Ellsworth v. Winn-Dixie Stores, Inc.
Filing
58
ORDER & REASONS granting 42 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 11/4/2016. (mmm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WHITNEY ELLSWORTH
VERSUS
CIVIL ACTION
NO. 14-1666
WINN-DIXIE MONTGOMERY, LLC
SECTION “R” (3)
ORDER AND REASONS
Defendant Winn-Dixie Montgomery, LLC moves for summary
judgment on Plaintiff Whitney Ellsworth’s claims of age discrimination
under the Age Discrimination in Employment Act of 1967 (ADEA) and the
ADEA’s state-law counterpart, the Louisiana Employment Discrimination
Law (LEDL).1
Because Winn-Dixie has submitted evidence that it
terminated Ellsworth because of violations of company policy, and Ellsworth
has failed to raise an issue of fact that Winn-Dixie’s stated reason is
pretextual, the Court GRANTS Winn-Dixie’s motion.
I.
BACKGROUND
This is an age discrimination suit by a former employee against his
former employer. Defendant, Winn-Dixie Montgomery, LLC (Winn-Dixie)
1
R. Doc. 42.
employed plaintiff, 61 year-old Whitney Ellsworth, from on or about
September 1, 1973 until Winn-Dixie terminated Ellsworth on January 22,
2013.2 Winn-Dixie replaced Ellsworth, an at-will employee, with someone
about 20 years younger.3 Ellsworth filed this suit on July 19, 2014.4
The parties dispute why Ellsworth was terminated. Defendant asserts
that Ellsworth was fired because of his performance, specifically that he
violated company policy by not preventing a fraudulent telephone scam that
caused significant monetary losses to Winn-Dixie.5 Ellsworth contends he
was terminated because of his age.
The evidence in the record is as follows. On January 8, 2013, at
approximately 10:30 p.m., Ellsworth, then a co-director or co-manager of the
store, received a phone call. 6 The caller claimed to be with “corporate,” and
wanted to speak with an experienced cashier to “perform a procedure on the
front end.” 7 Ellsworth transferred the call to a part-time cashier, Winde
Ricard, who then did as the caller asked. 8 Ricard loaded $6,000 onto several
R. Doc. 42-1 at 1 ¶¶ 1, 3.
R. Doc. 21 at 6 ¶ 26.
4
R. Doc. 1. Ellsworth amended his complaint on September 2,
2015. R. Doc. 21.
5
R. Doc. 42-2 at 3.
6
Id. at 4.
7
R. Doc. 50-2 at 3 ¶ 11; R. Doc. 42-1 at 3 ¶ 14.
8
R. Doc. 42-1 at 4 ¶ 19.
2
2
3
NetSpend cards and provided the caller with the serial numbers of the cards. 9
The call proved to be a scam. Winn-Dixie provides evidence that before the
fraudulent transaction, Ellsworth had received training on theft and fraud
detection that warned against telephone scams and completing transactions
by telephone.10 Winn-Dixie also proffered evidence that Ellsworth received
multiple Corrective Action Reports for poor performance before the fraud
occurred, including violations of merchandise display policies, failure to
meet labor goals, and a customer complaint about Ellsworth’s “rude and
derogatory demeanor.”11
It is undisputed that the cashier, who was in her early twenties, and
actually performed the fraudulent transaction, was not terminated. There is
also evidence that in 2013 Winn-Dixie fired or demoted other employees over
40 years old. 12
Ellsworth asserts claims for age-based discriminatory discharge under
the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§
621-32 (2012), and under the ADEA’s state-law counterpart, the Louisiana
9
10
11
12
Id. ¶¶ 22-23.
R. Doc. 42-4 at 13; R. Doc. 42-7 (Ellsworth’s Training Log)
R. Doc. 42-2 at 2; R. Doc. 42-5.
R. Doc. 50-2 at 4 ¶¶ 15-17.
3
Employment Discrimination Law (LEDL), La. Stat. Ann. §§ 23:301-314
(2016). Winn-Dixie now moves for summary judgment. 13
II.
