DUFFY

v.

LOWE'S HOME CENTERS, INC.

This matter is presently before the Court on Lowe’s Motion for Summary Judgment (Doc. 20), and Duffy’s Opposition thereto (Doc. 26).

I. Background

A. The Parties

Duffy is a resident of the state of Florida. At all times relevant to this case, he was employed by Lowe’s. Lowe’s is a North Carolina corporation with its principal place of business in North Carolina. Lowe’s operates home improvement retail stores throughout the United States, including the store in Ormond Beach, Florida, at which Duffy was employed.

2

B. Facts

Prior to working for Lowe’s at its Ormond Beach store (the “Store”), Duffy worked as an appliance sales specialist in one of Lowe’s Georgia locations.

3

(Doc. 21, Att.¹² at 1). In early 2002, Duffy decided to move to Florida. (Doc. 21, Att. 2 at 26). While he was in Florida in March or April of 2002, he visited the Store, and asked to speak to the manager, who at that time was Herbert Leonard (“Leonard”). (Doc. 21, Att. 2 at 26-27; Att.¹¹ at 1). Duffy told Leonard that he (Duffy) was an appliance sales specialist in Lowe’s Alpharetta store. (Doc. 21, Att. 2 at 38). In May of 2002, Duffy moved to Florida and began working at Lowe’s Ormond Beach Store. (Doc. 21, Att. 2 at 23-24). Duffy wanted to work as an appliance sales specialist at this Store as well. (Doc. 21, Att. 2 at 38-39). Prior to beginning his employment at the Store, Duffy assumed that he would again work as an appliance sales specialist because he had told Leonard of his experience in that position and because no one advised him otherwise. (Doc. 21, Att. 2 at 38^10). Leonard, however, never promised Duffy that he would be employed in any particular position. (Doc. 21, Att.¹¹ at 2). Nevertheless, Duffy asserts that he specifically asked if he would be transferred to the same position, and states that he would not have made the move to Florida if he was not “absolutely certain” that he would be transferred to the same position. (Doc. 21, Att. 2 at 39-40). Duffy believed that he would be hired as an appliance sales specialist because of conversations he had with the manager of the store in Alpharetta, Georgia. (Doc. 21, Att. 3 at 30-31).

Duffy transferred to the Store on May²⁵, 2002, (Doc. 21, Att.¹¹ at 2), and during his first day of work at the Store, Duffy was informed by the Store’s management that no appliance sales specialist positions were open. (Doc. 21, Att. 2 at 43). Instead, Duffy was assigned to the only posi

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tion available, a customer service position in the storage and furniture department, which department was then part of the appliances department.

4

(Doc. 21, Att.¹⁰ at 1; Doc. 21, Att.¹¹ at 2; Att. 2 at 43). Lowe’s continued to employ Duffy at the same base pay rate he had received while at the Alpharetta store.

5

(Doc. 21, Att. 2 at 29; Att.¹¹ at 2; Doc. 31, Att. 2 at 16). Duffy notified the Store’s management that he wanted to be considered for a position as an appliance sales specialist as soon as a position became available.

6

Lowe’s policy regarding employee transfers permits the store manager at the store to which the employee transfers to decide to which position the employee will be assigned based on the needs of the store. (Doc. 21, Att.¹¹ at 1). Based on the Store’s volume of sales, Lowe’s had established a guideline under which the Store could only employ three appliance sales specialists.

7

(Id.

at 1-2; Doc. 21, Att.¹² at 2). At the time Duffy began working for the Store, those three slots were filled.

8

(Doc. 21, Att.¹¹ at 2). Prior to Duffy’s transfer to the Store, Leonard conferred with the manager of the appliance department, and determined that the sales volume in that department did not justify the addition of another appliance sales specialist. (Doc. 21, Att.¹⁰ at 1; Doc. 21, Att.¹¹ at 2). Leonard did inform Duffy that if there was an opportunity in the appliance department, that he would transfer Duffy to that department. (Doc. 21, Att. 2 at 37-38).

In the spring of 2003, Lowe’s circulated two inquiries to the Store’s employees to determine interest in Team Leader positions in a number of departments, including appliances, millwork, outside lawn and garden, “Tool World,” “Front End,” building materials, plumbing, and home decor.⁹

(Doc. 21, Att.¹¹ at 2; Att.⁵ at 12). Duffy submitted a request to be considered for the Team Leader position in the appliances department.

