Mauro v. InfoCision, Inc., No. 1:2019cv00006 - Document 44 (N.D.W. Va. 2020)

Court Description: MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT INFOCISION, INC.S MOTION FOR SUMMARY JUDGMENT ECF NO. 27 . This matter is dismissed, with prejudice. The Clerk is directed to enter a separate judgment order in favor of the Defendant Infocision. Signed by District Judge Thomas S. Kleeh on 9/21/20. (mh)

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Mauro v. InfoCision, Inc. Doc. 44 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 1 of 23 PageID #: 1074 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA CLARKSBURG SANDY MAURO, Plaintiff, v. Civ. Action No. 1:19-CV-6 INFOCISION, INC., Defendant. MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT INFOCISION, INC.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 27] Pending before the Court is Defendant Infocision, Inc.’s Motion for Summary Judgment (ECF No. 27). For the reasons discussed herein, the Court grants the motion. I. INTRODUCTION AND PROCEDURAL HISTORY Plaintiff, Sandy Mauro (“Plaintiff”), filed suit against Defendant, Infocision, Inc. (“Defendant”), in the Circuit Court of Harrison County, West Virginia, alleging the following causes of action: Age Discrimination in Violation of the West Virginia Human Rights Act (Count One) and Tort of Outrage (Count Two). ECF No. 12. On January 10, 2019, Defendant filed a Notice of Removal to this Court. ECF No. 1. On January 17, 2019, Defendant filed a Motion to Dismiss Count II of the Complaint. ECF No. 3. motion was granted. ECF No. 22. Thereafter, on October 21, 2019, Defendant timely filed its Motion for Summary Judgment. 27. That ECF No. Plaintiff filed her response in opposition on November 11, Dockets.Justia.com Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 2 of 23 PageID #: 1075 2019, ECF No. 29, while Defendant submitted its reply on November 25, 2019. ECF No. 31. The Court entertained oral argument on the pending motion on January 24, 2020. The matter is now ripe for decision. II. FACTUAL BACKGROUND Plaintiff commenced employment with Defendant on November 21, 2005 as a Communicator. (Pl. Dep. Tr., ECF No. 28-3, at 15-16). That position is best described as an entry-level position within Defendant’s call centers where Communicators make and receive telephone calls on behalf of Defendant’s clients. 35-37). (Id. at 28-29, At the time of her hire, Plaintiff was 48 years of age. (Id. at 10, 29). Shortly after hire, Plaintiff was promoted to a salaried, non-exempt Call Center Trainer position. (Id. at 16-17). She worked in that position until her termination on August 15, 2018. (Id. at 18-21, 23-24). In that training role, Plaintiff was charged with training new Communicator hires, monitoring their calls, coaching and otherwise providing feedback. Adamescu Dep. Tr., ECF No. 28-4, at 57-71). (Id. at 17, 23; She was also required to make or receive calls as a Communicator if demand required. (Pl. Dep. Tr. at 36-37). In late restructuring 2017, of all Defendant call center 2 undertook a operations corporate-wide to address low Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 3 of 23 PageID #: 1076 retention rates. 1 restructuring, (Adamescu Dep. Tr. at 73-76). Plaintiff’s work location Virginia – had two Call Center trainers: Margie Fultineer, age 40. – Prior to the Clarksburg, West Plaintiff, age 60, and (Adamescu Dep. Tr. at 81-82; Pl. Dep. Tr. at 65-66, 10, 100-101; Adamescu Decl., ECF No. 28-2, at ¶10). Call centers were given the option of adding a new role, Learning and Engagement Supervisor (“LES”), which was designed to review the new hire onboarding process to improve employee retention rates. (Adamescu Dep. Tr. at 78-80, 89-91). Plaintiff sought the Clarksburg LES position but was not selected. (Id. at 88). Clarksburg LES position. Carrie Noll, age 41, was promoted to the (Id. at 88; Adamescu Decl. at ¶8). had worked in Human Resources. Plaintiff retained position with the same pay and benefits. 2 67). Noll her same (Pl. Dep. Tr. at 66- Plaintiff did have reduced responsibilities for in-class training yet, again, retained the same rate of pay. Ms. Fultineer, Plaintiff’s peer as a Call Center Trainer, was demoted from Call 1 Plaintiff does not assail the corporate-wide restructuring with allegations of age discrimination. 