Jones v. Lowe's Cos., CIVIL ACTION NO. 3:17-CV-00140-KDB-DSC

• Decision Date: 29 August 2019
• Docket Number: CIVIL ACTION NO. 3:17-CV-00140-KDB-DSC
• Citation: 402 F.Supp.3d 266
• Court: U.S. District Court — Western District of North Carolina
• Parties: Michael JONES, Plaintiffs, v. LOWE'S COMPANIES, INC., Defendants.

402 F.Supp.3d 266

Michael JONES, Plaintiffs,

v.LOWE'S COMPANIES, INC., Defendants.

CIVIL ACTION NO. 3:17-CV-00140-KDB-DSC

United States District Court, W.D. North Carolina, Charlotte Division.

Signed August 29, 2019

Filed August 30, 2019

S. Luke Largess, Cheyenne N. Chambers, Tin, Fulton, Walker & Owen, PLLC, Charlotte, NC, for Plaintiffs.

Holly Harvel Williamson, Pro Hac Vice, Hunton Andrews Kurth LLP, Houston, TX, Matthew Paul Bosher, Pro Hac Vice, Hunton Andrews Kurth, Richmond, VA, A. Todd Brown, Sr., Hunton Andrews Kurth LLP, Charlotte, NC, for Defendants.

ORDER

Kenneth D. Bell, United States District Judge

THIS MATTER is before the Court on Defendant Lowe's Companies, Inc. ("Lowe's") Motion for Summary Judgment (Doc. No. 71), which Plaintiff Michael Jones ("Jones") opposes, and various motions related to the sealing and unsealing of the summary judgment record (Doc. Nos. 100, 104, 106, 138). The Court has carefully reviewed the motion and considered the parties' briefs and exhibits. For the reasons discussed below, the Court GRANTS Lowe's Motion for Summary Judgment. The Court GRANTS IN PART Plaintiff's Motion to Unseal (Doc. No. 100), DENIES Lowe's Motion to Seal Document 72 (Doc. No. 106), DENIES Lowe's Motions to Seal Document 105 (Doc. No. 104), and GRANTS IN PART Lowe's Motion to Seal Document 137 (Doc. No. 138).

I. RELEVANT BACKGROUND

This is an employment discrimination action based on 42 U.S.C. § 1981 and analogous North Carolina law. Plaintiff originally filed this case in Mecklenburg County Superior Court on February 15, 2017, alleging three causes of action: (1) discrimination in the termination of employment, in violation of 42 U.S.C. § 1981 ; (2) retaliation in the termination of employment, in violation of 42 U.S.C. § 1981 ; and (3) state law wrongful discharge, in violation of N.C. Gen. Stat. § 143-422.2. (Doc. No. 1-1, at ¶¶ 105–120.) Plaintiff subsequently amended his Complaint to include a claim of defamation. (Doc. No. 1-1, at 33–34, ¶¶ 121–25). On March 17, 2017, Defendant removed the entire action under 28 U.S.C. §§ 1331 and 1441(a). (Doc. No. 1.) The Court has supplemental jurisdiction over the state law claims.

The undisputed facts are as follows: Lowe's originally hired Plaintiff, an African American male, in January 2013 in the position of Chief Merchandising Officer. (Doc. No. 72, at 2.) The following year, Lowe's promoted Plaintiff to the position of Chief Customer Officer ("CCO"). (Id. ) In his new position, Plaintiff reported directly to Robert Niblock, Lowe's CEO and president at the time, and was part of the executive team. (Id. ) Plaintiff performed his role well, and in 2015 Niblock informed the Lowe's board of directors of his decision to name Plaintiff as his "hit-by-the-bus successor," i.e., the person who would take over as Lowe's CEO if Niblock became suddenly incapacitated. (Doc. No. 73–3, at 11.)

In late 2015, at the request of its board of directors, Lowe's hired an outside consultant to perform an assessment of certain Lowe's executives. (Id. at 3.) The purpose of the assessment is disputed: Plaintiff contends that its purpose was to perform an "outside assessment of Plaintiff" and another Lowe's executive, Richard Maltsbarger, a Caucasian male, "as potential CEO successors." (Doc. No. 79, at 6.) Lowe's contends that this assessment was "designed to evaluate [Plaintiff] and other high-powered executives for their leadership qualities so that the executives could develop in certain areas" and notes that "there was no plan or announcement by Niblock during [Plaintiff's] employment that Niblock intended to retire." (Doc. No. 72, at 2–3.) Lowe's states that a total of six individuals were assessed. (Id. , at 10.) At minimum, the parties agree that results of the assessment were intended to be used "as a component of leadership succession planning," a process which the Lowe's board of directors undertook annually. (Id. ) Jones and Maltsbarger were both identified as executives with "long-term potential" for possible CEO succession. (Id. ) There is no evidence that Niblock ever expressed any intention to retire or otherwise step down from his role at Lowe's prior to March 2018, more than two years after the assessment began and seventeen months after Plaintiff was terminated.

