Hollamon v. Frito Lay Inc
ORDER granting 64 Motion for Summary Judgment; denying as moot 93 Motion to Strike. Signed by Judge Brian S. Miller on 6/14/11. (kpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
CASE NO. 4:10CV00011 BSM
Defendant Frito-Lay, Inc. (“Frito-Lay”) moves for summary judgment on plaintiff
Kevin Hollamon’s employment discrimination claims. [Doc. Nos. 64-66]. Hollamon has
filed a response in opposition, [Doc. Nos. 88-90] and Frito-Lay has replied. [Doc. Nos. 91,
92]. Also pending is Frito-Lay’s motion to strike. [Doc. Nos. 93, 94]. For the reasons set
forth below, Frito-Lay’s motion for summary judgment is granted, and its motion to strike
is denied as moot.
I. FACTUAL BACKGROUND
Viewed in the light most favorable to Hollamon, the uncontroverted facts are as
follows. Kevin Hollamon is a black man who worked for Frito-Lay from May 1994 until his
termination on August 4, 2008. He was initially hired as a detailer and later became a route
sales representative. In his route sales position, Hollamon was responsible for sales,
merchandising, product rotation, and processing customer payments. All customer payments
were to be handled in accordance with Frito-Lay’s national cash policy, which is fully set
forth in the employee handbook.
Under the national cash policy, Hollamon was required to turn in all customer checks,
money orders covering all cash received, and a daily report at the end of each day. The
money orders and checks submitted to Frito-Lay were to be equal to the exact amount shown
as “cash due” on the daily report. For example, if Hollamon made three deliveries, with the
first customer paying $400 by check, the second customer paying $100 in cash, and the third
customer paying $50 in cash, he was required to turn in the $400 check and a $150 money
order along with his daily report showing the details of those transactions. In this sense, the
“cash” policy governs more than just cash; it applies to all payments from customers who
do not have a charge account.
The penalties for violating the national cash policy were clearly spelled out. The first
violation of the policy involving more than $100 of customer payments results in a final
written warning, so long as the balance is paid back within five days. A second violation in
excess of $100 results in termination. Hollamon was aware of the policy and the sanctions
he could receive for not following it.
Sometime in 2006, Frito-Lay replaced the management group in its Little Rock zone.
The new regime emphasized that going forward, all employees would be expected to strictly
follow company policies, even if those policies had not been enforced in the past. Among
these policies was the national cash policy.
In January 2008, Hollamon’s supervisors examined his sales paperwork and cash
receipts after reviewing a weekly report indicating Hollamon possibly violated the national
cash policy. After reviewing Hollamon’s paperwork it was determined that he had indeed
violated the national cash policy in an amount greater than $100. They discovered that
Hollamon received $336.70 in cash on January 16 but failed to obtain money orders until
January 18. They also discovered that Hollamon failed to timely submit his January 16,
2008, daily report and charged Frito-Lay for the cost of the money orders before actually
purchasing them. For these infractions, and pursuant to the well-established rules,
Hollamon received and signed a final written warning on February 1, 2008, stating that
“should you create another cash shortage in the course of your employment at Frito-Lay, you
will proceed to the next progressive disciplinary step which is termination.”
In July 2008, management discovered that Hollamon had again violated the national
cash policy in an amount greater than $100. According to his July 11 daily report, Hollamon
received $426.34 in cash and $1,635.19 in checks but did not obtain a money order covering
the cash until July 13 and did not turn in a customer check in the amount of $533.55 until
July 21. Further, Hollamon again charged Frito-Lay for the cost of the money order prior to
actually purchasing it.
On July 30, 2008, Hollamon was suspended pending final review by Frito-Lay’s
human resources department. The company’s subsequent investigation showed that
Hollamon had actually violated the national cash policy on seven separate occasions since
May 2008, but that he had corrected each variance before his supervisors generated the
relevant weekly reports. Hollamon was therefore fired on August 4, 2008, and did not
request review of either his final written warning or his termination.
Hollamon filed this pro se action on January 7, 2010, and sought relief under various
federal and state civil rights laws. A number of his claims were previously dismissed. [Doc.
No. 36]. His remaining claims include failure-to-promote and unlawful termination claims
brought pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”); similar claims
brought pursuant to 42 U.S.C. § 1981 (“section 1981”); and Arkansas Civil Rights Act
(ACRA) claims for race, sex, and age discrimination, and for hostile work environment.
Frito-Lay moves for summary judgment on all claims.
II. LEGAL STANDARD
Summary judgment is proper if, after viewing the evidence in the light most favorable
to Hollamon, no genuine issues of material fact exist and Frito-Lay is entitled to judgment
as a matter of law. Nelson v. Corr. Med. Servs., 533 F.3d 958, 961 (8th Cir. 2008).
Hollamon cannot survive the motion for summary judgment merely by pointing to disputed
facts; the facts in dispute must be material to the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1985). If the facts alleged by Hollamon, when viewed
in the light most favorable to his claims, would not allow a reasonable jury to find in his
favor, then summary judgment should be granted in favor of Frito-Lay. Bloom v. Metro
Heart Group of St. Louis, Inc., 440 F.3d 1025, 1029 (8th Cir. 2006).
Summary judgment is granted because Hollamon has not produced any evidence
creating a genuine issue of fact as to any of his claims.
Race and Sex Discrimination
In the absence of direct evidence showing a specific link between the alleged
discriminatory animus and the challenged decisions, Hollamon must create the requisite
inference of unlawful discrimination through the familiar McDonnell Douglas burdenshifting framework. See Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 550 (8th Cir. 2005)
(analyzing Title VII, section 1981, and ACRA claims under McDonnell Douglas).
Accordingly, he must first state a prima facie case of discrimination by proving that he (1)
is a member of a protected class, (2) was meeting Frito-Lay’s legitimate job expectations,
(3) suffered an adverse employment action, and (4) similarly situated employees outside the
protected class were treated differently. Fields v. Shelter Mut. Ins. Co., 520 F.3d 859, 864
(8th Cir. 2008).
To begin, Frito-Lay has produced evidence that Hollamon was not meeting its
legitimate expectations. Not including the cash policy violations, Hollamon’s disciplinary
file contains 24 reprimands for extreme tardiness, unprofessional and inappropriate
interactions with store employees, oppositional behavior and blatant insubordination, failure
to keep inventory records, having an excessive number of “unsaleables”, failure to follow
call-in procedures, and failure to properly maintain store displays. Such conduct clearly
indicates that Hollamon’s job performance was not meeting Frito-Lay’s expectations. See
Ziegler v. Beverly Enterprises-Minnesota, Inc., 133 F.3d 671, 675 (8th Cir. 1998). To create
a genuine dispute as to this element, Hollamon must introduce some competent evidence
from which a jury could find he was in fact meeting Frito-Lay’s expectations. He has simply
failed to offer any such proof, and summary judgment is therefore appropriate.
Failure to Promote
To state a prima facie case for failure to promote, Hollamon must prove that he (1)
is a member of a protected group, (2) was qualified and applied for an available position, (3)
was rejected for that position, and (4) employees similarly situated who are not part of the
protected group were promoted instead. Moore v. Forrest City Sch. Dist., 524 F.3d 879, 883
(8th Cir. 2008).
It is undisputed that Hollaman was not denied a promotion because he never sought
one. The record indicates that Frito-Lay employees can advance their careers through a selfnomination process or by applying for open positions on the company’s website. It is
undisputed that Hollamon spoke with several Frito-Lay employees who encouraged him to
take a leadership role in his route sales position, to apply for open positions, and to
participate in the self-nomination process. It is also undisputed that Hollaman failed to do
Although Hollamon urges that he exhibited leadership qualities and that he earned
a master’s degree in human resource development while employed with Frito-Lay, he was
required to offer some evidence showing that he actually applied for a position and was
rejected. Because he did not, summary judgment is appropriate.
Hostile Work Environment
Hollamon’s hostile work environment claim is also analyzed under the McDonnell
Douglas burden-shifting framework. Anderson v. Family Dollar Stores of Arkansas, Inc.,
579 F.3d 858, 862 (8th Cir. 2009). To make out a prima facie case, Hollamon must prove
that (1) he is a member of a protected class, (2) he was subjected to unwelcome harassment,
(3) the harassment resulted from his membership in the protected class, and (4) the
harassment was severe enough to affect the terms, conditions, or privileges of his
employment. Id. Furthermore, for such harassment to be actionable, it must be both
objectively and subjectively offensive. Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756,
759 (8th Cir. 2004). Therefore, in addition to establishing his own torment, Hollamon must
show that, given the totality of the circumstances—including the frequency of the
discriminatory conduct, its severity, whether it was physically threatening or humiliating or
a mere offensive utterance, and whether the conduct unreasonably interfered with
Hollamon’s work performance—a reasonable person would find Frito-Lay’s workplace
hostile or abusive. Id.
Hollamon asserts that one of his supervisors told him that he had been observing
Hollamon’s performance and that the “BS” Hollamon had been getting away with was going
to come to an end. No matter how rude or unprofessional this supervisor’s tone may have
been, the statement does not come close to creating the “poisonous” environment necessary
for a hostile work environment claim. See Nitsche v. CEO of Osage Valley Elec. Co-op., 446
F.3d 841, 846 (8th Cir. 2006). Accordingly, summary judgment is appropriate on
Hollamon’s hostile work environment claim.
Because the ACRA does not protect against age discrimination, see Morrow v. City
of Jacksonville, 941 F. Supp. 816, 826 (E.D. Ark. 1996), Hollamon’s age discrimination
claim must also fail as a matter of law.
For all of these reasons, Frito-Lay’s motion for summary judgment [Doc. No. 64] is
granted, and its motion to strike [Doc. No. 93] is denied as moot. An appropriate judgment
will accompany this order.
IT IS SO ORDERED this 14th day of June 2011.
UNITED STATES DISTRICT JUDGE
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