10

(Doc. 21, Att. 3 at 2;

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Att.⁵ at 13). Duffy asserts that he was the only applicant for this position. (Doc. 2 at 2). However, after reviewing the needs of these departments, Lowe’s determined that there was no need for the Team Leader position in any of those departments, including the appliances department, and thus Lowe’s did not hire anyone as a Team Leader for any of those departments.

11

(Doc. 21, Att.¹⁰ at 1; Doc. 21, Att.¹¹ at 2-3). Lowe’s did not conduct interviews for the Team Leader position in the appliances department.

12

(Doc. 21, Att.¹¹ at 3; Att. 3 at 7). Thus Duffy remained at his customer service position in the storage and furniture department.

13

An inquiry regarding the position of appliance sales Team Leader for the Store was again circulated in the Store in May of 2003. (Doc. 21, Att. 2 at 10-11; Att.⁵ at 15). Duffy again applied for the position, (Doc. 12, Att. 2 at 10-12; Att.⁵ at 16), and again the Store’s management held no interviews and decided not to fill that position.

14

(Doc. 21, Att. 2 at 62).

Daniel Radwick (“Radwick”) became the Store’s Manager in May of 2003. (Doc. 21, Att.¹² at 1). In July of 2003, Joseph Wilcoxen (“Wilcoxen”), who was thirty-three years old at the time, applied for a position at the Store.

(Id.

at 2). Wilcoxen applied without knowing whether a position was available. (Doc. 29, Att. 2 at 8). Although Wilcoxen got the impression that a position was available, he believes that Lowe’s was willing to hire him due to his experience, not because a position was open. (Doc. 29, Att. 2 at 8). At the time, Radwick was not looking to hire an additional appliance sales specialist, and there was no vacancy for a sales specialist position. (Doc. 31, Att. 2 at 37; Doc. 32, Att. 2 at 20). Wilcoxen informed Radwick that he (Wilcoxen) had ten years of experience in appliance sales, including seven years

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with Sears.

15

(Id.).

Radwick decided that although the Store already employed three appliance sales specialists, Wilcoxen’s experience warranted a special request to hire a fourth appliance sales specialist, because he believed that Wilcoxen’s experience would help add sales.

(Id.;

Doc. 32, Att. 2 at 7).

Lowe’s policies permit a Store Manager who identifies a particularly good external candidate (a person not currently employed by Lowe’s) to request permission to hire that candidate even if the particular department where that candidate will be placed already employs the maximum number of employees.

16

(Doc. 21, Att.¹² at 2-3). Radwick contacted Lowe’s Area Human Resources Manager to obtain permission to hire Wilcoxen as a fourth appliance sales specialist. (Doc. 29, Att. 2 at 3). Wilcoxen was hired on August 30, 2003, and began his employment with Lowe’s on October⁶, 2003.

(Id.;

Doc. 29, Att. 2 at 3). As a result of Wilcoxen’s hiring, the Store employed four appliance sales specialists. (Doc. 21, Att.¹² at 3; Att. 3 at 21; Doc. 32, Att. 2 at 20).

Neither Duffy nor anyone else at the Store had been notified that the Store’s ' management was considering hiring an additional appliance sales specialist.

17

(Doc. 21, Att. 3 at 17-18). There was no job posting for the position for which Wilcoxen was hired, and Duffy did not have an application for the job of sales specialist pending at the time Wilcoxen was hired. (Doc. 21, Att. 3 at 17-19). Duffy believes that he should have received the position that Wilcoxen received because of his (Duffy’s) qualifications.

18

(Doc. 21, Att. 3 at 17). At the time Wilcoxen was hired, Radwick had not “posted” the job internally,

19

and thus did not know whether Duffy was qualified to work in that position, nor was Radwick aware of Duffy’s interest in that position. (Doc. 31, Att. 2 at 41).

Shortly after Wilcoxen was hired, Purenne, one of the other appliance sales specialists, was fired on the grounds that he had committed a safety violation.

