Jernigan v. Dollar General Corporation
MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 1/31/13. (KGE, )
2013 Jan-31 PM 04:31
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DOLLAR GENERAL CORPORATION,
CIVIL ACTION NO.
Before the court is the motion of defendant, Dollar General
dismissal of the above-entitled action brought by its former
employee, Mary Jernigan (“Jernigan”). Jernigan initially alleged
that she was terminated in violation of the Age Discrimination in
retaliated against in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. Jernigan has
now conceded her retaliation claim. For the reasons set forth
below, Dollar General’s motion for summary judgment as to the ADEA
claim will be granted.
Dollar General hired Jernigan as a cashier on January 20,
Because of the procedural posture, all admissible evidence is viewed
in the light most favorable to Jernigan.
2006, when she was 46 years old. In other words, she was already in
the age group protected by the ADEA when Dollar General hired her.
On September 29, 2007, she was promoted to “lead sales associate”,
or “third key manager,” a position that ranks below manager and
assistant manager but that performs some of the managerial duties
like counting down the drawers and making deposits. Third key
managers are not paid as much as managers, but they are paid more
than cashiers. On April 12, 2008, Jernigan was transferred to Store
termination on or about July 6, 2009. Beginning on April 15, 2009,
Kati Merchant (“Merchant”) was the district manager over Jernigan’s
store and other stores. Throughout Jernigan’s employment at Store
# 9861, Leila Atchley (“Atchley”) was the store manager, and Faye
Young (“Young”) was the assistant manager. There is no evidence of
a pattern or practice by Dollar General of discrimination against
persons over 40 years of age.
April 25, 2009 Cash Shortage
On April 25, 2009 Jernigan and Young were the
who closed Store # 9861 and had access to cash in the safe. The
following day, Atchley opened the store and noticed that the safe
was short $30.00. When Jernigan and Young arrived that afternoon,
Atchley asked them about the shortage. Atchley then informed
Merchant of the shortage and Merchant directed her to discipline
both Jernigan and Young. Following Merchant’s instruction, Atchley
issued Jernigan and Young each a write-up.2
June 25, 2009 Cash Shortage
On June 25, 2009, Jernigan prepared the 3:30 P.M. deposit for
the store. She counted each of the two cash registers twice,
removed all cash in excess of $100.00 from each cash register,
placed the cash in a deposit bag, and sealed the bag. She then took
the bag to a Wachovia branch bank where she gave the bag to a
teller who brought her a receipt that reflected the deposit total
that Jernigan had counted, namely $1313.58. Jernigan then returned
to the store and gave the deposit slip to Atchley, who recorded the
deposit of $1313.58 on the General Deposit Log. The following day,
Wachovia sent Dollar General a Debit Memo indicating that the June
25, 2009 deposit was $150.00 short.
Jackson Trawick (“Trawick”), Dollar General’s Loss Prevention
investigate the June 25, 2009 cash shortage. Trawick recommended to
Merchant that she suspend Jernigan pending the outcome of the
investigation. Merchant informed Jernigan that she was suspended
until July 6, 2009, but did not explain why.
As part of the investigation, Merchant went to the Wachovia
branch where Jernigan made the deposit and talked with the Branch
Jernigan refused to sign her write-up because she denied that she was
responsible for the missing funds. However, she does not deny that she was
held responsible for it and received the write-up.
shortage. Trawick also interviewed Jernigan himself and performed
documents. Jernigan claims that Dollar General failed to fully
investigate the incident because Trawick did not interview Atchley,
and because Trawick did not remember reviewing video footage of
Jernigan preparing the deposit. What any such video footage would
show is not reflected in the record. While talking to the Wachovia
Branch Manager, Merchant did not ask the name of the teller who
handled the money, did not speak with the teller, and did not ask
if the bank’s video showed that the bag was sealed when the teller
opened it. However, nothing in the record suggests that Trawick or
Merchant departed from normal investigatory procedures.
