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IN THE UN ITED STATES DISTRICT COURT
FOR THE W ESTERN DISTRICT OF VIRGINIA
RO AN OK E D IV ISION
CLERK'S OFFICE 'U .8 Dtsm O URT
AT ROANOKE, VA
JUN 2 ù 2213
LEN O RE LIN K OU S,
STELLA RON E BA NK ,
Civil A ction N o. 7:12-cv-00229
M EM O M N DU M O PINIO N
By: H on. G len E. Conrad
Chief United States District Judge
This case involves an action filed pursuant to the Age Discrimination in Employm ent Act
(ûW DEA''), 29 U.S.C. j 62l #.1 seq. The plaintiff, Ms. Lenore Lirlkous, claims she was fired
from her position w ith the defendant, Stellaro ne, because of her age. The defendant has filed a
motion for summaryjudgment pursuant to Federal Rule of Civil Procedure 56. The court tinds
that the plaintiff has dem onstrated a genuine dispute over w hether her age w as the ûtbut for''
cause of her term ination, and will deny the defendant's m otion.
ln O ctober of 2000, M s. Linkous w as hired by First N ational Bank as the Branch
M anager for the Bartk's 601 North M ain Street location in Blacksburg, Virginia tçdNol'th M ain'').
Stellarone w as form ed on M ay 27, 2008 out of the m erger of First N ational Bank and V irginia
Financial Group, Inc. M s. Linkous continued in her role w ith Stellarone until she was tired on
August 24, 201 1, at w hich tim e she was sixty-eight years old.
M s. Lirlkous worked successfully with the company for a ntlmber of years, receiving
perform ance review s for the years 2009 and 2010 stating that she ddexceeds expectations'' and
tçm eets expectations,'' respectively. ln August, 201 1, how ever, M elia W right, a teller at N orth
M ain, filed a com plaint w ith Stellarone's H um an Resources D epartm ent against M s. Linkous.
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M s. W right complained that M s. Linkous was retaliating against her for having applied for a
position at another Stellarone branch.
The com plaint w as handled by N ancy M itchell, Senior H um an Resources m anager for
Stellaro ne. ln response to the com plaint, M s. M itchell, along w ith Lisa Cannell, Stellaro ne's
Chief H um an Capital O fficer, initiated an investigation into M s. Linkous' perform ance. A s part
of her investigation, M s. M itchell spent five days interviewing employees at the N orth M ain
Branch. It is Stellarone's position that the information tmcovered during the investigation led to
M s. Linkous' term ination. First, a num ber of em ployees told M s. M itchell that M s. Linkous
frequently discussed her perscmal life while at work. The bulk of these discussions involved M s.
Lirlkous' ex-boyfriend, W illie Price. The em ployees reported that M s. Linkous spoke w ith them
about how she had caught M r. Price having an affair w ith another w om mz. M s. W right stated
that M s. Lirlkous explained the scene to her in very graphic term s. Additionally, several
em ployees inform ed M s. M itchell of a specitic conversation concerning M r. Price that M s.
Linkous had w ith a custom er in the lobby of the bank. The custom er, a friend of M s. Linkous',
asked her w hen she w ould next see M r. Price. M s. Linkous responded that she w ould probably
see him the follow ing w eek when she w ent to feed the cat of a friend w ho lived nearby. In the
presence of the custom er and her subordinate em ployees, M s. Linkous stated that w hen she saw
M r. Price she Siwould wear gherq nightgown, and it won't be my flannel one.'' (Linkous Dep.
76:1 1-17.) M s. Linkous acknowledges making this comment. Stellarone contends that, as a
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result of the inform ation uncovered during M s. M itchell s nves g
ti ation 1 M s. M itchell and M s.
Calm ell made the decision to recom mend that M s. Linkous be term inated. The two took their
recom m endation to M ichael K ane, the ultim ate decision-m aker in the m atter. A fter review ing
the investigation results, M r. Kane accepted the term ination recomm endation. M r. Kane stated
that the deciding factor w as the inappropriate nightgown com m ent that M s. Linkous m ade in
front of custom ers and co-w orkers. A lthough Stellaro ne has an em ployee disciplinary policy
w hich provides that m ost first-tim e problem s should be handled through w arnings and/or
additional training, the policy contem plates im m ediate term ination when çithe em ployee has done
something so egregious that immediate dismissal is appropriate.'' tcannell Dep, Ex. 4.) M r.