20

(Doc. 21, Att.⁹ at 1; Att.¹¹ at 3; Att.¹² at 3, 7; Doc. 32, Att. 2 at 21). Wilcoxen was not hired as Purenne’s replacement, and Purenne was not fired to make room for Wilcoxen. (Doc. 31, Att. 2 at 39-40; Doc. 32, Att. 2 at 5, 6). Shortly after Purenne’s termination, Duffy advised Radwick of his interest in becoming an appliance sales

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specialist. (Doc. 21, Att.¹² at 4). It is unclear whether prior to that time, Duffy had informed Radwick that he wished to become an appliance sales specialist.

21

(Id.).

Radwick determined that the appliances department employed three appliance sales specialists, all of whom were qualified employees and good salesmen, and thus concluded that he did not need another appliance sales specialist.

22

(Doc. 21, Att.¹⁰ at 2; Att.¹² at 4;

see also

Doc. 32, Att. 2 at 6).

In March of 2005, Radwick assigned Duffy to a customer service position in the appliances department.

23

(Doc. 21, Att.¹² at 4).

24

This reassignment was due to increased sales volumes. (Doc. 31, Att. 2 at 34). Throughout his time at the Store, Duffy had never applied for a position as a sales specialist. (Doc. 21, Att. 3 at 18-19). However, in July of 2004, Duffy did tell Radwick that he (Duffy) wanted to be an appliance sales specialist, and Duffy also noted in an employee career development form in March of 2004, which Radwick signed, that he was not happy doing what he was doing. (Doc. 31, Att. 2 at 22, 23, 28). Prior to the time Duffy filed his equal employment opportunity charge, Radwick was not aware of any complaints made, or concerns held by Duffy that he was treated unfairly, nor was Radwick aware of any statements or anything else that suggested that Duffy thought he was being treated unfairly at the Store. (Doc. 31, Att. 2 at 9).

C. Claims and Arguments

Duffy has asserted a claim for age discrimination under the FCRA, alleging that Lowe’s repeatedly refused to hire him as an appliance sales specialist or appliance Team Leader because of his age, and that Lowe’s passed over him in order to hire Wilcoxen, who was much younger then Duffy, as an appliance sales specialist.

Lowe’s has moved for summary judgment, arguing that Duffy cannot establish a

prima facie

case of age discrimination because he cannot show that he was subject to an adverse employment action and because he cannot show that a substantially younger person filled the position Duffy-sought. In addition, Lowe’s argues that even if Duffy can establish a

prima facie

case of discrimination, Lowe’s has offered legitimate non-discriminatory reasons for its actions, which reasons Duffy cannot prove to be pretextual.

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II. Standard of Review

A party is entitled to summary judgment when the party can show that there is no genuine issue as to any material fact. Fed. R. Crv. P. 56(c);

Beal v. Paramount Pictures Corp.,

20 F. 3d 454, 458 (11th Cir. 1994). Which facts

are

material depends on the substantive law applicable to the case.

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of showing that no genuine issue of material fact exists.

Clark v. Coats & Clark, Inc.,

929 F. 2d 604, 608 (11th Cir.1991);

Watson v. Adecco Employment Svc., Inc.,

252 F. Supp. 2d 1347, 1352 (M.D.Fla.2003).

When a party moving for summary judgment points out an absence of evidence on a dispositive issue for which the non-moving party bears the burden of proof at trial, the non-moving party must “go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.”

Celotex Corp. v. Catrett,

477 U.S. 317, 324-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations and citation omitted). Thereafter, summary judgment is mandated against the non-moving party who fails to make a showing sufficient to establish a genuine issue of fact for trial.

Id.

at 322, 324-25, 106 S.Ct. 2548;

Watson,

252 F. Supp. 2d at 1352. The party opposing a motion for summary judgment must rely on more than conclusory statements or allegations unsupported by facts.

Evers v. Gen. Motors Corp.,

770 F. 2d 984, 986 (11th Cir. 1985) (“conclusory allegations without specific supporting facts have no probative value”);

Broadway v. City of Montgomery, Ala.,

530 F. 2d 657, 660 (5th Cir.1976).

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The Court must consider all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolve all reasonable doubts against the moving party.

Anderson,

477 U.S. at 255, 106 S.Ct. 2505. The Court is not, however, required to accept all of the nonmovant’s factual characterizations and legal arguments.

Beal,

20 F. 3d at 458-59. If material issues of fact exist, the Court must not decide them, but rather, must deny the motion and proceed to trial.

