Mauro v. InfoCision, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

SANDY MAURO,

Plaintiff,

v. Civ. Action No. 1:19-CV-6

INFOCISION, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT INFOCISION,

INC.’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 27]

Pending before the Court is Defendant Infocision, Inc.’s

Motion for Summary Judgment (ECF No. 27). For the reasons

discussed herein, the Court grants the motion.

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiff, Sandy Mauro (“Plaintiff”), filed suit against

Defendant, Infocision, Inc. (“Defendant”), in the Circuit Court of

Harrison County, West Virginia, alleging the following causes of

action: Age Discrimination in Violation of the West Virginia Human

Rights Act (Count One) and Tort of Outrage (Count Two). ECF No. 1-

2. On January 10, 2019, Defendant filed a Notice of Removal to

this Court. ECF No. 1. On January 17, 2019, Defendant filed a

Motion to Dismiss Count II of the Complaint. ECF No. 3. That

motion was granted. ECF No. 22. Thereafter, on October 21, 2019,

Defendant timely filed its Motion for Summary Judgment. ECF No.

27. Plaintiff filed her response in opposition on November 11,

2019, ECF No. 29, while Defendant submitted its reply on November

25, 2019. ECF No. 31. The Court entertained oral argument on the

pending motion on January 24, 2020. The matter is now ripe for

decision.

II. FACTUAL BACKGROUND

Plaintiff commenced employment with Defendant on November 21,

2005 as a Communicator. (Pl. Dep. Tr., ECF No. 28-3, at 15-16).

That position is best described as an entry-level position within

Defendant’s call centers where Communicators make and receive

telephone calls on behalf of Defendant’s clients. (Id. at 28-29,

35-37). At the time of her hire, Plaintiff was 48 years of age.

(Id. at 10, 29).

Shortly after hire, Plaintiff was promoted to a salaried,

non-exempt Call Center Trainer position. (Id. at 16-17). She

worked in that position until her termination on August 15, 2018.

(Id. at 18-21, 23-24). In that training role, Plaintiff was

charged with training new Communicator hires, monitoring their

calls, coaching and otherwise providing feedback. (Id. at 17, 23;

Adamescu Dep. Tr., ECF No. 28-4, at 57-71). She was also required

to make or receive calls as a Communicator if demand required.

(Pl. Dep. Tr. at 36-37).

In late 2017, Defendant undertook a corporate-wide

restructuring of all call center operations to address low

retention rates.1 (Adamescu Dep. Tr. at 73-76). Prior to the

restructuring, Plaintiff’s work location – Clarksburg, West

Virginia – had two Call Center trainers: Plaintiff, age 60, and

Margie Fultineer, age 40. (Adamescu Dep. Tr. at 81-82; Pl. Dep.

Tr. at 65-66, 10, 100-101; Adamescu Decl., ECF No. 28-2, at ¶10).

Call centers were given the option of adding a new role, Learning

and Engagement Supervisor (“LES”), which was designed to review

the new hire onboarding process to improve employee retention

rates. (Adamescu Dep. Tr. at 78-80, 89-91).

Plaintiff sought the Clarksburg LES position but was not

selected. (Id. at 88). Carrie Noll, age 41, was promoted to the

Clarksburg LES position. (Id. at 88; Adamescu Decl. at ¶8). Noll

had worked in Human Resources. Plaintiff retained her same

position with the same pay and benefits.2 (Pl. Dep. Tr. at 66-

67). Plaintiff did have reduced responsibilities for in-class

training yet, again, retained the same rate of pay. Ms. Fultineer,

Plaintiff’s peer as a Call Center Trainer, was demoted from Call

1 Plaintiff does not assail the corporate-wide restructuring with

allegations of age discrimination.

2 Despite being advised via a January 12, 2018 memorandum that she

was not being demoted, Plaintiff posted the following on her

personal Facebook page: “Domoted [sic]??? LOL Retirement looking

better and better everyday going to spend more time doing MARY

KAY.” (Pl. Dep. Tr. at 63-73 and Ex. G thereto; Adamsecu Dep. Tr.

at 55 and Ex. 3 thereto). Call Center Manager Pam Alastanos

thereafter met with Plaintiff to again advise she was not being

demoted as part of the restructuring. (Pl. Dep. Tr. at 36, 53-

55).

