VEZINA v. DILLARD DEPARTMENT STORE

Filing 68

ORDER granting 39 Motion for Summary Judgmentand denying 64 Motion to Appoint Counsel. Judgment consistent with this Entry shall now issue. Signed by Judge Richard L. Young on 1/6/2012. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

MARY E. VEZINA,
Plaintiff,
vs.
DILLARD DEPARTMENT STORE,
Defendant.

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3:10-cv-123-RLY-WGH

Entry Discussing Pending Motions
and Directing Entry of Final Judgment
Mary E. Vezina (“Vezina”) filed this civil action against her employer, Dillard’s, Inc.,
d/b/a Dillard Department Store (“Dillard’s”), alleging that she has been subjected to
discrimination based on her age and disability and that she was retaliated against
because she filed a complaint with the Equal Employment Opportunity Commission
(“EEOC”). Dillard’s denies these allegations and seeks resolution of this matter through
summary judgment.
For the reasons explained in this Entry, Dillard’s motion for summary judgment [39]
is granted.
As a preliminary matter, Vezina’s brief in opposition to summary judgment is
accompanied by a motion in opposition. This motion [40] is unnecessary to file a response
to Dillard’s motion for summary judgment and is denied as such. To the extent Vezina
seeks summary judgment in her favor based on her motion in opposition, that request [40]
is denied because she has not shown that she is entitled to that relief.
I. Summary Judgment Standard
Summary judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A "material fact" is one that "might affect the outcome
of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is

genuine only if a reasonable jury could find for the non-moving party. Id. If no reasonable
jury could find for the non-moving party, then there is no Agenuine@ dispute. Scott v.
Harris, 127 S. Ct. 1769, 1776 (2007). “The applicable substantive law will dictate which
facts are material.” National Soffit & Escutcheons, Inc., v. Superior Systems, Inc., 98 F.3d
262, 265 (7th Cir. 1996) (citing Anderson, 477 U.S. at 248). The court views the facts in
the light most favorable to the non-moving party and all reasonable inferences are drawn
in the non-movant’s favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011).
If the moving party, in this case Dillard’s, alleges that there is no evidence to
support an essential element of the respondent's claim, the moving party need not
produce evidence showing the absence of a genuine issue of fact on that essential
element. Rather, the moving party need only show that the respondent, who bears the
burden of proof, has adduced no evidence to support an essential element of his case.
See Celotex Corp. v. Catrett, 477 U.S. 317, 325, (1986).
When the moving party has carried its summary-judgment burden, the respondent
must go beyond the pleadings and by her own evidence set forth specific facts showing
there is a genuine issue for trial. Arbaugh v. Y & H Corp., 380 F.3d 219, 222 (5th Cir.
2004) (citing Celotex, 477 U.S. at 324). This burden is not satisfied by creating some
metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence. If the evidence is merely
colorable or is not significantly probative, summary judgment may be granted. See
Anderson, 477 U.S. at 249-50.
II. Material Undisputed Facts
On the basis of the pleadings and the expanded record, and specifically on the
portions of that record which comply with the requirements of Rule 56(c), the following
facts, construed in the manner most favorable to Vezina as the non-movant, are
undisputed for purposes of the motion for summary judgment:
1. On February 19, 2007, Vezina was hired as a sales associate making $10 an
hour. When Vezina was first hired, she went through an orientation process
and was provided with a copy of the company’s rules and procedures.
2. Vezina was assigned to sell ladies apparel in the traditional department of the
store. Her job duties involved waiting on customers and keeping the
merchandise organized. Pam Marz was the manager of the ladies apparel
department at that time.
3. Dillard’s applies a “Sales Per Hour Program” which utilizes totally objective
criteria for determining rates of compensation for its sales employees. All
employees, including Vezina, were advised that their sales production plays an
important part in their performance evaluation and directly determines their rate
of pay. On March 4, 2007, Vezina was provided with documentation which

