priced at $299.99, which resulted in an automatic SKU table discount to $255.00, and that discounted price was then changed by the manager to $219.88. The printer was priced at $149.99, the boom box was reduced to $59.97, and the television was reduced to $99.88. In all, defendant concluded that the excessive discounts and failure to pay amounted to approximately $400.
Defendant has presented evidence that the reason the ultimate decision to terminate plaintiff's employment was made in Chicago, rather than in Asheville, was because the Store Manager understood that company policy required termination decisions for employees with more than 25 years' service to be reviewed at a higher level. Schultz Dep. at 67-69. While it is defendant's contention that the ultimate employment decision was made by a panel in Chicago in accordance with company policy, no evidence has been presented that other discipline, short of termination, could not have been decided upon in Asheville.
A reasonable inference which could be drawn from defendant's review policy for senior associates is an attempt to protect those associates who had been loyal to the company. Another reasonable inference is that the corporate policy treated employees with 25 or more years (all of whom would, logically, be in the protected class) differently than those with fewer years service (many, if not most, of whom would, logically, be outside the class). While this court must draw all reasonable inferences in a light most favorable to plaintiff, such inferences need not be reached for the reasons discussed below.
III. Discussion
A. Introduction
For federal causes of action, plaintiff contends that defendant's decision to termination him violated the Age Discrimination in Employment Act ("ADEA") and the Employee Retirement Income Security Act ("ERISA"). As supplemental statelaw claims, plaintiff contends that statements made by management to other employees concerning the reason for his termination amounts to the common-law tort of defamation and that defendant also committed the common-law tort of intentional infliction of emotional distress. Each claim will be discussed and reviewed in light of the evidence submitted.
B. ADEA Claim
1. Introduction
Plaintiff's primary contention in this action is that his termination was based upon his age, which was 48 at the time of his termination. This claim arises under the ADEA— 29, United States Code, Sections 621,et seq. Plaintiff is within the class protected by that Act and, at the time of the alleged wrongful conduct, was employed by a corporation that was subject to the requirements of that Act.
2. Shifting Burdens
A plaintiff may prove a claim of age discrimination by direct evidence of intentional discrimination or may prove discriminatory intent through circumstantial evidence by using the indirect method of proof established in McDonnell Doualas Corp. v. Green., 411 U.S. 792 (1973), and adapted to ADEA cases. In the present case, plaintiff has offered no direct evidence of age discrimination. He must, therefore, establish his claim with circumstantial evidence using the "3-stage scheme of proof originally formulated for Title VII cases." Herold v. Hajoca Corp., 864 F.2d 317, 319 (4th Cir. 1988). The three-stage scheme includes the following:
(1) plaintiff making out a prima facie case of age discrimination;
(2) if plaintiff satisfies his burden, the burden of production shifts to defendant to articulate a legitimate, nondiscriminatory reason for its actions; and
(3) if defendant satisfies its burden, plaintiff must show by a preponderance of the evidence that defendant's legitimate, nondiscriminatory reason was a pretext for discrimination.
As shown below, summary judgment is not proper because plaintiff can satisfy his burden of establishing a prima facie case and has proffered evidence upon which a reasonable fact finder could infer that defendant's reasons for its actions were pretextual.
3. Establishing a Prima Facie Case
In the context of a termination of employment, a plaintiff must prove four elements to establish a prima facie case of age discrimination:
(1) that he is within the protected class;
(2) that he was performing the duties of his job at level meeting the legitimate expectations of his employer;
(3) that he was fired; and
(4) that a younger person outside the protected age group was selected for the job in question or disparate treatment, i.e., that younger persons outside the protected group were treated more favorably in similar circumstances.See Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 239 (4th Cir. 1982). There is no dispute that plaintiff was within the protected class, was performing his job at a level meeting defendant's expectations, and was fired. The only issue is whether plaintiff was replaced by a person outside the protected age group or treated less favorably than younger members outside the protected class. Here, plaintiff attempts to satisfy his burden by, alternatively, showing that a younger person outside the class took over his job responsibilities and/or that other younger employees outside the class received more favorable treatment in similar circumstances.
