                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 07-1403



JIMMY W. CUPPLES,

                Plaintiff - Appellant,

           v.


AMSAN, LLC, d/b/a Maintenance Supply Company;          AMERICAN
SANITARY INCORPORATED; GRACE CAUDLE; TENA DAVIS,

                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:   March 20, 2008                    Decided:   June 10, 2008


Before WILLIAMS, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.


Affirmed by unpublished opinion. Judge Niemeyer wrote the opinion,
in which Chief Judge Williams and Judge Duncan joined.


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.


Unpublished opinions are not binding precedent in this circuit.
NIEMEYER, Circuit Judge:

     In August 2004, AmSan, LLC fired Jimmy Cupples, a sales

manager, after investigating a complaint of sexual harassment

against him and discovering a pattern of inappropriate behavior

toward female coworkers and two instances of insubordination by

violating   the   confidentiality   of   its    investigation.   Cupples

commenced this action, alleging that AmSan’s investigation of the

harassment complaints was pretextual and that AmSan discharged him

based on his age.    He was 62 years old.      The district court granted

AmSan’s motion for summary judgment, and on appeal, we affirm.



                                    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 AmSan’s Huntersville location, that

Cupples had sexually harassed her.       Specifically, she claimed that

Cupples had pinched her rear and had said, “I just had to do that,”

and that these acts made her feel uncomfortable.        When asked about

the incident, Cupples admitted that he had touched Foure but

claimed he only accidentally brushed against her with his briefcase

and that he said, “Sorry, I shouldn’t have done that.”


                                    2
     Foure also told Core about an earlier situation in which she

had complained to Cupples that other male employees were making

inappropriate comments about her breasts.   Cupples explained that

he responded to Foure by speaking to one of the offending employees

and telling him to refrain from such behavior in the future, but

the employee had no memory of this discipline, and his file

contained no record of it.    Cupples admitted that he counseled

Foure in that incident, saying that when “a bunch of guys . . . see

a nice-looking woman they’re going to have crazy thoughts,” so even

though “they shouldn’t say anything to [her] about that,” she

should “keep [herself] from being in those positions.”

     In response to Foure’s complaint about Cupples, Core directed

Cupples to avoid all further contact with Foure.   Notwithstanding

this direction, however, Cupples approached Foure the next morning

to apologize “if I have said or done anything inappropriate,” which

he thought was the “gentleman thing to do.”   Later that same day,

he again approached Foure to ask if they were “O.K.” and to say he

hoped the situation “doesn’t go any further, it could ruin my

reputation.” Foure became upset by Cupples’ contacts with her and,

following a discussion with Core, filed a written complaint against

Cupples.   The written complaint triggered a formal investigation

under AmSan’s harassment policy.

     Core consulted with AmSan’s corporate executives during the

week of July 12, 2004.   Terrance Collins, the Vice President for


                                   3
human resources, located in Illinois, took over the investigation

and by telephone interviewed Cupples and at least nine other

employees at the Huntersville location.            One employee, Tena Davis,

told Collins that in March 2004, Cupples had engaged in behavior

toward her similar to what Foure had described.                Collins also

learned about other similar prior conduct from Foure, Davis, and at

least two other female employees.            They reported that Cupples

routinely made comments to them and touched them in ways they

considered inappropriate for the workplace.

       Cupples generally confirmed the incidents but described them

as minimal or accidental and good-natured.              He said he touched

other female employees “in a kidding manner” and made comments that

he thought of as “compliment[s],” but he denied saying anything

overtly sexual or inappropriate.

       While   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.    This violated the express and undisputed instructions from

Core and Collins not to discuss the complaint or investigation with

anyone,   because   to   do    so   would   violate    the   confidentiality

provisions of the company’s harassment policy.

       On Thursday, July 29, 2004, Core notified Cupples that he was

suspended without pay and should leave the premises. The following

Thursday, August 5, 2004, Cupples was summoned back to AmSan for a


                                      4
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

workplace behavior, for his insubordination, and for his breach of

confidentiality in discussing the complaint and investigation with

others.   Collins offered Cupples a 90-day severance package if he

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

relationship without cause on 30 days’ notice.

