Mike Duffy v. Belk, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1757
MIKE DUFFY,
Plaintiff - Appellant,
v.
BELK, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:10-cv-00021-GCM)
Argued: March 23, 2012 Decided: April 23, 2012
Before GREGORY, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Keenan and Judge Floyd joined.
ARGUED: Carol Nelkin, NELKIN & NELKIN, PC, Houston, Texas, for
Appellant. James Bernard Spears, Jr., OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, PC, Charlotte, North Carolina, for Appellee.
ON BRIEF: Stuart M. Nelkin, NELKIN & NELKIN, PC, Houston,
Texas, for Appellant.
Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Circuit Judge:
Appellant Mike Duffy appeals the district court’s grant of
summary judgment in favor of Appellee Belk, Inc. Duffy claims
that the district court erred in finding that he failed to
establish a prima facie case of age discrimination under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)
(1999). Duffy contends that Belk discriminated against him
twice. First, it eliminated Duffy’s position as director of
customer relationship management (“Director of CRM”) and
consolidated his duties with those of Lis Cravens, then vice
president of marketing and customer research. Having eliminated
both Duffy’s and Cravens’s positions, Belk selected Cravens, who
is twenty years Duffy’s junior, to assume the new position.
Second, Duffy claims that Belk discriminated against him when it
failed to assign him to one of two positions after his job was
eliminated.
Belk contends that Duffy has not established a prima facie
case for age discrimination and, in any event, it had
legitimate, non-discriminatory business reasons for its
decision: the elimination of Duffy’s position was due to a
reduction in force, and the selection of Cravens for the new
position was based on her prior experience and education.
Further, Belk argues that it had legitimate reasons to select
other individuals to fill the two positions. The district court

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granted summary judgment in favor of Belk and held that Duffy
neither established a prima facie case for age discrimination
nor offered sufficient evidence to show that Belk’s business
reasons for its decision were pretexts for age discrimination.
Duffy timely appealed this decision. For the following reasons,
we affirm, holding that while Duffy has established a prima
facie case of age discrimination, he has failed to show that
Belk’s legitimate business reasons for its actions are
pretextual.
I.
We review de novo the district court’s grant of summary
judgment. Med. Waste Assocs. Ltd. P’ship v. Baltimore, 966 F.2d
148, 150 (4th Cir. 1992). To survive summary judgment, Duffy
must show that there is a genuine issue of material fact that
Belk discriminated against him due to his age. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Under the ADEA, a
plaintiff “must prove, by a preponderance of the evidence, that
age was the ‘but for’ cause of the challenged adverse employment
action.” Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2352
(2009). A plaintiff can prove the claim either through direct
or circumstantial evidence, see Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004), or by

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the McDonnell Douglas burden-shifting framework, McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
Both parties agree that the McDonnell Douglas framework
applies in this case. Under this framework, the plaintiff must
first satisfy the elements of a prima facie case of age
discrimination. 411 U.S. at 802. If the plaintiff satisfies
this initial burden, then the burden of production shifts to the
employer to show that its decision to terminate the plaintiff is
based on a legitimate, non-discriminatory reason. Hill, 354
F.3d at 285. The burden then shifts back to the plaintiff who
must prove by a preponderance of the evidence that the reason
given is a pretext for age discrimination. Id.
This framework is not altered in the context of summary
judgment. See Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1317
(4th Cir. 1993). Further, while summary judgment favors the
nonmoving party in its interpretation of the facts, in the
context of employment discrimination cases “[i]t is not for this
court . . . to direct the business practices of any company,”
EEOC v. Clay Printing Co., 955 F.2d 936, 946 (4th Cir. 1992),
nor “sit as a super-personnel department weighing the prudence
of employment decisions made by the defendants.” Anderson v.
Westinghouse Savannah River Co., 406 F.3d 248, 272 (4th Cir.
2005) (internal quotation marks and citations omitted).