Envtl. Def. Fund v. Marsh,

651 F. 2d 983, 991 (5th Cir.1981).

III. Legal Analysis

A. FCRA, Age Discrimination and the Burden-Shifting Analysis

26

To prove a claim of age discrimination, “a plaintiff can establish a

prima facie

case of discrimination through either direct evidence of discrimination or a variation of the four-part test outlined in

McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for circumstantial evidence.”

Damon v. Fleming Supermarkets Of Fla., Inc.,

196 F. 3d 1354, 1358 (11th Cir.1999). Because Duffy has conceded that he relies solely on circumstantial evidence,

(see

Doc. 26 at 2), the Court will employ a burden-shifting scheme, as follows: (1) initially, Duffy must establish a

prima facie

case of discrimination; (2) Lowe’s must then respond with a legitimate, nondiscriminatory reason for its actions; and (3) to prevail,

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Duffy must establish that Lowe’s articulated reason was merely a pretext to mask unlawful discrimination.

See Turlington v. Atlanta Gas Light Co.,

135 F. 3d 1428, 1432 (11th Cir.1998).

To satisfy the initial

prima facie

requirement of an age discrimination case based on circumstantial evidence, a plaintiff must establish:

(1) that [he] was a member of the protected group of persons between the ages of forty and seventy; (2) that [he] was subject to adverse employment action; (3) that a substantially younger person filled the position that [he] sought ...; and (4) that [he] was qualified to do the job for which [he] was rejected.

Damon,

196 F. 3d at 1359. An “adverse employment action” is any ultimate employment decision, such as a discharge “or other conduct that alters the employee’s compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee.”

Gupta v. Fla. Bd. of Regents,

212 F. 3d 571, 587 (11th Cir.2000). The term “adverse employment action” thus includes not only discharges and reprimands, but also refusals to hire or promote.

McCabe v. Sharrett,

Once the plaintiff establishes a

prima facie

case, a presumption of discrimination is created.

Standard v. A.B.E.L. Servs., Inc.,

161 F. 3d 1318, 1331 (11th Cir.1998);

Tidwell v. Carter Prods.,

135 F. 3d 1422, 1426 (11th Cir.1998). The burden of production then shifts to the defendant to rebut the presumption of discrimination by producing at least one legitimate non-discriminatory reason for the adverse employment action.

Sullivan v. Nat’l R.R. Passenger Corp.,

170 F. 3d 1056, 1059 (11th Cir.1999);

Watkins v. Sverdrup Tech., Inc.,

153 F. 3d 1308, 1314 (11th Cir. 1998). The defendant does not have to persuade the court that it was actually motivated by those reasons.

Tex. Dept. of Cmty. Affairs v. Burdine,

450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Instead, the defendant must only offer sufficient evidence to create a genuine issue of fact as to whether it discriminated against the plaintiff, and may do so by introducing evidence demonstrating the reasons for the action taken against the plaintiff.

Id.

at 255, 101 S.Ct. 1089;

see also Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (noting that this burden “is one of production, not persuasion”). The defendant’s explanation in this regard must be “legally sufficient to justify a judgment for the defendant.”

27

Burdine,

450 U.S. at 254, 101 S.Ct. 1089.

If the defendant offers legitimate reasons, the presumption of discrimination disappears, and the plaintiff must then show that the employer’s proffered reasons for taking the adverse action were merely pretextual.

Sullivan,

170 F. 3d at 1059;

Tidwell,

135 F. 3d at 1426. The plaintiff may do so either by “persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”

Burdine,

450 U.S. at 256, 101 S.Ct. 1089. Summary judgment in favor of the employer is proper where the plaintiff fails to satisfy the burden of establishing that the employer’s reasons were pretextual.

Cuddeback v. Fla. Bd. of Educ.,

381 F. 3d 1230, 1235 (11th Cir.2004).

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B. Duffy’s Age Discrimination Claim

1) Stating a prima facie case

Duffy bases his discrimination claim on the fact that he applied several times for the position of Team Leader and both times Lowe’s failed to fill that position, as well as on the fact that Lowe’s hired Wilcoxen as an appliance sales specialist, when Duffy was qualified to perform that job. Duffy’s claim is thus one based on alleged repeated refusals to hire him. To state a

prima facie

case of discrimination based on the refusal to hire, Duffy must show that:

(1) he belongs to a protected class and that employment decision-makers were aware of this; (2) that he applied and was qualified for an available position; (3) that he was rejected despite his qualifications; and (4) that a similarly situated individual outside his protected class filled the position or the position remained vacant and the employer continued

to seek applicants.

