United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S  MOTION FOR SUMMARY JUDGMENT AND FINDING MOOT DEFENDANT'S  MOTION TO STRIKE
HALIL SULEYMAN OZERDEN, District Judge.
BEFORE THE COURT are the Motion to Strike  and the Motion for Summary Judgment  filed by Defendant Home Depot U.S.A., Inc. Both Motions are now fully briefed. Having considered the parties' submissions, the record, and relevant legal authorities, the Court is of the opinion that Defendant is entitled to judgment as a matter of law as to all claims asserted against it by Plaintiff Debbie Kopszywa. Defendant's Motion for Summary Judgment  should be granted, and Defendant's Motion to Strike  is moot.
A. Factual Background
Plaintiff Debbie Kopszywa ("Plaintiff") began her employment with Defendant Home Depot U.S.A., Inc. ("Defendant") in 1999 as a Loss Prevention Supervisor. Second Am. Compl.  at 2; Aff. of Debbie Kopszywa [83-2] at 1. From 2001 until 2008, Plaintiff worked as an Assistant Store Manager for Operations for Defendant at different Home Depot retail store locations, including from 2006 to 2008 at the Home Depot store in Biloxi, Mississippi. Aff. of Debbie Kopszywa [83-2] at 1; Dep. of Debbie Kopszywa [83-1] at 29. The Biloxi store employed between 85 and 120 employees depending on the time of the year. Dep. of Debbie Kopszywa [83-1] at 40.
Defendant promoted Plaintiff to Store Manager of its Home Depot store in Waveland, Mississippi, in June 2008. Aff. of Debbie Kopszywa [83-2] at 1; Dep. of Debbie Kopszywa [83-1] at 38. The Waveland store, with between 35 and 50 employees, was smaller than the Biloxi store. Dep. of Debbie Kopszywa [83-1] at 39. When the Waveland store closed in January 2010, District Manager Ronnie Cheeks ("Cheeks") and Pam Holland ("Holland") from the Home Depot Human Resources Department spoke with Plaintiff about transferring her to manage the Home Depot store in Picayune, Mississippi, and "strongly suggested that [Plaintiff] move there." Id. at 39, 61. Cheeks was Home Depot's District Manager for the area which included the Picayune store. Id. at 63. Holland and Reyon McCarthy ("McCarthy") worked in Defendant's Human Resources Department during the time Plaintiff worked at the Picayune store. Aff. of Debbie Kopszywa [83-2] at 3; Dep. of Debbie Kopszywa [83-1] at 55-57, 64-65. Desi Broussard ("Broussard") worked as Defendant's District Operations Manager during the relevant time period. Dep. of Desi Broussard [83-6] at 13-14.
Plaintiff became Store Manager in Picayune on January 25, 2010. Id. at 39, 61-62. Picayune was a larger store than Waveland and employed between 95 and 125 workers, depending on the season. Id. at 62-63. As Store Manager, Plaintiff would receive a mid-year review and a formal year-end evaluation every year. Dep. of Debbie Kopszywa [83-1] at 54. Home Depot store managers would perform a selfevaluation prior to the midyear review and submit it to their district managers. Id. Store managers would then create a development plan for themselves and forward the plan to their district managers, who would in turn review and made additions to the plan. Id. at 87. District managers conducted the formal evaluation of store managers once a year. Id. at 54-55.
During the summer of 2010, Scott Murry became Defendant's District Manager. Murry's district included the Mississippi Gulf Coast area as well as the Picayune store. Aff. of Debbie Kopszywa [83-2] at 1; Dep. of Debbie Kopszywa [83-1] at 81; Dep. of Desi Broussard [77-2] at 20. Murry would conduct a monthly District Business Walk ["DBW"] with "all the district people" from Home Depot in the Picayune store and would also "pop in" the store about twice a month. Dep. of Debbie Kopszywa [83-1] at 81-82. Murry conducted a mid-year evaluation of Plaintiff's performance in September 2010 and an annual evaluation of Plaintiff's performance in March 2011. Aff. of Debbie Kopszywa [83-2] at 1-2; Dep. of Debbie Kopszywa [83-1] at 89-90; see also Mid-Year Eval. [83-8] at 1-2; Annual Eval. [83-9] at 1-2.
