Bruno v. Publix Super Mkts.

• Decision Date: 09 June 2021
• Docket Number: Civil Action No. 2:19-02702-RMG-MGB
• Parties: Donald Bruno, Plaintiff, v. Publix Super Markets, Inc., Defendant.
• Court: U.S. District Court — District of South Carolina

Donald Bruno, Plaintiff, v. Publix Super Markets, Inc., Defendant.

Civil Action No. 2:19-02702-RMG-MGB

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

June 9, 2021

REPORT AND RECOMMENDATION

Plaintiff Donald Bruno ("Plaintiff"), through counsel, filed this lawsuit alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"). (Dkt. No. 1.) This matter is currently before the Court upon Defendant's Motion for Summary Judgment (Dkt. No. 24.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons stated below, the undersigned recommends granting Defendant's Motion for Summary Judgment (Dkt. No. 24.)

BACKGROUND

This civil action arises from Defendant's alleged age discrimination against Plaintiff. (Dkt. No. 1.) Plaintiff was employed by Defendant from March 5, 2005 to January 23, 2018. (Id. at 3; Dkt. No. 24-2 at 6-7.) Throughout his employment, Plaintiff worked as a stock clerk, team leader, assistant grocery manager, grocery manager, and grocery replenishment specialist.¹ (Dkt. No. 1 at 3-4.)

While working as a grocery replenishment specialist, Plaintiff was asked to assist with a shoplifter. He was later terminated for violating Defendant's policies while doing so. (Dkt. No. 1 at 5-6; Dkt. No. 24-2 at 25-27.) More specifically, Plaintiff's coworker asked him to assist with a suspected shoplifter on December 22, 2017. (Id. at 4; Dkt. No. 24-2 at 17.) Plaintiff watched this coworker (Abraham Patterson) talk to the alleged shoplifter for several minutes. (Dkt. No. 24-2 at 18.) Plaintiff contends that Mr. Patterson then proceeded to move a shopping cart out of the alleged shoplifter's path, so that Mr. Patterson could escort the shoplifter to the store's office. (Dkt. No. 1 at 4; Dkt. No. 24-2 at 18.) When he did this, the shoplifter "immediately bolted toward the exit." (Dkt. No. 1 at 4; Dkt. No. 24-2 at 18.) Plaintiff explains that he "had a quick, knee jerk reaction to the alleged shoplifter lunging towards him [and] tackled the suspect and brought him to the ground," where he held the shoplifter until an off-duty police officer took over. (Dkt. No. 1 at 5; Dkt. No. 24-2 at 18.)

Immediately following this incident, Plaintiff's supervisor, Donald Calabrese, called Plaintiff into his office and gave him a verbal warning. (Dkt. No. 1 at 5; Dkt. No. 24-2 at 19.) Several weeks later, Mr. Calabrese called Plaintiff back into his office and terminated him for violating Defendant's policies during the shoplifting incident. (Dkt. No. 1 at 5-6; Dkt. No. 24-2 at 25-27.) Plaintiff appealed his termination through Defendant's internal grievance process. (Dkt. No. 1 at 7; Dkt. No. 24-2 at 29-30.) In doing so, Plaintiff reported to Defendant's Human Resources Investigator that hebelieved he was being discriminated against on account of his age. (Dkt. No. 1 at 7; Dkt. No. 24-2 at 31.) Plaintiff explained that he knew of several other younger employees who had similar interactions with shoplifters but had not been terminated or disciplined. (Dkt. No. 1 at 6; Dkt. No. 24-2 at 31.) After investigating Plaintiff's complaints, Defendant's Human Resources Investigator recommended upholding Plaintiff's termination.² (Dkt. No. 1 at 7; Dkt. No. 24-2 at 41.)