Plaintiff first argues in his brief that another employee, two years his junior, took his place. Defendant denies that allegation. In any event, showing replacement by a 47 year old would not have satisfied the requirement under current case law. Two years' difference in age is not "substantially younger" for purposes of establishing the prima facie case. O'Connor v. Consolidated Coin Caterers Corp., 571 U.S. 308, 313 (1996) (an inference of age discrimination cannot be drawn from the replacement of one worker with another worker who is insignificantly younger); Cramer v. Intelidata Technologies Corp., No. 97-2775, 1998 U.S. App. LEXIS 32676, at *7 (4th Cir. Dec. 31, 1998) (plaintiff failed to establish prima facie case where replacement was only five years younger than plaintiff, and not therefore "substantially younger").
Plaintiff has attempted to first satisfy his burden by showing that a younger employee, outside the class, took his job responsibilities in Sears Brand Central. In support of such argument, plaintiff has tendered the deposition testimony of Don Funderud, who testified that there are only two people working in plaintiff's former department who were not in that department at the time of plaintiff's termination. The only one outside the protected class is Dawn Redmond, who, Mr. Funderud opined, is in her twenties. Plaintiff suggests that a reasonable inference which can be drawn is that because she is only one of two people hired since his termination, Ms. Redmond must be engaged in the selling of appliances in Brand Central, which was plaintiff's primary job duty at termination. Plaintiff's lack of additional detail in supporting such contention is understandable in light of the discovery dispute recently resolved by the district court. Drawing all reasonable inferences in plaintiff's favor, he has established a prima facie case through showing replacement by a younger individual outside the class.
Alternatively, plaintiff has also attempted to satisfy his fourth-prong burden by establishing that similarly situated younger employees, outside the class, have been treated more favorably. While plaintiff has cited a number of instances, the most analogous is that of employee S.B. This employee, when approximately 20 years old, was accused of selling merchandise to her father in violation of company policy. She was also accused of having included in that purchase a bumper that was not paid for by her father and which she failed to ring up. Her personnel file reflects no disciplinary action for this incident. See Lakey Depo., Ex. 13.
While counsel lawfully may call such witness by her given name in the pleadings and in court, the undersigned finds that justice is not served by allowing the full name of a person, who is not a party and has no effective means to protect her name and reputation, to be used in this manner, i.e., placing her full name in a public record, which is now available on-line. In addition, copies of court orders are placed in a press box for public dissemination. Asheville is a small town. The undersigned, therefore, will simply refer to her as "S.B."
Plaintiff has presented evidence that S.B. was accused of violating the discount policy, selling to a family member, and including additional merchandise that was not paid for and that the store manager determined the matter to be "a mistake," with no disciplinary action taken. Such circumstances are similar to
those in this case, which resulted in termination. Rather than resolve the matter in house with discipline short of termination, as in the case of the younger individual, the store manager contacted Doris Stabingas in Chicago. In addition to the ultimate disposition of each incident, S.B. was allowed to return the improperly taken commission and return the merchandise that was not paid for. Plaintiff has presented evidence that he repeatedly requested to pay for the printer, but no one at Sears would accept payment. No one requested any type of restitution or repayment of the alleged "excessive discount," and no one requested a return of the merchandise. Comparing these two incidents, plaintiff has satisfied the fourth element by presenting evidence of disparate treatment.
4. Nondiscriminatory Reason for Defendant's Actions
Plaintiff having been able to show a prima facie case, the burden now shifts back to defendant to articulate a nondiscriminatory reason for its termination of plaintiff. Defendant has articulated a legitimate, nondiscriminatory reason for its termination of plaintiff — namely, that plaintiff was discharged for documented dishonesty.
5. Pretext
Defendant having articulated a legitimate, nondiscriminatory reason for discharging plaintiff, the onus of proof shifts back to plaintiff to prove that he was a victim of intentional age discrimination. That burden can be satisfied by showing that the reason defendant has put forward is a mere pretext for discrimination and that the plaintiff's age is the more likely reason for the termination. Herold v. Haloca Corp., 864 F.2d 317, 319 (4th Cir. 1988), cert. denied, 490 U.S. 1107 (1989).
