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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Edna Richardson, Plaintiff, 10 11 vs. 12 Sam’s Club, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-13-00011-PHX-FJM ORDER 15 16 17 18 19 We have before us defendants’ motion for summary judgment (doc. 25), plaintiff’s response (doc. 27), and defendants’ reply (doc. 29). I. 20 Plaintiff was hired by defendant Sam’s Club on November 16, 2006. She became a 21 cashier in August of 2008. Sam’s Club has a “Coaching for Improvement Policy” designed 22 to help employees improve their job performance. If an employee receives four “coachings” 23 within a twelve-month period, the employee is subject to termination. Cashiers are randomly 24 given “shrink tests” by Sam’s Club’s audit team. During the test, items are hidden inside a 25 shopping cart and cashiers are expected to discover the hidden items. Plaintiff received 26 “coachings” for cash register overages and shortages and for failing shrink tests beginning 27 in November 2010. Because she ultimately received four coachings within a twelve-month 28 period, she was terminated on April 18, 2012. 1 Plaintiff alleges that Sam’s Club started retaliating against her in August 2009 after 2 she reported to management that other employees took extended breaks. She claims the 3 retaliation included a reduction in her hours and an order by her supervisor to mop the floor. 4 She filed her first Charge of Discrimination with the EEOC on May 24, 2011, complaining 5 of mopping, extended breaks, and reduced hours. 6 Discrimination on May 9, 2012, shortly after her termination, asserting claims related to her 7 coachings and termination. Plaintiff filed this action on January 3, 2013, alleging that Sam’s 8 Club discriminated against her because of her age (75) and her race (African American), and 9 retaliated against her for filing a discrimination charge with the EEOC. 10 II. 11 She filed a Second Charge of A. 12 In order to establish a prima facie case of discrimination, plaintiff has the burden of 13 showing that (1) she belongs to a protected class; (2) she was performing according to her 14 employer’s legitimate expectations; (3) she was subjected to an adverse employment action; 15 and (4) similarly situated employees not in her protected class were treated more favorably. 16 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973); Noyes 17 v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007). Once a plaintiff makes her prima facie 18 showing, the burden shifts to the defendant to present legitimate, nondiscriminatory reasons 19 for the employment actions. Id. at 1169. If the defendant satisfies its burden, the burden 20 shifts back to plaintiff “to put forth specific and substantial evidence that [defendant’s] 21 reasons are really a pretext for . . . discrimination.” Aragon v. Republic Silver State 22 Disposal Inc., 292 F.3d 654, 661 (9th Cir. 2002) (emphasis in original). 23 The EEOC issued its Dismissal and Notice of Right to Sue related to plaintiff’s First 24 Charge of Discrimination on August 16, 2011. She was notified that any civil action based 25 on these allegations must be commenced within 90 days. See 42 U.S.C. § 2000e-5(f)(1). 26 Plaintiff did not file her lawsuit until January 3, 2013, over a year late. Therefore, the 27 allegations contained in the First Charge of Discrimination are time-barred. See Scholar v. 28 Pacific Bell, 963 F.2d 264, 267 (9th Cir. 1992). -2- 1 Plaintiff timely filed this action with respect to claims contained in her Second Charge 2 of Discrimination, specifically unfair coachings and termination. These discrete allegations 3 of discrimination do not support a continuing violation theory that would revive the time- 4 barred allegations contained in plaintiff’s First Charge of Discrimination. 5 Plaintiff has shown that she is a member of a protected class and suffered adverse 6 employment actions. But she has not shown that she was performing satisfactorily or that 7 similarly situated employees not in her protected classes were treated more favorably. 8 As evidence of discrimination, plaintiff suggests that race and age must have played 9 a role in her unequal treatment because she was “the only African American cashier and the 10 only cashier over the age of 40.” Response at 5-6. But plaintiff cites no evidence to support 11 this claim. And even if true, these facts do not establish unequal treatment. Plaintiff 12 produced no evidence that similarly situated employees who are younger or not African 13 American were treated more favorably. 14 Moreover, plaintiff has failed to show that she was performing according to her 15 employer’s legitimate expectations. She disputes that there were discrepancies in her cash 16 drawer, but other than her own beliefs, she presents no evidence to support the claim. 17 Even if we decided that plaintiff had made a prima facie showing, we would 18 nevertheless conclude that plaintiff has failed to support a claim of discrimination. Sam’s 19 Club has presented substantial evidence that plaintiff was not performing satisfactorily. 20 Plaintiff received multiple coachings related to cash drawer discrepancies and failed shrink 21 tests. This constitutes a legitimate, nondiscriminatory reason for Sam’s Club’s decision to 22 terminate her. The burden then shifts back to plaintiff to set forth specific and substantial 23 evidence that this reason is merely pretext for discrimination. But plaintiff has offered no 24 evidence of pretext. Her subjective beliefs that the cash register discrepancies were a “set 25 up” are insufficient to establish pretext. She admits that she has no evidence to support the 26 claim. PCSOF ¶ 40. 27 In contrast, Sam’s Club has presented evidence that it has coached and given shrink 28 tests to other employees who are outside plaintiff’s protected categories. DSOF ¶¶ 73-78. -3- 1 Sam’s Club presented evidence that from 2010 to 2012 it coached as least ten other 2 employees and terminated one for cash register discrepancies who were younger than 3 plaintiff and not African American. DSOF ¶¶ 77-78. 4 5 Plaintiff has failed to establish a claim of discrimination and accordingly summary judgment is granted in favor of Sam’s Club. B. 6 7 We also conclude that plaintiff has failed to establish a claim of retaliation. To 8 establish a prima facie case, plaintiff must show (1) she was engaged in a protected activity; 9 (2) she was subjected to an adverse employment action; and (3) a causal link exists between 10 the protected activity and the adverse action. The causal link must be “proved according to 11 traditional principles of but-for causation, not the lessened causation test stated in 42 U.S.C. 12 § 2000e-2m.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). “This 13 requires proof that the unlawful retaliation would not have occurred in the absence of the 14 alleged wrongful action or actions of the employer.” Id. In other words, plaintiff must show 15 that but for the filing her First Charge of Discrimination, Sam’s Club would not have issued 16 her coachings and would not have terminated her employment. Plaintiff has failed to make 17 this showing. 18 Plaintiff began receiving coachings well before the First Charge of Discrimination was 19 filed. Moreover, she has not set forth any evidence to support her belief that she did not 20 actually commit cash register errors or fail shrink tests. Her subjective beliefs are insufficient 21 to support a prima facie case of retaliation. 22 Sam’s Club has shown that it issued coachings to plaintiff because of her cash register 23 discrepancies and failed shrink tests. It has further demonstrated that it coached other 24 employees who were not African American and were substantially younger for the same 25 reasons. DSOF ¶¶ 73-78. Because plaintiff has not shown that Sam’s Club issued coachings 26 or terminated her in retaliation for filing the First Charge, she has failed to establish a claim 27 of unlawful retaliation. 28 III. -4- 1 2 3 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. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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