     After filing a charge of discrimination and receiving a right-

to-sue letter from the Equal Employment Opportunity Commission,

Cupples commenced this action, alleging that AmSan terminated his

employment in violation of the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq.           He also sued Foure and

Davis for tortious interference with contract, and he asserted

defamation claims against all defendants.           The gravamen of his

complaint, at least as relevant to this appeal, was that AmSan’s

investigation of Foure’s complaint was at once inadequate because

it failed to explore Foure’s veracity or get a better sense of

“what kind of person” Cupples was, and overly aggressive because it

actively sought additional complaints against him and accepted as


                                    5
true the versions of events thus obtained.                 Cupples alleges that

AmSan used the claims and investigation against him as a pretext

for firing him when the real reason for his discharge was his age.

     Following discovery, Cupples produced the following evidence

on which he now relies to support his age discrimination claim.

     First, a few months prior to filing her complaint against him,

Foure had been among a group of employees who watched a sexual

harassment     training      video,       after    which    she     was    overheard

commenting, “If they make me mad, I know how to get them.”

     Second, Collins testified during his deposition that he did

not further investigate Foure’s alleged comment after he learned

about    it,   nor   did   he    pursue    assertions      made    by   other   AmSan

employees that they thought Cupples was being “set up” or that

Foure    had   a   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

believed Cupples was innocent of the conduct for which he was

fired.    Nelson also related a series of hearsay comments by John

Muthe, the former CEO of AmSan, that payroll and                  healthcare costs

were being driven up by older employees and thus they should “weed


                                           6
out” older employees to control costs.                   (These comments were

corroborated by two other former executives.) Nelson observed that

several AmSan employees aged 50 or older had been “forced out” over

the years, but he admitted that he had little real information as

to why they had been let go.      He acknowledged that his observation

was    mostly   “speculation   based        on    experience     and    based     on

conversations.”

      Fourth, AmSan’s former Vice President of human resources,

Morris    Taormina,    declared       in     an    affidavit     that       it   was

“unprecedented at AmSan” to terminate an employee “with the years

of    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

challenges only the district court’s ruling on his ADEA claim.



                                       II

      Cupples   contends   that   the       district     court   misapplied      the

burden-shifting test we articulated in Taylor v. Virginia Union

University, 193 F.3d 219 (4th Cir. 1999) (en banc), for claims of

disparate treatment with respect to being disciplined by being

discharged, and that he was disciplined as a pretext for age

discrimination.


                                       7
     In Taylor, we established that in order to make out a prima

facie case for such a claim, a plaintiff must show (1) that he is

a member of a protected class (here, the class of workers at least

40 years old protected by the ADEA, see 29 U.S.C. § 631(a)); (2)

that the prohibited conduct for which he was disciplined was

“comparable in seriousness to misconduct of employees outside the

protected class;” and (3) that his discharge was more severe

discipline for his misconduct than that received by the employees

outside the protected class.   Taylor, 193 F.3d at 234 (citing Cook

v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993)).     If the

plaintiff   makes   this   showing,   a   presumption   of   illegal

discrimination arises, and the burden of production shifts to the

employer, “who must articulate a non-discriminatory reason for the

difference in disciplinary enforcement.”    Cook, 988 F.2d at 511.

If the employer articulates such a reason, “the burden shifts back

to the plaintiff to demonstrate that the employer’s reasons are not

true but instead serve as a pretext for discrimination.”         Id.

Importantly, “[a]lthough intermediate evidentiary burdens shift

back and forth under this framework, ‘[t]he ultimate burden of

persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the

plaintiff.’”   Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 143 (2000) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 253 (1981)).


                                 8
      The district court ruled that Cupples succeeded minimally in

making out a prima facie case of age discrimination but that he had

offered no evidence to demonstrate that AmSan’s non-discriminatory

reasons were a mere pretext.

