Ralph Arthur v. Pet Dairy

593 F. App'x 211
CourtCourt of Appeals for the Fourth Circuit
DecidedFebruary 9, 2015
Docket13-2530
StatusUnpublished
Cited by38 cases

This text of 593 F. App'x 211 (Ralph Arthur v. Pet Dairy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ralph Arthur v. Pet Dairy, 593 F. App'x 211 (4th Cir. 2015).

Opinion

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Ralph Arthur (“Appellant”) sued his employer, Pet Dairy (“Appellee”), alleging that he was terminated because of his age in violation of the Age Discrimination in Employment Act (“ADEA”). He appeals from the district court’s order of summary judgment in his employer’s favor.

To lodge a claim of age discrimination, a plaintiff may proceed through either of two avenues of proof: by raising a presumption of discrimination, or by offering direct or circumstantial evidence of the employer’s discriminatory animus. Regardless of the method employed, the burden remains the same: plaintiff must prove that age was the but-for cause of his termination. In this case, Appellant’s evidence fails to raise a genuine dispute as to whether he can satisfy this burden; he offers nothing to cast doubt upon Appellee’s stated reasons for terminating him, including numerous customer complaints and his lengthy history of performance issues. Accordingly, we affirm.

I.

A.

Appellant was a milk delivery driver and salesman for Appellee, a corporation serving Lynchburg, Virginia’s dairy needs. Appellant initially worked for Pet Dairy in 1992 or 1993 for about six months, and was most recently rehired in January 2003 when he was 57 years old. Appellant was assigned Pet Dairy’s largest and most profitable sales route, which supplied Barnes & Noble and the Lynchburg City School Division (the “School Division”), among others.

At the time of his termination, Appellant’s direct supervisor was Appellee’s branch manager for the Lynchburg office, Mike Reynolds (“Reynolds”). Appellant testified in deposition that on Reynolds’s first day as Appellant’s supervisor, Reynolds told Appellant, “[Y]ou are too old to be here and I’m going to get rid of you.” J.A. 363. 1 Appellant also offered the sworn affidavit of his coworker, Judith Hickman, who generally confirmed that “Reynolds told Arthur that he was too old to be working.” Id. at 537. Appellant further testified that around Thanksgiving in November 2009, about three weeks before Appellant’s termination, Reynolds told Appellant that he “need[ed] to go ahead and hang it up because [he was] just too old to do [his] job.” Id. at 983-84.

But the record also shows Appellant demonstrated significant work performance issues, beginning almost immediately *213 after he was hired in 2003. For example, on May 16th, 2003, Appellant crashed his milk truck into an SUV, striking it hard enough to send the SUV into a triple barrel roll. 2 For this, Appellant was given a written warning. He was also issued two formal, written reprimands in September 2003 for consistently failing to supply customers with adequate quantities of milk.

Appellee hired Mike Reynolds in 2005. Reynolds often communicated his dissatisfaction with Appellant’s performance, threatening to fire him either verbally or in writing about once every two weeks. Appellant claimed Reynolds left him at least 17 sticky-notes threatening termination, but Appellant admitted that none of them concerned his age; all criticized his job performance. In one sticky note, Reynolds threatened to fire Appellant for damaging three truck bumpers by hitting objects with his work truck. In another, Reynolds demanded for the “last time” that Appellant take inventory of his delivery load. J.A. 464-65. Reynolds also verbally reprimanded Appellant when customers complained about his failure to deliver adequate quantities of milk, and threatened to terminate Appellant when he refused to deliver the goods as requested.

Reynolds said that he received more complaints about Appellant than about any of the other drivers, and that Appellant had problems with customers “from day one.” J.A. 738. Reynolds said that after he corrected Appellant, Appellant “would get better for three or four months” before reverting to his bad habits. Id. at 739. Reynolds was not alone in his assessment of Appellant. Both he and his assistant manager, Steven Good (“Good”), told Appellant on several occasions that his performance was lacking and he “would end up getting fired because of his problems” if he did not improve. Id. at 738.

Appellant also generated several complaints from Appellee’s customers, and from the School Division especially. Ap-pellee disciplined Appellant in writing after a Barnes & Noble store complained that Appellant failed to deliver enough milk. Later, the Barnes & Noble store demanded Appellee assign its account to another driver after Appellant spilled a gallon of milk on the store’s carpet. Additionally, the School Division, the largest customer on Appellant’s route, repeatedly complained that Appellant left milk on outdoor loading docks, where it would be exposed to weather;, delivered to the schools cartons of milk covered in rust; failed to provide the schools with enough milk;, argued with school cafeteria managers; sped through school parking lots; maneuvered his hand truck “at breakneck speed” through school kitchens, “to the point it created a safety hazard”; failed to inventory his load of milk; and exhibited a rude and hostile attitude. J.A. 604.

The School Division annually hosted an in-service meeting where school staff would express their opinions on services provided by various contractors. By 2009, the School Division had complained about Appellant for “several years,” and it had “exhausted [its] patience.” J.A. 1021. Meryl Smith (“Smith”), the director of school nutrition, invited Reynolds to the School Division’s August 2009 in-service meeting because she received such a high number of complaints from school cafeteria managers that she “wanted [Reynolds] to hear [these complaints] directly from [the managers].” Id. at 630. Reynolds attended the meeting and heard these complaints in person. This was the first time Smith had requested a representative of any of *214 the School Division’s “many” vendors to attend an in-service meeting in order to hear complaints from school staff about an employee’s job performance. Id. at 682. But even after this unprecedented in-service meeting, Smith still heard complaints from cafeteria managers and contacted Reynolds “on and off ... expressing [her] concern that things were not getting better.” Id. at 602-03.

In her deposition, Smith said that Reynolds approached her several months after the in-service meeting and asked her to “put [her] concerns [about Appellant] in writing” because Reynolds was considering whether to “get[ ] rid of [Appellant] as an employee,” and needed a written complaint “in order to make changes.” J.A. 600, 602, 625. In a memorandum dated December 4, 2009 (the “Smith Memorandum”), Smith documented the School Division’s complaints about Appellant. Smith wrote that although she was sure Appellant was “aware that [the School Division was] not happy with his work performance ...

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Bluebook (online)
593 F. App'x 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ralph-arthur-v-pet-dairy-ca4-2015.