Trawick determined what he thought the pertinent facts to be
and submitted them to HR. With Trawick’s determination of the
facts, Larry Christopher Hicks (“Hicks”), Dollar General’s Field
Merchant in good faith reached the conclusion that Jernigan was the
last person to handle the deposit before the shortage appeared and
that when she counted the money, placed it in a deposit bag, sealed
the bag, took it to the bank, and made the deposit, she became
“responsible” for the money and therefore was “accountable” for the
deposit shortage.3 Merchant agreed with Hicks’s recommendation and
made the decision to terminate Jernigan. Dollar General gives as
its reason for termination Jernigan’s “failure to protect company
assets,” which is listed in Dollar General’s employee handbook as
an offense for which an employee can be terminated upon a first
Jernigan’s prior write-up for a safe shortage was not a factor in
interprets its rule regarding protection of assets to make the buck
stop with the last employee who handled missing money, whether or
not the shortage can be proven to have been caused by that party’s
negligence or misconduct. Dollar General’s said policy may be
unwise or even unfair. The apparent design of the policy is to make
an example of any employee who lets Dollar General’s money or
property get away. Such a policy does not violate or even implicate
the ADEA.4 After Jernigan was terminated, she was replaced by Alex
Curry, who is in her twenties.
“And, ultimately, if the bank is confirming to use we have checked all
of our records, the deposit is this short, and we are taking the money from
your account, the money is gone, we are not–we are not accusing someone of
theft, but we are saying we’ve verfieid and validated who is responsible for
the money. If I’m that employee and I signed for it and I seal the deposit and
I walk out of the store with it, I’m–I’m responsible for it.” Deposition of
Larry Hicks, at page 38.
Dollar General claims that Jernigan was replaced by Damian Kennedy,
who was born in 1971, and is thus over 40. However, for purposes of summary
judgment, the court will assume that Jernigan was in fact replaced by Curry.
Other Employees’ Cash Shortages5
Atchley committed a few violations of company policy. Merchant
testified that Atchley was “loose operationally” because she failed
to keep merchandise stocked and often failed to properly do her
paperwork. Atchley also had a practice of counting money, placing
it in the deposit bag, and then leaving it unsealed so that she and
cashiers could make change using the money in the bag. This was
against company policy. Upon discovering this practice, Merchant
gave Atchley a verbal warning.
Merchant also later gave Atchley a
written warning when the safe was short $5. Atchley was in her mid
to late thirties when these events occurred.6
Jernigan also describes an incident involving the drawer of
Marquishe Akoff (“Akoff”) being short $100. When Jernigan was
closing the store she counted down Akoff’s drawer and discovered
that it was short $100. She called Atchley who admitted to her that
it was she who had taken the money and not Akoff. Atchley would not
tell her why she took it, only that she did. Jernigan did not
report this incident to anyone because Atchley “was the manager.
She said she put it back. . . . She said she took care of it.”
Jernigan Depo. Page 82-3. Jernigan only reported it to Trawick when
Jernigan attempts to put forth Young and Jessica as comparators who
were also involved in cash shortages but were not terminated as a result.
However, the only evidence regarding these shortages is Jernigan’s testimony,
and she admittedly did not have personal knowledge about these events. The
admissibility of this testimony will be discussed in more detail below.
Atchley was 38 as of May 23, 2012, the day of her deposition.
he interviewed her regarding her own later deposit shortage. Her
conversation with Trawick was roughly three weeks after the Atchley
incident. Trawick claims to have no recollection of Jernigan’s
telling him about the Atchley incident, but for the purposes of
summary judgment, the court assumes that he knew about it.