On September 23, 2019, Plaintiff filed the instant civil action alleging age discrimination in violation of the ADEA. (See generally Dkt. No. 1.) Now before the Court is Defendant's Motion for Summary Judgment, which was filed on October 16, 2020. (Dkt. No. 24.) After requesting and receiving an extension of time to respond, Plaintiff filed a Response in Opposition to Defendant's Motion for Summary Judgment on November 13, 2020. (Dkt. No. 27.) On December 2, 2020, Defendant filed a timely reply to Plaintiff's response. (Dkt. No. 28.) As such, the motion before the Court has been fully briefed and is ripe for disposition.

LEGAL STANDARD

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham AirportAuth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

"As the moving party, Defendant[] [is] required to identify those portions of the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which [it] believe[s] demonstrate the absence of genuine issues of material fact." Perez v. Arnold Transportation, No. 3:15-cv-3162-TLW, 2018 WL 2301850, at *3 (D.S.C. Feb. 12, 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "As the nonmoving party, Plaintiff[] must then produce specific facts showing that there is a genuine issue for trial." Id. (citing Celotex Corp., 477 U.S. at 317). "Plaintiff[] may not rest on mere allegations or denials; [he] must produce 'significant probative evidence tending to support the complaint.'" Id. (quoting Anderson, 477 U.S. at 248). In other words, "the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial." Crawford v. Newport News Indus. Corp., No. 4:14-cv-130, 2018 WL 4561671, at *2 (E.D. Va. Mar. 2, 2018) (citing Celotex Corp., 477 U.S. at 317), adopted in part, 2018 WL 2943445 (E.D. Va. June 11, 2018), appeal dismissed sub nom. Kershaw v. Newport News Indus. Corp., 2018 WL 8058614 (4th Cir. Oct. 25, 2018).

In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Although the Court must "draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, thebuilding of one inference upon another, or the mere existence of a scintilla of evidence." Sandlands C & D LLC v. County of Horry, 737 F.3d 45, 54 (4th Cir. 2013) (citing Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013)). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.

DISCUSSION

Defendant claims that it is entitled to summary judgment because Plaintiff "cannot establish a prima facie case of age discrimination in violation of the ADEA" and because Plaintiff cannot show pretext. (Dkt. No. 24-1 at 14, 16.) For the reasons set forth below, the undersigned agrees. The undersigned therefore recommends that Defendant's Motion for Summary Judgment (Dkt. No. 24) be granted and that this case be dismissed in full.

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). When, as here, the plaintiff lacks direct evidence of discrimination, he must satisfy the three-step burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), to prevail on a claim under the ADEA.³ Jeffers v. Lafarge N. Am., Inc., 622 F. Supp. 2d 303, 315(D.S.C. 2008). Under the McDonnell Douglas paradigm, the plaintiff must first establish the elements of a prima facie discrimination claim.

Plaintiff can establish a prima facie case of age discrimination by showing that: (1) he is at least 40; (2) he was performing his job to the legitimate expectations of his employer; (3) his employer took an adverse employment action against him; and (4) the adverse employment action occurred under circumstances that raise a reasonable inference of unlawful discrimination (e.g., younger similarly-situated employees received more favorable treatment). See Wakefield-Brace v. Greenwood Sch. Dist. 50, No. 8:16-cv-2750-MGL-KFM, 2017 WL 9286975, at *8 (D.S.C. May 25, 2017), adopted, 2017 WL 2569846 (D.S.C. June 14, 2017) (referencing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). In short, the plaintiff must prove that age was the "but for" cause of the adverse action at issue. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009); see also Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019) (noting that "the employee must prove that the employer would not have fired her in the absence of age discrimination" (emphasis in original)).

If the plaintiff can set forth the elements of a prima facie case of discrimination, the burden then shifts to the employer to show "a legitimate, nondiscriminatory reason" for the alleged adverse action. Westmoreland, 924 F.3d at 725. If the employer provides a legitimate, nondiscriminatory reason, the burden shifts back to the plaintiff "to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant-employer were not its true reasons, but were a pretext for discrimination" See id. at 726 (referencing Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54 (1981)). "The ultimate burden of persuading the trier of fact that the defendant intentionallydiscriminated against the plaintiff...