Cupples v. AmSan, LLC , 282 F. App'x 205 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1403
JIMMY W. CUPPLES,
Plaintiff - Appellant,
v.
AMSAN, LLC, d/b/a Maintenance Supply Company; AMERICAN
SANITARY INCORPORATED; GRACE CAUDLE; TENA DAVIS,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:04-cv-00574)
Argued: March 20, 2008 Decided: June 10, 2008
Before WILLIAMS, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.
Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Chief Judge Williams and Judge Duncan joined.
ARGUED: Gerard Alford Bos, WILSON & BOS, Charlotte, North Carolina,
for Appellant. Richard David Haygood, KILPATRICK & STOCKTON,
L.L.P., Raleigh, North Carolina, for Appellees. ON BRIEF: Betsy
Cooke, KILPATRICK & STOCKTON, L.L.P., Raleigh, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:
In August 2004, AmSan, LLC fired Jimmy Cupples, a sales
manager, after investigating a complaint of sexual harassment
against him and discovering a pattern of inappropriate behavior
toward female coworkers and two instances of insubordination by
violating the confidentiality of its investigation. Cupples
commenced this action, alleging that AmSan’s investigation of the
harassment complaints was pretextual and that AmSan discharged him
based on his age. He was 62 years old. The district court granted
AmSan’s motion for summary judgment, and on appeal, we affirm.
I
Cupples began working in 1974 as a salesman for a predecessor
of AmSan, which distributes janitorial and sanitary products, and
he ultimately became the sales manager at its Huntersville, North
Carolina location.
In July 2004, AmSan employee Grace Foure complained to Jim
Core, the general manager of AmSan’s Huntersville location, that
Cupples had sexually harassed her. Specifically, she claimed that
Cupples had pinched her rear and had said, “I just had to do that,”
and that these acts made her feel uncomfortable. When asked about
the incident, Cupples admitted that he had touched Foure but
claimed he only accidentally brushed against her with his briefcase
and that he said, “Sorry, I shouldn’t have done that.”
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Foure also told Core about an earlier situation in which she
had complained to Cupples that other male employees were making
inappropriate comments about her breasts. Cupples explained that
he responded to Foure by speaking to one of the offending employees
and telling him to refrain from such behavior in the future, but
the employee had no memory of this discipline, and his file
contained no record of it. Cupples admitted that he counseled
Foure in that incident, saying that when “a bunch of guys . . . see
a nice-looking woman they’re going to have crazy thoughts,” so even
though “they shouldn’t say anything to [her] about that,” she
should “keep [herself] from being in those positions.”
In response to Foure’s complaint about Cupples, Core directed
Cupples to avoid all further contact with Foure. Notwithstanding
this direction, however, Cupples approached Foure the next morning
to apologize “if I have said or done anything inappropriate,” which
he thought was the “gentleman thing to do.” Later that same day,
he again approached Foure to ask if they were “O.K.” and to say he
hoped the situation “doesn’t go any further, it could ruin my
reputation.” Foure became upset by Cupples’ contacts with her and,
following a discussion with Core, filed a written complaint against
Cupples. The written complaint triggered a formal investigation
under AmSan’s harassment policy.
Core consulted with AmSan’s corporate executives during the
week of July 12, 2004. Terrance Collins, the Vice President for
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human resources, located in Illinois, took over the investigation
and by telephone interviewed Cupples and at least nine other
employees at the Huntersville location. One employee, Tena Davis,
told Collins that in March 2004, Cupples had engaged in behavior
toward her similar to what Foure had described. Collins also
learned about other similar prior conduct from Foure, Davis, and at
least two other female employees. They reported that Cupples
routinely made comments to them and touched them in ways they
considered inappropriate for the workplace.
Cupples generally confirmed the incidents but described them
as minimal or accidental and good-natured. He said he touched
other female employees “in a kidding manner” and made comments that
he thought of as “compliment[s],” but he denied saying anything
overtly sexual or inappropriate.
While Collins was conducting his investigation, Cupples
approached Davis and spoke with her about the complaint against
him, asking her if she would serve as a “character witness” for
him. This violated the express and undisputed instructions from
Core and Collins not to discuss the complaint or investigation with
anyone, because to do so would violate the confidentiality
provisions of the company’s harassment policy.