2 Despite being advised via a January 12, 2018 memorandum that she was not being demoted, Plaintiff posted the following on her personal Facebook page: “Domoted [sic]??? LOL Retirement looking better and better everyday going to spend more time doing MARY KAY.” (Pl. Dep. Tr. at 63-73 and Ex. G thereto; Adamsecu Dep. Tr. at 55 and Ex. 3 thereto). Call Center Manager Pam Alastanos thereafter met with Plaintiff to again advise she was not being demoted as part of the restructuring. (Pl. Dep. Tr. at 36, 5355). 3 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 4 of 23 PageID #: 1077 Center Trainer to Communicator. (Id.). Fultineer is younger than Noll. Around July 2018, following Noll’s selection for the LES position, Defendant asked Plaintiff to assist with its Secret Shopper program. (Id. at 26, 90). This program involved an employee of Defendant calling Communicators posing as an outside caller to assess the Communicator’s performance. Adamescu Dep. Tr. at 101-104). (Id. at 84-85; Secret Shopper calls are made elsewhere than the call center space used by Communicators. Dep. Tr. at 92-93; Adamescu Dep. Tr. at 137-138). (Pl. At the conclusion of the call, the Secret Shopper reveals the “ruse” and offers a critique of the Communicator’s performance. (Pl. Dep. Tr. at 84-85; Adamescu Dep. Tr. at 101-104). A written evaluation is also completed. unique one (Id.). Defendant This program is a specialized and offers its clients including results being reported to clients. at 116-122). to improve quality (Adamescu Dep. Tr. Because of this, Secret Shopper employees are required to account for their time spent in a Secret Shopper role separately from other work. (Id.). The Secret Shopper work time is coded differently in Defendant’s computer system. (Id. at 93). On August 8, 2018, Plaintiff advised her manager Ms. Alastanos she needed to use five (5) hours of vacation to attend an appointment but she would work three (3) hours that day to round out her work day. (Pl. Dep. Tr. at 80-84; Adamescu Dep. Tr. at 4 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 5 of 23 PageID #: 1078 108-110). Time cards were due that same day so Ms. Alastanos recorded the time as requested by Plaintiff. at 108-110). (Adamescu Dep. Tr. Plaintiff emailed Ms. Alastanos that she would be making Secret Shopper calls from home. (Pl. Dep. Tr. at 81-84 and Ex. J thereto). Ms. Alastanos was confused as to whether Plaintiff actually worked on August 8, 2018 so the following day she exchanged emails with Plaintiff to ascertain whether she worked from home the evening in question. (Pl. Dep. Tr. at 81-84 and Ex. J thereto; Adamescu Dep. Tr. at 108-110, 112-113, 129-130). Plaintiff stated she did in fact work from home that evening but told Ms. Alastanos to “just put in [sic] down as vacation time that will be fine.” (Pl. Dep. Tr. at 81-84 and Ex. J thereto). Prompted by her confusion, Ms. Alastanos contacted Presentation Skills Trainer Training Coordinator Michelle Baum who oversaw Defendant’s Secret Shopper program. (Adamescu Dec. ¶3; Adamescu Dep. Tr. at 107, 109-110, 113-114, 129-131 and Ex. 2 thereto). Ms. Baum has the ability to research Defendant’s databases tracking Secret Shopper work including the number of calls an employee makes, the length of those calls and the records related to those calls. Dep. Tr. at 109-112, 131-132). (Adamescu Ms. Baum reviewed Defendant’s Secret Shopper records for August 8, 2018 and found Plaintiff had made only one call lasting 15 minutes. (Id.). Considering that and Plaintiff’s claim she had worked three hours, Ms. Alastanos 5 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 6 of 23 PageID #: 1079 contacted Jill Adamescu, Defendant’s Corporate Human Resources Manager, time.” to raise concerns about Plaintiff “stealing company (Id. at 112-113 and Ex. 6 thereto). Ms. Adamescu, consistent with her job responsibilities, commenced an investigation of Plaintiff’s time worked and call records from July 24, 2018 through August 10, 2018. (Adamescu Dec. ¶¶3-6 and Exs. P, Q and R thereto; Adamescu Dep. Tr. at 104, 111-115, 129-176 and Exs. 4, 5, 6, 7 and 8 thereto). This investigation involved communicating with Ms. Alastanos, Ms. Baum and Deloris DeHart, Defendant’s Director of New Employee Training, as