The ADEA provides, in relevant part, that “[i]t shall be
unlawful for an employer . . . to discharge any individual or
otherwise discriminate against any individual with respect to his
because of such individual’s age.” 29 U.S.C. § 623(a)(1). In 2009
the Supreme Court took up the issue of what a plaintiff must prove
to make a case under the ADEA. See Gross v. FBL Financial Services,
Inc., 557 U.S. 167 (2009). The court held that “[a] plaintiff
preponderance of the evidence, that age was the ‘but-for’ cause of
the challenged adverse employment action.” Id. at 167 (emphasis
added). The main effect of Gross is that an ADEA plaintiff can no
longer allege “mixed-motives.” See Ephraim v. The Pantry, Inc.,
2012 WL 4479074 (N.D. Ala. 2012). Because Jernigan has dropped her
retaliation claim, she and the court no longer face the problem of
The Gross decision left open the question of whether it is
appropriate to apply the Title VII evidentiary framework found in
McDonnell Douglas v. Green, 411 U.S. 792 (1973), to ADEA cases. See
Gross, 557 U.S. 174, n.2.7 Following Gross, the Eleventh Circuit
Eleventh Circuit has explained:
Because Gross did not specifically hold that
the McDonnell Douglas framework does not apply
in the ADEA context, and because the but-for
causation standard of Gross is consistent with
the McDonnell Douglas framework where the
burden of persuasion to show discrimination
remains at all time with the plaintiff, we
will apply the McDonnell Douglas framework to
determine whether [plaintiff] established a
prima facie case.
Horn v. United Parcel Serv., Inc. 433 F. App’x
788, 793 (11th Cir.
framework to conduct its analysis.
Under McDonnell Douglas, the plaintiff must first establish a
prima facie case by showing that she was (1) a member of the
protected age group, (2) was subjected to an adverse employment
action, (3) was qualified for the job, and (4) was replaced by a
younger individual. Chapman v. AI Transport, 229 F. 3d 1012, 1024
(11th Cir. 2000). If the plaintiff establishes a prima facie case,
the presumption of discrimination appears, and the defendant must
then articulate a legitimate, nondiscriminatory reason for the
adverse action. Id. If defendant articulates such a reason, the
“And the court has not definitely decided whether the evidentiary
framework of McDonnell Douglas Corp v. Green, utilized in Title VII cases is
appropriate in the ADEA context.” Id.(internal citations omitted)
produce evidence that would permit a reasonable factfinder to
discrimination. Id. “If the plaintiff does not proffer sufficient
evidence to create a genuine issue of material fact regarding
whether each of the defendant employer’s articulated reasons is
pretextual, the employer is entitled to summary judgment on the
plaintiff’s claim.” Id. at 1024-25 (emphasis added).
Dollar General denies that the “verbal counseling” constituted
an adverse employment action. Doc. 18 at 22. Jernigan’s complaint
alleges that she “has been reprimanded and terminated when younger
employees have not been reprimanded and/or suspended for the same
or similar alleged offense.” Doc. 1 ¶ 29. Plaintiff’s brief barely
mentions the April 25, 2009 write-up or verbal counseling, but it
does not respond to Dollar General’s argument that a reprimand does
not constitute an adverse employment action. Jernigan focuses only
on her termination. The court will proceed under the assumption
that any claim for age discrimination in regards to the reprimand
has been abandoned. It is not necessary for the court to address
abandoned claims. See Resolution Trust Corp. v. Dunmar Corp. 43 F.
3d 587 (11th Cir. 1995).8 Therefore, Jernigan’s only claim is one
“In opposing a motion for summary judgment, ‘a party may not rely on
his pleadings to avoid judgment against him.’ Ryan v. Int’l Union of Operating
Eng’rs, Local 675, 794 F.2d 641, 643 (11th Cir. 1986). There is no burden
upon the district court to distill every potential argument that could be made
based up on the materials before it on summary judgment. Blue Cross & Blue
for termination as a result of her being over 40 years of age.
For the purposes of its motion, Dollar General does not
contest any of the elements of Jernigan’s prima facie case: she was
qualified to do the job, and she was replaced by a younger
individual. Because her prima facie case is established, the
legitimate non-discriminatory reason for her termination. Dollar
General maintains that Jernigan was terminated for “failing to
protect the company’s assets,” Doc. 18 ¶ 18, on June 25, 2009 when
she made a deposit that Wachovia found to be $150 short. Although
Jernigan contests Dollar General’s decision, Dollar General has met
the low burden required in this step of the analysis. The Eleventh
Circuit has referred to the employer’s burden here as “exceedingly
light,” and the Supreme Court has said that “the defendant need not
persuade the court...[i]t is sufficient if the defendant’s evidence
raises a genuine issue of fact as to whether it discriminated
against the plaintiff.” See Tipton v. Canadian Imperial Bank of
Shield v. Weitz, 913 F.2d 1544, 1550 (11th Cir. 1990). Rather, the onus is
upon the parties to formulate arguments; grounds alleged in the complaint but
not relied upon in summary judgment are deemed abandoned.” Resolution Trust
Corp. 43 F. 3d 587 at 599.
