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Case 7:12-cv-00229-GEC Document 33 Filed 06/04/13 Page 1 of 11 Pageid#: 498






JUN 2 ù 2213


B -





D efendant.



Civil A ction N o. 7:12-cv-00229


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.

Factual Background

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

' i

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


Case 7:12-cv-00229-GEC Document 33 Filed 06/04/13 Page 5 of 11 Pageid#: 502

tennination. M s. Linkous observes that the four term inated m anagers w ere all over the age of



D iscussion

A .

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).

B .

A nalysis

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
Cir. 2012).


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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

reasonable expectations'').

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.