The opinion of the court was delivered by: ALAN BLOCH, Senior District Judge
Presently before this Court is Defendant's Motion For Summary
Judgment on Plaintiff's claims. For the reasons set forth herein,
this Court will grant Defendant's motion.
Beginning in May 1991, at the age of 39, Plaintiff, Kent
Thrower ("Thrower"), was employed continuously by Defendant, The
Home Depot, U.S.A. Inc. ("the Company" or Home Depot"), until he
was terminated effective April 12, 2002, at the age of 50. See
Joint Statement of Material Facts Not in Dispute (hereinafter
"SMF"), ¶¶ 1, 57. The basis for his firing is at issue in this
case. Thrower alleges in his complaint that Regional Vice
President Jim Kane ("Kane") and the then Pittsburgh District
Manager Kari Wallace ("Wallace") discriminated against him in
violation of the Age Discrimination in Employment Act ("ADEA"),
28 U.S.C. § 621 et seq., and the Pennsylvania Human Relations Act ("PHRA"). See
Complaint ¶¶ 3, 12. Home Depot has filed a motion for summary
judgment, which the Court addresses in this opinion. This Court
exercises federal question jurisdiction over Thrower's claim
under the ADEA pursuant to 28 U.S.C. § 1331 and supplemental
jurisdiction over his claim under PHRA pursuant to
28 U.S.C. § 1367.
A. Thrower's General Employment History at Home Depot.
Thrower was initially hired by Home Depot in 1991 to fill a
non-managerial position in the Company's Baltimore district. He
was promoted to Assistant Store Manager in 1994 and Store Manager
in 1996 within that district before requesting a transfer to
Pittsburgh for personal reasons in 1997. SMF ¶¶ 1-2. With no
Store Manager positions available at that time in the Pittsburgh
district, Thrower was placed in an open Assistant Store Manager
position. However, effective January 31, 2000, when he was 48
years of age, Thrower was promoted to Store Manager of the
newly-opened Cranberry Township Store. SMF ¶¶ 3, 5. This promotion had been approved by Kane and
Rusty Spooner ("Spooner"), then District Manager for the
Pittsburgh District, both of whom were over 40 years of age at
the time of the decision. SMF ¶ 4.
B. Relevant Home Depot Policies and Practices. Home Depot's
Code of Conduct prohibits the falsification of reports, and
employees of the Company are informed that such conduct may lead
to termination. SMF ¶ 8. Furthermore, Home Depot's Ethics Code,
of which Thrower was aware, states that "[t]he Company's books
and records must accurately reflect all Company funds, assets and
transactions. Entries into Company records must be made promptly
without false or misleading information. The integrity of our
accounting practices requires that supporting documents are
accurate and complete." SMF ¶ 9-10. A violation of the Ethics
Code is grounds for termination. SMF ¶ 11.
C. Thrower's Termination. Home Depot has established
procedures relating to the manner in which employees are to
record any deviation from the retail value of a product for which
the Company can ascertain the cause of a decreased value. Such
recording of a product's value is referred to as a "markdown."
SMF ¶ 12. For example, sale prices, price adjustments to meet a
competitor's price, damaged goods, customer satisfaction refunds,
and products ultimately disposed of are considered markdowns. SMF
¶ 13. In accordance with the Company's Standard Operating
Procedure ("SOP"), a Computer Room Associate must enter the markdowns into
the computer system daily to "keep the perpetual inventory
correct." SMF ¶ 15.
Store Managers receive specific training about how to manage
markdowns, but they are not trained to withhold or delete
markdowns as a management tool. SMF ¶ 19-20. In fact, it is Home
Depot's policy and practice to accurately enter markdowns into
the computer system as promptly as possible. SMF ¶ 23. While the
Company's policy and practice for markdowns permits a Store
Manager to make corrections to information previously entered
when it is later found that the information is incorrect or not
accurate, he should inform either the District Manager and/or
Loss Prevention to ensure accurate and up-to-date record keeping.
SMF ¶ 24-25. Moreover, a Store Manager should not alter
previously entered markdown information except to correct an
error. SMF ¶ 26.