well as a review of company database records to ascertain the time Plaintiff spent working. (Adamescu Dec. ¶¶ 3-6 and Exs. P, Q and R thereto; Adamescu Dep. Tr. at 112-115, 129-176 and Exs. 4, 5, 6 and 7 thereto). Ms. Adamescu used Defendant’s records to compare the time Plaintiff had recorded as a Secret Shopper with the number of calls she made, the length of those calls and the documentation generated from those calls. (Id.). The investigation revealed lengthy periods of time when no work was performed while Plaintiff logged time in Defendant’s Secret Shopper program between July 24, 2018 and August 10, 2018. (Adamescu Dec. at ¶¶3-7 and Exs. P, Q and R thereto; Adamescu Dep. Tr. at 155-157 and Exs. 4, 5, 6 and 7 thereto). Ms. Adamescu discovered that, on each day her investigation covered, Plaintiff, while making some calls, recorded periods of time worked where she 6 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 7 of 23 PageID #: 1080 did not perform Secret Shopper work. (Adamescu Dec. at ¶¶3-7 and Exs. P, Q and R thereto; Adamescu Dep. Tr. at 129-176 and Exs. 4, 5, 6, 7 and 8 thereto). Ms. Adamescu learned a “typical employee” should be able to “easily” make and complete ten (10) Secret Shopper calls paperwork. per day including the required quality audit (Adamescu Dec. ¶¶3-7 and Ex. P thereto; Adamescu Dep. Tr. Ex. 4, 5, 6 and 7). Plaintiff did not hit this mark once during the 13-day period being investigated. (Id.) On August 13, 2018, Ms. Adamescu and Ms. Alastanos spoke with Plaintiff by telephone. (Pl. Dep. Tr. at 87-91, 94-97 and Ex. 6 thereto; Adamescu Dep. Tr. at 140-145, 159). They discussed the current findings of the investigation and Ms. Adamescu raised concerns about Plaintiff’s hours logged as a Secret Shopper. (Id.). Plaintiff advised she was aware of how to properly code her time as a Secret Shopper but could not account for the discrepancy between her hours logged working as a Secret Shopper and the records of her call activity. (Pl. Dep. Tr. at 87-91, 94- 97, 107 and Ex. 6 thereto; Adamescu Dep. Tr. at 140-145, 159). She stated her recorded hours were explanation as to her low productivity. accurate and offered no (Id.) After this call, Ms. Adamescu continued her investigation in an effort to discern a legitimate reason for Plaintiff’s poor productivity compared to hours recorded as worked. Tr. at 160-163). (Adamescu Dep. She also consulted with her supervisor, Ms. 7 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 8 of 23 PageID #: 1081 Wilson, to explore any possible alternative reason for Plaintiff’s lack of production. (Id. at 11, 157-158, 180-182). Finding none, Defendant decided to terminate Plaintiff’s employment. (Pl. Dep. Tr. at 126-127 and Ex. O thereto at p. 33; Adamescu Dec. ¶¶1, 7; Adamescu Dep. Tr. at 177 and Ex. 2 thereto). Ms. Adamescu, age 55, and Ms. Wilson, age 43, made the adverse employment decision. (Adamescu Dec. ¶1, 7; Adamescu Dep. Tr. at 177). Ms. Adamescu communicated that decision to Plaintiff on August 15, 2018 via telephone. (Pl. Dep. Tr. at 99-100, 106, 126-127 and Exhibit O thereto at p. 33; Adamescu Dep. Tr. at 159, 180 and Ex. 8 thereto). The stated reason for the discharge was “stealing company time,” gross misconduct and grounds for immediate termination under the terms of Defendant’s employee handbook. (Pl. Dep Tr at 126-127 and Ex. O thereto at p.33; Adamescu Dec. ¶¶1, 7; Adamescu Dep. Tr. at 177 and Ex. 2 thereto). Ms. Adamescu afforded Plaintiff another opportunity to explain the discrepancy in her time records and work records. (Pl. Dep. Tr. at 99; Adamescu Dep. Tr. at 159). Plaintiff offered no explanation on this occasion either. (Id.). Nor did Plaintiff claim her discharge was motivated by her age. (Pl. Dep. Tr. at 94-99 and Ex. 6 thereto). Plaintiff’s discharge was confirmed via letter dated August 20, 2018. (Adamescu Dep. 159, 176-177 and Ex. 8 thereto). No “new” employee was hired to replace Plaintiff. Dep. Tr. at 92-93). (Adamsescu Instead, Plaintiff’s job duties were assigned 8 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 9 of 23 PageID #: 1082 to existing employees: Pennacchio, age 59. Ms. Noll, again, age 41, and Frank (Adamescu Dec. ¶8). III. STANDARD OF REVIEW Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must “make a sufficient