No. 07-1403
JIMMY W. CUPPLES,
Plaintiff - Appellant,
v.
AMSAN, LLC, d/b/a Maintenance Supply Company;
SANITARY INCORPORATED; GRACE CAUDLE; TENA DAVIS,
AMERICAN
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:04-cv-00574)
Argued:
Decided:
ARGUED: Gerard Alford Bos, WILSON & BOS, Charlotte, North Carolina,
for Appellant.
Richard David Haygood, KILPATRICK & STOCKTON,
L.L.P., Raleigh, North Carolina, for Appellees. ON BRIEF: Betsy
Cooke, KILPATRICK & STOCKTON, L.L.P., Raleigh, North Carolina, for
Appellees.
the
confidentiality
of
its
investigation.
Cupples
I
Cupples began working in 1974 as a salesman for a predecessor
of AmSan, which distributes janitorial and sanitary products, and
he ultimately became the sales manager at its Huntersville, North
Carolina location.
In July 2004, AmSan employee Grace Foure complained to Jim
Core, the general manager of AmSans Huntersville location, that
Cupples had sexually harassed her.
Cupples had pinched her rear and had said, I just had to do that,
and that these acts made her feel uncomfortable.
Notwithstanding
Collins also
learned about other similar prior conduct from Foure, Davis, and at
least two other female employees.
He said he touched
Collins
was
conducting
his
investigation,
Cupples
approached Davis and spoke with her about the complaint against
him, asking her if she would serve as a character witness for
him.
because
to
do
so
would
violate
the
confidentiality
meeting with Core and Collins, who had traveled from Illinois to
Huntersville for the purpose of terminating Cupples employment.
Michael Mulhern, the CEO of AmSan, had directed Collins to fire
Cupples
for
the
accumulated
complaints
of
his
inappropriate
agreed to resign. When Cupples refused the package, AmSan paid him
30 days salary in accordance with the terms of his employment
agreement,
which
provided
that
either
party
could
end
their
training
video,
after
which
she
was
overheard
it,
nor
did
he
pursue
assertions
made
by
other
AmSan
had
history
of
promiscuity
and
of
making
unfounded
complaints.
Third, H. V. Nelson, a former AmSan executive and the owner of
the predecessor company, testified during his deposition that the
culture among long-time employees at the company was casual,
affectionate, and family-like, including good-natured touching,
like pats on the back and shoulder rubs.
He testified that he
healthcare costs
were being driven up by older employees and thus they should weed
mostly
speculation
based
on
experience
and
based
on
conversations.
Fourth, AmSans former Vice President of human resources,
Morris
Taormina,
declared
in
an
affidavit
that
it
was
service
of
Jim
Cupples
for
one
complaint
of
sexual
harassment.
On cross-motions for summary judgment, the district court
granted summary judgment in favor of the defendants, ruling that
Cupples claims failed as a matter of law.
On appeal, Cupples
II
Cupples
contends
that
the
district
court
misapplied
the
v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993)).
plaintiff
makes
this
showing,
presumption
of
If the
illegal
Id.
But Cupples
argument fails to account for the fact that AmSan did articulate a
non-discriminatory
reason
for
allegedly
disciplining
him
more
Cupples
in
violation
of
the
companys
harassment
policy,
The assertion by
was outside the protected class or that the persons conduct was
comparable in seriousness to his conduct.
It
10
years later.
company
policy
in
place
at
an
earlier
time
to
reduce
Id.
the reason for which the defendant discharged the plaintiff was
discriminatory.
Id.
11
was
truly
the
reason
for
the
plaintiffs
termination.
Id.
(emphasis added).
We agree with the district courts conclusion that Cupples
failed to present evidence sufficient to prove age discrimination,
and accordingly we affirm.
AFFIRMED
12