Hale v. Con-Way Transp. Services, Inc.

• Decision Date: 04 April 2006
• Docket Number: No. Civ.A. 2:04CV666.,Civ.A. 2:04CV666.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Paul C. HALE, Plaintiff, v. CON-WAY TRANSPORTATION SERVICES, INC., Defendants.

428 F.Supp.2d 471

Paul C. HALE, Plaintiff, v. CON-WAY TRANSPORTATION SERVICES, INC., Defendants.

No. Civ.A. 2:04CV666.

United States District Court, E.D. Virginia Norfolk Division.

April 4, 2006.

COPYRIGHT MATERIAL OMITTED

James Harrell Shoemaker, Jr., Patten Wornom Hatten & Diamonstein LC, Jennifer Janelle Sherwood, Jennifer J. Sherwood, P.C., Newport News, VA, for Plaintiff.

James Matthew Coleman, Robert Patrick Floyd, III, Constangy Brooks & Smith LLC, Fairfax, VA, Frank Barry Shuster, Constangy Brooks & Smith LLC, Atlanta, GA, for Defendants.

OPINION

KELLEY, District Judge.

Plaintiff Paul C. Hale managed a service center in Norfolk, Virginia owned by the trucking company Con-Way Transportation Services, Inc. ("Con-Way"). After several audits documented the service center's non-compliance with federal law and various internal regulations, Con-Way terminated plaintiff's employment. Plaintiff then brought this action, alleging that Con-Way really fired him because of his age. The matter is now before the Court on defendant Con-Way's Motion for Summary Judgment. (Docket No. 11). For the reasons stated below, the Court GRANTS defendant's motion.

I. Factual and Procedural History¹

Plaintiff Hale became employed by defendant Con-Way in September 1995 after Con-Way merged with his previous employer, Freightways. In May 1997, Con-Way promoted plaintiff to Service Center Manager ("SCM") of a Category 6 service center in Bryan, Texas.² In April 1998, Con-Way promoted plaintiff to a SCM position at a Category 4 service center in Baton Rouge, Louisiana. In February 2000, plaintiff was promoted to a SCM position at Con-Way's Category 3 service center in Norfolk, Virginia.

George Wittwer, Con-Way's manager of procedural compliance, audited the Norfolk service center in October 2000. Con-Way performs audits to determine whether the service centers are in compliance with Con-Way's policies and procedures as well as applicable federal and state regulations. The audit results are reported in the following categories of exceptions: Priority Exceptions, Primary Exceptions, Secondary Exceptions, and Discussion Items. Priority Exceptions are the most serious and Discussion Items are the least serious issues reported.

The audit performed by Mr. Wittwer resulted in 1 Priority Exception, 5 Primary Exceptions, 3 Secondary Exceptions, and 14 Discussion items.³ Wayne Waggoner, Con-Way's regional manager, sent a letter to plaintiff dated October 24, 2000 concerning the initial audit. He stated:

Paul, [a]s you are aware, my visit to Norfolk, VA on the 10th and 11th was a disappointment. Time to get back to square one at NNF from an audit standpoint.

. . . . .

Before any location can build upon the [Con-Way] culture, local management must insure audit compliance. It is your responsibility to every employee at the service center to insure they comprehend these basic requirements.

The NNF audit revealed a service center in non-audit compliance on several major issues, including a priority in cash collections. Before any service center can begin to grow efficiently and profitability, these requirements must be met. In the future it is your responsibility to maintain and sustain the basic audit compliance and foundations that must exist at any Con-Way service center. Internal audit will conduct another full audit in the first quarter of 2001 to follow up on the progress NNF has made from an audit standpoint. I look forward to better results to get NNF on the road to build a great service center.

In July 2002, Mr. Wittwer audited the Norfolk Service Center a second time. This audit resulted in 10 Primary Exceptions, 6 of which were repeat items from the October 2000 audit. On July 22, 2002, Wayne Waggoner sent plaintiff another letter concerning the poor audit results. This letter stated:

The recent internal audit in NNF completed on 7/18/02 resulted in 10 primary exceptions, of which 6 were repeats, 1 secondary exception, and 7 discussion items. " This is one of the worst, if not the worst audit in Con-Way history.