Center Trainer to Communicator. (Id.). Fultineer is younger than

Noll.

Around July 2018, following Noll’s selection for the LES

position, Defendant asked Plaintiff to assist with its Secret

Shopper program. (Id. at 26, 90). This program involved an

employee of Defendant calling Communicators posing as an outside

caller to assess the Communicator’s performance. (Id. at 84-85;

Adamescu Dep. Tr. at 101-104). Secret Shopper calls are made

elsewhere than the call center space used by Communicators. (Pl.

Dep. Tr. at 92-93; Adamescu Dep. Tr. at 137-138). At the

conclusion of the call, the Secret Shopper reveals the “ruse” and

offers a critique of the Communicator’s performance. (Pl. Dep.

Tr. at 84-85; Adamescu Dep. Tr. at 101-104). A written evaluation

is also completed. (Id.). This program is a specialized and

unique one Defendant offers its clients to improve quality

including results being reported to clients. (Adamescu Dep. Tr.

at 116-122). Because of this, Secret Shopper employees are

required to account for their time spent in a Secret Shopper role

separately from other work. (Id.). The Secret Shopper work time

is coded differently in Defendant’s computer system. (Id. at 93).

On August 8, 2018, Plaintiff advised her manager Ms. Alastanos

she needed to use five (5) hours of vacation to attend an

appointment but she would work three (3) hours that day to round

out her work day. (Pl. Dep. Tr. at 80-84; Adamescu Dep. Tr. at

108-110). Time cards were due that same day so Ms. Alastanos

recorded the time as requested by Plaintiff. (Adamescu Dep. Tr.

at 108-110). Plaintiff emailed Ms. Alastanos that she would be

making Secret Shopper calls from home. (Pl. Dep. Tr. at 81-84 and

Ex. J thereto).

Ms. Alastanos was confused as to whether Plaintiff actually

worked on August 8, 2018 so the following day she exchanged emails

with Plaintiff to ascertain whether she worked from home the

evening in question. (Pl. Dep. Tr. at 81-84 and Ex. J thereto;

Adamescu Dep. Tr. at 108-110, 112-113, 129-130). Plaintiff stated

she did in fact work from home that evening but told Ms. Alastanos

to “just put in [sic] down as vacation time that will be fine.”

(Pl. Dep. Tr. at 81-84 and Ex. J thereto). Prompted by her

confusion, Ms. Alastanos contacted Presentation Skills Trainer

Training Coordinator Michelle Baum who oversaw Defendant’s Secret

Shopper program. (Adamescu Dec. ¶3; Adamescu Dep. Tr. at 107,

109-110, 113-114, 129-131 and Ex. 2 thereto). Ms. Baum has the

ability to research Defendant’s databases tracking Secret Shopper

work including the number of calls an employee makes, the length

of those calls and the records related to those calls. (Adamescu

Dep. Tr. at 109-112, 131-132). Ms. Baum reviewed Defendant’s

Secret Shopper records for August 8, 2018 and found Plaintiff had

made only one call lasting 15 minutes. (Id.). Considering that

and Plaintiff’s claim she had worked three hours, Ms. Alastanos

contacted Jill Adamescu, Defendant’s Corporate Human Resources

Manager, to raise concerns about Plaintiff “stealing company

time.” (Id. at 112-113 and Ex. 6 thereto).