outlined her personal sales per hour (SPH) standard requirements and raise
goals.1
4. On June 15, 2007, Vezina was advised that she had exceeded her SPH raise
goal, and thus would receive a 15% pay increase to $11.50 an hour. Vezina
testified that she also won a television set as a result of her opening “58 or 59”
new customer credit cards.
5. Marz stated that several of Vezina’s coworkers had come to her with
complaints about Vezina’s failure to do her fair share of the work. They stated
that she took sales that did not belong to her by just standing at the cash
register. Vezina admitted there was “jealousy and friction” with her coworkers
as a result of her early success with the company.2
6. Vezina testified that store manager Sean Conover came to her in August of
2007 and asked if she would consider transferring from ladies apparel to the
lingerie department because “for some reason they couldn’t keep people in that
department.” Vezina voluntarily accepted this offer and on August 26, 2007,
she was reassigned to the lingerie department. Debra Bright was the manager
of the lingerie department.
7. Vezina claims that in October of 2008 a new employee named Melinda
Richardson filed a complaint with Store Manager Conover about the negative
attitude of Vezina and a coworker named Pam Negron. Vezina claims
Richardson made up this negative attitude story because she wanted to work in
a different department. As a result of Richardson’s complaint on October 4,
2008, Vezina was issued a verbal disciplinary notice by Conover which was
documented. Vezina did not sign this disciplinary action documentation. See
dkt 39-6.3
8. On October 8, 2008, Vezina resigned her employment at Dillard’s to take a
“much higher” paying job at Macy’s in the jewelry department. However, she
claimed that Dillard’s District Manager’s office called her and convinced her to
reconsider her resignation. Vezina stated that she was told that there were
going to be major changes at the Evansville Dillard’s and that things were
1

Vezina presents the following statement as a fact in dispute: “Dillard’s formula for determining rates of
compensation are not fair and can be manipulated by management.” This statement is insufficient to create
a material fact in dispute, however, because it is not supported by admissible evidence.
2

Vezina argues, “I do not believe that Pam Marz received any complaints on my stealing sales more than
she received on other employees and her 2010 letter refers to a 2007 incident.” In support of this
speculative argument, Vezina cites to an unauthenticated letter purportedly signed by Pam Marz. Even if
the letter were admissible evidence, its contents are insufficient to establish a material fact in dispute. Pl.’s
Exh. 21 at dkt 41-22.

3

Vezina states, “I do not agree with the statement that Malinda Richardson complained about my negative
attitude and she was terminated because of not meeting Dillard’s expectations.” Again, this statement is
insufficient to establish a material fact in dispute because it is not supported by admissible evidence.

“going to be straightened out.” Vezina agreed to return to her job at Dillard’s
and shortly thereafter Larry Runge replaced Conover as the manager of the
store.
9. On March 1, 2009, Vezina received a second raise to $13.25 an hour as a
result of her once again exceeding her SPH raise goal.
10. Prior to March 1, 2009, Vezina had complained to Runge that her immediate
supervisor, Debra Bright, was “stealing sales” and “not doing bra fittings.” She
also stated that she was tired of dealing with Bright because she “pitted one
person against another.” Runge asked Vezina if she wanted to transfer to the
petites department. Vezina accepted Runge’s offer and on March 1, 2009, she
was reassigned to the petites department.
11. In July of 2009, Vezina reported that her shoulder began hurting. Her doctor put
restrictions on her of lifting no more than five pounds. On August 2, 2009, as a
result of her restrictions, Runge transferred Vezina to the accessories
department. Vezina testified that part of the benefit of working in the
accessories department was the opportunity to work in Coach handbags two
days a week. Vezina’s immediate supervisor in the accessories department
was Jamie Tapp.
12. On January 10, 2010, associate Sandy Vore reported to Dillard’s management
that Vezina was complaining about being assigned to work in the jewelry
department.4 Vezina admitted that she did complain to her coworkers that she
thought the jewelry department “sucks” and that she did not want to work in
jewelry. Vezina was going to be disciplined by Dillard’s for her negative
attitude.5 However, before this discipline could occur Vezina injured her foot on
January 12, 2010 when she accidentally kicked a display fixture. That same
day Tapp spoke with Vezina about this accident and completed an accident
report. As a result of this accident Vezina left her shift approximately 2 hours
early.
13. On January 13, 2010, as a result of kicking the display fixture, Vezina went to
the Deaconess Urgent Care in Newburgh, Indiana, where she was diagnosed
with a left foot contusion. Her doctor indicated she could return to work with