K ane has stated that he felt the com m ent w arranted im m ediate dism issal.
The plaintiff takes issue with the defendant's characterization of her job perfonnance,
First, she points to the positive perform ance review s she received for the years 2009 and 2010,
the second of w hich w as signed by M ichael K ane only tive m onths before the term ination. The
2010 review resulted in an overall rating of 'tm eets expectations.'' The review s evaluate
em ployees on five specitic perform ance goals: Business D evelopm ent, Sales Process,
Operations, Core V alues, and Leadership/M anagem ent. M s. Linkous received isexceeds
expectations'' scores in the Core V alues and Leadership/M anagem ent categories. The results
sections for these categories included com m ents such as 'çlvenore has been building . . . the
Blacksburg Team . She is the face of Stellarone in Blacksburg and is highly respected,'' and
dslaenore com pletes al1 assignm ents in a tim ely m anner. She leads by exam ple everyday.''
l In addition to the comm ent, em ployees reported other concerns about M s. Linkous to M s. M itchell. For exam ple,
a num ber of em ployees reported that M s. Linkous regularly had lengthy personal conversations with custom ers.
Additionally, M elia W right reported that M s. Linkous invited a friend to chat in her office from 5:00 p.m . until 6:00
p.m . every other Friday, even though the drive-thru teller window rem ained open during that time. Certain
em ployees also reported that they w ere hesitant to com e to M s. Linkous with work questions because of her
propensity to initiate personal discussions. Finally, one em ployee reported that M s. Linkous wasted company tim e
by driving around aim lessly while she w as supposed to be visiting businesses in the com munity building
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(Docket No. 29-3, at 7.) The 2009 review earned M s. Linkous an tsexceeds expectations'' overall
rating, reflecting such positive feedback as idrtyenore) lives up to delivering the finest service in
Blacksburg,'' and noting her Skpositive leadership'' in helping to relocate another branch while
still m anaging N orth M ain.
Next, while acknowledging that the nightgown comment demonstrated tspoorjudgment,''
she explains it as a harmless joke told among good friends. Additionally, M s. Linkous asserts
that M s. M itchell's report greatly exaggerates the am ount of tim e that was spent on personal
m atters. She has subm itted affidavits of previous Stellarone employees who have attested to
M s. Linkous' profciency in running the branch. Form er colleagues Joyce Gray and Christine
Lew is testified that M s. Linkous perform ed the position of branch m anager adm irably, and
M olly Prater, w ho took over the branch m anager position at First M ain following M s. Linkous'
tenuination, has stated that the branch was in great shape w hen she started and that the staff w as
sad that M s. Linkous had been tired.
M s. Linkous also points to com m ents m ade by a previous CEO of Stellaro ne, w hich she
contends evince a desire to replace oldel' em ployees with younger workers. Christine Lewis, a
form er Stellaro ne em ployee, testified that Bill H eath, the Chainnan of the Board of the com pany
at the tim e, stated in a m eeting som etime prior to January 201 1 his belief that the bank needed to
find som eone younger and m ore attractive for the office's front desk position. Rickie Phillips,
another form er em ployee, stated that he overheard M r. H eath say that he w ould like to put a
younger face on Stellaro ne. This com m ent occurred som etim e before M ay 2008.
Finally, M s. Linkous notes that M s. M itchell conducted investigations of at least four
Stellarone Financial Center M anagers in 20l 1, a11 of w hich ended in a recom m endation of
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tennination. M s. Linkous observes that the four term inated m anagers w ere all over the age of
Standard of R eview
A moving party is entitled to summary judgment Ctif the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.'' Fed. R. Civ. P. 56(a).A genuine issue exists 'çif the evidence is such that a reasonable jury
could return a verdict for the nonm oving party.'' Anderson v. Libertv Lobbv, lnc., 477 U .S. 242,
248 (1986). ln evaluating whether a genuine issue exists, courts must construe all facts and
reasonable inferences in the light m ost favorable to the nonm ovant. N ourison Rug Corp. v.