showing on an essential element of its case with respect to which it has the burden of proof.” Id. at 317–18. Summary judgment is proper “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there [being] no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). IV. ANALYSIS The remaining count in Plaintiff’s complaint alleges unlawful age discrimination in violation of the West Virginia Human Rights Act, W. Va. Code §5-11-1 et seq. Specifically, Plaintiff contends 9 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 10 of 23 PageID #: 1083 her August 15, 2018 termination was unlawfully motivated by her age. A. Governing Framework No direct evidence of discrimination, such as a statement attributed to a decision-maker, exists in the record before the Court. Thus, the traditional burden-shifting framework applies to Plaintiff’s claim under the Human Rights Act. See Bartos v. PDC Energy, Inc., 275 F. Supp.3d 755, 760 (N.D.W. Va. 2017); see also Woods v. Jefferds Corp., 824 S.E.2d 539, 547 (W. Va. 2019) (“It is the rare case where there is evidence a defendant directly announces acting with a discriminatory intent. Most cases require the plaintiff to imply through circumstantial evidence that a defendant meant to improperly discriminate.”). Initially, Plaintiff must establish a prima facie case of discrimination that raises an inference of discrimination. then shifts to Defendant to put The burden of production forth a legitimate, discriminatory reason for the adverse employment action. Plaintiff sufficient must offer doubt on sufficient Defendant’s evidence stated of reason pretext nonThen, casting requiring jury resolution of the disputed facts. “In order discrimination to make a prima facie case of employment under the West Virginia Human Rights Act, W. Va. Code § 5–11–1 et seq. (1979), the plaintiff must offer proof of the following: (1) That the plaintiff is a member of a protected 10 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 11 of 23 PageID #: 1084 class; (2) That the employer made an adverse decision concerning the plaintiff; [and] (3) But for the plaintiff's protected status, the adverse decision would not have been made.” Syl. Pt. 1, Knotts v. Grafton City Hosp., 786 S.E.2d 188, 190 (W. Va. 2016) (citation omitted). “The ‘but for’ test of discriminatory motive in Conaway v. Eastern Associated Coal Corp., 358 S.E.2d 423 (W. Va. 1986), is merely a threshold inquiry, requiring only that a plaintiff show an inference of discrimination.” Syl. Pt. 2, Id. Once a plaintiff offers sufficient proof to establish a prima facia case, the burden of production (not proof) shifts to the defendant employer to articulate a legitimate, non-discriminatory reason for termination. the adverse employment action, See Bartos, 275 F. Supp.3d at 760. in this case, “The reason need not be a particularly good one. It need not be one which the judge or jury would have acted upon. The reason can be any other reason except that the plaintiff was a member of a protected class.” Id. (quoting Conaway, 358 S.E.2d at 430). If the defendant articulates such a reason, the burden returns to the plaintiff who then must demonstrate the defendant employer’s stated reason is but a pretext for the discriminatory motive alleged. See id. “Pretext means an ostensible reason or motive assigned as a color or cover for the real reason or motive; false appearance; pretense. ... A proffered reason is a pretext if it was not the true reason for the decision [.] ... The third step of 11 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 12 of 23 PageID #: 1085 the ... proof scheme, pretext, is a ... realization that some explanations are the product of hindsight rather than a true barometer of what occurred at the time of decision.” Mayflower Vehicle Sys., Inc. v. Cheeks, 629 S.E.2d 762, 773 (W. Va. 2006) (internal quotations and citations omitted). B. Prima Facie Case The undisputed facts reveal Mauro was over 40 at the time of her termination and that she suffered an adverse employment action. Thus, she satisfies the first two elements of a prima facie age discrimination case. As is most often the case, the crux at this stage of the analysis rests with the third element – sufficient evidence linking the adverse employment decision with a plaintiff’s protected class status to give rise to an inference that the decision was motivated by unlawful reasons. 