In Plaintiff's March 2011 annual evaluation, Murry summarized his assessment of Plaintiff's performance as follows:
[t]hough some areas of Debbie's performance were above average for the year, there are other areas that will need to improve quickly in 2011. The execution around the Specialty and Services business was not consistent through the year. Debbie will also have to find ways to grow her Pro customer base and ensure all the tools and resources are utilized to help in execution. Controlling the minimum aspects of running these parts of our business will have to be a top priority for her.
Annual Eval. [83-9] at 1. Murry identified the following key development needs:
Acts Strategically: Debbie needs to do a better job of staying in front of her business issues in Specialty, Services and Pro. I need her to take a proactive approach to planning where we are going to earn our business in these areas and how we are going to get it. We can't wait for something to happen but rather create our own environment.
Delivers Results: Specialty, Services and Pro. She needs to drive execution and stay on top of things to ensure success. Clear direction needs to be given and follow up needs to happen to identify issues.
Id. Plaintiff testified in her deposition that she did not have any problems with Murry after the mid-year and annual evaluations, and did not feel as though Murry was treating her unfairly. Dep. of Debbie Kopszywa [83-1] at 89-91.
In June 2011, an opening became available for the Store Manager position at the Home Depot store in Biloxi, Mississippi. Second Am. Compl.  at 2; Dep. of Debbie Kopszywa [83-1] at 91-93. Plaintiff asked Murry to transfer her to this open Store Manager position. Second Am. Compl.  at 2; Dep. of Debbie Kopszywa [83-1] at 91-92. Plaintiff testified that after she requested the transfer, Murry walked through her Picayune store every week until Murry decided whom to hire for the vacant Biloxi Store Manager position. Dep. of Debbie Kopszywa [83-1] at 93. In July or August 2011, Defendant ultimately hired a male assistant manager from a store in Atlanta, Georgia, to manage the Biloxi location. Second Am. Compl.  at 2; Dep. of Debbie Kopszywa [83-1] at 95-96; Rule 30(b)(6) Dep. of Defendant through Scott Murry [83-3] at 124. Murry informed Plaintiff of the decision and told Plaintiff that she was not transferred because she had not yet been working as Store Manager in Picayune for two years and that it was a general rule for store managers to remain in a store for at least two years. Dep. of Debbie Kopszywa [83-1] at 94; Dep. of Debbie Kopszywa [83-1] at 94-95. Plaintiff expressed her disappointment to Murry in not receiving the position, but did not complain to anyone else at Home Depot about not receiving the transfer. Dep. of Debbie Kopszywa [83-1] at 98-99. Plaintiff believes that she began experiencing problems with Murry after she asked to be transferred to the Biloxi store. Dep. of Debbie Kopszywa [83-1] at 91.
In July 2011, Murry counseled Plaintiff in writing by way of a Performance/Discipline Notice, for being out of stock of certain bathtubs at the Picayune store. Dep. of Debbie Kopszywa [83-1] at 150; July 2011 Notice [83-10] at 1. Plaintiff admitted that she was out of stock of the bathtubs during Murry's walkthrough and, in fact, Plaintiff had written up her assistant manager Allison Barlow for this same error. Dep. of Debbie Kopszywa [83-1] at 78-79, 101, 111-12, 125, 150-53, 183. Plaintiff agreed that, as the Store Manager, she was ultimately responsible for making sure that the store had items in stock. Id. at 183.