Morgan v. Fed. Home Loan Mortgage Corp.,

172 F. Supp. 2d 98, 108 (D.D.C.2001);

see also Bowie v. Ashcroft,

283 F. Supp. 2d 25, 31 (D.D.C.2003) (listing same elements for a claim premised on the cancellation of a vacancy announcement). Although this is a flexible standard, a plaintiff cannot establish a

prima facie

case if he cannot show that there was an available position.

Morgan,

172 F. Supp. 2d at 109.

28

Indeed, one of the fundamental elements of a

prima facie

case of employment discrimination is that there be an available job for which the employer is seeking applicants.

See McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

2) The Team Leader position

With regard to the two Team Leader positions, Duffy’s assertion is that those positions were available, but that Lowe’s declined to fill them rather than hire Duffy because of his age. Viewing the evidence in the light most favorable to Duffy, the following events occurred: (1) Lowe’s twice circulated inquiries for a variety of Team Leader positions, including for the appliances department; (2) Duffy twice submitted applications for the appliance Team Leader position (and one time was allegedly the only applicant); and (3) Lowe’s did not create or fill the position of appliance Team Leader. According to Duffy, the additional “evidence” in his favor is that every other department had a Team Leader (an assertion which is unclear, given that Lowe’s has offered affidavits stating that, at least for the first circulation of inquiries, no Team Leaders were hired) and the appliances department should have had one as well, he was qualified for the job, and he was not hired because of his age.

Perhaps the only factor weighing in Duffy’s favor is that the process was repeated twice, and both times Lowe’s decided not to hire anyone (including the occasion on which Duffy was allegedly the sole applicant), thus raising the question of why Lowe’s would repeat the process only two months after deciding not to hire for that position. From this circumstance, it would be possible to draw an inference that Lowe’s discriminated against Duffy by declining to hire anyone rather than hire him, although this inference is not only tenuous standing on its own, but becomes essentially unsupportable when viewed in

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light of the fact that Lowe’s decisions were made based on sales volume, a fact which Duffy simply fails to address.

29

It is not necessary, however, for the Court to weigh these competing viewpoints, because ultimately, this issue boils down to the simple fact that the Team Leader position was never filled.

30

There is no evidence that Lowe’s subsequently filled the appliance Team Leader position with anyone, much less a person outside of Duffy’s protected class. Further, after the two inquiries, there is no evidence that Lowe’s continued to seek applicants, and thereby continued to overlook Duffy as a candidate. Absent such evidence, Duffy cannot state a

prima facie

case of discrimination, and thus Lowe’s is entitled to summary judgment on Duffy’s claim as it relates to the Team Leader position.

31

See Mitchell v. Carrier Corp.,

954 F.Supp. *1145

1568, 1581 (M.D.Ga.1995) (“To establish a

prima facie

case of discrimination, [the] [p]laintiff must show that [the defendant] refused to hire him notwithstanding his qualifications and

thereafter continued to seek someone with similar qualifications.”)

(emphasis supplied).

32

3) Appliance sales specialist

With regard to the appliance sales specialist position, Duffy asserts that he was qualified for that position, and that Wilcoxen was hired whereas Duffy was not, because of their respective ages. The evidence regarding this situation, viewed in the light most favorable to Duffy, is that: (1) Radwick hired Wilcoxen, who was approximately thirty years younger than Duffy; (2) Wilcoxen was the fourth appliance sales specialist, thereby putting Lowe’s over the guideline-established limit for specialists in the appliances department; (3) Duffy was not considered for the job, despite having informed Radwick of his (Duffy’s) qualifications prior to that time; (4) Purenne (one of the original three appliance sales specialists) was fired within a very short time of Wilcoxen’s hiring; (5) Duffy asked to be hired to replace Purenne; and (6) Radwick did not hire Duffy, and instead chose to employ only three appliance sales specialists.

33

Duffy also asserts that “everybody” knew about his qualifications and that he was not hired because of his age, an allegation he bases on the fact that he had not been given a job in the appliances department in the past. This evidence, viewed in isolation, could possibly give rise to an inference that Lowe’s discriminated against Duffy, although that inference would be tenuous at best.