On Thursday, July 29, 2004, Core notified Cupples that he was
suspended without pay and should leave the premises. The following
Thursday, August 5, 2004, Cupples was summoned back to AmSan for a
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meeting with Core and Collins, who had traveled from Illinois to
Huntersville for the purpose of terminating Cupples’ employment.
Michael Mulhern, the CEO of AmSan, had directed Collins to fire
Cupples for the accumulated complaints of his inappropriate
workplace behavior, for his insubordination, and for his breach of
confidentiality in discussing the complaint and investigation with
others. Collins offered Cupples a 90-day severance package if he
agreed to resign. When Cupples refused the package, AmSan paid him
30 days’ salary in accordance with the terms of his employment
agreement, which provided that either party could end their
relationship without cause on 30 days’ notice.
After filing a charge of discrimination and receiving a right-
to-sue letter from the Equal Employment Opportunity Commission,
Cupples commenced this action, alleging that AmSan terminated his
employment in violation of the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. He also sued Foure and
Davis for tortious interference with contract, and he asserted
defamation claims against all defendants. The gravamen of his
complaint, at least as relevant to this appeal, was that AmSan’s
investigation of Foure’s complaint was at once inadequate because
it failed to explore Foure’s veracity or get a better sense of
“what kind of person” Cupples was, and overly aggressive because it
actively sought additional complaints against him and accepted as
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true the versions of events thus obtained. Cupples alleges that
AmSan used the claims and investigation against him as a pretext
for firing him when the real reason for his discharge was his age.
Following discovery, Cupples produced the following evidence
on which he now relies to support his age discrimination claim.
First, a few months prior to filing her complaint against him,
Foure had been among a group of employees who watched a sexual
harassment training video, after which she was overheard
commenting, “If they make me mad, I know how to get them.”
Second, Collins testified during his deposition that he did
not further investigate Foure’s alleged comment after he learned
about it, nor did he pursue assertions made by other AmSan
employees that they thought Cupples was being “set up” or that
Foure had a history of promiscuity and of making unfounded
complaints.
Third, H. V. Nelson, a former AmSan executive and the owner of
the predecessor company, testified during his deposition that the
culture among long-time employees at the company was casual,
affectionate, and family-like, including good-natured touching,
like pats on the back and shoulder rubs. He testified that he
believed Cupples was innocent of the conduct for which he was
fired. Nelson also related a series of hearsay comments by John
Muthe, the former CEO of AmSan, that payroll and healthcare costs
were being driven up by older employees and thus they should “weed
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out” older employees to control costs. (These comments were
corroborated by two other former executives.) Nelson observed that
several AmSan employees aged 50 or older had been “forced out” over
the years, but he admitted that he had little real information as
to why they had been let go. He acknowledged that his observation
was mostly “speculation based on experience and based on
conversations.”
Fourth, AmSan’s former Vice President of human resources,
Morris Taormina, declared in an affidavit that it was
“unprecedented at AmSan” to terminate an employee “with the years
of service of Jim Cupples” for “one complaint of sexual
harassment.”
On cross-motions for summary judgment, the district court
granted summary judgment in favor of the defendants, ruling that
Cupples’ claims failed as a matter of law. On appeal, Cupples
challenges only the district court’s ruling on his ADEA claim.
II
Cupples contends that the district court misapplied the
burden-shifting test we articulated in Taylor v. Virginia Union
University, 193 F.3d 219 (4th Cir. 1999) (en banc), for claims of
disparate treatment with respect to being disciplined by being
discharged, and that he was disciplined as a pretext for age
discrimination.
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In Taylor, we established that in order to make out a prima
facie case for such a claim, a plaintiff must show (1) that he is
a member of a protected class (here, the class of workers at least
40 years old protected by the ADEA, see 29 U.S.C. § 631(a)); (2)
that the prohibited conduct for which he was disciplined was
“comparable in seriousness to misconduct of employees outside the
protected class;” and (3) that his discharge was more severe
discipline for his misconduct than that received by the employees
outside the protected class. Taylor, 193 F.3d at 234 (citing Cook
v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993)). If the
plaintiff makes this showing, a presumption of illegal
discrimination arises, and the burden of production shifts to the
employer, “who must articulate a non-discriminatory reason for the
difference in disciplinary enforcement.” Cook, 988 F.2d at 511.