Parvizian, 535 F,3d 295, 299 (4th Cir. 2008).
To establish a claim for age discrim ination under the A DEA , a plaintiff m ust prove by a
preponderance of the evidence that age ('was the tbut-for' cause of the challenged adverse
employment action.'' Gross v. FBL Financial Services, lnc., 557 U.S. 167, 180 (2009) (holding
that a mixed-motive instruction is never appropriate in an ADEA case).
2 There are two ways a
plaintiff m ay prove a claim for age discrim ination under the A D EA . First, a plaintiff m ay
dem onstrate iûthrough direct or circum stantial evidence that . . . age discrim ination m otivated the
em ployer's adverse em ploym ent decision.'' H ill v. Lockheed M artin Loaistics M gm t.s lnc., 354
F.3d 277, 284 (4th Cir. 2004) (en banc).dù-l-he second method of averting summary judgment is
to proceed under a Spretext' fram ew ork, under which the em ployee, after establishing a prim a
2 Even before the Supreme Court's decision in Gross, the Fourth Circuit had recognized that, in the context of an
ADEA case, çtm otivated'' meant tçbut-for'' causation. See H ill v. Lockheed M artin Locistics M am t..lnc., 354 F.3d
277, 286 (4th Cir. 2004) (en banc) (<çEAge) must have actually played a role in the employer's decisionmaking
process and had a determinative influence on the outcome.'') (quoting Reeves v. Sanderson Plumbing Prods.. Inc.,
530 U.S. 133, l4l (2000:.
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facie case of discrimination, demonstrates that the employer's proffered penuissible reason for
taking an adverse em ploym ent action is actually a pretext for discrim ination.'' 1d. This is the
fam iliar M cDonnell D ouglas burden-shifting approach established for Title V lI em ploym ent
discrimination cases, c
3 M D onnell Douglas Corp. v. Green, 41 1 U.S. 792 (1973). W ith no direct
evidence of age discrim ination in this case, the plaintiff is proceeding under the burden-shifting
U nder the M cD onnell D ouglas frnm ework, the plaintiff m ust tirst establish a prim a facie
case of age discrimination.To do so, M s. Linkous must show that $t(1) (slhe is a member of the
protected class; (2) gslhe was qualified for the job and met (Stellarone'sq legitimate
expectations; (3) gslhe was discharged despite gherl qualitications and performance; and (4)
following gherj discharge, rslhe was replaced by a substantially younger individual with
comparable qualifications,'' W azch v. Ohio Cas. lns. Co., 435 F.3d 510, 513 (4th Cir. 2006)
(citing O'Connor v. Consolidated Coin Caterers Com ., 517 U.S. 308, 312-13 (1996); Causey v.
Balog, 162 F.3d 795, 802 & n. 3 (4th Cir. 1998)). If the plaintiff establishes a prima facie case of
age discrim ination, the buzden shifts to the em ployer to offer a legitim ate, nondiscrim inatory
reason for the term ination. H ill, 354 F.3d at 285. Thereafter, the burden shifts back to the
plaintiff to prove that the employer's stated reasons ç'were not its true reasons, but were a pretext
for discrimination.'' Id. (quoting Reeves v. Sanderson Plumbinc Prods., Inc., 530 U.S. 133, 143
(2000)). At that point, the plaintiff s burden to establish pretext dtmerges with the ultimate
burden of persuading the court that rthe plaintiffj has been the victim of intentional
discrimination.'' Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). W here a
3 Although the Supreme Court has not definitively held that the M cDonnell D ou/las fram ew ork applies in the
ADEA context, the Fourth Circuit, as well as other courts, have routinely applied M cDonnell Douglas to ADEA
claims. See. e.g., Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006)) Yeschick v. M ineta, 675 F.3d 622, 632 (6th
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plaintiff has succeeded in establishing her prima facie case, ilthe fad-finder' s rejection of the
legitim ate, nondiscrim inatory reason proffered by the defendant, coupled w ith the elem ents of
the prim a facie case, m ay perm it the fact-finder to infer the ultim ate fact of invidious
discrim ination w ith no additional proof of discrim ination.'' Jim inez v. M ary W ash. Coll., 57 F.
