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September 27, 2005.

KENT THROWER, Plaintiff,
THE HOME DEPOT, INC., Defendant.

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.

I. Procedural History

  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.

  I. Background*fn1

  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 ...

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