If the employer articulates such a reason, “the burden shifts back
to the plaintiff to demonstrate that the employer’s reasons are not
true but instead serve as a pretext for discrimination.” Id.Importantly, “[a]lthough intermediate evidentiary burdens shift
back and forth under this framework, ‘[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the
plaintiff.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 143 (2000) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981)).
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The district court ruled that Cupples succeeded minimally in
making out a prima facie case of age discrimination but that he had
offered no evidence to demonstrate that AmSan’s non-discriminatory
reasons were a mere pretext.
Contending that the district court committed “plain error” in
awarding summary judgment to AmSan, Cupples argues that AmSan
failed to articulate a legitimate non-discriminatory reason to
explain the difference in discipline he received. But Cupples’
argument fails to account for the fact that AmSan did articulate a
non-discriminatory reason for allegedly disciplining him more
severely. As Mulhern explained during his deposition, the decision
to terminate Cupples was based on multiple complaints of behavior
by Cupples in violation of the company’s harassment policy,
Cupples’ breach of the confidentiality of the investigation into
Foure’s complaint by discussing the investigation with Davis, and
Cupples’ insubordination by approaching both Foure and Davis after
being instructed not to have contact with them. The assertion by
Taormina, the former Vice President of human resources for AmSan,
that it was “unprecedented” to fire a long-term AmSan employee for
“one complaint of sexual harassment” is thus virtually irrelevant
because AmSan’s termination of Cupples was based on far more than
just “one complaint of sexual harassment.”
We conclude, however, that Cupples’ case fails at a far more
basic level. Although it is undisputed that Cupples, who was 62
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years old, was a member of the class of workers protected by the
ADEA, there is no evidence in the record from which to conclude
that his alleged misconduct was “comparable in seriousness to
misconduct of employees outside the protected class,” or that his
discipline was “more severe” than theirs. Taylor, 193 F.3d at 234.
While Cupples did provide examples of discipline or the lack of
discipline of other employees, as to none did he supply the
necessary details that made those other incidents comparable and
therefore relevant. He did not show that the person disciplined
was outside the protected class or that the person’s conduct was
comparable in seriousness to his conduct. The most that could be
concluded from what he presented was that for a single complaint of
harassment, the termination of the employee might not be warranted.
But, as we have already noted, Cupples was charged with multiple
complaints of harassment, along with other incidents of misconduct.
Also, Cupples offered no probative evidence of discriminatory
animus. He points only to Nelson’s testimony about the comments of
former AmSan CEO James Muthe regarding the payroll and healthcare
costs of older workers (which was corroborated by other executives)
and Nelson’s own observation that older workers were being weeded
out to control costs. But this testimony was hardly probative. It
referred to comments made in 2001, three years before Cupples was
terminated. Moreover, Muthe himself had been discharged at the end
of 2002 and therefore played no role in Cupples’ firing some two
10
years later. Finally, there is no indication or suggestion that
Mulhern and Collins, the decisionmakers in Cupples’ case, held such
views or had any discriminatory intent.
Moreover, Nelson’s testimony about Muthe’s comments referred
to a company policy in place at an earlier time to reduce
healthcare and payroll costs. But even if it were not remote in
time, forcing out employees in furtherance of such a policy would
not be based on the “prohibited stereotype” regarding older workers
that is addressed by the ADEA. Hazen Paper Co. v. Biggins, 507
U.S. 604, 611 (1993). “An employee’s age is analytically distinct
from his” healthcare and payroll costs. Id.Finally, Cupples makes much of his criticism that AmSan’s
investigation into his misconduct was either inadequate or overly
aggressive. But focusing on the quality of internal investigations
misses the point. A federal court “does not sit as a kind of
super-personnel department weighing the prudence of employment
decisions made by firms charged with employment discrimination.”
DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998)
(internal quotation marks omitted). “Our sole concern is whether
the reason for which the defendant discharged the plaintiff was
discriminatory.” Id. If the employer’s reason for termination is
not forbidden by law, “it is not our province to decide whether the
reason was wise, fair or even correct, ultimately, so long as it
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was truly the reason for the plaintiff’s termination.” Id.(emphasis added).
We agree with the district court’s conclusion that Cupples
failed to present evidence sufficient to prove age discrimination,
and accordingly we affirm.
AFFIRMED
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