3d 369, 378 (4th Cir. 1995).
Prim a facie case
Stellarone argues that M s. Linkous cannot establish a prim a facie case of age
discrimination because she was not meeting its legitimate job expectations at the time of her
A ugust 201 1 term ination. o es
4 T tablish a prim a facie case, M s. Linkous m ust show she ûiw as
doing gher) job well enough to rule out the possibility that (slhe was fired for inadequate job
perform ance, absolute or relative.'' W arch, 435 F.3d at 515.
Stellarone argues that the inform ation gathered during M s. M itchell's A ugust 201 l
investigation establishes that M s. Linkous w as not m eeting its expectations for a branch
m anager. The com pany focuses on M s. Linkous' nightgow n com m ent and reports from fellow
First M ain employees regarding herjob performance. Stellarone notes that M s. Lirtkous has
acknowledged that the comment exhibited ttpoorjudgment'' on her part. M r. Kane has testified
that the com m ent alone w as sufficient cause to term inate her em ploym ent. Specifically, M r.
K ane testified that the com m ent w as Sdlm acceptable behavior'' that w as dçunbecom ing anybody in
the financial center in the public.'' (Kane Dep. l3: 12-13, 17: 16-17.) M s. Cnnnell testitied that
she believed term ination w as appropriate based on the com bination of the çdcom plaints,
inappropriate judgment being used making comments of a more than personal nature to
4 Stellarone does not contest that M s. Linkous w as over the age of 40, that she w as term inated, or that she was
replaced by M olly Prater, who was 48 at the tim e and qualifies as a substantially younger individual.
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employees in the branch, the morale issues in the branch, and the lack of doing her job that had
been brought up.'' tcalmell Dep. 31:24-32:6.) Stellarone contends that the testimony of M r.
Kane and M s. Cannell establishes that the plaintiff was not meeting her legitimate job
expectations as determined by the individuals who made the decision to tenuinate her.
M clonicht v. Ridcecrest Health Group. LLC, Case No. 2:1 1cv00032, 2013 W L 173005, at *5
(W .D. Va. Jan. 16, 2013) (holding that ttthe key inquiry is whether, in the eyes of the decision-
makers who terminated her, (the employeel was performing in line with gthe employer'sl
The court disagrees. A lthough the evidence presents som ew hat of a close case, the court
is unable to conclude that M s. Linkous has not established her prim a facie case. M s. Linkous
received entirely positive perform ance review s for the tw o years im m ediately prior to her
term ination. H er m ost recent review w as signed by M r. K ane only five m onths before she w as
tired. Prior to M elia W right's com plaint, M s. Linkous had w orked for the com pany or its
predecessor for over a decade without a single formal grievance tiled against her. Additionally,
the manager who replaced M s. Linkous at North M ain has testitled that the branch was in
excellent shape w hen she took over and that M s. Linkous w as em inently qualitied to continue
running the branch. A lthough opinions of co-workers are not as pertinent to the analysis as the
employer's ownjudgment, see Delamette v. Cornings lnc., 133 F.3d 293, 299 (4th Cir. 1998),
Stellarone has largely relied on the negative opinions of other co-w orkers in arguing that M s.
Linkous was not meeting her legitimate job expectations. lndeed, aside from the nightgown
com m ent, a11 of Stellaro ne's evidence of M s. Linkous' poor perform ance com es from negative
critiques offered by N orth M ain em ployees.
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A s the Fourth Circuit has explained, when 'tthe evidence creates a close call . . . , w e m ust
rem em ber that tthe burden of establishing a prim a facie case of disparate treatm ent is not
onerous.''' Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996) (quoting
Texas Dep't of Cmtv. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). The court finds that, at the
very least, there is a question of fact as to w hether M s. Linkous w as m eeting her em ployer's
legitim ate expectations. H aving satisfied this ikrelatively m odest'' burden, M s. Linkous has
established a prim a facie case of age discrim ination.W esley v. Arlington Countv, 354 Fed.