The question is not whether [defendant] exercised prudent business judgment, . . . but whether [plaintiff] has come forward to refute the articulated, legitimate reasons for his discharge. In this regard, [plaintiff] must do more than challenge the judgment of his superiors through is own self-interested assertions.Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986) (citations omitted), cert. denied, 479 U.S. 1066 (1987). Consistent with the Court of Appeals for the Seventh Circuit, the Fourth Circuit reasoned that what is relevant is not a plaintiffs belief that he was fired because of age, but "the perception of the decision-maker." Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980). See Elliot v. Group Medical Surgical Service, 714 F.2d 556 (5th Cir. 1983). Plaintiff must prove not only that defendant's reasons for his discharge are false, but that age discrimination was the real reason for his discharge. Vaughn v. MetraHealth Cos., 145 F.3d 197, 202 (4th Cir. 1998). Even where pretext is shown, not all prima facie cases survive summary judgment:
Depending on the character of the evidence of each case, a discrimination claim may survive summary judgment solely on the strength of the prima facie case and the evidence that contradicts the employer's proffered Justification if that evidence provides a factual basis for the ultimate finding of discrimination.
The undersigned finds that the evidence of disparate treatment, the evidence of replacement by a younger individual, and the arguable evidence of motivation based upon the cost of benefits of plaintiff's continued employment being nearly double that of younger employees suffices.
In addition, plaintiff has presented evidence that defendant has destroyed materials that could have been discovered and failed to produce materials, even when compelled to do so. In plaintiff's deposition of Ms. Lakey, the following exchange took place:
Q: Let me just ask you to make sure I'm clear on this. As far as disciplinary action, corrective interviews, or statements from other employees, be they coworkers or supervisors, in an incident involving any type of policy violation or misconduct, is it your testimony that that information does not have to housed in the personnel file?
MS. BRATTON: Objection. Vague.
A: I honestly have never heard, been told that that is policy.
Q: Okay. So you wouldn't consider it to be against policy if a corrective corrective interview was given to a person and then the piece of paper that it was written on was shredded or thrown in the trash?
A: I agree with that statement. I would not know, I would not know that to be against policy, against company policy if that happened.
Lakey Depo., at 33. This court would not automatically ascribe an unlawful intent to anomalous record keeping. Based upon spoliation, the law provides that a reasonable inference could exist that there were other probative disciplinary actions that are no longer available for production. The issue of spoliation was recently addressed by the Court of Appeals for the Fourth Circuit in Cole v. Keller Industries, Inc., 132 F.3d 1044 (4th Cir. 1998), quoted at length because it is instructive:
We turn first to the question of spoliation of evidence and the question of the district court's exclusion of plaintiff's evidence and then granting judgment. This circuit has addressed the spoliation of evidence rule in only one case and held that it is a rule of evidence. Vodusek, 71 F.3d at 047 155-57. InVodusek, not basing our ruling on bad faith, we approved the trial instruction to the jury that it could draw an adverse inference from the plaintiff's destruction of evidence under much the same circumstances as were present here. Vodusek, 71 F.3d at 155-57. We did not address any more severe action than drawing an adverse inference, and stated that bad faith was not required to permit the jury to draw an adverse inference.Id., at 1046. In Cole, Virginia law of spoliation was applied through Rule 302, Federal Rules of Evidence, because it related to a claim governed by Virginia law. Even though the ADEA claim is a claim of federal law, the court finds that the interests of justice are better served where an evidentiary inference, rather than default, is the remedy for destroyed evidence. Like Virginia, North Carolina case law provides that spoliation, if proved, creates a presumption:
Rule 302 provides: "In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of claim or defense as to which State law supplies the rule of decision is determined in accordance with State law."
Every inference will be indulged against a party who destroys papers material to the case. Every presumption will be adopted against a litigant who suppresses evidence that would illustrate his case. "Omnia praesumuntur contra spoilatorem."Henderson v. Hoke, 21 N.C. 119 (1835). While the court has drawn all inferences in favor of plaintiff on this particular motion, it would be his heavy burden to show that the spoliation was intentional — that is, where it is shown that the party who destroyed evidence intended "to suppress the truth," as opposed to destroying the evidence as a matter of course. 29 Am. Jur. 2d Evidence § 244 (1988). In the sound discretion of the district court, the issue of whether the jury should be instructed on the inference which arises upon a showing of intentional spoliation will be left open for determination at trial. While the evidence of pretext thus presented by plaintiff is not overwhelming, the undersigned determines that it is sufficient to afford plaintiff an opportunity to present his case to a jury.