LEGAL STANDARD
A.
Summary Judgment
Summary judgment is warranted when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any material fact
exists, the Court considers “all of the evidence in the record but refrains from
making credibility determinations or weighing the evidence.” Delta & Pine
Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.
2008). All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate or
conclusory facts and conclusions of law’ are insufficient to either support or
defeat a motion for summary judgment.” Galindo v. Precision Am. Corp.,
754 F.2d 1212, 1216 (5th Cir. 1985) (quoting Wright & Miller, Fed. Prac. and
Proc. Civ.2d § 2738 (1983)).
13
R. Doc. 42.
4
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must come forward with evidence
which would entitle it to a directed verdict if the evidence went
uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,
1264-65 (5th Cir. 1991) (internal quotation omitted). The nonmoving party
can then defeat the motion by either countering with sufficient evidence of
its own, or “showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in favor of the
moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
merely pointing out that the evidence in the record is insufficient with
respect to an essential element of the nonmoving party’s claim. See Celotex,
477 U.S. at 325. The burden then shifts to the nonmoving party, who must,
by submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
trial. Id. at 325; see also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry
of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
5
existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.’”) (quoting Celotex, 477 U.S. at 332).
B.
The Age Discrimination in Employment Act
The ADEA prohibits an employer from firing an employee “because of
such individual’s age”. 29 U.S.C. § 623(a)(1). To establish an ADEA claim, a
plaintiff must “prove by a preponderance of the evidence (which may be
direct or circumstantial), that age was the ‘but-for’ cause of the challenged
employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78
(2009).
In Gross, the Court held that a “mixed-motive jury instruction” is never
available under the ADEA. Id. at 169. A mixed-motive jury instruction states
that if an employee proves that an adverse employment action was the result
of both permissible and impermissible motives, the burden of persuasion
shifts to the employer to demonstrate that it would have proceeded with the
employment action notwithstanding the improper motive.
Id. at 174
(citations omitted); see also Smith v. City of Allentown, 589 F.3d 684, 69091 (3d Cir. 2009) (discussing the implications of Gross on ADEA claims).
Gross overruled Fifth Circuit caselaw that used the mixed-motive analysis in
ADEA claims based on direct evidence of age discrimination. See, e.g.,
Machinchick v. PB Power, Inc., 398 F.3d 345, 250 (5th Cir. 2005) (“Plaintiffs
6
presenting direct evidence of age discrimination may proceed under the
‘mixed-motive’ analysis set forth in Price Waterhouse.”).
Gross also noted: “[T]he Court has not definitely decided whether the
evidentiary framework of [McDonnell Douglass], utilized in Title VII cases
is appropriate in the ADEA context.” Gross, 557 U.S. at 175-76 n.2. The Fifth
Circuit continues to apply the McDonnell Douglas framework to ADEA
claims after Gross. See, e.g., Holliday v. Commonwealth Brands, Inc., 483
F. App’x 917, 921 (5th Cir. 2012); Manaway v. Med. Ctr. of Southeast Tex.,
430 F. App’x 317, 321 (5th Cir. 2011); Moss v. BMC Software, Inc., 610 F.3d
917, 922-23 (5th Cir. 2010); Jackson v. Western Packaging Corp., 602 F.3d
374, 378 (5th Cir. 2010) (“[W]e are bound by our circuit precedent applying
McDonnell Douglas to age discrimination cases.”).
Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a
plaintiff must first establish a prima facie case that: (1) he was discharged;
(2) he was qualified for the position; (3) he was within the protected class at
the time of the discharge; and (4) he was either i) replaced by someone
outside the protected class, ii) replaced by someone younger, or iii) otherwise
discharged because of his age. Holliday, 483 F. App’x at 921 (citation
omitted). After the employee establishes a prima facie case, the burden of
production
shifts
to
the
employer
7
to
articulate
a
“legitimate,
nondiscriminatory reason for terminating the plaintiff.” Id. If the employer
articulates a legitimate, non-discriminatory reason for terminating the
employee, the plaintiff must then rebut the employer’s purported
explanation by showing that the employer’s reason is pretextual. Moss, 610
F.3d at 922. Consistent with Gross, the burden of persuasion remains with
the employee at all times, but the “burden of production and the order of
presenting proof” are allocated in accordance with the McDonnell Douglas
framework. Jackson, 602 F.3d at 377-78.
III. DISCUSSION
Winn-Dixie’s motion for summary judgment argues that Ellsworth
cannot make out a prima facie case under the ADEA or the LEDL, and that
even if Ellsworth has established a prima facie case, Ellsworth cannot
establish that Winn-Dixie’s stated reason for termination was pretextual. 14
A.
Ellsworth’s Prima Facie Case
Ellsworth need only make a minimal showing to shift the burden of
production to Winn-Dixie. Baker v. Am. Airlines, Inc., 430 F.3d 750, 754
(5th Cir. 2005). Winn-Dixie does not seriously challenge that Ellsworth has
met his burden on the first three elements of the prima facie case, not
14
R. Doc. 42.
8
contesting that Ellsworth was fired, was qualified for his position, 15 and
within the protected class at the time of his discharge. What Winn-Dixie
disputes is whether Ellsworth has met his burden on the fourth element.
Winn-Dixie argues that Ellsworth has not satisfied the fourth element
because he cannot show that he was treated “less favorably than a similarly
situated individual.” 16
Winn-Dixie relies on Abarca v. Metro Transit
Authority, 404 F.3d 938 (5th Cir. 2005). Abarca, however, addresses a
prima facie case for employment discrimination based on race or national
origin, not age. See id. at 941. In age discrimination cases, the plaintiff can
satisfy the fourth element of a prima facie case simply by showing that he or
she was replaced by someone younger. See, e.g., Holliday, 483 F. App’x at
921 (citation omitted). There is no dispute that Ellsworth was replaced by
Steve Stevens, and although there is some ambiguity as to Mr. Stevens’s
age,17 there is no dispute that he is younger than Ellsworth. Therefore,
Ellsworth has met this “low burden” and established his prima facie case.
Although Winn-Dixie states conclusorily that Ellsworth “was not
qualified for his position,” id. at 1, it abandons this argument and produces
no evidence creating a factual dispute as to Ellsworth’s qualifications.
16
R. Doc. 42-2 at 8.
17
Ellsworth attests in his Declaration that Stevens is 38, R. Doc.
50-2 at 1 ¶ 3, while Darlene Johnson estimates in her deposition that Stevens
is 32 or 33. R. Doc. 50-6 at 4. It is unclear from the record and from the
limited deposition excerpt who Darlene Johnson is or what her relation is to
this litigation.
9
15
B.
Legitimate, Non-discriminatory Reason
Ellsworth’s prima facie case does not end the inquiry, it simply shifts
the burden of production to Winn-Dixie. The rebuttal of a plaintiff’s prima
facie case, like the prima facie case itself, requires only a minimal showing.
See, e.g., Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 813 (5th
Cir. 1991). Still, the explanation (if believed) must be legally sufficient to
justify a judgment for defendant, and the defendant cannot meet its burden
merely through an answer to the complaint or by argument of counsel. Texas
Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 n.9 (1981).