4

Vezina states “I do not agree that Sandy Vore complained on January 10, 2010, because her letter
mentioned an issue that occurred on January 10 in the past ten[se].” See Pl.’s Exh. 4 at dkt 41-5. This
argument is not sufficient to establish a material fact in dispute. It is not uncommon for someone to report an
incident in the past tense.

5

Vezina states, “I do not agree that I was going to be disciplined by Dillard’s for my negative attitude. There
is no proof that this was going to happen and there would have been no reason for it.” This argument is not
supported by admissible evidence. To the contrary, the affidavit of David Kemp states that Vezina was
going to be disciplined by Dillard’s for her negative attitude related to Vore’s January 10, 2010, report. Def.’s
Exh. 26 at dkt 39-27.

restrictions of lifting no more than 10 pounds, no climbing of ladders or stairs,
and walking limited to whatever she could tolerate.
14. On January 15, 2010, Assistant Store Manager David Bray, Runge and Tapp
counseled Vezina regarding her unprofessional behavior, specifically her
repeated complaints that the jewelry department “sucks.” Vezina was reminded
that she had previously been counseled, both formally and informally,
concerning eliminating her negative attitude, and was told that this was her final
opportunity to correct her behavior in the future. According to Vezina, Tapp told
her during this meeting that “her views spread like cancer.” Vezina believed this
statement was “really hurtful” considering she had dealt with skin cancer the
previous year.
15. On January 20, 2010, Vezina’s doctor altered her restrictions to performing
limited squatting or kneeling, being allowed to sit or stand at will, no climbing of
ladders or stairs, walking limited to eight hours, and being allowed to wear
comfortable shoes.
16. On January 20, 2010, Vezina filed a complaint with the Equal Employment
Opportunity Commission. She alleged that she was being discriminated
against by Dillard’s because of her age and an undefined disability. She also
alleged that Dillard’s had a policy that no employee was to work more than two
nights a week, yet she had been scheduled to work three nights the following
week. EEOC Charge of Discrimination, dkt. 41-2.
17. However, the last week of January was inventory week at Dillard’s, and
numerous employees worked more than two evening shifts that week. Vezina
was only scheduled to work two evening shifts.
18. On January 25, 2010, Vezina’s doctor altered her restrictions again to include a
new requirement that she only perform “seated work.” Runge then assigned
Vezina to sit down work which required her to use a razor blade to clean old
price stickers off plastic merchandise markers. Those plastic merchandise
markers were known as tombstones. Vezina claims she was forced to do this
work in one of the back rooms of the executive office, and overheard two
managers using “bad language” when they were talking to each other. Vezina
does not assert this bad language was ever directed at her. She testified that
scraping the tombstones was extremely difficult without cutting one’s fingers.
Vezina argues that she should have been given a different sit down job, such
as sitting on a chair in the fragrance department giving away samples or
answering telephones in the customer service department. Vezina scraped the
tombstones for one week before she returned to her regular job in accessories.
Once back at her regular job, she was permitted to take breaks as required by
her restrictions.