However, this is not the only evidence regarding the circumstances surrounding Wilcoxen’s hiring. The evidence also indicates that: (1) at the time, there was no vacancy for an appliance sales specialist position, there was no internal posting for the position, and Radwick was not looking to hire an additional specialist; (2) Rad-wick determined that Wilcoxen’s valuable past experience warranted a special request to hire a fourth appliance sales specialist because Radwick believed that Wilcoxen’s experience would help add sales; (3) Lowe’s permits a store manager to hire a particularly qualified external candidate for a position, even if the store already employs the maximum number of employees in that position; (4) at that time, Duffy did not have an application pending for that position; (5) at the time, Radwick was unaware of Duffy’s interest in that position, and was unaware that there were any internal candidates for the position; (6) Purenne was not terminated to make room

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for Wilcoxen, and Wilcoxen was not hired as Purenne’s replacement; and (7) after Purenne was terminated, Radwick determined that the three appliance sales specialists were qualified employees and good salesmen, and thus that the department did not need another specialist.

Two of these facts deserve particular attention: first, Duffy did not have an application for the appliance sales specialist position pending at the time of Wilcox-en’s hire, and, second, at the time Wilcox-en was hired, there was no vacancy for that position. At best, Duffy can show that he had informed Radwick of his qualifications and expressed interest in the appliance sales specialist position.

34

He did not, however, have a formal application pending, and thus could not have been passed over for the job.

35

Assuming, however, that Duffy’s expression of interest in the position constitutes an application, or at least a notice to Radwick that Duffy should have been considered, the fact remains that at the time Wilcoxen was hired, there were no vacancies for the position. Radwick explained in detail the process he went through in hiring Wilcoxen, which included his determination that Wilcoxen’s valuable industry experience could increase sales, and his request for special permission to hire an additional employee over what the guidelines permitted. Rad-wick essentially created a fourth position; he did not fill a vacancy.

36

Duffy offers no explanation for why he should have been involved in, or considered during, the hiring of an external candidate for a nonexistent position.

37

Ultimately, the fact remains that there was no vacancy for the position for which Wilcoxen was hired, and absent evidence of a vacancy, Duffy cannot establish a

prima facie

case of discrimination.

38

See Taylor v. Hudson Pulp & Paper Corp.,

788 F. 2d 1455, 1461 (11th Cir. *1147

1986) (plaintiffs could not establish prima facie case of discrimination where evidence showed that there were no vacancies for which plaintiffs were qualified);

Phillips v. Joint Legis. Comm, on Performance & Expenditure Review of State of Miss.,

637 F. 2d 1014, 1030 (5th Cir.1981) (where evidence demonstrated lack of relevant vacancies, plaintiff failed to make out

prima facie

case of discrimination);

McCollough v. Atlanta Beverage Co.,

929 F.Supp. 1489, 1508 (N.D.Ga.1996) (plaintiff failed to establish

prima facie

case where he failed to offer evidence of vacancies within defendant company).

IV. Conclusion

Duffy has not established that there were actually positions available for either the appliance Team Leader position or the appliance sales specialist position, and therefore he has failed to establish a

prima facie

case of discrimination. Further, Lowe’s has offered legitimate, non-discriminatory reasons for the decisions regarding the hiring decisions in the appliances department, which reasons Duffy has failed to rebut.

39

Duffy has thus failed to meet his burden, and Lowe’s is entitled to summary judgment on Duffy’s claim. Accordingly, it is

ORDERED THAT Lowe’s Motion for Summary Judgment (Doc. 20) is GRANTED. This case is removed from the June⁵, 2006 trial calendar. The Clerk is directed to enter judgment for the Defendant,

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Lowe’s Home Centers, Inc., and to close the file.

1

. This matter was originally filed in state court, and removed to this Court by Lowe's.

(See

Doc. 1). Duffy's Complaint appears at Doc. 2.

2

. Lowe's employs a sufficient number of employees to meet the definition of an "employer' found in Florida Statutes section 760.02(7), and is thus subject to the provisions of the FCRA, specifically section 760.10 which is entitled "Unlawful employment practices." F.S. §§ 760.02; 760.10.

3

.Duffy began working for Lowe's on May¹², 1999 in Alpharetta, Georgia. (Doc. 21, Att. 2 at 19; Att.¹² at 1). He was sixty years old at the time he was hired.