Winn-Dixie has produced evidence that Ellsworth was terminated
because of poor performance and violation of company policy. This evidence
includes:
•
Two Corrective Action Reports dated November 9, 2012 and January
5, 2013, detailing Ellsworth’s violations of company policy, including
violations of merchandise display policies, failure to meet labor goals,
and a customer complaint about Ellsworth’s “rude and derogatory
demeanor.” 18
•
The Corrective Action Report after the fraudulent transaction dated
January 21, 2013 and signed by then-Human Resource Generalist
Mindy Savoy, stating that Ellsworth has been terminated for “not
following procedure.”19
•
A sworn statement from Bryce Brown, the Store Director at the time of
the fraudulent transaction, stating that Ellsworth was terminated for
18
19
R. Doc. 42-5; R. Doc. 42-6.
R. Doc. 57 at 8.
10
violating company policy and for facilitating his subordinate’s violation
of company policy. 20
•
A statement from Nelson Fisher, Winn-Dixie’s Asset Protection
Specialist.21 Fisher states that Ellsworth was terminated for violating
company policy, and his statement describes how Ellsworth’s actions
violated company policy. 22
Ellsworth does not dispute that violating company policy is a legitimate, nondiscriminatory reason for his termination. Rather, he asserts that because
Winn-Dixie cannot identify who specifically made the decision to terminate
him, Winn-Dixie cannot introduce any non-discriminatory reason for his
termination. 23 Additionally, even if the Court accepts Winn-Dixie’s stated
reason for his termination, Ellsworth argues that this reason is a pretext for
discrimination.
The Court rejects Ellsworth’s argument that Winn-Dixie cannot
introduce a non-discriminatory reason because it has not identified the
specific decision-maker. In its response to Ellsworth’s interrogatory that
asked for the identities of everyone who “participated” in the decision to
terminate Ellsworth, Winn-Dixie objected to the interrogatory as overly
broad and identified Mindy Savoy and former District Director Perry
20
21
22
23
R. Doc. 42-10 at 2.
R. Doc. 42-11.
Id.
R. Doc. 50 at 11.
11
Fontanille. 24
Ellsworth points to deposition testimony by Savoy and
Fontanille to contend that they were not responsible for making the final
decision to terminate Ellsworth.
This argument is unavailing. First, Savoy testified at her deposition
that she participated in the decision to terminate Ellsworth and collaborated
with the other decision-makers.25 Second, although Fontanille did state in
his deposition that he did not participate in the decision to terminate
Ellsworth, he said that he does not know who made the decision to terminate
Ellsworth, and never mentioned Savoy.26
Third, Ellsworth does not
challenge the Corrective Action Report signed by Savoy that states that
Ellsworth was terminated for not following company procedure. 27 Finally,
Ellsworth does not challenge the other documents stating that Ellsworth was
fired for violating company policy. 28 Winn-Dixie’s showing as to the identity
of the decision-makers and the existence of a nondiscriminatory reason to
terminate Ellsworth are sufficient evidence to satisfy its burden under the
McDonnell Douglas framework.
24
25
26
27
28
R. Doc. 50-7 at 8 ¶ 8.
R. Doc. 50-4 at 3-6.
R. Doc. 50-5 at 3-4.
R. Doc. 57 at 8.
See R. Doc. 42-10; R. Doc. 42-11.
12
C.
Pretext
To preclude summary judgment, Ellsworth must show that there is a
genuine issue of material fact that Winn-Dixie’s reason for terminating him
is pretextual. Moss, 610 F.3d at 922. Ellsworth can make this showing
through evidence of disparate treatment or by evidence that Winn-Dixie’s
explanation is “false or ‘unworthy of credence.’” Id. (quoting Laxton v. Gap
Inc., 333 F.3d 572, 578 (5th Cir. 2003). A “mere scintilla of evidence of
pretext” will not create an issue of material fact in all cases. Crawford v.
Formosa Plastics Corp., 234 F.3d 899, 902-03 (5th Cir. 2000). A plaintiff
“must present sufficient evidence to find that the employer’s asserted
justification is false.” Id. at 903 (internal quotation omitted). In determining
whether a plaintiff has introduced sufficient evidence of pretext to preclude
summary judgment, “a court should consider the strength of plaintiff’s prima
facie case, the probative value of the [evidence] that the employer’s
explanation is false, and any other evidence that supports the employer’s
case.” Id. at 902 (quoting Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 148-49 (2000)).