19. On February 2, 2010, Vezina was disciplined for violating Dillard’s attendance
policy. The “Absences” section of Dillard’s attendance policy states that
employees who are going to be absent from work must call at least one hour
prior to their scheduled time to arrive. Dkt. 39-2 at p. 4. Vezina was disciplined
because she was scheduled to work at noon but did not report to her manager
that she was going to be absent until 11:25 A.M. Vezina was warned that her
failure to follow this policy in the future would result in her discharge.6
20. By May 5, 2010, Vezina’s doctor released her to her regular job without any
restrictions. Def.’s Exh. 22 at dkt. 39-23. Vezina had a follow-up appointment
with Dr. Paul D. Alley on August 31, 2010, he found that Vezina has no
permanent partial impairment rating related to the contusion of her foot. Def.’s
Exh. 23 at dkt. 39-24.
21. Vezina claims that on June 8, 2010, Assistant Store Manager Kemp
approached her and told her that if she did not sell $40,000 worth of product
before July 1 that she “would be in trouble.”
22. On August 10, 2010, Vezina was informed that she was receiving a pay
reduction to $11.95 per hour because she was not meeting her sales per hour
goals.
23. On November 3, 2010, her sales per hour went back up, and she was given a
raise to $13.15 per hour.
24. Vezina continues to this day to be employed by Dillard’s.
III. Discussion
A. Age Discrimination Claim
Vezina alleges that Dillard’s discriminated against her in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1).
To prove discrimination in violation of the ADEA, Vezina must establish that
Dillard’s subjected her to an adverse employment action because of her age. See Van
Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir. 2010). “Adverse employment
actions for purposes of the federal antidiscrimination statutes generally fall into three
categories: (1) termination or reduction in compensation, fringe benefits, or other financial
terms of employment; (2) transfers or changes in job duties that cause an employee's
skills to atrophy and reduce future career prospects; and (3) unbearable changes in job
6

Vezina states: “The disciplinary notice given to me on February 2, 2010, was not proper because I gave
management a note from my doctor as required by the personnel manual and it was ignored.” This
statement is insufficient to establish a material fact in dispute. Vezina admitted at her deposition that she did
not give Dillard’s timely notice of her absence. The fact that she had a doctor’s appointment is irrelevant.
See Vezina Depo. at dkt. 39-39 at p. 139.

conditions, such as a hostile work environment or conditions amounting to constructive
discharge.” Barton v. Zimmer, Inc., 662 F.3d 449, ___ (7th Cir. 2011) (citing Herrnreiter
v. Chi. Hous. Auth., 315 F.3d 742, 744–45 (7th Cir. 2002)). Vezina must show that “but
for” her age the adverse action would not have occurred. Wojtanek v. District No. 8, 435
Fed.Appx. 545 (7th Cir. 2011) (citing 29 U.S.C. § 623(c)(1); Gross v. FBL Fin. Servs.,
Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (holding that
age-discrimination claim against employer under 29 U.S.C. § 623(a)(1) requires showing
of “but for” causation)).
Vezina’s claim of age discrimination must fail because she has not presented any
evidence which would allow a jury to reasonably conclude that Vezina was subjected to
an adverse employment action, much less that age was the “but for” cause of any
changes in Vezina’s employment.
There is no evidence that Dillard’s tried to terminate Vezina’s employment
because of her age by increasing her sales quotas or that Vezina is paid differently
because of her age. Instead, the evidence reflects that Dillard’s Sales Per Hour Program
is applied to all non-commission associates for determining rates of compensation
irrespective of their age and is based on objective criteria. See Affidavit of David Kemp,
Def.’s Exh. 26.
Vezina received three formal disciplinary notices.7 These disciplinary actions did
not result in a tangible job consequence and they did not affect the terms or conditions of
Vezina’s employment. There is no evidence that the disciplinary notices were issued
because of her age. Nor has Vezina presented any evidence that Dillard’s work rules or
policies were implemented more stringently against her or older employees as compared
to younger workers.
Vezina’s repeated transfers to different departments at Dillards did not constitute
an adverse employment action. Vezina testified that she either voluntarily accepted each
transfer that was offered to her by Dillard’s, or was required to transfer based upon the
medical restrictions that had been placed upon her by her doctors. Specifically, Vezina’s
last transfer to the accessories department was the result of her injuring her shoulder and
needing to work in a department that would not expose her to violating her lifting
restrictions. Likewise, Vezina was transferred to a position scraping price tags off of
tombstones for five days because she needed a job where she could sit down all day.
Vezina’s pay rate after each of these transfers remained the same. There is no evidence
7