Commerce, 872 F.2d 1491 (11th Cir. 1989), and Texas Dept. Of
Community Affairs v. Burdine, 450 U.S. 248 (1981). Dollar General
has presented sufficient evidence to raise a genuine issue of fact
and thus moves the analysis to the next and final step.
The burden now shifts back to Jernigan to demonstrate pretext.
See Pennington v. City of Huntsville, 261 F.3d 1262 (11th Cir.
2001). When discussing how successfully to show pretext, the
Eleventh Circuit has said: “[a] plaintiff in a discrimination case
based on circumstantial evidence can avoid judgment as a matter of
law by ...producing evidence sufficient to discredit in the mind of
nondiscriminatory reasons for its actions.” Combs v. Plantation
Patterns, 106 F.3d 1519 (11th Cir. 1997). The court must not only
consider the evidence plaintiff has proffered to establish her
prima facie case but all other admissible evidence submitted in her
attempt to discredit the employer’s articulated reason for its
adverse employment action.
Jernigan’s first argument in support of her contention that
she was not, in fact, terminated because of a mishandling of
company assets is not only that she did not take the money but that
the investigation of the incident was “inconclusive and did not
establish how the loss of the money occurred.” Doc. 23 at 13.
Jernigan goes on to say:
[o]ther than accepting the bank’s statement
that there was a shortage, Dollar General did
nothing to investigate the teller who counted
the money or review any other information from
the bank to establish whether the deposit bag
depositing the money. Dollar General does not
challenge the fact that Plaintiff returned
after making the deposit with a slip for the
exact amount of money that was supposed to be
deposited. Defendant’s suggestion that the
decision makers had a “good faith belief” that
Plaintiff mishandled the money does not have
to be believed by a jury in light of
conflicting evidence by its own investigator.
(See Doc. 18, p 24).
See Id. Jernigan’s statements are somewhat misleading. Even if
Dollar General did not employ the procedures that Jernigan says
were called for, there was an investigation. Dollar General’s
investigator was charged with the responsibility to investigate
similar incidents throughout the state. There is no indication that
he departed from his normal investigatory procedures. He was not
required to duplicate the performance of Sherlock Holmes. As part
of the investigation, Merchant questioned the Wachovia Branch
Dollar General was not in a position to insist that its bank
conduct an investigation in accordance with what Jernigan thought
standards, but Jernigan was not authorized to set the standards for
circumstances were so puzzling and unique. No one knows what
happened to the $150 or even if it ever existed. Jernigan’s
complaint about“conflicting evidence” is unavailing because there
was no conflicting evidence. There was no “he said” “she said.”
Trawick did not conclude, and could not conclude, that Jernigan
stole the money. However, neither did he conclude, nor could he
conclude, that some Wachovia employee mishandled the money. It
certainly was not possible to prove beyond a reasonable doubt that
any particular person or persons committed a criminal act, and such
was not required of Dollar General.
Dollar General argues that it “is well-settled in the Eleventh
Circuit that an employee cannot establish pretext by challenging
the sufficiency of the investigation that led to the challenged
termination decision. See Delong v. Best Buy Co., 211 F. App’x 856,
859 (11th Cir. 2006).” The holding of DeLong is informative, but
Dollar General overstates it a bit. The DeLong court did not hold
that a terminated employee can never question an investigation. It
only held that in the particular circumstances in DeLong, the
plaintiff had “not shown that Best Buy did not honestly believe,
following an investigation into the allegations against her, that
she had on two separate occasions engaged in activities that
violated the store’s policies.” Id. Therefore, DeLong does not
questioning Dollar General’s investigation. It only demonstrates
that she must show that, following the investigation, Dollar
General did not arrive at a good faith belief that she had violated
company policy, wise or unwise. The Eleventh Circuit has said
versions–that is, to accept one as true and to reject one as
fictitious–at least, as long as the choice is an honest choice.”