None of Ellsworth’s pretext arguments is sufficient to create a genuine
issue of material fact that Winn-Dixie’s justification for his termination is
either false or unworthy of credence.
13
1.
Previous Corrective Action Reports
Ellsworth first argues that the previous Corrective Action Reports in
his file were unwarranted and recorded as an effort to “paper the file” to
justify his termination. 29 To support his contention, Ellsworth alleges that
his performance was not deficient, and he should not have been disciplined
for the supposed infractions because they were based on false allegations.
Even if Ellsworth is correct that he unfairly or unjustly received these
Corrective Action Reports, this would not create a genuine issue of material
fact as to whether Winn-Dixie’s stated reason is pretextual. See Bienkowski
v. Am. Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1988). The ADEA “was
not intended to be a vehicle for judicial second-guessing of employment
decisions, . . . [and] cannot protect older employees from erroneous or even
arbitrary personnel decisions.” Id., at 1507-08; see also Little v. Republic
Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991) (“Even an incorrect belief that an
employee’s performance is inadequate constitutes a legitimate, nondiscriminatory reason.”). More evidence is required to create a genuine issue
of material fact that Winn-Dixie’s stated reason for terminating Ellsworth is
pretextual or unworthy of credence; disputes over Ellsworth’s previous job
29
R. Doc. 50 at 3.
14
performance are insufficient. Bienkowski, 851 F.2d at 1508; Republic Ref.,
924 F.2d at 97.
2.
Other Employees Terminated by Winn-Dixie
Next, Ellsworth points to the 2013 termination or demotion of three
other older employees 30 at either the Winn-Dixie where Ellsworth worked or
other local Winn-Dixies. In connection with these employment actions,
Ellsworth refers to a May 13, 2013 newspaper article noting that Winn-Dixie
planned to save $100 million in labor costs by eliminating some positions. 31
Ellsworth argues that this plan to save money manifested itself in a
discriminatory pattern of terminating or demoting older employees.
Ellsworth’s argument fails for two reasons.
First, Ellsworth has
introduced no evidence suggesting that the other employees were fired
because of their age.
In fact, Ellsworth seems to suggest that those
employees were fired as part of a larger plan to cut costs. The Fifth Circuit
has made clear that the ADEA “prohibits discrimination on the basis of age,
not salary.” Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th
Cir. 1995) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 609-15 (1993))
The three are Byron Brown (age 54), Leo Schaefer (age 42 or 43),
and Alton Preston (estimated to be in his late 40’s or early 50’s). R Doc. 502 at 4 ¶¶ 15-17.
31
R. Doc. 50-9.
15
30
(emphasis added).
Therefore, if these employees were terminated or
demoted in an effort to save labor costs, this would not violate ADEA.
Second, even if the Court found that this plan to save money
manifested itself in a discriminatory fashion, Ellsworth has not met his
evidentiary burden to establish that there actually was a pattern of
discrimination. While discriminatory patterns or practices can be evidence
both of a prima facie case and that an employer’s stated justification is
pretextual, Moss, 610 F.3d at 922, a “pattern or practice” of discrimination
cannot be established by “isolated or sporadic discriminatory acts by the
employer.” Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 875
(1984).
Instead, there must be evidence that “discrimination was the
company’s standard operating procedure—the regular rather than the
unusual practice.” Id. Additionally, the other employees must be similarly
situated to the plaintiff for the evidence to be probative of a pattern. Wyvill
v. United Companies Life Ins. Co., 212 F.3d 296, 302 (5th Cir. 2000)
(citation omitted). Not only has Ellsworth failed to introduce evidence that
the other employees are similarly situated to him, see id. at n.2, but even if
they were, three employees is too small a sample to suggest that Winn-Dixie
was engaged in a pattern of discrimination. See Apsley v. Boeing Co., 691
F.3d 1184, 1198-2001 (10th Cir. 2012) (finding that even if 1% of older
16
employees were discriminated against, this would still be sporadic
discrimination, not evidence of a pattern). If the three employees were fired
due to their age, the discrimination is “isolated or sporadic,” not a pattern.