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II.
A.
Duffy contends that he has established a prima facie case
for age discrimination arising out of the elimination of his
position and the selection of Cravens for the consolidated
position. The elements of a prima facie case vary depending on
the nature of the claim. Dugan v. Albermarle Cnty. Sch. Bd.,
293 F.3d 716, 721 n.1 (4th Cir. 2002). Generally in the
reduction-in-force context, a prima facie case is met if the
plaintiff establishes that (1) he qualifies as a member of the
protected class; (2) he was demoted or terminated; (3) at the
time of his termination, he met his employer’s legitimate
expectations; and (4) he was replaced by a substantially younger
individual. See id. at 720-21; see also Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 142 (2000).
The district court found that Duffy failed to establish a
prima facie case because he did not meet the fourth element.1
However, the district court did not apply the proper standard
for the fourth element in the reduction-in-force context for age
discrimination. See J.A. 932 (finding that the fourth element
1 It is undisputed that at the time of his termination,
Duffy was 61 years old and thus qualified as a member of the
protected class. It is also undisputed that at the time of his
termination, he met Belk’s legitimate expectations as Director
of CRM.

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requires a showing that the employer did not treat the protected
status neutrally or there were circumstances giving rise to an
inference of discrimination). The proper standard here is
whether the plaintiff was “replaced” by a “substantially
younger” worker. See Strokes v. Westinghouse Savannah River
Co., 206 F.3d 420, 429-30 (4th Cir. 2000).
Twenty years his junior, Cravens is “substantially younger”
than Duffy. A closer call is whether Cravens’s assumption of
the consolidated position is a “replacement” of Duffy. Duffy
claims that it was Cravens’s and not his position that was
eliminated because she received all of his duties and the
employees who reported to him. Belk contends that Duffy ignores
the fact that the new position was a consolidation of the two
prior positions and that Cravens’s primary responsibilities in
this new position continue to be customer research and analysis
work. We have determined before that a transfer of some of a
terminated plaintiff’s duties to younger workers is sufficient
to satisfy the fourth element of a prima facie case of age
discrimination. Reed v. Buckeye Fire Equip., 241 F. App’x 917,
927 (4th Cir. 2007) (finding that the terminated plaintiff was
replaced by a younger employee when the employer transferred
some of his job duties to a 45-year-old employee and then gave
the plaintiff’s other duties to a 40-year-old employee hired
after plaintiff’s termination). Here, Belk’s decision to

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terminate Duffy by consolidating his position with Cravens was
in fact a transfer of Duffy’s duties to the new position. Duffy
has proven the fourth element and thus established a prima facie
case for age discrimination.2
B.
Because Duffy has established a prima facie case for age
discrimination, we must consider whether Belk has put forth
legitimate, non-discriminatory reasons for its employment
decisions. Belk has offered two: the consolidation of the two
positions and the termination of Duffy were part of a reduction
in force, and Cravens was better suited for the consolidated
position. Kathy Bufano, then president of merchandising and
marketing and charged by Belk’s executive management to advise
of any necessary job consolidations, determined that the
Director of CRM and vice president of marketing and customer
2 Because Duffy has established the fourth element, this
Court need not address whether the district court erred in
rejecting Duffy’s statistical evidence to support a prima facie
case. Duffy argued that out of the 72 employees in the
marketing department, the 2 other employees besides himself
whose jobs were eliminated were between the ages of 52 and 62.
The district court concluded that this evidence was unpersuasive
because “Duffy does not satisfactorily compare the ages of the
employees that were fired with other employees in the department
to create any reasonable inference of discrimination.” J.A.
932. It further noted that one of the fired employees, Paul
Michelle, was replaced by an older employee, Jon Pollack. Id.
At oral arguments, Duffy’s attorney conceded that this court
could not infer age discrimination from Michelle’s termination.

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research possessed “like functions.” Using as guidance the
Sears Brand model for management, she recommended that the
positions be consolidated. As part of the consolidation, Bufano
proposed that the employees who report to the Director of CRM be
placed under the consolidated position. She also suggested that
Cravens’s responsibility over “special events” –- many of which
were fashion-related –- should be transferred to another vice
president who already managed the company’s fashion shows and
trends. Both moves, Bufano reasoned, improved the alignment of
“like tasks” under her supervision.
Bufano also recommended that the consolidated position be
assigned to Cravens because her experience with marketing
strategies would enhance Belk’s direct mailing marketing. She
also found Cravens’s experience as a “brand manager” valuable to
the combined functions of the new position. Additionally,
Bufano took into consideration Cravens’s attainment of an MBA
degree and her significant contributions to the company’s
“Private Brands” merchandise, which the executive management
viewed as a critical growth brand for the company’s future
success. Bufano thus based her recommendation on “strategic
business decision[s]” that are “legally sufficient” to support
Duffy’s termination. Mereish v. Walker, 359 F.3d 330, 335 (4th
Cir. 2004). For these reasons, Belk has offered legitimate,
non-discriminatory reasons for its decisions.