C. ERISA Claim
In Count II of the Complaint, plaintiff alleges that defendant violated protections afforded by ERISA through a discharge intended to interfere with his attainment of rights to which he was or would become entitled. Such a claim is governed by Section 510 of that Act:
It shall be unlawful for any person to discharge. . . a participant or beneficiary [of an employee benefit plan] . . . for the purpose of interfering with their attainment of any right to which such participant may become entitled under the plan.
Section 510 protects benefit plan participants from termination that is motivated by an employer's desire to prevent an employee from receiving benefits earned but not paid, or rights due but not yet fulfilled.Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990).
The primary focus of § 510 is to "prevent unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights."Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 237 (4th Cir. 1991) (quoting West v. Butler, 621 F.2d 240, 245 (6th Cir. 1980)).
Extending § 510 to encompass claims brought by vested employees for denial of additional benefits comports with both the legislative language and the intent of Congress to give employees "broad remedies" for violations of pension rights . . . Surely Congress was not limiting § 510 only to those rights which a participant acquires upon vesting.Id. at 237. Plaintiff states a viable claim for benefits in which he was vested, but had not yet earned.
Defendant argues that Conkwright held that incidental effects of termination on a pension plan are not sufficient to state a claim for intentional interference with ERISA benefits. The Conkwright court held, in pertinent part, as follows:
To take advantage of § 510, one must prove a specific intent of the employer to interfere with an employee's pension rights. In seeking to prove specific intent, a claimant in the ERISA context confronts proof problems similar to those encountered by Title VII plaintiffs: employers rarely, if ever, memorialize their specific intent to act unlawfully . . . We hold that the McDonnell Douglas scheme of presumptions and shifting burdens of production is appropriate in the context of discriminatory discharge claims brought under § 510 of ERISA.Id., at 239. As discussed above in the context of an ADEA case, plaintiff's ERISA case also presents genuine issues of material fact for trial. Plaintiff has presented arguable evidence of the following:
(1) his dismissal was pretextual;
(2) Sears' management had motivation to interfere with his attainment of future benefits; and
(3) directives were given by store management to reduce payroll and the costs associated.
Incidental impact on receipt of protected benefits would not be compensable — a fact which plaintiff admits. The undersigned finds that when plaintiff's evidence as to ERISA is viewed in toto with the evidence which supports his ADEA claim, he has presented sufficient evidence, however minimal it may be, to get this matter past summary judgment.
D. Defamation
Plaintiff contends that defendant, acting through its agents in the Asheville store, committed the common-law tort of slander when management allegedly told other employees that plaintiff had been terminated for theft. Inasmuch as plaintiff did not specify the common-law tort of slander or libel — the two prongs of defamation — the undersigned concludes from the evidence that plaintiff is claiming only slander. The elements of slander are that the statement (1) was made to a third person and (2) was false. Andrews v. Elliot, 426 S.E.2d 430, 432 (N.C.Ct.App. 1993).
Plaintiff alleges that defendant, by and through managers Schultz and Wise, defamed and/or libeled him by "disseminating to [his] co-employees that he had been terminated for purchasing merchandise at an excessive discount and taking merchandise without paying for it." Complaint, at ¶ 33. The court finds that such a statement, if made and untrue, would amount to slander per se, because
when considered alone without explanatory circumstances [the statement] (1) charges that a person has committed an infamous crime . . . (3) tends to impeach a person in that person's trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.Gaunt v. Pittaway, 520 S.E.2d 603, 607 (citation omitted).
Whether the alleged defamatory statement is false is a matter upon which plaintiff has presented evidence showing a genuine issue of material fact. To survive the instant motion, plaintiff's burden is to next show that it was communicated to a person or persons other than the person defamed. Andrews, supra, at 432. Plaintiff testified that a woman named Glenda Metcalf told him that Schultz told her, in response to her inquiry into the reasons for Roberts's termination, that "Bud and Gary are just like two little boys that got their hands caught in the cookie jar, and now they've got to be punished." Roberts Depo., at 279. Defendant contends this is inadmissible hearsay that cannot defeat summary judgment. Under Rule 801(d)(2), Federal Rules of Evidence, the alleged statement may not be hearsay because it purports to be "offered against a party . . . and is a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." In addition, the court finds that such statement could possibly be admissible under Rule 803 (24), Federal Rules of Evidence, which provides an exception to the hearsay rule when:
(A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
While plaintiff has inexplicably failed to secure the affidavit of Glenda Metcalf, defendant, who may still be the employer of such person, has also not tendered an affidavit to the contrary. By the time of trial, an affidavit should be secured and Ms. Metcalf's testimony compelled if plaintiff plans to go forward with this claim. On the other hand, the undersigned finds no merit to plaintiff's alternative argument that the occurrence of such allegedly slanderous remarks should be inferred. Most hesitantly, the undersigned will recommend that the claim go forward, but that it be dismissed if plaintiff fails to present better evidence.