About a month after her transfer from Waveland to Picayune, Plaintiff rented an apartment in Picayune because she lived an hour away from the store. Id. at 98-99. Two of Plaintiff's assistant store managers also lived 45 minutes to an hour away from the Picayune store. Id. Plaintiff informed her two female assistant store managers that, "if they ever felt uncomfortable, they could stay at the apartment." Id. at 99-100; see also id. at 156-57. One of the two female assistant managers was Plaintiff's long-time friend, Allison Barlow. Id. at 99-100; see also id. at 56-57. Defendant received complaints on its "Aware Line" from employees about Plaintiff's closeness with Barlow. Id. at 100-01. Plaintiff then received a second written "discipline coaching" from Murry on August 23, 2011, for giving "the appearance of playing favorites" with her employees. Id. at 100-01, 113-14; see also Aff. of Debbie Kopszywa [83-2] at 2; Aug. 2011 Notice [83-11] at 1. Plaintiff agreed in her deposition that the appearance of a store manager showing favoritism towards employees violates the Home Depot Code of Conduct. Dep. of Debbie Kopszywa [83-1] at 183. The August 2011 Notice also warned Plaintiff that "[a]ny further instances of Code of Conduct violations could result in future discipline coachings or termination." Aug. 2011 Notice [83-11] at 1.
In September 2011, about a week after issuing the August 2011 Notice, Murry verbally counseled Plaintiff for smoking a cigarette behind the Picayune store while wearing a Home Depot apron. Dep. of Debbie Kopszywa [83-1] at 135; Aff. of Debbie Kopszywa [83-2] at 4; Dep. of Scott P. Murry [77-3] at 215. Plaintiff admits that she was smoking in the apron and that under the Home Depot Code of Conduct, she could have received a more serious write-up for the infraction. Dep. of Debbie Kopszywa [83-1] at 135-36; Aff. of Debbie Kopszywa [83-2] at 4.
Plaintiff received a third Performance/Discipline Notice with written counseling in October 2011. Dep. of Debbie Kopszywa [83-1] at 115, 160; Oct. 2011 Notice [83-12] at 1. Murry counseled Plaintiff for not displaying air filters as directed and for not contacting or documenting contact with customers regarding a "5% off" promotion as she had been directed. Notice [83-12] at1. The October 2011 Notice warned that "[c]ontinued issues around lack of performance and attention to detail will result in further performance documentation which can include a Performance Improvement Plan, or possible termination of [Plaintiff's] employment." Id.
Plaintiff received a final Performance/Discipline Notice in November 2011 for failing to follow through with directions to control inventory levels, specifically regarding some roofing shingles, and with directions to mark certain special order lighting as 75% off. Dep. of Debbie Kopszywa [83-1] at 117, 167; Nov. 2011 Notice [83-13] at 1. The Notice warned that "[i]f continued lack of execution and results are delivered, it will lead to a performance improvement plan and or termination." Nov. 2011 Notice [83-13] at 1. Plaintiff admitted in her deposition that she failed to follow up after she directed her department supervisor to hang the 75%-off special order lighting sign referenced in the Notice. Dep. of Debbie Kopszywa [83-1] at 171-72.
Plaintiff claims that during the last six months of her employment with Defendant, Plaintiff spoke with Reyon McCarthy in Human Resources "on a weekly basis" regarding Murry's treatment of Plaintiff and informed McCarthy that Plaintiff was "being targeted" by Murry for termination. Dep. of Debbie Kopszywa [83-1] at 118; Aff. of Debbie Kopszywa [83-2] at 3. Plaintiff alleges that she told McCarthy "on several occasions" that Plaintiff "believed this was because of [her] gender and [her] age." Aff. of Debbie Kopszywa [83-2] at 4. According to Plaintiff, McCarthy recommended that Plaintiff speak with Holland in Human Resources. Dep. of Debbie Kopszywa [83-1] at 118-19.
Plaintiff asserts that after Murry had identified the issues documented in the Plaintiff's last Performance/Discipline Notice in November 2011, but before she actually received the Notice, she complained to Holland on a Friday about her recent write-ups from Murry, stating that she "was a target." Id. at 103-04, 118-19, 129. Holland informed Plaintiff that "she would discuss it with [Murry]." Id. at 103-04. Plaintiff testified that Holland called her back the following Monday and informed Plaintiff that Holland had called Murry and "had a discussion with him" about Plaintiff's concerns. Id. at 129. According to Plaintiff, Holland informed Plaintiff that she "needed to try to sit down and talk to [Murry]." Id. Plaintiff subsequently received the November 2011 Performance/Discipline Notice from Murry. Id. at 104; Nov. 2011 Notice [83-13] at 1.