358 S.E.2d at 429. See Conaway, That proof can come in a number of ways – disparate treatment of individuals outside the protected class, statistical evidence, eliminating the stated purported legitimate reasons for the adverse employment decision or showing a plaintiff was replaced by a substantially younger employee. See id.; Bartos, 275 F. Supp.3d at 760. However, Plaintiff has failed to marshal sufficient evidence in any of these suggested categories or otherwise to lead this Court to conclude resolution. No that the evidence “but-for” has 12 been question presented requires to the jury Court Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 13 of 23 PageID #: 1086 demonstrating disparate treatment of a younger employee. Plaintiff likewise has not “eliminated” Defendant’s legitimate, non-discriminatory reason for her discharge. The Court addresses her pretext burden hereinafter; however, Plaintiff has failed to present any evidence calling into question the stated reason for the adverse employment action made subject of this litigation. Defendant has presented unrefuted evidence of a multi-person investigation which concluded Plaintiff committed gross misconduct and should be terminated. Plaintiff does not argue Defendant erred in determining she failed to properly record her time. Instead, as she testified in her deposition, Plaintiff concedes “she was human and could have made an error.” Plaintiff did not dispute timekeeping/productivity or (Pl. Dep. Tr. at 91). endeavor discrepancy to during explain the the internal investigation despite being afforded multiple opportunities to do so. She fails to cast doubt upon that reason here either. In her opposition brief, Plaintiff places great significance upon Ms. Noll’s promotion to the LES position as evidence to support a prima facie case of age discrimination. Further, at the January 24, 2020, oral argument, Plaintiff’s counsel contended the alleged failure to promote with respect to the LES position was a separate adverse employment action for which Plaintiff sought damages. However, no such claim is clearly pled in her Complaint. See Caudill v. CCBCC, Inc., 651 F. Supp.2d 499, 510 (S.D.W. Va. 13 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 14 of 23 PageID #: 1087 2009) (“Indeed, a plaintiff may not amend her complaint through argument in a brief opposing summary quotations and citations omitted). judgment.”) (internal Giving Plaintiff and her counsel the benefit of the doubt here, the Court assesses this allegation as both a stand-alone discrimination claim for damages and as purported evidence of Plaintiff’s discriminatory discharge cause of action. Again, Plaintiff points to the decision to promote a different employee to the Learning and Engagement Supervisor (LES) position. ECF No. 29 at 11. Specifically, Plaintiff contends the promotion of Ms. Noll to LES was further evidence Defendant’s legitimate, non-discriminatory reason is “eliminated” noting the decision as a “prime example” of age-based disparate treatment. Id. However, Plaintiff does not expound on the point failing to demonstrate how such “evidence” is sufficient at summary judgment stage. Her conclusory and sweeping characterization is insufficient under Rule 56 of the Federal Rules. Plaintiff ignores the aspect of the restructuring where Ms. Noll was promoted while Ms. Fultineer was demoted. Ms. Fultineer is the younger of the two – which cuts against Plaintiff’s age bias claims. protected class as Plaintiff. Ms. Noll occupies the same Again, the decision-makers (Adamescu, age 55, and Wilson, age 43) are, like Plaintiff, within the Human Rights Act’s protected class. 