      Contending that the district court committed “plain error” in

awarding summary judgment to AmSan, Cupples argues that AmSan

failed to articulate a legitimate non-discriminatory reason to

explain the difference in discipline he received.             But Cupples’

argument fails to account for the fact that AmSan did articulate a

non-discriminatory     reason   for    allegedly   disciplining      him   more

severely. As Mulhern explained during his deposition, the decision

to terminate Cupples was based on multiple complaints of behavior

by   Cupples   in   violation   of    the   company’s   harassment    policy,

Cupples’ breach of the confidentiality of the investigation into

Foure’s complaint by discussing the investigation with Davis, and

Cupples’ insubordination by approaching both Foure and Davis after

being instructed not to have contact with them.           The assertion by

Taormina, the former Vice President of human resources for AmSan,

that it was “unprecedented” to fire a long-term AmSan employee for

“one complaint of sexual harassment” is thus virtually irrelevant

because AmSan’s termination of Cupples was based on far more than

just “one complaint of sexual harassment.”

      We conclude, however, that Cupples’ case fails at a far more

basic level.    Although it is undisputed that Cupples, who was 62


                                       9
years old, was a member of the class of workers protected by the

ADEA, there is no evidence in the record from which to conclude

that his alleged misconduct was “comparable in seriousness to

misconduct of employees outside the protected class,” or that his

discipline was “more severe” than theirs. Taylor, 193 F.3d at 234.

While Cupples did provide examples of discipline or the lack of

discipline of other employees, as to none did he supply the

necessary details that made those other incidents comparable and

therefore relevant.     He did not show that the person disciplined

was outside the protected class or that the person’s conduct was

comparable in seriousness to his conduct.    The most that could be

concluded from what he presented was that for a single complaint of

harassment, the termination of the employee might not be warranted.

But, as we have already noted, Cupples was charged with multiple

complaints of harassment, along with other incidents of misconduct.

     Also, Cupples offered no probative evidence of discriminatory

animus. He points only to Nelson’s testimony about the comments of

former AmSan CEO James Muthe regarding the payroll and healthcare

costs of older workers (which was corroborated by other executives)

and Nelson’s own observation that older workers were being weeded

out to control costs.   But this testimony was hardly probative.   It

referred to comments made in 2001, three years before Cupples was

terminated. Moreover, Muthe himself had been discharged at the end

of 2002 and therefore played no role in Cupples’ firing some two


                                  10
years later.        Finally, there is no indication or suggestion that

Mulhern and Collins, the decisionmakers in Cupples’ case, held such

views or had any discriminatory intent.

         Moreover, Nelson’s testimony about Muthe’s comments referred

to   a    company   policy   in   place   at   an   earlier   time   to   reduce

healthcare and payroll costs.         But even if it were not remote in

time, forcing out employees in furtherance of such a policy would

not be based on the “prohibited stereotype” regarding older workers

that is addressed by the ADEA.            Hazen Paper Co. v. Biggins, 507

U.S. 604, 611 (1993).        “An employee’s age is analytically distinct

from his” healthcare and payroll costs.             Id.

         Finally, Cupples makes much of his criticism that AmSan’s

investigation into his misconduct was either inadequate or overly

aggressive. But focusing on the quality of internal investigations

misses the point.        A federal court “does not sit as a kind of

super-personnel department weighing the prudence of employment

decisions made by firms charged with employment discrimination.”

DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998)

(internal quotation marks omitted).            “Our sole concern is whether

the reason for which the defendant discharged the plaintiff was

discriminatory.”       Id.   If the employer’s reason for termination is

not forbidden by law, “it is not our province to decide whether the

reason was wise, fair or even correct, ultimately, so long as it




                                      11
was   truly   the   reason   for   the    plaintiff’s   termination.”   Id.

(emphasis added).

      We agree with the district court’s conclusion that Cupples

failed to present evidence sufficient to prove age discrimination,

and accordingly we affirm.

                                                                   AFFIRMED




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