EEOC v. Total Systems Services, Inc., 221 F. 3d 1171 (11th Cir.
2000). In other words, Jernigan must show what she cannot show,
namely, that Dollar General’s decision was not an honest one.
Jernigan, that is, if it did so. Such a choice was not necessary,
but a choice to believe Wachovia would not have been irrational.
Jernigan violated company policy could be disbelieved by a jury. It
is true that any party can be disbelieved, no matter how farfetched that disbelief may be,
but is also true that at this point
in the analysis, it is up to plaintiff to cast so much doubt on the
defendant’s asserted reason as to very strongly suggest that the
reason was to cover up a discriminatory motive. An employer is
allowed to pick between competing rational conclusions. The mere
fact that this investigation was inconclusive and provided no basis
for deciding exactly what happened is not enough to discredit
“responsible” for the deposit and “failed to protect” it. Trawick
testified that it would be unusual for him to reach a final and
irrefutable conclusion. His job was to determine the facts as best
he could and turn them over to HR for its final decision on what,
if any, discipline was called for. There is nothing in the record
to show that Trawick even knew the age of Jernigan. Jernigan does
not point to anything that would establish that Dollar General’s
decision was not made honestly. Rule 56(c) states
[a] party asserting that a fact cannot be or
is genuinely disputed must support the
(a) citing to particular parts of materials
documents, electronically stored information,
affidavits or declarations, stipulations
(including those made for purposes of the
answers, or other materials; or
(b) showing that the materials cited do not
establish the absence or presence of a
genuine dispute, or that an adverse party
cannot produce admissible evidence to support
F. R. Civ. P. Rule 56. Jernigan has not pointed to a specific part
of the record that would advance her argument and that would
suggest that Dollar General’s decision was not made in good faith.
Rule 56(c) also goes on to say that “[t]he court need consider only
the cited materials, but it may consider other materials in the
record.” Jernigan has not pointed to anything regarding Jernigan’s
termination decision that the court is required to consider and has
comparators differently and that these disparate treatments are
evidence of pretext. Regarding comparators, the Eleventh Circuit
has said: “[t]he most important factors in the disciplinary context
are the nature of the offenses committed and the nature of the
punishments imposed. We require that the quantity and quality of
the comparator’s misconduct be nearly identical to prevent courts
from second-guessing employers’ reasonable decisions and confusing
apples with oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th
Cir. 1999)(internal citations omitted)(emphasis added). Jernigan
comparators’ prior similar acts. See Jones v. Gerwens, 874 F. 2d
1534, 1542 (11th Cir. 1989).
Jernigan argues that her supervisor, Leila Atchley, is a
comparator because she mishandled funds without being terminated.
This argument is based on Merchant’s deposition testimony that
Atchley was “loose operationally” and was reprimanded for leaving
deposit bags open. However, Atchley’s offenses are not “nearly
identical” to Jernigan’s failure to discharge her responsibility
never to touch money that goes missing. Merchant elaborates that
when she used the words “loose operationally,” she was referring to
Atchley’s failure to keep merchandise well stocked and to do proper
filing, neither of which is what caused Jernigan’s discharge.
Merchant also conceded that Atchley had mishandled deposit bags.
Atchley would count the money for the deposit, then leave the
unsealed bag in the safe, so that she could go back to the bag and
make proper change using the money inside. Merchant reprimanded her
because this was not the proper procedure, but no money ever
disappeared or evaporated as a result. Again, this does not match
Jernigan’s alleged violation. Atchley was also reprimanded when the
safe was short $5. A $5 safe shortage is not the same as Jernigan’s
alleged offense in which she made a deposit that the bank reported
to be $150 short. Instead, it is more analogous to the incident in
which Jernigan was reprimanded for half of a $30 safe shortage. The
punishment Atchley received for a safe shortage, a mere reprimand,
was identical to the discipline that Jernigan received for a safe
shortage, a reprimand.