Ms. Adamescu, consistent with her job responsibilities,

commenced an investigation of Plaintiff’s time worked and call

records from July 24, 2018 through August 10, 2018. (Adamescu

Dec. ¶¶3-6 and Exs. P, Q and R thereto; Adamescu Dep. Tr. at 104,

111-115, 129-176 and Exs. 4, 5, 6, 7 and 8 thereto). This

investigation involved communicating with Ms. Alastanos, Ms. Baum

and Deloris DeHart, Defendant’s Director of New Employee Training,

as well as a review of company database records to ascertain the

time Plaintiff spent working. (Adamescu Dec. ¶¶ 3-6 and Exs. P,

Q and R thereto; Adamescu Dep. Tr. at 112-115, 129-176 and Exs. 4,

5, 6 and 7 thereto). Ms. Adamescu used Defendant’s records to

compare the time Plaintiff had recorded as a Secret Shopper with

the number of calls she made, the length of those calls and the

documentation generated from those calls. (Id.).

The investigation revealed lengthy periods of time when no

work was performed while Plaintiff logged time in Defendant’s

Secret Shopper program between July 24, 2018 and August 10, 2018.

(Adamescu Dec. at ¶¶3-7 and Exs. P, Q and R thereto; Adamescu Dep.

Tr. at 155-157 and Exs. 4, 5, 6 and 7 thereto). Ms. Adamescu

discovered that, on each day her investigation covered, Plaintiff,

while making some calls, recorded periods of time worked where she

did not perform Secret Shopper work. (Adamescu Dec. at ¶¶3-7 and

Exs. P, Q and R thereto; Adamescu Dep. Tr. at 129-176 and Exs. 4,

5, 6, 7 and 8 thereto). Ms. Adamescu learned a “typical employee”

should be able to “easily” make and complete ten (10) Secret

Shopper calls per day including the required quality audit

paperwork. (Adamescu Dec. ¶¶3-7 and Ex. P thereto; Adamescu Dep.

Tr. Ex. 4, 5, 6 and 7). Plaintiff did not hit this mark once

during the 13-day period being investigated. (Id.)

On August 13, 2018, Ms. Adamescu and Ms. Alastanos spoke with

Plaintiff by telephone. (Pl. Dep. Tr. at 87-91, 94-97 and Ex. 6

thereto; Adamescu Dep. Tr. at 140-145, 159). They discussed the

current findings of the investigation and Ms. Adamescu raised

concerns about Plaintiff’s hours logged as a Secret Shopper.

(Id.). Plaintiff advised she was aware of how to properly code

her time as a Secret Shopper but could not account for the

discrepancy between her hours logged working as a Secret Shopper

and the records of her call activity. (Pl. Dep. Tr. at 87-91, 94-

97, 107 and Ex. 6 thereto; Adamescu Dep. Tr. at 140-145, 159).

She stated her recorded hours were accurate and offered no

explanation as to her low productivity. (Id.)

After this call, Ms. Adamescu continued her investigation in

an effort to discern a legitimate reason for Plaintiff’s poor

productivity compared to hours recorded as worked. (Adamescu Dep.

Tr. at 160-163). She also consulted with her supervisor, Ms.

Wilson, to explore any possible alternative reason for Plaintiff’s

lack of production. (Id. at 11, 157-158, 180-182). Finding none,

Defendant decided to terminate Plaintiff’s employment. (Pl. Dep.

Tr. at 126-127 and Ex. O thereto at p. 33; Adamescu Dec. ¶¶1, 7;

Adamescu Dep. Tr. at 177 and Ex. 2 thereto). Ms. Adamescu, age

55, and Ms. Wilson, age 43, made the adverse employment decision.

(Adamescu Dec. ¶1, 7; Adamescu Dep. Tr. at 177). Ms. Adamescu

communicated that decision to Plaintiff on August 15, 2018 via

telephone. (Pl. Dep. Tr. at 99-100, 106, 126-127 and Exhibit O

thereto at p. 33; Adamescu Dep. Tr. at 159, 180 and Ex. 8 thereto).

The stated reason for the discharge was “stealing company time,”

gross misconduct and grounds for immediate termination under the

terms of Defendant’s employee handbook. (Pl. Dep Tr at 126-127

and Ex. O thereto at p.33; Adamescu Dec. ¶¶1, 7; Adamescu Dep. Tr.

at 177 and Ex. 2 thereto). Ms. Adamescu afforded Plaintiff another

opportunity to explain the discrepancy in her time records and

work records. (Pl. Dep. Tr. at 99; Adamescu Dep. Tr. at 159).