14 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 15 of 23 PageID #: 1088 Defendant cited evidence in the record explaining its LES promotion decision specifically concerns about Plaintiff’s “lack of professionalism.” Defendant specifically points to an incident where Plaintiff made “racially inappropriate remarks” concerning stopping for gas in what Plaintiff perceived to be a problematic part of town and “those people” in that section of town. Dep. Tr. at 85-86). Plaintiff lacked professionalism. Ms. Adamescu testified she had concerns a LES “filter” (Id. at 86). professional etiquette.” The (Adamescu position and had deficiencies in Adamescu “had to coach her on some (Id. at 85). was supervisory. In addition, the anticipated function of that job – to orient new employees and work to improve employee retention rates – motivated the selection of Ms. Noll as opposed to the other applicants including Plaintiff. As Ms. Adamescu testified, Defendant “wanted that new employee experience to be better and more professional.” (Id. at 90). Given the concerns about Plaintiff’s professionalism or “filter” as well as Ms. Noll’s qualifications 3, Ms. Noll was ultimately selected. Plaintiff did not believe Ms. Noll was qualified to Ms. Adamescu specifically mentioned Ms. Noll’s educational background and described her as “very professional, very polished, very well-spoken, very intelligent.” (Id. at 99). Ms. Noll majored in business with a focus on Human Resources. (Id. at 9899). She also cited Ms. Noll’s “conceptual thinking” skills. (Id.). 3 15 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 16 of 23 PageID #: 1089 perform the in-class training aspect of the LES job. (Pl. Dep. Tr. at 62; ECF No. 29 at 4). Plaintiff’s argument this employment decision is either a stand-alone incident resolution or of evidence age of discrimination age-based discharge decision lacks merit. requiring animus in the jury ultimate Plaintiff points this Court to no evidence in the record age played any role in the LES promotion decision. Again, the record is devoid of any direct evidence of discriminatory animus such as decision-maker comments. offers no evidence linking the LES promotion Plaintiff decision to a prohibited factor such as age and certainly falls well short of a prima facie showing of age discrimination. Defendant offered legitimate, non-discriminatory reasons for its decision which Plaintiff fails to sufficiently assail with evidence of pretext. Again, the decision-makers are in the protected class made subject of this case as was the employee ultimately chosen. Plaintiff retained her same rate of pay despite her social media cry of demotion. 4 Instead, the youngest of the pool of employees seeking promotion was qualifications based on a demoted. Defendant and concerns about prior incident as reasons for its decision. pointed Plaintiff’s legitimate, to respective professionalism non-discriminatory This Court is certainly mindful of the Again, Defendant followed up with Plaintiff to clarify she was not demoted. 4 16 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 17 of 23 PageID #: 1090 standard applicable to the pending motion and the inferences to which Plaintiff may be entitled based on the record. However, this Court is not required to strain logic beyond reason in assessing the merits of a summary judgment motion even on age discrimination actions. The LES promotion decision cannot survive a summary judgment challenge as an independent claim under the Human Rights Act nor is it evidence of the presence of a forbidden factor in Plaintiff’s termination. Lastly, with respect to the Conway factors, Plaintiff did not offer any statistical evidence in support of her age discrimination claim either. Defendant points to the ages of nearly all the salaried employees working at Infocision’s Clarksburg location. Nine of eleven (9 out of 11) salaried employees other than Plaintiff were over the age of 40 at the time of her discharge. (Adamescu Decl. at ¶8 and Ex. 2 thereto). Considering all of the suggested factors or examples a plaintiff could use to demonstrate a prima facie case of age discrimination and the events to which Plaintiff points to here, Plaintiff has not satisfied her burden at summary judgment stage. Instead, Plaintiff focuses on her obvious belief and preference that a less severe form of progressive discipline should have been imposed. Paraphrased, Plaintiff argues the decision to terminate her was, simply, not fair based on her tenure, “respect 17 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 18 of 23 PageID #: 1091 among her employees” and prior positive performance reviews. 