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C.
Because Belk put forth legitimate, non-discriminatory
reasons for its decision, Duffy bears the final burden of
showing that the reasons presented by Belk are merely pretexts
for age discrimination. Duffy can establish pretext by
establishing that the reasons given are “unworthy of credence”
or by presenting other evidence “sufficiently probative of age
discrimination.” Mereish, 359 F.3d at 336. Duffy presents
several arguments in an attempt to show that age discrimination
was the basis of Belk’s decisions, including (1) Belk knew that
he was substantially older than Cravens; (2) his position had
never been consolidated with another position before the
reduction in force; (3) Belk recognized him as a good employee;
and (4) the consolidated position’s most important duty was
direct mailing, a duty that he was more qualified to manage than
Cravens.
As evidence, Duffy points to several items in the record.
Neither party disputes that Duffy’s position as Director of CRM
had never been consolidated with another prior to 2008, and the
record indicates that Belk’s executive management believed Duffy
to be a good employee. And a reasonable jury could infer that
Belk at least had constructive knowledge that Duffy, twenty
years Cravens’s senior, was older than her. However, this
evidence is insufficient under our precedent to show that Belk’s

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business reasons for the consolidation of the positions,
termination of Duffy, and selection of Cravens were pretexts for
age discrimination. See, e.g., Birkbeck v. Marvel Lighting
Corp., 30 F.3d 507, 512 (4th Cir. 1994) (“In a reduction of work
force case, the fact that the duties were assumed by a younger
individual is not conclusive of age bias.”); Mereish, 359 F.3d
at 338-39 (rejecting plaintiffs’ argument of pretext that their
positions were important to the employer’s mission: “The very
nature of a [reduction in force] is that some workers must be
let go, and difficult decisions have to be made.”); Anderson,
406 F.3d at 270 (rejecting plaintiff’s argument to show pretext
that she was better educated and more experienced than the
younger employee when the employer based its decision to promote
the younger employee on other legitimate criteria).
Duffy’s final contention does not create an inference of
pretext either. It is true that Duffy possesses years of
experience in direct mailing while Cravens possesses none. See
J.A. 631. However, Duffy has not established a record that
could support a finding by a preponderance of the evidence that,
in his words, “the most important aspect of the combined
position involved direct mail.” When an employer consolidates
two positions it is expected that each position’s duties will
share a significant part of the consolidated position. Here,
the consolidated position comprises duties from both Cravens’s

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and Duffy’s former positions, and as Cravens testified, she
retained the functions of developing and executing research
initiatives, overseeing customer research data, providing
strategic direction, developing organizational direction
regarding customer research strategies, and participating on the
market research committee. J.A 646, 632-42. Duffy makes much
of the fact that Belk spends significantly more of its marketing
budget on direct mailing than on customer research. However,
the amount of money spent on direct mailing is not evidence that
the most important of Cravens’s duties involves direct mailing.
A plaintiff alleging an ADEA claim must show that the
adverse employment action was motivated by age. See Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Mereish,
359 F.3d at 336 (holding that plaintiffs failed to show pretext
despite documented evidence of the employer’s desire to protect
the “young, bright, junior” employees and the employer’s
expressed concern with the aging workforce); Dugan, 293 F.3d at
722 (holding that a plaintiff failed to show her employer’s
reason for demoting her was pretextual for discrimination when
the employer did not abide by its own mandatory seniority policy
when allocating full-time status between the older, and more
senior plaintiff and the younger, more junior employee). In
this case, Duffy cannot point to a single reference by Bufano or
any other Belk employee that would allow this Court to infer

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that age played any, let alone a dispositive, role in his
termination. Further, because Cravens was assigned to a
consolidated position, this is a decidedly different case than
if she had assumed the Director of CRM position. And Duffy has
failed to show that the consolidation is a sham because the
consolidated position’s duties are substantially similar to his
terminated position. For these reasons, Duffy’s evidence is
insufficient to permit an inference that Belk’s business reasons
for its decisions were pretexts for age discrimination or
unworthy of credence. See Holland v. Washington Homes, Inc.,
487 F.3d 208, 215 (4th Cir. 2007).
III.
Finally, we address Duffy’s challenge that Belk failed to
assign him to one of two positions after his own position was
consolidated: director of email content or vice president of
advertising planning and analysis. The district court found
that Duffy was unable to establish a prima facie case of age
discrimination for either position and even if Duffy did present
such a showing, he failed to rebut the legitimate non-
discriminatory reasons given for hiring other candidates.
The first position, director of email content, was assigned
to Carolyn Hartman in December of 2008. Hartman, who at that
time was the vice president of advertising planning and

