Jones v. Lowe's Cos.

• Decision Date: 09 February 2021
• Docket Number: No. 19-1975,19-1975
• Parties: MICHAEL JONES, Plaintiff - Appellant, v. LOWE'S COMPANIES, INC., Defendant - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

MICHAEL JONES, Plaintiff - Appellant, v. LOWE'S COMPANIES, INC., Defendant - Appellee.

No. 19-1975

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: December 10, 2020

February 9, 2021

UNPUBLISHED

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Kenneth D. Bell, District Judge. (3:17-cv-00140-KDB-DSC)

Before WILKINSON and FLOYD, Circuit Judges, and Gina M. GROH, Chief United States District Judge for the Northern District of West Virginia, sitting by designation.

Affirmed by unpublished opinion. Judge Wilkinson wrote the opinion, in which Chief Judge Groh concurred. Judge Floyd wrote an opinion dissenting in part and concurring in part.

ARGUED: S. Luke Largess, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte, North Carolina, for Appellant. Stuart Alan Raphael, HUNTON ANDREWS KURTH LLP, Washington, D.C., for Appellee. ON BRIEF: Cheyenne N. Chambers, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte, North Carolina, for Appellant. A. Todd Brown, Sr., Charlotte, North Carolina, Holly Williamson, Houston, Texas, Trevor S. Cox, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

WILKINSON, Circuit Judge:

Appellant Michael Jones appeals the district court's grant of summary judgment on his discrimination and defamation claims against appellee Lowe's Companies, Inc. For the reasons that follow, we affirm.

I.

A.

In January 2013, Lowe's hired Jones, an African-American executive, to fill the role of Chief Merchandising Officer. J.A. 149. Greg Bridgeford, the Chief Customer Officer, initially selected Jones, but CEO and President Robert Niblock ultimately authorized and approved the hire. J.A. 1412. As Bridgeford later testified, there was an understanding at the outset that Jones would replace Bridgeford, who was planning to retire, as Chief Customer Officer. J.A. 442. Because of this expectation, Bridgeford testified that he wanted to make sure that CEO Niblock was comfortable with Jones. J.A. 442. Bridgeford also testified that Niblock showed no hesitation "at all" in approving the hire and that Niblock thought Jones' "upside" was "very strong." J.A. 442-44.

Things started off well. Over the following year, Jones received excellent performance reviews. For example, Bridgeford wrote in one performance review that "[i]n 30 years at Lowe's, I have never seen an 'outsider' come into the Lowe's culture" and have such a positive impact. J.A. 550. During that year, Bridgeford asked Niblock "[e]very month" how he thought Jones was doing and Niblock was "very positive," saying Jones "was hitting his mark." J.A. 442-44. Bridgeford and Niblock at "various times" discussed the prospect that Jones might ultimately succeed Niblock as CEO, sometime in the future.J.A. 444. Niblock reacted "positive[ly]" to that idea, although Niblock himself never expressed any plans to retire. J.A. 444.

In February 2014, Jones was promoted to take Bridgeford's job as Chief Customer Officer. J.A. 625-26. Although Niblock did not discuss the promotion directly with Jones, Niblock and Bridgeford had been planning to make the move since Jones was hired and Niblock made the final promotion decision. J.A. 208-09. With his promotion, Jones now reported directly to CEO Niblock.

The relationship between Jones and Niblock started off amicably. Business was good for Lowe's in the few years following Jones' promotion. See, e.g., J.A. 625, 637. Jones consistently received good performance reviews from Niblock. J.A. 648-54. Niblock advised the Board of Directors to make Jones his "hit-by-a-bus successor" as CEO, meaning Jones would lead the company if Niblock suddenly died, though the Board ultimately selected the General Counsel as the potential emergency replacement instead. J.A. 1706-07. In 2015, Niblock presented an internal succession document to the Board listing Jones and Richard Maltsbarger, who led the international division, as the two leading candidates to replace him as CEO.

At some point, the relationship between Jones and Niblock soured, though the parties dispute the reason for the rupture. Jones argues that Niblock disliked him because he favored another candidate, Maltsbarger, to eventually replace him as CEO. Lowe's insists that it was not seriously preparing to replace Niblock and things began to worsen when Jones reacted negatively to critical feedback on a performance review and began to disengage from the company.