App'x 775, 778 (4th Cir. 2009) (unpublished) (quoting Brvant v. Aiken Reg'l M ed. Ctrs., Inc.,
333 F.3d 536, 545 (4th Cir. 2003) (internal quotations and citations omittedl).
H aving concluded that the plaintiff has established a prim a facie case of age
discrim ination, the burden shifts to Stellarone to put forth a legitim ate, non-discrim inatory
reason for M s. Linkous' term ination. Stellarone's position on this point largely tracks its
argum ent as to w hy M s. Linkous has failed to establish her prim a facie case; that is, it argues that
the decision to fire M s. Linkous w as the result of the inform ation uncovered during M s.
M itchell's investigation of the N orth M ain branch, in particular the inappropriate nightgow n
com m ent m ade by M s. Linkous. M r. K ane stated that the com m ent ûdcreated an uncom fortable
environment in the tinancial center,'' and that it Ctwas the reason gM s. Linkous) was let go.''
(Kane Dep. 1 8: 1-6.) Ms. Linkous may still avoid summaryjudgment if she can show that
Stellarone's asserted reasons for the term ination w ere m erely pretext for discrim ination.
A plaintiff may show pretext by either: (1) persuading the court that a discriminatory
reason more likely motivated the employer, or (2) showing that the employer's proffered
explanation is unw orthy of credence. Reeves, 530 U .S. at 147.ttln appropriate circum stances,
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the trier of fact can reasonably infer from the falsity of the explanation that the em ployer is
dissem bling to cover up a discrim inatory purpose.'' 1d. The court believes that triable issues of
fact underlie the veracity of Stellarone's tendered justification for M s. Linkous' termination,
and, thus, whether its justification is pretext for discriminatory animus.
First, the highly positive perform ance reviews M s. Linkous received shortly before her
termination cast a reasonable doubt on Stellarone's proffered justification. This is particularly
so w hen one considers that M s. Linkous received her m ost positive m arks in the
Leadership/M anagem ent and Core V alues categories. These areas of the review s concern the
sam e type of behavior for which she was criticized in M s. M itchell's report and ultim ately fired,
e.g., team building, leading by exam ple, and being a respected face in the com m unity. The fact
thatjust five months before her termination Ms. Linkous received dsexceeds expectations''
review s on the sam e behavioral and leadership qualities that stand as the proffered reason for her
termination can reasonably be interpreted as an indication that Stellarone's justification arose as
a pretext for its desire to replace M s. Linkous w ith a younger m anager,
Stellarone's justification is cast into further doubt when one considers the company's
Corrective Action Policy, which provides that m ost first-tim e disciplinary problem s be handled
through a w arning and/or additional training. A fact finder could reasonably be suspicious of
Stellarone's refusal to offer coaching or additional training to an em ployee w ho w as until
recently so highly regarded, particularly in the areas of her position now being called into
question. A lthough a court does not evaluate the w isdom of the em ployer's decision, it m ust
inquire into whether a reasonable jury could find that the stated justitication is false. See
Delarnette, 133 F.3d at 299 (CsW hen an employer gives a legitimate, non-discriminatory reason
for an em ploym ent action, . . . it is not the province of the Court to decide w hether the reason
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w as wise, fair, or even correct, ultim ately, so long as it tnlly w as the reason for the em ploym ent
action.'') (citation and quotations marks omitted). This evidence presents a reasonable basis
upon which the fact finder could reject Stellarone's proffered justitication, and, considering that
rejection in tandem with the plaintiff s prima facie case, infer the presence of unlawful age
discrim ination. Sçe Jim enez 57 F. 3d at 378. The court will therefore deny the defendant's
motion for summaryjudgment.
111. C onclusion
For the reasons stated above, the court w ill deny the defendant's m otion for sum m ary
judgment. The Clerk is directed to send certified copies of this memorandum opinion and the
accom panying order to all counsel of record.
EN TER : This
day of June, 2013.
Chief U nited States District Judge
5 Although not as persuasive, the court also notes two additional pieces of evidence advanced by the plaintiff: (1) the
age-related comments of Bill Heath, fonner Chairman of the Board of Stellarone; and (2) the fact that al1 four of
M s. M itchell's 20 1 1 investigations 1ed to the firing of em ployees over the age of forty. W hile this evidence w ould
likely be insuffk ient on its own to create an inference of discrim ination, w hen considered in light of the evidence
discussed above, it further clouds the authenticity of Stellarone's stated justification for the termination.