Plaintiff offered no explanation on this occasion either. (Id.).

Nor did Plaintiff claim her discharge was motivated by her age.

(Pl. Dep. Tr. at 94-99 and Ex. 6 thereto). Plaintiff’s discharge

was confirmed via letter dated August 20, 2018. (Adamescu Dep.

159, 176-177 and Ex. 8 thereto).

No “new” employee was hired to replace Plaintiff. (Adamsescu

Dep. Tr. at 92-93). Instead, Plaintiff’s job duties were assigned

to existing employees: Ms. Noll, again, age 41, and Frank

Pennacchio, age 59. (Adamescu Dec. ¶8).

III. STANDARD OF REVIEW

Summary judgment is appropriate if “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). The movant

“bears the initial responsibility of informing the district court

of the basis for its motion, and identifying those portions of

‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

nonmoving party must “make a sufficient showing on an essential

element of its case with respect to which it has the burden of

proof.” Id. at 317–18. Summary judgment is proper “[w]here the

record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there [being] no ‘genuine issue for

trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

IV. ANALYSIS

The remaining count in Plaintiff’s complaint alleges unlawful

age discrimination in violation of the West Virginia Human Rights

Act, W. Va. Code §5-11-1 et seq. Specifically, Plaintiff contends

her August 15, 2018 termination was unlawfully motivated by her

age.

A. Governing Framework

No direct evidence of discrimination, such as a statement

attributed to a decision-maker, exists in the record before the

Court. Thus, the traditional burden-shifting framework applies to

Plaintiff’s claim under the Human Rights Act. See Bartos v. PDC

Energy, Inc., 275 F. Supp.3d 755, 760 (N.D.W. Va. 2017); see also

Woods v. Jefferds Corp., 824 S.E.2d 539, 547 (W. Va. 2019) (“It is

the rare case where there is evidence a defendant directly

announces acting with a discriminatory intent. Most cases require

the plaintiff to imply through circumstantial evidence that a

defendant meant to improperly discriminate.”). Initially,

Plaintiff must establish a prima facie case of discrimination that

raises an inference of discrimination. The burden of production

then shifts to Defendant to put forth a legitimate, non-

discriminatory reason for the adverse employment action. Then,

Plaintiff must offer sufficient evidence of pretext casting

sufficient doubt on Defendant’s stated reason requiring jury

resolution of the disputed facts.

“In order to make a prima facie case of employment

discrimination under the West Virginia Human Rights Act, W. Va.

Code § 5–11–1 et seq. (1979), the plaintiff must offer proof of

the following: (1) That the plaintiff is a member of a protected

class; (2) That the employer made an adverse decision concerning

the plaintiff; [and] (3) But for the plaintiff's protected status,

the adverse decision would not have been made.” Syl. Pt. 1, Knotts

v. Grafton City Hosp., 786 S.E.2d 188, 190 (W. Va. 2016) (citation

omitted). “The ‘but for’ test of discriminatory motive in Conaway

v. Eastern Associated Coal Corp., 358 S.E.2d 423 (W. Va. 1986), is

merely a threshold inquiry, requiring only that a plaintiff show

an inference of discrimination.” Syl. Pt. 2, Id.

Once a plaintiff offers sufficient proof to establish a prima

facia case, the burden of production (not proof) shifts to the

defendant employer to articulate a legitimate, non-discriminatory

reason for the adverse employment action, in this case,

termination. See Bartos, 275 F. Supp.3d at 760. “The reason need

not be a particularly good one. It need not be one which the judge

or jury would have acted upon. The reason can be any other reason

except that the plaintiff was a member of a protected class.” Id.

(quoting Conaway, 358 S.E.2d at 430).