5 No. 29 at 10-11. ECF No Court sits in judgment of discretionary employment decisions outside the burden-shifting analysis required to ferret out potential discriminatory animus. See supra. Thus, it is not this Court’s place to second-guess the wisdom or even the fairness of the discipline administered here other than whether Plaintiff has sufficient evidence some unlawful motivation was present entitling Plaintiff to present her claims to a jury. Fairness is not the standard governing either summary judgment motions or employment claims presented to a jury. Without any evidence that similarly situated employees were disciplined less severely or some other evidence of disparate treatment or discriminatory animus, Plaintiff’s contention she was treated unfairly – which she no doubt believes to be true – is insufficient to carry her burden here. She has not demonstrated any genuine issue of material fact on this question. Thus, because she has failed to sustain an essential element of her cause of action, summary appropriate. judgment on her age discrimination claim is See Celotex Corp. v. Catrett, 477 U.S. at 323. 5 “That plaintiff's coworkers may have thought that [she] did a good job, or that [she] did not ‘deserve’ [to be discharged], is close to irrelevant.” Conkright v. Westinghouse Elec. Corp., 933 F.2d 231, 235 (4th Cir. 1991). 18 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 19 of 23 PageID #: 1092 C. Legitimate, Non-Discriminatory Reason and Pretext Even assuming, arguendo, Plaintiff could sustain a prima facie case for age discrimination, she cannot survive a summary judgment challenge on her burden to cast Defendant’s legitimate, non-discriminatory reason as pretext. Defendant discharged Plaintiff following its investigation concluded she “stole company time.” Plaintiff does little to cast a shadow of doubt upon this reason. While she does make sweeping statements that the offered reason is pretextual, those conclusory arguments have no underpinning in the record before the Court. “Pretext may circumstantial evidence of be shown falsity or through direct or discrimination. The plaintiff's failure to come forth with evidence rebutting the defendant's explanation may entitle the defendant to judgment.” Barefoot v. Sundale Nursing Home, 457 S.E.2d 152, 160 (W. Va. 1995) (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255-56 (1973)). The Fourth Circuit has opined: While reviewing the employer's articulated reasons for discharge and the plaintiff's refutation thereof, we must keep in mind that “Title VII is not a vehicle for substituting the judgment of a court for that of the employer.” Id. at 377. Particularly, this Court “does not sit as a kind of superpersonnel department weighing the prudence of employment decisions made by firms charged with employment discrimination....” Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997) (quotations and citations 19 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 20 of 23 PageID #: 1093 omitted). See also EEOC v. Clay Printing Co., 955 F.2d 936, 946 (4th Cir. 1992). Our sole concern is whether the reason for which the defendant discharged the plaintiff was discriminatory. Thus, when an employer articulates a reason for discharging the plaintiff 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 truly was the reason for the plaintiff's termination. Giannopoulos, 109 F.3d at 410–11. DeJarnette v. Corning Inc., 133 F.3d 293, 298–99 (4th Cir. 1998). 6 Considering the record before the Court, the only conclusion that can be made is the stated reason for discharge was “truly the reason for the plaintiff’s termination” obviating the need for a jury trial. Defendant multiple conducted individuals an after internal investigation suspicions 6 were involving piqued about The Court considers the analysis of the Fourth Circuit persuasive despite the only claim here being a state law claim. The West Virginia courts have long encouraged reliance on federal jurisprudence in employment claims (outside disability discrimination claims or where the relevant statutory language differs). See Barefoot, 457 S.E.2d at 159-60 (“We have consistently held that cases brought under the West Virginia Human Rights Act, W.Va.Code, 5–11–1, et seq., are governed by the same analytical framework and structures developed under Title VII, at least where our statute's language does not direct otherwise. E.g., West Va. University v. Decker, 191 W.Va. 567, 447 S.E.2d 259 (1994); Conaway v. Eastern Associated Coal Corp., 178 W.Va. 164, 358 S.E.2d 423 (1986).”). 