On April 4, 2002, Janice Feathers ("Feathers"), Computer Room
Associate in the Cranberry Township Store, reported to the
Store's Human Resource Manager, Karen Karda ("Karda"), that
Thrower had asked her to delete markdowns that she had previously
entered on April 3, 2002, so that the Store's markdown numbers
would appear to be closer to the goal set by Kane for all
Pittsburgh District Store Managers. SMF ¶ 28, 42. Karda forwarded
Feathers' complaint to Ruth Honacki ("Honacki"), then District
Human Resources Manager responsible for the Cranberry Township
Store, who contacted Tony Kuniak ("Kuniak"), then District Loss Prevention Manager. SMF ¶
29-30. In response to Feathers' allegations, Kuniak commenced an
investigation, which included a review of documents and
conversations with Karda and Feathers. Although Kane was informed
by Honacki and Kuniak that an associate made a complaint about
Thrower and that an investigation had been initiated, Kane did
not play a role in either Feathers' report or the subsequent
investigation. SMF ¶ 32.
Kuniak's investigation revealed that Thrower had consistently
asked Feathers since September 2000 to delete markdowns
previously entered into the system in order to be under or close
to the weekly markdown goals. SMF ¶ 33. Each of the deleted
markdowns was re-entered into the system at a later date when it
would not cause Thrower to miss his goals. SMF ¶¶ 34, 37. Thrower
admitted that he had asked Feathers to delete and later re-enter
accurate, properly entered markdowns. SMF ¶ 37-38.
Following the completion of his investigation, Kuniak told
Honacki that he believed that the facts demonstrated that
Thrower's actions with respect to markdowns misrepresented actual
inventory on hand and constituted altering a company report.
Termination, according to Kuniak, was appropriate given Thrower's
conduct. SMF ¶ 49. Honacki, who concurred with Kuniak's
conclusions and recommendation, then reported the results of the
investigation to Home Depot's Employment Practices Manager, Chris
Bizarro, who was responsible for ensuring that any decision to terminate or
suspend a managerial associate was consistent with the Company's
practices and commitment to fair treatment. SMF ¶ 50, 55. After
reviewing the investigation report, he found that, consistent
with Kuniak's recommendation, termination was warranted. SMF ¶
51. Honacki then conveyed Kuniak's and Bizarro's recommendations
to her immediate supervisor, then Vice President of Human
Resources Herbert Miller ("Miller"), who reviewed the information
and concurred in the recommendation to terminate Thrower's
employment. SMF ¶ 52. Subsequently, Kane was informed of the
results of the investigation and recommendations by Loss
Prevention and Human Resources, and based upon the facts, he
agreed. SMF ¶ 53. Wallace also agreed that Thrower's conduct was
in violation of the Company's policy against altering company
documents and his employment should be terminated as a result.
SMF ¶ 54.
Kane and Wallace met with Thrower to inform him of the decision
to terminate his employment with Home Depot effective April 12,
2002. SMF ¶ 58. Subsequently, the Company hired John Sieg
("Sieg") as Store Manager in Cranberry effective May 27, 2002. At
the time of his hiring, Sieg was 31 years of age. SMF ¶ 60.
D. Thrower's Claims of Disparate Treatment and Discriminatory
Intent. Although six Home Depot employees at various levels of
the company hierarchy were in agreement with respect to Thrower's
termination, he alleges that only two of those employees, Kane and Wallace, discriminated against him based upon his age.
SMF ¶ 61. With respect to Kane, Thrower has alleged that,
approximately one year before Kane approved Thrower's promotion
to Store Manager of the Cranberry Township Store and on several
occasions thereafter, Kane made several comments to him that he
needed to be "more vocal, to be louder, to be more on fire . . .
being a good citizen isn't enough . . . jump on tables, be more
energetic, more full of life." SMF ¶ 77. He also testified that
Kane made comments that Thrower was "more reserved, slower" than
other Store Managers. SMF ¶ 78. With respect to Wallace, Thrower
testified that Wallace told him that employees "tend to look like
the store managers over a period of time [a]nd that the employees
in the Cranberry [Township] store were beginning to look like
[Thrower]. They were slower. They were older. That other stores
had more life and ...