In December 2015, Lowe's retained an outside consultant, the Hay Group, to compile performance reviews on executive leaders. J.A. 201-02. This process created misunderstanding and distrust. Jones testified that this review was being conducted to assess who should replace Niblock as CEO, and that the two leading candidates were him and Richard Maltsbarger. J.A. 214-15. Jones claims that the assessments were to be given to the Board of Directors in order to aid a decision about succession planning. Appellant Brief at 10. Jones also claims that the Chief Human Resources Officer, Maureen Ausura, confirmed this to him, though Ausura denied this in a deposition. J.A. 1821. Ausura did state in her deposition that she thought both Jones and Maltsbarger were viable candidates to eventually replace Niblock, but that there was no plan to give the assessments to the Board as part of its succession planning. J.A. 1812. Ausura's successor, Jennifer Weber, also testified that there was never a plan to deliver these assessments to the Board. J.A. 1882. Dr. Rivers of the Hay Group testified that the assessments were not being compiled for imminent succession planning, that she expected Niblock to remain as CEO for at least three to five more years, and that the purpose of the assessments was to help improve Lowe's top executives. J.A. 338-43.

Jones argues that Niblock and Jennifer Weber manipulated the review process in order to boost Maltsbarger's chances of becoming CEO. Appellant Brief at 10 (citing statement by Weber that Niblock had a "clear affinity" for Maltsbarger). Jones' theory is that they fired him for resisting their manipulations of the review process. Jones also suggests there was racial tension between him and Niblock. For example, he claims that, during an executive retreat, Niblock took the group on a tour focusing on Charleston'santebellum history not long after Dylann Roof murdered congregants of a local African-American church. J.A. 614. He also claims that a shoplifting presentation depicted all the shoplifters as black and that Niblock wanted Lowe's New York stores to support the NYPD after the death of Eric Garner. J.A. 614.

Lowe's argues that Niblock eventually fired Jones because he was "disengaged" and not fully committed to the company. By early 2016, Jones apparently believed that Niblock was going to push him out. While the Hay assessment was being prepared, Jones told Ausura (then the human resources leader) that he would voluntarily leave Lowe's if the company offered him "a fair package." J.A. 1810. Ausura testified that she tried to reassure Jones that no one wanted him gone and that he was a serious candidate to eventually replace Niblock. J.A. 1810. A few days later, Jones emailed a colleague asking for recommendations for a professional resume writer. J.A. 457. Jones then emailed a professional resume writer telling her he needed to revise his resume because he was looking for a CEO job. J.A. 460. Jones emailed himself in January 2016, outlining his grievances with Lowe's, telling himself he wanted a CEO role, and stating that his "timeline is too short to spend 3 to 5 years waiting for this business to figure this out." J.A. 463.

Nevertheless, in February 2016, Jones received an outstanding performance review for the prior year. The review contained an assessment of Jones' work from CEO Niblock, who made several positive statements about Jones. For example, he said, "Mike [Jones] has done a great job of upgrading the talent at the senior leadership level in his area." He also said, "Beyond the numerical diversity that exist in Mike's area, I am also seeing muchgreater 'diversity of thought', which . . . I am optimistic . . . will help drive our success in the future." J.A. 650-54.

In April 2016, the Hay assessment was released. Jones and Lowe's agree that the Hay Group assessment was largely favorable to Jones. The summary said, for example, that "Mike is a strong and impactful leader with a keen eye for talent and a passion for getting results"; "makes tough calls and takes risks which drive the organization forward and position it for success"; and "is strong and confident, takes on challenges and acts in the best interest of the enterprise." J.A. 1080. The assessment included both praise and criticism of Jones from Niblock. On the positive side, Niblock called Jones "a well respected, experienced leader" who was "embraced by his team and the organization when he was brought in." J.A. 1111. He also praised Jones for "challeng[ing] his team" and "push[ing] them hard"; for "ma[king] changes for the better"; and for "build[ing] out his organization well." J.A. 1112. But the report also included some poor "leadership scores" for Jones. For example, the assessment scored Jones as showing "no evidence" that he "enables senior team effectiveness"— the only competency score of zero for either Jones or Maltsbarger. J.A. 1094. It also included some negative feedback from peers, including things like, "At times he can be inflexible; when his mind is made up that is it;" and "At times lets his emotions show through which could be off putting." J.A. 1116.

The parties dispute how Jones responded to his feedback. Jones claims that Dr. Rivers, who prepared the Hay assessment, demanded that he accept the negative feedback, including his low score on enabling senior team effectiveness. J.A. 240-43. Jones refused and said he could not do his job if he accepted that characterization. J.A. 243-44. Rivers...