First, on October 4, 2008, Vezina received a formal verbal disciplinary notice for having a
negative attitude. Rule 10 of Dillard’s Associate Work Rules states that “associates must exhibit positive
behavior toward the job, management, supervisors and co associates in their action and speech.” The
notice reflects that Vezina was found to be talking with other associates in her work center regarding
negatives of the area and her sales manager in violation of rule 10. Second, Vezina received a formal
disciplinary notice for having a negative attitude on January 15, 2010. Dillard’s determined that Vezina is
telling her coworkers that the department she was working in “sucks” was a violation of Rule 10. Third,
Vezina received a formal disciplinary notice for violating Dillard’s Attendance Policy. Dillard’s requires its
employees who are going to be absent to call in at least one hour prior to their scheduled start time. Vezina
was disciplined in February, 2010, for calling in less than one hour before her shift.

that Vezina’s age had anything to do with her transfers to different departments. Nor is
there any evidence in support of Vezina’s vague argument that she was passed over for
placement in better positions because of her age. For example, Vezina argues that she
received less favorable night schedules than younger employees. In support she
provides what appear to be work schedules from January 20, 21, 27, and 28, and
February 5, 6, and 7, 2011. It is not clear why her schedule on these particular days
should be considered worse than her co-workers and, in any event, pinpointing a few
days in which Vezina did not approve of her schedule does not constitute an adverse
employment action.
Finally, Vezina argues that she can prove that she was discriminated against
because she has a sworn affidavit from Jana Taylor which states that Taylor was
terminated because of her age and a declaration from Dewey Jones regarding the
discriminatory issues that are occurring in the store. See Pl.’s Exhs. 12 and 13 at dkt. 41.
Vezina misstates both the substance and effect of these submissions. First, the
submissions are letters and not sworn affidavits or declarations. Neither letter purports to
be true and correct, see 28 U.S.C. § 1746. In addition, Mr. Jones’ letter does it comply
with Rule 56(c)(4), in that there is no indication that the author is competent to testify on
the matters stated and neither letter would be admissible in evidence.
In summary, Vezina’s contentions are insufficient to establish a genuine issue of
material fact. Because Vezina has not provided any evidence upon which a reasonable
jury could conclude that she suffered an adverse employment because of her age,
summary judgment must be entered in favor of Dillard’s on this claim.
B. Retaliation
To prove retaliation in violation of the ADEA, Vezina must show that she engaged
in statutorily protected activity, that she suffered a materially adverse action, and that the
two are causally related. Barton, 2011 WL 4921603, at *6 (citing Horwitz v. Bd. of Educ.,
260 F.3d 602, 612 (7th Cir. 2001). Under the ADEA retaliation must be a but-for cause of
a materially adverse action, not merely a contributing factor. See Gross v. FBL Fin.
Servs., Inc., 129 S. Ct. 2343, 2351 (2009). Thus, the issue is whether Vezina suffered a
materially adverse action causally linked to her complaints of age discrimination.
“The standard for a materially adverse action sufficient for a retaliation claim is
somewhat more forgiving than for a discrimination claim, but the action must be severe
enough to dissuade a reasonable employee from exercising statutory rights.” Barton,
2011 WL 4921603, at *6 (citing Lapka v. Chertoff, 517 F.3d 974, 985–86 (7th Cir. 2008)).
Examples include “termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices that might be unique to a particular
situation.” Id. (citing Crady v. Liberty Nat'l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th
Cir.1993).
Vezina’s theory of retaliation is undeveloped and unsupported. See dkt 41 at page
8. Vezina appears to assert that she was retaliated against for filing a charge of