If the defendant articulates such a reason, the burden returns

to the plaintiff who then must demonstrate the defendant employer’s

stated reason is but a pretext for the discriminatory motive

alleged. See id. “Pretext means an ostensible reason or motive

assigned as a color or cover for the real reason or motive; false

appearance; pretense. ... A proffered reason is a pretext if it

was not the true reason for the decision [.] ... The third step of

the ... proof scheme, pretext, is a ... realization that some

explanations are the product of hindsight rather than a true

barometer of what occurred at the time of decision.” Mayflower

Vehicle Sys., Inc. v. Cheeks, 629 S.E.2d 762, 773 (W. Va. 2006)

(internal quotations and citations omitted).

B. Prima Facie Case

The undisputed facts reveal Mauro was over 40 at the time of

her termination and that she suffered an adverse employment action.

Thus, she satisfies the first two elements of a prima facie age

discrimination case. As is most often the case, the crux at this

stage of the analysis rests with the third element – sufficient

evidence linking the adverse employment decision with a

plaintiff’s protected class status to give rise to an inference

that the decision was motivated by unlawful reasons. See Conaway,

358 S.E.2d at 429. That proof can come in a number of ways –

disparate treatment of individuals outside the protected class,

statistical evidence, eliminating the stated purported legitimate

reasons for the adverse employment decision or showing a plaintiff

was replaced by a substantially younger employee. See id.; Bartos,

275 F. Supp.3d at 760.

However, Plaintiff has failed to marshal sufficient evidence

in any of these suggested categories or otherwise to lead this

Court to conclude that the “but-for” question requires jury

resolution. No evidence has been presented to the Court

demonstrating disparate treatment of a younger employee.

Plaintiff likewise has not “eliminated” Defendant’s legitimate,

non-discriminatory reason for her discharge. The Court addresses

her pretext burden hereinafter; however, Plaintiff has failed to

present any evidence calling into question the stated reason for

the adverse employment action made subject of this litigation.

Defendant has presented unrefuted evidence of a multi-person

investigation which concluded Plaintiff committed gross misconduct

and should be terminated. Plaintiff does not argue Defendant erred

in determining she failed to properly record her time. Instead,

as she testified in her deposition, Plaintiff concedes “she was

human and could have made an error.” (Pl. Dep. Tr. at 91).

Plaintiff did not dispute or endeavor to explain the

timekeeping/productivity discrepancy during the internal

investigation despite being afforded multiple opportunities to do

so. She fails to cast doubt upon that reason here either.

In her opposition brief, Plaintiff places great significance

upon Ms. Noll’s promotion to the LES position as evidence to

support a prima facie case of age discrimination. Further, at the

January 24, 2020, oral argument, Plaintiff’s counsel contended the

alleged failure to promote with respect to the LES position was a

separate adverse employment action for which Plaintiff sought

damages. However, no such claim is clearly pled in her Complaint.

See Caudill v. CCBCC, Inc., 651 F. Supp.2d 499, 510 (S.D.W. Va.

2009) (“Indeed, a plaintiff may not amend her complaint through

argument in a brief opposing summary judgment.”) (internal

quotations and citations omitted). Giving Plaintiff and her

counsel the benefit of the doubt here, the Court assesses this

allegation as both a stand-alone discrimination claim for damages

and as purported evidence of Plaintiff’s discriminatory discharge

cause of action.

Again, Plaintiff points to the decision to promote a different

employee to the Learning and Engagement Supervisor (LES) position.

ECF No. 29 at 11. Specifically, Plaintiff contends the promotion

of Ms. Noll to LES was further evidence Defendant’s legitimate,

non-discriminatory reason is “eliminated” noting the decision as

a “prime example” of age-based disparate treatment. Id. However,

Plaintiff does not expound on the point failing to demonstrate how

such “evidence” is sufficient at summary judgment stage. Her

conclusory and sweeping characterization is insufficient under

Rule 56 of the Federal Rules. Plaintiff ignores the aspect of the

restructuring where Ms. Noll was promoted while Ms. Fultineer was

demoted. Ms. Fultineer is the younger of the two – which cuts

against Plaintiff’s age bias claims. Ms. Noll occupies the same

protected class as Plaintiff. Again, the decision-makers

(Adamescu, age 55, and Wilson, age 43) are, like Plaintiff, within

the Human Rights Act’s protected class.