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analysis, was having a serious romantic relationship with Jon
Pollack. Due to Pollack’s transfer to a consolidated position,
he became a direct supervisor of Hartman in violation of
personnel policy. To prevent this conflict of interest, the
company assigned Hartman to the director of email content, a
position not overseen by Pollack. As a result, Hartman accepted
a $30,000 pay cut, as well as a title reduction. This
assignment was not a part of Belk’s reduction-in-force measures.
The second position was a result of this reassignment. To
replace Hartman in her vice president position, Belk executive
management promoted Sue Curley. Curley was selected due to her
merchant experience, gained during her time at Belk and at her
prior job. She was promoted to this position several weeks
before Belk’s human resources department offered Duffy the
choice of assuming two lower-level positions. Duffy declined,
however, because neither position met his salary expectation of
$160,000.
Duffy argues that Belk should have offered him the position
of director of email content instead of Hartman. Neither party
addresses whether this challenge should be analyzed under a
reduction-in-force framework or the traditional McDonnell
Douglas discrimination-in-hiring framework. Regardless, under
either framework Duffy does not make out a prima facie case.
Duffy has not shown that Belk’s reassignment was an adverse

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employment action against him as required in the reduction-in-
force context. Duffy has not presented any evidence that
indicates Hartman’s reassignment was actually connected to the
reduction in force and not solely due to her romantic
involvement with Pollack. Nor has he shown, as required in the
discrimination-in-hiring context, that he ever applied for the
position and was qualified, other than offering his own opinion
of his experience relative to Hartman. See McDonnell Douglas,
411 U.S. at 802. Hartman, unlike Duffy, was identified by Belk
as someone of “High Potential” whose experience and talent
qualified her for two upward promotions if such a position
became available. In light of the evidence, Duffy has not made
a prima facie case for age discrimination with respect to the
director of email content position.
Even if Duffy had established a prima facie case, Belk has
offered a legitimate, non-discriminatory reason for transferring
Hartman to the position: to avoid a conflict of interest.
Duffy’s support for a finding of pretext is the fact that Belk
was willing to create a new position for Hartman who is younger
but was unwilling to create a new position for him. This point
overlooks the fact that Human Resources did offer Duffy two
positions that he rejected and also ignores that our analysis is
not about unfairness but about whether age discrimination
occurred. As the district court properly found, Belk has no

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duty or personnel policy that requires it to assign Duffy to an
alternate job after it eliminated his position. For these
reasons, Duffy has not shown that the decision to assign Hartman
to be the director of email content instead of him was due to
his age.
Finally, Duffy argues that he was discriminated against
based on his age in Belk’s failure to promote him to the vice
president position. In a failure-to-promote claim, Belk must
establish that he (1) is a member of a protected class; (2)
applied for the position; (3) was qualified for the position;
and (4) was rejected for the position under circumstances that
give rise to an inference of unlawful discrimination. Anderson,
406 F.3d at 268. The district court found that Duffy could only
satisfy the first element.
Duffy admits that he did not apply for the position but
states that he was not allowed to because the executive
management sought out Curley and offered her the position.
Duffy cites no case law that supports this Court excusing
element two of the standard when the job was not open to
applicants in the first place. However, even if we were to
agree with Duffy on this point, Belk has offered legitimate,
non-discriminatory reasons for seeking out Curley and hiring
her: she possessed extensive merchant experience, and she had
been identified as a “High Potential” employee by Belk. Duffy

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responds that he is qualified for the position; however, “[i]t
is the perception of the decision maker which is relevant, not
the self-assessment of the plaintiff.” Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996).
Other than his assertions, Duffy has not offered evidence to
reject Belk’s non-discriminatory reasons and thus fails to meet
his burden of showing that these reasons were pretexts for age
discrimination.
IV.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment in favor of Belk.
AFFIRMED

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