discrimination with the EEOC on January 20, 2010. Dillard’s argues that there is no
evidence of a connection between Vezina’s EEOC complaint and the actions of which
she complains. While temporal proximity between the protected activity and the action
taken in retaliation for that activity is one consideration in finding a causal connection, the
Seventh Circuit has repeatedly stated that “suspicious ‘timing alone is insufficient to
establish a genuine issue of material fact to support a retaliation claim.’” Turner v. The
Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010) (quoting Kampmier v. Emeritus Corp., 472
F.3d 930, 939 (7th Cir. 2007)).
Vezina has failed to identify any materially adverse action she suffered as a result
of filing her complaint with the EEOC. Her speculation to the contrary is not sufficient to
survive summary judgment. Vezina argues that the manager did not read the top ten
sales list when Vezina was on it; she was not thanked for catching a shop lifter; and she is
followed by Mike Marz from store security. There is no evidence of a causal connection
between these circumstances and the filing of Vezina’s EEOC complaint. Further, these
actions would not be severe enough to dissuade a reasonable employee from exercising
their statutory rights.
Similarly, Vezina argues that she was assigned to work stations where it is harder
to obtain sales quotas. Vezina has been working in the accessories department since
August 2, 2009, prior to her filing a complaint with the EEOC. There is no evidence that
Vezina’s work assignments are a result of her filing a complaint with the EEOC. For
example, there is no evidence that Dillard’s raised the sales quotas for all employees at
the store solely to retaliate against her for filing an EEOC complaint. Nor is there any
evidence that a younger woman named Amy is assigned to work in the Coach handbag
section more than other employees out of retaliation for Vezina filing an EEOC complaint.
Finally, there is no evidence that Vezina is required to work alone more than her
coworkers.
C. Disability Discrimination Claim
The Americans with Disabilities Act (ADA) prohibits employers from discriminating
against disabled employees because of their disability. 42 U.S.C. § 12112(a). A disability
is defined under the ADA as: (A) a physical or mental impairment that substantially limits
one or more major life activities of the individual; (B) a record of such an impairment; or
(C) being regarded as having such an impairment. 42 U.S.C. § 12102(1). The type of
“major life activities” that must be substantially limited to fall under the purview of the ADA
include, but are not limited to: caring for oneself, learning, reading, concentrating,
thinking, communicating, and working. 42 U.S.C. § 12102(2); Dickerson v. Board of
Trustees of Community College Dist. No. 522, 2011 WL 4349395, **3-4 (7th Cir. 2011).
Vezina’s ADA claim is summarily rejected. As Dillard’s points out, there is no
evidence that Vezina is disabled as defined by the ADA or that Dillard’s regarded her as
having a disability. There is also no evidence that Dillard’s took an adverse action against
her because of her disability. Because Vezina fails to produce any evidence in support of
an essential element of her case for which she would have the burden of proving at trial,

summary judgment shall enter in favor of Dillard’s on Vezina’s claim of discrimination
under the ADA.
IV. Conclusion
It has been explained that "summary judgment serves as the ultimate screen to
weed out truly insubstantial lawsuits prior to trial." Crawford-El v. Britton, 118 S. Ct. 1584,
1598 (1998). This is a vital role in the management of court dockets, in the delivery of
justice to individual litigants, and in meeting society’s expectations that a system of justice
operate effectively. Indeed, "it is a gratuitous cruelty to parties and their witnesses to put
them through the emotional ordeal of a trial when the outcome is foreordained" and in
such cases summary judgment is appropriate. Mason v. Continental Illinois Nat'l Bank,
704 F.2d 361, 367 (7th Cir. 1983).
Plaintiff Vezina has not identified a genuine issue of material fact as to her claims
in this case, and Dillard’s has shown that it is entitled to judgment as a matter of law as to
each of Vezina’s claims. Dillard’s motion for summary judgment [39] is therefore granted.
Vezina’s motion to appoint counsel [64] is denied.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.

_________________________________

Date:

1/06/2012
__________________

RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana