Johnson v. Crossroads Ford, Inc.

• Decision Date: 15 October 2013
• Docket Number: No. COA13–173.,COA13–173.
• Citation: 749 S.E.2d 102
• Parties: Arnold Floyd JOHNSON, Plaintiff, v. CROSSROADS FORD, INC., Defendant.
• Court: North Carolina Court of Appeals

749 S.E.2d 102

Arnold Floyd JOHNSON, Plaintiff,

v.CROSSROADS FORD, INC., Defendant.

No. COA13–173.

Court of Appeals of North Carolina.

Oct. 15, 2013.

Appeal by plaintiff from order entered 21 August 2012 by Judge Howard E. Manning in Wake County Superior Court. Heard in the Court of Appeals 14 August 2013.Glenn, Mills, Fisher & Mahoney, P.A., Durham by Stewart W. Fisher, for plaintiff-appellant.

Cranfill Sumner & Hartzog LLP, Cary by Paul H. Derrick and Sara B. Warf, by defendant-appellee.

North Carolina Advocates for Justice, by Winslow Wetsch, PLLC, Raleigh by Laura J. Wetsch, amicus curiae.

McCULLOUGH, Judge.

Plaintiff Arnold Floyd Johnson appeals from the trial court's order, granting summary judgment in favor of defendant Crossroads Ford, Inc. and dismissing plaintiff's claim that he was wrongfully terminated based on his age in violation of the North Carolina Equal Employment Practices Act (section 143–422.1 et seq., of the North Carolina General Statutes) with prejudice. After careful review, we reverse and remand the trial court's order.

I. Background

On 17 February 2011, plaintiff Arnold Floyd Johnson filed a complaint against defendant Crossroads Ford, Inc., a North Carolina Corporation operating numerous car dealerships within North Carolina and Virginia, alleging wrongful termination. Specifically, plaintiff alleged he was wrongfully terminated by defendant based on his age in violation of the North Carolina Equal Employment Practices Act, section 143–422.1 et seq., of the North Carolina General Statutes.

The complaint alleged the following: Plaintiff was born on 9 April 1950. In March 2000, plaintiff was hired by defendant as a salesperson. Defendant's president and principal owner Glenn Boyd (“President Boyd”) stated “that he could promote [plaintiff], so [p]laintiff should let [President Boyd] know what he was interested in doing, but that this was ‘a young man's business.’ ” During his employment, plaintiff was promoted to Finance and Insurance Manager, then Business and Development Center Manager, and then Sales Manager at Crossroads Ford of Cary (“Crossroads Ford”). In 2007, plaintiff was promoted to the position of General Manager at Crossroads Ford.

Plaintiff alleged that after he became General Manager, defendant's Vice–President Allen Boyd would repeatedly refer to plaintiff in “an age-related derogatory manner,” call plaintiff “old man” up to five or six times in a single day, and say plaintiff could not hear a ringing telephone because of plaintiff's age when he did not have a hearing problem. In 2009, defendant hired Noah Woods, a thirty-five (35) year old male to replace plaintiff as General Manager of Crossroads Ford. Plaintiff was demoted to the position of Director of Sales and Service.

Plaintiff further alleged that on 26 April 2010, a salesman named Patrick Rowe approached plaintiff and informed him that a customer was interested in purchasing a used Mustang convertible. Rowe wanted to sell plaintiff's wife's car, a Mustang convertible that had been sitting in the back lot of Crossroads Ford since April 2010. Plaintiff agreed to sell his wife's car “but told [Rowe] that they would have to work it out with Vice–President Boyd to determine Rowe's commission and how to complete the sale.” The customer gave plaintiff a check for the vehicle but the vehicle was not tendered to the customer because plaintiff wanted to wait until he talked to Vice–President Boyd about the transaction. On or about 31 April 2010 ¹, Vice–President Boyd informed plaintiff by phone that he was terminated for stealing. Plaintiff alleged that defendant's reason for terminating plaintiff was false and pre-textual.

On 5 January 2012, defendant filed an amended answer, denying many of plaintiff's allegations. The amended answer admitted that Rowe advised customers that plaintiff was selling his wife's used vehicle that was sitting in defendant's employee parking lot based on Rowe's “understanding of corporate policy and his belief that Plaintiff had obtained authorization to sell his vehicle through the dealership[.]” Rowe heard plaintiff quote a sales price of $17,500.00 to one of the customers and “[t]hinking that the customer was going to finance the vehicle through the dealership, [Rowe] presented the customer with a credit application.” Plaintiff interceded, told Rowe that the credit application was not necessary, and told the customers to write a check payable to plaintiff personally. Defendant admitted that Vice–President Boyd confirmed to plaintiff that “his employment had been terminated for taking a corporate opportunity; selling his personal vehicle at the dealership to [a] customer of the dealership on company time with no benefit to the company and without authorization.”