Defendant cited evidence in the record explaining its LES

promotion decision specifically concerns about Plaintiff’s “lack

of professionalism.” Defendant specifically points to an incident

where Plaintiff made “racially inappropriate remarks” concerning

stopping for gas in what Plaintiff perceived to be a problematic

part of town and “those people” in that section of town. (Adamescu

Dep. Tr. at 85-86). Ms. Adamescu testified she had concerns

Plaintiff lacked a “filter” and had deficiencies in

professionalism. (Id. at 86). Adamescu “had to coach her on some

professional etiquette.” (Id. at 85).

The LES position was supervisory. In addition, the

anticipated function of that job – to orient new employees and

work to improve employee retention rates – motivated the selection

of Ms. Noll as opposed to the other applicants including Plaintiff.

As Ms. Adamescu testified, Defendant “wanted that new employee

experience to be better and more professional.” (Id. at 90).

Given the concerns about Plaintiff’s professionalism or “filter”

as well as Ms. Noll’s qualifications3, Ms. Noll was ultimately

selected. Plaintiff did not believe Ms. Noll was qualified to

3 Ms. Adamescu specifically mentioned Ms. Noll’s educational

background and described her as “very professional, very polished,

very well-spoken, very intelligent.” (Id. at 99). Ms. Noll

majored in business with a focus on Human Resources. (Id. at 98-

99). She also cited Ms. Noll’s “conceptual thinking” skills.

(Id.).

perform the in-class training aspect of the LES job. (Pl. Dep.

Tr. at 62; ECF No. 29 at 4).

Plaintiff’s argument this employment decision is either a

stand-alone incident of age discrimination requiring jury

resolution or evidence of age-based animus in the ultimate

discharge decision lacks merit. Plaintiff points this Court to no

evidence in the record age played any role in the LES promotion

decision. Again, the record is devoid of any direct evidence of

discriminatory animus such as decision-maker comments. Plaintiff

offers no evidence linking the LES promotion decision to a

prohibited factor such as age and certainly falls well short of a

prima facie showing of age discrimination. Defendant offered

legitimate, non-discriminatory reasons for its decision which

Plaintiff fails to sufficiently assail with evidence of pretext.

Again, the decision-makers are in the protected class made subject

of this case as was the employee ultimately chosen. Plaintiff

retained her same rate of pay despite her social media cry of

demotion.4 Instead, the youngest of the pool of employees seeking

promotion was demoted. Defendant pointed to respective

qualifications and concerns about Plaintiff’s professionalism

based on a prior incident as legitimate, non-discriminatory

reasons for its decision. This Court is certainly mindful of the

4 Again, Defendant followed up with Plaintiff to clarify she was

not demoted.

standard applicable to the pending motion and the inferences to

which Plaintiff may be entitled based on the record. However,

this Court is not required to strain logic beyond reason in

assessing the merits of a summary judgment motion even on age

discrimination actions. The LES promotion decision cannot survive

a summary judgment challenge as an independent claim under the

Human Rights Act nor is it evidence of the presence of a forbidden

factor in Plaintiff’s termination.

Lastly, with respect to the Conway factors, Plaintiff did not

offer any statistical evidence in support of her age discrimination

claim either. Defendant points to the ages of nearly all the

salaried employees working at Infocision’s Clarksburg location.

Nine of eleven (9 out of 11) salaried employees other than

Plaintiff were over the age of 40 at the time of her discharge.

(Adamescu Decl. at ¶8 and Ex. 2 thereto). Considering all of the

suggested factors or examples a plaintiff could use to demonstrate

a prima facie case of age discrimination and the events to which

Plaintiff points to here, Plaintiff has not satisfied her burden

at summary judgment stage.