20 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 21 of 23 PageID #: 1094 Plaintiff’s timekeeping while performing Secret Shopper duties. Plaintiff was afforded more than one opportunity to explain the discrepancies in Defendant’s time records and the work she claimed to perform. Specifically, Ms. Alastanos and Ms. Adamescu advised Plaintiff there was a “block of time where no calls were made and it was logged on her timecard under the Secret Shopper Program code.” (ECF No. 29 at 7; Pl. Dep. Tr. at 90). Her response, prior to instituting this litigation, was “she was human and could have made an error.” (Pl. Dep. Tr. at 91; ECF No. 29 at 7 and 10). Plaintiff did not provide Defendant with any other explanation for the discrepancy. (Pl. Dep. Tr. at 91). Defendant’s termination decision was made by two management level employees both of whom fall within the Human Rights Act’s protected age class. Plaintiff affirmatively disclaimed any personal knowledge of the decisionmaking process or discussion. (Pl. Dep. Tr. at 59, 61, 100, 113 and 128.) Lacking personal knowledge sufficient to demonstrate a genuine issue of material fact, Plaintiff has failed to point the Court to any evidence in the record of a similarly-situated employee who Defendant treated differently. She cites no evidence of animus-revealing comments or statements from the decision- 21 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 22 of 23 PageID #: 1095 makers or anyone else. 7 Instead, she declares “[i]t is clear that company policy was not the reason Ms. Mauro was terminated.” Resp. at 16. 8 Pl. She also labels the reason for her discharge as “trumped up” without any supporting evidence. Id. The record before the Court, specifically the sworn testimony cited by both parties, reveals otherwise. Without any evidence of pretext, Plaintiff has failed to satisfy a necessary burden on her age discrimination claim. Thus, summary judgment appropriate, it is required under Rule 56. is not only See Fed. R. Civ. P. 56(a)(“ The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the 7 Again, the Court is mindful that such evidence is not common in discrimination litigation. Plaintiff fails, however, to provide this Court any other category of evidence which could lead a “rational trier of fact” to find in her favor on the remaining Count of the Complaint. 8 Plaintiff argues, based on Supreme Court of the United States and Fourth Circuit precedent, she should not have to satisfy a socalled “pretext plus” standard. No authority is cited that this standard applies to the state law claim presented here. The Court need not decide that issue in the context of the West Virginia Human Rights Act to dispose of this summary judgment motion. As noted in Siraj v. Hermitage, 51 Fed. Appx. 102 (4th Cir. 2002), “a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false” may sustain a plaintiff’s jury verdict. Id. at 109 (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43 (2000)(emphasis added)). Here, the Court has found Plaintiff falls short of her burden to show a prima facie case of age discrimination nor has she marshalled any evidence Defendant’s stated legitimate, non-discriminatory reason is pretextual. She has not “eliminated” her employer’s justification for the adverse employment action. Thus, she has not been subjected to any “pretext plus” burden. 22 Case 1:19-cv-00006-TSK Document 44 Filed 09/21/20 Page 23 of 23 PageID #: 1096 movant is entitled to judgment as a matter of law.”)(emphasis added). V. CONCLUSION Finding no genuine dispute of any material fact and that Defendant is entitled to judgment as a matter of law, the Court GRANTS Defendant’s motion (ECF No. 27), awards it summary judgment and DISMISSES this matter from the Court’s docket WITH PREJUDICE. The Clerk is hereby directed to enter judgment in Defendant’s favor in accordance with this Order. The Clerk shall forward a copy of this Memorandum Opinion and Order as well as the aforementioned Judgment Order to all counsel of record. IT IS SO ORDERED. DATED: September 21, 2020 /s/ Thomas S. Kleeh Honorable Thomas S. Kleeh United States District Court Judge 23

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