On 11 June 2012, defendant filed a motion for summary judgment. On 18 July 2012, plaintiff gave notice of filing of several documents including numerous depositions, an affidavit of Noah Woods, and several exhibits. On 20 July 2012, defendant filed a motion to strike the affidavit of Noah Woods and also filed numerous affidavits in support of its summary judgment motion.

Following a hearing held on 23 July 2012, the trial court granted defendant's motion for summary judgment and dismissed plaintiff's case with prejudice. From this order, plaintiff appeals.

II. Standard of Review

“Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and quotation marks omitted).

The moving party bears the burden of establishing the lack of a triable issue of fact. If the movant meets its burden, the nonmovant is then required to produce a forecast of evidence demonstrating that the [nonmoving party] will be able to make out at least a prima facie case at trial. Furthermore, the evidence presented by the parties must be viewed in the light most favorable to the non-movant.

Thompson v. First Citizens Bank & Trust Co., 151 N.C.App. 704, 706, 567 S.E.2d 184, 187 (2002) (internal citations and quotation marks omitted).

III. Discussion

Plaintiff presents the following issues on appeal: (A) whether the trial court erred by disregarding the affidavit of Noah Woods and (B) whether the trial court erred by granting summary judgment in favor of defendant.

A. Affidavit of Noah Woods

Plaintiff argues that the trial court erred by disregarding the affidavit of Noah Woods and finding that it was “presented at the 11th hour,” “inherently incredible,” and “inconsistent” with plaintiff's complaint. We agree.

On 18 July 2012, plaintiff filed and served upon defense counsel the affidavit of Noah Woods, the thirty-five (35) year old who was hired by defendant to serve as General Manager of Crossroads Ford in 2009. Woods' affidavit provided he was hired to replace plaintiff. It also stated the following, in pertinent part:

8. During the time that [plaintiff] and I worked together ..., I observed that Allen Boyd appeared to give [plaintiff] a hard time and to needle him. On several occasions I heard Allen refer to [plaintiff] as “old man.”

9. Allen Boyd did not use “old man” as a term of endearment.

10. Based upon my observations of the interactions between [plaintiff] and Allen Boyd, I would say that Allen Boyd knew that [plaintiff] did not like to be referred to as “old man” and that Allen Boyd could see that it was humiliating to [plaintiff.]

...

13. I am aware of the circumstances surrounding [plaintiff's] termination from the company.

...

17. As the General Manager, I was fully aware of the sale. [Plaintiff] did not try to deceive anyone or hide the fact that he was selling the car. I approved of him selling the car to the customers.

18. [Plaintiff] was willing to pay a commission from the sale to Crossroads Ford and I did not think that there was anything wrong with his selling the car to the customers.

19. [Plaintiff] was going to let Allen Boyd know about the sale and work out a cut for Crossroads Ford with Allen.

20. On Friday, April 30, 2010, Allen Boyd called me and told me he wanted me to fire [plaintiff] for selling his car.

21. Although I disagreed with Allen's decision, it was clear that Allen had already made up his mind[.]

...

24. I think Allen Boyd used the sale of [plaintiff's] car as a pretext to fire him. One of the principal reasons that Allen Boyd removed [plaintiff] from the position of General Manager and terminated him from his job was because of [plaintiff's] age.

On 20 July 2012, defendant filed a motion to strike the affidavit of Noah Woods. Although the trial court stated that it was not going to strike Woods' affidavit during the 23 July 2012 hearing, in the 21 August 2012 summary judgment order, the trial court stated that

[t]he Court finds that Woods' affidavit is inherently incredible, presented at the 11th hour and therefore, does not create a material issue of fact to bootstrap [plaintiff] over the motion for summary judgment. Had Woods in fact approved of the sale as he now contends, the complaint would have contained these alleged facts.

...

[Plaintiff] is simply using Woods as a “straw man” to put forth a last ditch yarn that is inconsistent with the complaint and his sworn deposition testimony. It is crystal clear that a party opposing a summary judgment motion cannot create an issue of fact by filing an affidavit that is in conflict with his prior sworn testimony. Woods' affidavit is merely a surrogate for [plaintiff's] inconsistent and newly created story that he had authority to sell the car from Woods.... Cousart v. The Charlotte–Mecklenburg Hospital Authority , 704 S.E.2d 540, 543–44 (2011); Carter v. West Am. Ins. Co., 190 N.C.App. 532 , and Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.1984). Reduced to essentials, Woods' last minute...