Instead, Plaintiff focuses on her obvious belief and

preference that a less severe form of progressive discipline should

have been imposed. Paraphrased, Plaintiff argues the decision to

terminate her was, simply, not fair based on her tenure, “respect

among her employees” and prior positive performance reviews.5 ECF

No. 29 at 10-11. No Court sits in judgment of discretionary

employment decisions outside the burden-shifting analysis required

to ferret out potential discriminatory animus. See supra. Thus,

it is not this Court’s place to second-guess the wisdom or even

the fairness of the discipline administered here other than whether

Plaintiff has sufficient evidence some unlawful motivation was

present entitling Plaintiff to present her claims to a jury.

Fairness is not the standard governing either summary judgment

motions or employment claims presented to a jury.

Without any evidence that similarly situated employees were

disciplined less severely or some other evidence of disparate

treatment or discriminatory animus, Plaintiff’s contention she was

treated unfairly – which she no doubt believes to be true – is

insufficient to carry her burden here. She has not demonstrated

any genuine issue of material fact on this question. Thus, because

she has failed to sustain an essential element of her cause of

action, summary judgment on her age discrimination claim is

appropriate. See Celotex Corp. v. Catrett, 477 U.S. at 323.

5 “That plaintiff's coworkers may have thought that [she] did a

good job, or that [she] did not ‘deserve’ [to be discharged], is

close to irrelevant.” Conkright v. Westinghouse Elec. Corp., 933

F.2d 231, 235 (4th Cir. 1991).

C. Legitimate, Non-Discriminatory Reason and Pretext

Even assuming, arguendo, Plaintiff could sustain a prima

facie case for age discrimination, she cannot survive a summary

judgment challenge on her burden to cast Defendant’s legitimate,

non-discriminatory reason as pretext. Defendant discharged

Plaintiff following its investigation concluded she “stole company

time.” Plaintiff does little to cast a shadow of doubt upon this

reason. While she does make sweeping statements that the offered

reason is pretextual, those conclusory arguments have no

underpinning in the record before the Court.

“Pretext may be shown through direct or

circumstantial evidence of falsity or discrimination. The

plaintiff's failure to come forth with evidence rebutting the

defendant's explanation may entitle the defendant to judgment.”

Barefoot v. Sundale Nursing Home, 457 S.E.2d 152, 160 (W. Va. 1995)

(citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,

255-56 (1973)). The Fourth Circuit has opined:

While reviewing the employer's articulated

reasons for discharge and the plaintiff's

refutation thereof, we must keep in mind that

“Title VII is not a vehicle for substituting

the judgment of a court for that of the

employer.” Id. at 377. Particularly, this

Court “does not sit as a kind of super-

personnel department weighing the prudence of

employment decisions made by firms charged

with employment

discrimination....” Giannopoulos v. Brach &

Brock Confections, Inc., 109 F.3d 406, 410

(7th Cir. 1997) (quotations and citations

omitted). See also EEOC v. Clay Printing

Co., 955 F.2d 936, 946 (4th Cir. 1992). Our

sole concern is

whether the reason for which the

defendant discharged the plaintiff

was discriminatory. Thus, when an

employer articulates a reason for

discharging the plaintiff not

forbidden by law, it is not our

province to decide whether the

reason was wise, fair, or even

correct, ultimately, so long as it

truly was the reason for the

plaintiff's termination.

Giannopoulos, 109 F.3d at 410–11.

DeJarnette v. Corning Inc., 133 F.3d 293, 298–99 (4th Cir. 1998).6

Considering the record before the Court, the only conclusion that

can be made is the stated reason for discharge was “truly the

reason for the plaintiff’s termination” obviating the need for a

jury trial.

Defendant conducted an internal investigation involving

multiple individuals after suspicions were piqued about

6 The Court considers the analysis of the Fourth Circuit persuasive

despite the only claim here being a state law claim. The West

Virginia courts have long encouraged reliance on federal

jurisprudence in employment claims (outside disability

discrimination claims or where the relevant statutory language

differs). See Barefoot, 457 S.E.2d at 159-60 (“We have

consistently held that cases brought under the West Virginia Human

Rights Act, W.Va.Code, 5–11–1, et seq., are governed by the same

analytical framework and structures developed under Title VII, at

least where our statute's language does not direct

otherwise. E.g., West Va. University v. Decker, 191 W.Va. 567, 447

S.E.2d 259 (1994); Conaway v. Eastern Associated Coal Corp., 178

W.Va. 164, 358 S.E.2d 423 (1986).”).

