Richardson v. Sam's Club et al

Filing 30

ORDER, granting Defendant's 25 Motion for Summary Judgment; the Clerk shall enter final judgment. Signed by Senior Judge Frederick J Martone on 4/29/14.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Edna Richardson,
Plaintiff,

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vs.

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Sam’s Club, et al.,
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Defendants.
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No. CV-13-00011-PHX-FJM
ORDER

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We have before us defendants’ motion for summary judgment (doc. 25), plaintiff’s
response (doc. 27), and defendants’ reply (doc. 29).
I.

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Plaintiff was hired by defendant Sam’s Club on November 16, 2006. She became a

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cashier in August of 2008. Sam’s Club has a “Coaching for Improvement Policy” designed

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to help employees improve their job performance. If an employee receives four “coachings”

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within a twelve-month period, the employee is subject to termination. Cashiers are randomly

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given “shrink tests” by Sam’s Club’s audit team. During the test, items are hidden inside a

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shopping cart and cashiers are expected to discover the hidden items. Plaintiff received

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“coachings” for cash register overages and shortages and for failing shrink tests beginning

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in November 2010. Because she ultimately received four coachings within a twelve-month

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period, she was terminated on April 18, 2012.

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Plaintiff alleges that Sam’s Club started retaliating against her in August 2009 after

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she reported to management that other employees took extended breaks. She claims the

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retaliation included a reduction in her hours and an order by her supervisor to mop the floor.

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She filed her first Charge of Discrimination with the EEOC on May 24, 2011, complaining

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of mopping, extended breaks, and reduced hours.

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Discrimination on May 9, 2012, shortly after her termination, asserting claims related to her

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coachings and termination. Plaintiff filed this action on January 3, 2013, alleging that Sam’s

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Club discriminated against her because of her age (75) and her race (African American), and

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retaliated against her for filing a discrimination charge with the EEOC.

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II.

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She filed a Second Charge of

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In order to establish a prima facie case of discrimination, plaintiff has the burden of

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showing that (1) she belongs to a protected class; (2) she was performing according to her

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employer’s legitimate expectations; (3) she was subjected to an adverse employment action;

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and (4) similarly situated employees not in her protected class were treated more favorably.

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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973); Noyes

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v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007). Once a plaintiff makes her prima facie

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showing, the burden shifts to the defendant to present legitimate, nondiscriminatory reasons

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for the employment actions. Id. at 1169. If the defendant satisfies its burden, the burden

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shifts back to plaintiff “to put forth specific and substantial evidence that [defendant’s]

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reasons are really a pretext for . . . discrimination.” Aragon v. Republic Silver State

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Disposal Inc., 292 F.3d 654, 661 (9th Cir. 2002) (emphasis in original).

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The EEOC issued its Dismissal and Notice of Right to Sue related to plaintiff’s First

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Charge of Discrimination on August 16, 2011. She was notified that any civil action based

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on these allegations must be commenced within 90 days. See 42 U.S.C. § 2000e-5(f)(1).

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Plaintiff did not file her lawsuit until January 3, 2013, over a year late. Therefore, the

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allegations contained in the First Charge of Discrimination are time-barred. See Scholar v.

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Pacific Bell, 963 F.2d 264, 267 (9th Cir. 1992).
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Plaintiff timely filed this action with respect to claims contained in her Second Charge

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of Discrimination, specifically unfair coachings and termination. These discrete allegations

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of discrimination do not support a continuing violation theory that would revive the time-

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barred allegations contained in plaintiff’s First Charge of Discrimination.

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Plaintiff has shown that she is a member of a protected class and suffered adverse

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employment actions. But she has not shown that she was performing satisfactorily or that

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similarly situated employees not in her protected classes were treated more favorably.

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As evidence of discrimination, plaintiff suggests that race and age must have played

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a role in her unequal treatment because she was “the only African American cashier and the

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only cashier over the age of 40.” Response at 5-6. But plaintiff cites no evidence to support

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this claim. And even if true, these facts do not establish unequal treatment. Plaintiff

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produced no evidence that similarly situated employees who are younger or not African

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American were treated more favorably.

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Moreover, plaintiff has failed to show that she was performing according to her

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employer’s legitimate expectations. She disputes that there were discrepancies in her cash

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drawer, but other than her own beliefs, she presents no evidence to support the claim.

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Even if we decided that plaintiff had made a prima facie showing, we would

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nevertheless conclude that plaintiff has failed to support a claim of discrimination. Sam’s

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Club has presented substantial evidence that plaintiff was not performing satisfactorily.

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Plaintiff received multiple coachings related to cash drawer discrepancies and failed shrink

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tests. This constitutes a legitimate, nondiscriminatory reason for Sam’s Club’s decision to

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terminate her. The burden then shifts back to plaintiff to set forth specific and substantial

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evidence that this reason is merely pretext for discrimination. But plaintiff has offered no

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evidence of pretext. Her subjective beliefs that the cash register discrepancies were a “set

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up” are insufficient to establish pretext. She admits that she has no evidence to support the

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claim. PCSOF ¶ 40.

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In contrast, Sam’s Club has presented evidence that it has coached and given shrink

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tests to other employees who are outside plaintiff’s protected categories. DSOF ¶¶ 73-78.
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Sam’s Club presented evidence that from 2010 to 2012 it coached as least ten other

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employees and terminated one for cash register discrepancies who were younger than

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plaintiff and not African American. DSOF ¶¶ 77-78.

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Plaintiff has failed to establish a claim of discrimination and accordingly summary
judgment is granted in favor of Sam’s Club.
B.

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We also conclude that plaintiff has failed to establish a claim of retaliation. To

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establish a prima facie case, plaintiff must show (1) she was engaged in a protected activity;

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(2) she was subjected to an adverse employment action; and (3) a causal link exists between

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the protected activity and the adverse action. The causal link must be “proved according to

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traditional principles of but-for causation, not the lessened causation test stated in 42 U.S.C.

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§ 2000e-2m.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). “This

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requires proof that the unlawful retaliation would not have occurred in the absence of the

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alleged wrongful action or actions of the employer.” Id. In other words, plaintiff must show

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that but for the filing her First Charge of Discrimination, Sam’s Club would not have issued

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her coachings and would not have terminated her employment. Plaintiff has failed to make

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this showing.

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Plaintiff began receiving coachings well before the First Charge of Discrimination was

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filed. Moreover, she has not set forth any evidence to support her belief that she did not

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actually commit cash register errors or fail shrink tests. Her subjective beliefs are insufficient

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to support a prima facie case of retaliation.

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Sam’s Club has shown that it issued coachings to plaintiff because of her cash register

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discrepancies and failed shrink tests. It has further demonstrated that it coached other

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employees who were not African American and were substantially younger for the same

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reasons. DSOF ¶¶ 73-78. Because plaintiff has not shown that Sam’s Club issued coachings

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or terminated her in retaliation for filing the First Charge, she has failed to establish a claim

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of unlawful retaliation.

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III.
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IT IS ORDERED GRANTING defendant’s motion for summary judgment (doc. 25).
The clerk shall enter final judgment.
DATED this 29th day of April, 2014.

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