As a part of the assessment process, the outside consultant met with Plaintiff and Maltsbarger and interviewed a selection of their peers, subordinates, and Niblock. (Doc. No. 79, at 8–9.) The outside consultant compiled her results into reports that assessed the preparedness and capabilities of the two candidates. (Id. at 9.) She also created a "CEO Profile" report which was intended to create an objective standard by which Plaintiff and Maltsbarger were measured. (Doc. No. 79, at 12.)

The outside consultant first reviewed the assessment results with Niblock and two members of Lowe's Human Resources department in early March 2016. (Doc. No. 79, at 9.) Evidence demonstrates that following this meeting, Niblock requested that the outside consultant make revisions to the objective "CEO Profile" and conduct additional interviews of peers and subordinates. (Id. at 12, 15.)

Following the presentation of the outside consultant's initial report, Plaintiff had a series of meetings with the outside consultant, Niblock, and individuals in Lowe's HR department to review his assessment results. The parties dispute what occurred during these meetings, but agree that Plaintiff took issue with the assessment results because he felt that they unfairly maligned his capabilities as an executive. Plaintiff testified that during these meetings, he repeatedly informed Lowe's HR that he would rather separate amicably "from the company with a package than be discredited in the assessment process." (Id. at 13.) Plaintiff testified he informed Niblock that he would like a separation package at least twice. (Doc. No. 72–2, at 36.) Plaintiff further testified that following one of these meetings, at the end of May 2016, he moved personal belongings out of his office. (Id. , at 33.) Plaintiff testified that by June of 2016, he had "made recruiters aware that [he] would listen to opportunities" and "fully intended to continue listening to opportunities." (Id. , at 36.)

Lowe's takes the position that Plaintiff, through his statements in these meetings and actions in the office, "left little doubt that [he] had resigned from Lowe's, mentally and passive aggressively, if not formally." (Doc. No. 72, at 8.) Niblock testified that in the months following Lowe's receipt of the consultant's initial report, Plaintiff grew increasingly disengaged from his work at Lowe's. (Id. at 9). Specifically, Niblock stated that Plaintiff stopped "checking in," that his "hours in the office dropped," and his participation declined at key off-site meetings. (Id. ) Niblock testified he asked Plaintiff to "decide whether he was committed to Lowe's or not" after Plaintiff moved belongings out of his personal office. (Doc. No. 72, at 13.) He also testified he later called Plaintiff and asked why he was not listed on the agenda of a meeting that Niblock expected Plaintiff to attend. (Doc. No. 97, at 10.) Niblock testified that in August 2016, he informed the Lowe's board of directors that Plaintiff had concerns about the assessment process and had indicated his preference for a severance package. (Doc. No. 72–3, at 5.) Niblock testified he told the board he would continue to monitor the situation. (Id. )

On October 16, 2016, the outside consultant delivered a new draft report accounting for the additional work on the assessments and CEO profile that occurred over the summer of 2016. (Doc. No. 79, at 17.) Plaintiff testified that Niblock set a meeting with him to discuss the results of the revised assessment on October 27, 2016. (Id. at 18.) It is undisputed that Niblock terminated Plaintiff during this meeting. (Id. ; Doc. No. 72, at 10.) Niblock testified he wished to terminate Plaintiff prior to a meeting of the Lowe's board of directors in November 2016 because Niblock "really didn't think I wanted to see [Plaintiff] have to go through a board meeting interacting with board members, knowing that there was some concern about his future with the organization." (Doc. No. 72–3, at 29.)

As summarized supra, Plaintiff filed this lawsuit on February 15, 2017. After Plaintiff filed suit, Lowe's issued a public statement that Plaintiff's lawsuit was "unfounded and irresponsible" and had "no basis in reality." (Doc. No. 88–20, at 1). Subsequently, Plaintiff amended his Complaint to add his claim for defamation.

Discovery for this action is governed by a Protective Order entered by Magistrate Judge David Cayer on October 23, 2017. (Doc. No. 18.) The Protective Order provides for designation of documents that fall within the following categories as confidential: (1) non-public financial, trade secret, or proprietary business or technical information that may be of value to a competitor; (2) any information of a personal or intimate nature regarding any individual and/or information protected by the right to privacy; and (3) any other category of information hereinafter given "Confidential" status by the Parties, upon written agreement, or the Court. Id. ¶ 5.

The Protective Order specifically states that a party may challenge confidentiality designation of any document at any time. Id. ¶ 12. It also provides that each party must file documents designated as confidential under seal, unless the filing party receives written permission from the designating party for public filing. Id. ¶ 19. However, in the same paragraph, it clarifies:

"It is understood by the Parties that any documents which become part of an official judicial proceeding or which are filed with the court are public documents, and that such documents can and will be sealed by the Court only upon motion and in accordance with applicable law. This Protective Order does not provide for automatic sealing of the

...