There is, of course, the incident in which Jernigan counted
down Akoff’s drawer, found it to be $100 short, and discovered that
Atchley had taken the money. Although what Atchley did was no doubt
against company policy9, it is not “nearly identical” to the
Jernigan incident. Atchley was manager, while Jernigan was a third
key manager. More importantly, Jernigan did not alert any decision
maker, about the Atchley “borrowing” of company money. Jernigan did
not tell Trawick about the Atchley incident until three weeks later
when he interviewed her about her own shortage.
He was not a
decision maker and his investigation was not about any Atchley
Jernigan does not point to a company policy which this act violates.
investigations only when a district manager or the corporate office
calls upon him to investigate a particular cash shortage. He does
not make personnel decisions. Anybody who makes decisions regarding
alleged violations of company policy must be aware of the violation
for it to be an incident suitable for comparing. See Jones v.
comparators’ prior similar acts). Trawick was not the decision
maker or interpreter of company policy.
Jernigan enigmatically suggests that Young and Jessica (last
name unknown) are comparators.10 However, none of the information
regarding any alleged offenses by these two fellow employees is
based on personal knowledge. Jernigan testified that she was not at
the store when either Young or Jessica violated policy, and that
she only knew what Young and Jessica had told her. Rule 56 requires
that “[a]n affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would
be admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.” Fed. R. Civ. P.
Rule 56(c)(4). Jernigan’s testimony does not meet this standard.
Jernigan’s argument regarding these employees follows in its
entirety: “The comparative evidence of younger employees’ not being terminated
for mishandling company assets or money is further evidence of pretext.
Plaintiff testified Faye Young, Jessica and Marquishe all had shortages at the
same store location which did not result in termination.” Doc 23 at page 13.
Therefore, the court will not consider it. The record gives no
other account of these supposed incidents. Jernigan even deposed
Young and did not ask her about any such incident. Although facts
at this stage are to be viewed in the light most favorable to the
plaintiff, “a court is not required to accept as true testimony
that is not based on personal knowledge.” Corwin v. Walt Disney
Co., 475 F.3d 1239 (11th Cir. 2007).
because“evidence may be considered on a motion for summary judgment
if the statement could be reduced to admissible evidence at trial.”
Macuba v. Deboer, 193 F. 3d 1316, 1323 (11th Cir. 1999). However,
Macuba does not help her argument. In fact, it hurts it. In Macuba,
the Eleventh Circuit found that the lower court erred in admitting
statements made by a witness without personal knowledge. Id. The
court went on to explain that in order for such statements to be
admissible, they would have to be admissible at trial for some
purpose. “For example, the statement might be admissible because it
constitute hearsay at all (because it is not offered to prove the
truth of the matter asserted), or is used solely for impeachment
purposes (and not as substantive evidence).” Id. at 1323-1324.
Jernigan’s hearsay regarding Young and Jessica is offered to prove
the truth of the matter asserted, and is thus inadmissible.
Jernigan also argues that Merchant’s friendship with Atchley
Although Atchley was not the decision maker in
Plaintiff’s termination, her use of negative,
age-based comments and her friendship with
Plaintiff’s position, “I was just the oldest
one working there and that’s why they didn’t
want me there.” (Plaintiff, page 141).
Doc. 23 at page 16. This is the extent of Jernigan’s argument
regarding the significance of Merchant and Atchley’s friendship.
She cites no authority for the proposition that a decision maker’s
friendship with another employee is imputed to the decision maker.
If Atchley at 38 years of age suggested that Jernigan at 50 was too
old to handle the job, that fact does not establish that Merchant
wanted to fire Jernigan because of her age.
Because this court in Gunter v. Coca Cola, 2:11-cv-0522-WMA,
recently found enough evidence of pretext to create a jury question
on the issue, the extent and dimensions of the evidence in Gunter
far outdo the thin and watery evidence in this case.
Jernigan has simply not demonstrated that Dollar General’s
given reason for her termination, namely, a “failure to protect
company assets” when she made the June 25, 2009 deposit, was
pretext to cover age discrimination. Perhaps Dollar General could
and should devise a better rule for accomplishing its purpose, but
this court is not called upon to judge the fairness of a policy not
facially appearing to discriminate. Dollar General’s motion for
summary judgment will be granted by separate order.
DONE this 31st day of January, 2013.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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