Plaintiff’s timekeeping while performing Secret Shopper duties.

Plaintiff was afforded more than one opportunity to explain the

discrepancies in Defendant’s time records and the work she claimed

to perform. Specifically, Ms. Alastanos and Ms. Adamescu advised

Plaintiff there was a “block of time where no calls were made and

it was logged on her timecard under the Secret Shopper Program

code.” (ECF No. 29 at 7; Pl. Dep. Tr. at 90). Her response, prior

to instituting this litigation, was “she was human and could have

made an error.” (Pl. Dep. Tr. at 91; ECF No. 29 at 7 and 10).

Plaintiff did not provide Defendant with any other explanation for

the discrepancy. (Pl. Dep. Tr. at 91). Defendant’s termination

decision was made by two management level employees both of whom

fall within the Human Rights Act’s protected age class. Plaintiff

affirmatively disclaimed any personal knowledge of the decision-

making process or discussion. (Pl. Dep. Tr. at 59, 61, 100, 113

and 128.)

Lacking personal knowledge sufficient to demonstrate a

genuine issue of material fact, Plaintiff has failed to point the

Court to any evidence in the record of a similarly-situated

employee who Defendant treated differently. She cites no evidence

of animus-revealing comments or statements from the decision-

makers or anyone else.7 Instead, she declares “[i]t is clear that

company policy was not the reason Ms. Mauro was terminated.” Pl.

Resp. at 16.8 She also labels the reason for her discharge as

“trumped up” without any supporting evidence. Id. The record

before the Court, specifically the sworn testimony cited by both

parties, reveals otherwise. Without any evidence of pretext,

Plaintiff has failed to satisfy a necessary burden on her age

discrimination claim. Thus, summary judgment is not only

appropriate, it is required under Rule 56. See Fed. R. Civ. P.

56(a)(“ The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the

7 Again, the Court is mindful that such evidence is not common in

discrimination litigation. Plaintiff fails, however, to provide

this Court any other category of evidence which could lead a

“rational trier of fact” to find in her favor on the remaining

Count of the Complaint.

8 Plaintiff argues, based on Supreme Court of the United States

and Fourth Circuit precedent, she should not have to satisfy a so-

called “pretext plus” standard. No authority is cited that this

standard applies to the state law claim presented here. The Court

need not decide that issue in the context of the West Virginia

Human Rights Act to dispose of this summary judgment motion. As

noted in Siraj v. Hermitage, 51 Fed. Appx. 102 (4th Cir. 2002), “a

plaintiff’s prima facie case, combined with sufficient evidence to

find that the employer’s asserted justification is false” may

sustain a plaintiff’s jury verdict. Id. at 109 (quoting Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43

(2000)(emphasis added)). Here, the Court has found Plaintiff falls

short of her burden to show a prima facie case of age

discrimination nor has she marshalled any evidence Defendant’s

stated legitimate, non-discriminatory reason is pretextual. She

has not “eliminated” her employer’s justification for the adverse

employment action. Thus, she has not been subjected to any

“pretext plus” burden.

movant is entitled to judgment as a matter of law.”)(emphasis

added).

V. CONCLUSION

Finding no genuine dispute of any material fact and that

Defendant is entitled to judgment as a matter of law, the Court

GRANTS Defendant’s motion (ECF No. 27), awards it summary judgment

and DISMISSES this matter from the Court’s docket WITH PREJUDICE.

The Clerk is hereby directed to enter judgment in Defendant’s favor

in accordance with this Order.

The Clerk shall forward a copy of this Memorandum Opinion and

Order as well as the aforementioned Judgment Order to all counsel

of record.

IT IS SO ORDERED.

DATED: September 21, 2020

/s/ Thomas S. Kleeh

Honorable Thomas S. Kleeh

United States District Court Judge