Murry received a promotion in December 2011 and left the District Manager position. Dep. of Debbie Kopszywa [83-1] at 126; Rule 30(b)(6) Dep. of Defendant through Scott Murry [83-3] at 118. At some point before Murry's promotion, Murry initiated the idea of terminating Plaintiff with District Human Resources Manager Reyon McCarthy because of Plaintiff's "[f]ailure of performance." Rule 30(b)(6) Dep. of Defendant through Scott Murry [83-3] at 18, 54-56. Murry drafted a request for a severance package for Plaintiff using information submitted by McCarthy, Regional Associates Relations Manager Holland, and District Operations Manager Broussard. Request [83-14] at 1-2; Dep. of Desi Broussard [83-6] at 74-75. The request detailed the written counseling and verbal coaching Plaintiff had received as well as the results of the mid-year and annual performance evaluations, a summary of Plaintiff's history with Defendant, and photographs taken by Murry at the Picayune store documenting specific issues. Request [83-14] at 1-2; Rule 30(b)(6) Dep. of Defendant through Scott Murry [83-3] at 54-63. Holland reviewed the request for severance package and approved the recommendation to terminate Plaintiff. Rule 30(b)(6) Dep. of Defendant through Scott Murry [83-3] at 57-58. Holland submitted the recommendation to Defendant's Regional Vice President Tim Wilkerson, who approved it. Holland then sent the recommendation to Divisional Human Resources Manager Gwen Chandler, who also approved it. Id.
Defendant terminated Plaintiff's employment on January 6, 2012. Second Am. Compl.  at 4. Patty Stoddard, a District Manager for the New Orleans, Louisiana, district informed Plaintiff of the termination. Dep. of Debbie Kopszywa [83-1] at 126; Rule 30(b)(6) Dep. of Defendant through Scott P. Murry [83-3] at 59. McCarthy was present at the termination meeting. Dep. of Debbie Kopszywa [83-1] at 127. Defendant offered Plaintiff a severance package which Plaintiff declined. Id.
Plaintiff was 57 years old at the time of her termination. Dep. of Debbie Kopszywa [83-1] at 7, 126. Defendant replaced Plaintiff with a new Store Manager named Barry Todd, a male who was younger than Plaintiff. Rule 30(b)(6) Dep. of Defendant through Scott P. Murry [83-3] at 281; Dep. of Desi Broussard [83-6] at 133. Plaintiff alleges that Murry alone discriminated against her during her employment. Dep. of Debbie Kopszywa [83-1] at 121. Plaintiff believes that Murry "treated [her] different than he treated the other store managers there." Id. According to Plaintiff, at a store manager meeting held in October 2011, Murry "would have discussions and friendly discussions with the... other store managers, " but would "not even acknowledge [Plaintiff] in that room." Id. at 121-22. Plaintiff also complains that Murry walked her Picayune store once a week during the two months Murry was considering Plaintiff for the transfer to Biloxi, but did not walk other stores which had male store managers as often. Id. at 122-23. Murry did not continue the weekly walks through the Picayune store after Murry filled the Biloxi Store Manager position. Id. at 123.
B. Procedural Background
Plaintiff timely filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on or about April 3, 2012. EEOC Charge [5-1] at 1. Plaintiff's EEOC Charge alleges that Defendant discriminated against Plaintiff on the basis of her gender and age and retaliated against Plaintiff in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"). The parties do not appear to dispute that Plaintiff received a right to sue letter from the EEOC. Plaintiff sued Defendant in this Court on December 17, 2012. Compl.  at 1. Plaintiff arguably advanced claims for gender and age discrimination, hostile work environment, and retaliation. Id. at 4-5. Plaintiff filed an Amended Complaint  on August 28, 2013, ...