Sears is not entitled to a qualified privilege concerning statements made to co-employees. A qualified privilege is appropriate only if the statement is made: "(1) on subject matter (a) in which the declarant has an interest, or (b) in reference to which the declarant has a right or duty, (2) to a person having a corresponding interest, right or duty, (3) on a privileged occasion, and (4) in a manner and under circumstances fairly warranted by the occasion and duty, right or interest."PhilliDs v. Winston-Salem/Forsyth County Bd. of Educ., 450 S.E.2d 753, 756 (N.C.Ct.App. 1994). Co-employees of Sears would have no corresponding interest, right or duty in the circumstances purported to support Mr. Roberts' termination.
E. Intentional Infliction of Emotional Distress
Plaintiff has also claimed intentional infliction of emotional distress, which is governed by the laws of the State of North Carolina. The elements of the tort are "(1) extreme and outrageous conduct, (2) which is intended to cause and does cause (3) severe emotional distress." Hogan v. Forsyth Country Club, 79 N.C. App. 483, 488, disc. rev. denied, 317 N.C. 334 (1986). "It is a question of law for the court to determine, from the materials before it, whether the conduct complained of may reasonably be found to be sufficiently outrageous as to permit recovery." Id., at 490.
For purposes of making a recommendation as to disposition of defendant's motion, the court has resolved any disputed facts in plaintiff's favor. Even if the court were to consider all the evidence, it does not "exceed all bounds of decency," West v. King's Dep't Store. Inc., 365 S.E.2d 621, 625 (N.C. 1988); and cannot be "`regarded as atrocious, and utterly intolerable in a civilized community,'" Wagoner v. Elkin City School Bd. of Educ., 440 S.E.2d 119, 123 (N.C.Ct.App. 1994) (citation omitted). While plaintiff has presented evidence of situational depression, embarrassment, and having sought counseling, there is no evidence that plaintiff's normal activities were adversely affected.Waddle v. Soarks, 414 S.E.2d 22, 27 (N.C. 1992). The record reflects that plaintiff quickly recovered from the emotional setback anyone would experience after being fired, sought new employment, and maintained his active involvement in family, community, and church life. See Roberts' Depo., at 286
As a matter of law, neither the acts alleged by plaintiff nor his resulting emotional distress and physical ailments (if any) rises to a level which would support his claim. In Hogan, wherein a defendant threatened a plaintiff with bodily injury and advanced on her with a knife after she refused his sexual advances, the appellate court found that the plaintiff had stated a cause of action and that the defendant's conduct was "beyond the `bounds usually tolerated by decent society.'" Hogan, supra, at 491. While the conduct alleged herein could be construed as insensitive to the human need for security in one's working life, there is no evidence that defendant crossed the line drawn by Hogan. The plaintiff in Hogan presented evidence that she developed ulceration — a condition evincing emotional distress and having a long-term physical detriment. Although the conduct of which plaintiff complains cannot be tolerated in a civilized workplace and should, if proven, be dealt with exactingly, the evidence presented does not reveal conduct that would, as a matter of law, give rise to such a sweeping cause of action. The cause of action for intentional infliction of emotional distress is a last resort. If courts were to permit such claims without a showing of conduct which exceeded bounds of common decency, the cause of action would be rendered meaningless. Severe emotional distress means "any emotional or mental disorder, such as neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so." Waddle, supra (citation omitted). Finding that plaintiff cannot meet the standards set forth in Hogan, the undersigned will recommend that summary judgment be entered for defendant as to plaintiff's claim of intentional infliction of emotional distress.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendant's Motion for Summary Judgment be DENIED as to plaintiff's ADEA, ERISA, and defamation claims, but ALLOWED as to plaintiff's claim for intentional infliction of emotional distress.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Am, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).
This Memorandum and Recommendation is entered in response to defendant's Motion for Summary Judgment (#16).