. . . . .

Paul it is your responsibility as the Service Center Manager to ensure audit compliance at your facility. You are failing in this responsibility and I will not tolerate this any longer. You have been the SCM in NNF for two and a half years and this will not get any better until you raise your expectation level to your FOS's as well as customer service representatives in this area. Inspect what you expect by constant follow-up.

This is symptomatic of a lack of attention to detail and any service center without this basic foundation at Con-Way Southern Express will eventually crumble.

I will review your response to this audit .. . . I will then give you 90 days to get this cleared up, after which I will request a return visit by [sic] internal audit department to ensure your commitment to correct each of these exceptions and overall compliance to company policy and procedure. You will be given any support you need, but the end result is in your hands.

(Hale Dep., Def. Ex. 16) (Emphasis added).

The follow-up audit mentioned in Mr. Waggoner's letter took place in November 2002 and resulted in 5 Primary Exceptions, one of which involved federally mandated driver pay records. A fourth audit was conducted in April 2003 and resulted in 1 Priority and 4 Primary Exceptions.

Con-Way terminated plaintiffs employment for poor performance on April 14, 2003. Plaintiff was 50 years of age at the time of his termination.

II. Principles of Summary Judgment

Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."⁴ a Fed.R.Civ.P. 56(c); see also Hunt v. Cromartie, 526 U.S. 541, 549, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 513 (4th Cir.2006); Walton v. Greenbrier Ford, Inc., 370 F.3d 446, 449 (4th Cir.2004). A court "must take special care" when considering a summary judgment motion in an employment discrimination case because the employer's "motive is often the critical issue." Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir.1997); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir.1996); Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir.1987). Nevertheless, summary judgment remains an appropriate disposition when the plaintiff is unable to prevail on his or her discrimination claims as a matter of law. Beall, 130 F.3d at 619; Evans, 80 F.3d at 958-59.

III. Analysis

Congress enacted the Age Discrimination in Employment Act ("ADEA") "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U.S.C. § 621(b). The ADEA makes it unlawful for an employer "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); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Application of the ADEA is limited to "individuals who are at least 40 years of age." 29 U.S.C. § 631(a).

The touchstone of an ADEA action is that the adverse employment decision would not have been made, but for plaintiffs age. In other words, the plaintiffs age must have been a determining factor in the employer's decision. Reeves, 530 U.S. at 141, 120 S.Ct. 2097; Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315 (4th Cir.1993); Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 238 (4th Cir.1982). "[T]he mere fact of replacement by a younger employee is not dispositive of age discrimination." Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 512 (4th Cir.1994); see also Halperin v. Abacus Tech. Corp., 128 F.3d 191, 202 (4th Cir.1997). "The ADEA prevents employers from acting on the basis of age—not performance." Dockins v. Benchmark Commc'ns, 176 F.3d 745, 750 (4th Cir.1999). Employers are not required to "adopt a life of economic altruism and thereby immunize protected class members from discharge or demotion despite their poor performance." Gairola v. Va. Dep't of Gen. Servs., 753 F.2d 1281, 1287 (4th Cir.1985); see also Dockins, 176 F.3d at 750.

Plaintiff Hale contends that he was fired because of his age and that Con-Way ordered the audits to provide a pretext for his firing. (Docket No. 17 at p. 12, ¶ 13). Plaintiff appears to pursue his claim under both the McDonnell Douglas "pretext" approach and the "mixed motive" approach. Each will be discussed in turn.

A. Pretext

1. The McDonnell Douglas Test

A plaintiff may prove discrimination through circumstantial evidence using the burden-shifting framework established by the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Mereish v. Walker, 359 F.3d 330, 334 (4th Cir.2004); Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir.2004); Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.2002); Puckett v. City of Portsmouth, 391 F.Supp.2d 423, 431 n. 2 (E.D.Va.2005). Under the McDonnell Douglas framework, a plaintiff has the initial burden to prove a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; see also Raytheon Co. v. Hernandez, 540 U.S. 44, 50, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,...