Cooper, 467 U.S. at 875; see also Apsley, 691 F.3d at 1201. Further, the
finding that this is not a pattern is buttressed by the fact that Winn-Dixie
terminated a younger employee for the same violation as Ellsworth. 32
3.
Identities of Decision-Makers
Ellsworth also reiterates his decision-maker argument, this time
suggesting that discrepancies over who actually made the decision to
terminate Ellsworth are evidence that Winn-Dixie’s stated justification is
pretextual. While the Fifth Circuit has held that substantial inconsistencies
or discrepancies in the defendant’s explanation for termination, when
considered with other evidence, can create an inference of pretext, see Gee v.
Principi, 289 F.3d 342, 347-48 (5th Cir. 2002), the Fifth Circuit has never
held that discrepancies over the identities of decision-makers alone is
sufficient to find pretext. Ellsworth is also unable to cite any case suggesting
otherwise. Though Ellsworth points to two cases in which courts considered
the misidentification of, or total failure to identify, the relevant decisionmaker in finding the employer’s stated reason to be pretextual, those cases
32
R. Doc. 42-11.
17
are dististinguishable. In Sabbrese v. Lowe’s Home Centers Inc., a case
which is not binding on this Court, the court found that the failure to identify
the responsible decision-maker was a factor suggesting that the defendant’s
justification was pretextual. 320 F. Supp. 2d 311, 326 (W.D. Pa. 2004). But
there the pretext finding was heavily influenced by the fact that the
employer’s stated justification was inconsistent with the facts of the case, a
factor not present here.33
Ellsworth also cites Turner v. Kansas City Southern Railway, 675 F.3d
887 (5th Cir. 2012). In Turner, the court found the misidentification of the
decision-maker relevant to whether the stated reason for termination was
pretextual. See id. at 901-03. The court did not hold that misidentification
alone was evidence of pretext, and Turner not only had direct evidence of
race-based animus, but also showed that there was a lack of evidence
supporting the employer’s stated reason. See id. at 902-03. The opposite is
true here, Ellsworth has introduced no direct evidence of age discrimination,
and there is evidence supporting Winn-Dixie’s stated reason.
Specifically, the court noted that it was implausible that the
employee was terminated for the employer’s stated reason of committing a
battery against another employee, since the terminated employee was
allowed to complete his shift after the alleged battery and remained an
employee for two weeks; he was terminated only after complaining about
discriminatory treatment. Sabbrese, 320 F.3d at 324, 326.
18
33
Further, to the extent that Ellsworth argues that unidentified decisionmakers were motivated by age in terminating Ellsworth, there is simply no
evidence to support this contention. Acknowledging this lack of evidence,
Ellsworth argues that he did not have time to depose the other decisionmakers to determine if they were motivated by age. 34 But Ellsworth had the
names of the decision-makers after Savoy’s deposition on July 13, 2016,
nearly a month before the discovery deadline. Furthermore, Ellsworth could
have asked this Court for an extension of the discovery deadline, but he made
no such request.
Winn-Dixie has provided evidence that Savoy recommended Ellsworth
be terminated because of his violation of company policy. 35 Additionally,
Savoy testified that Nelson Fisher participated in the decision to terminate
Ellsworth. 36
Winn-Dixie has submitted the contemporaneous incident
report on the telephone scam, signed by Fisher, detailing Ellsworth’s
violations of company policy.37 Winn-Dixie has also submitted a statement
by Fisher stating that he completed the incident report, gave the report to
Savoy, and was present when Savoy terminated Ellsworth. 38 Ellsworth has
34
35
36
37
38
R. Doc. 50 at 12.
R. Doc. 50-4 at 4.
Id.
R. Doc. 57 at 8.
R. Doc. 42-11.
19
introduced no evidence that any of the identified decision-makers were
motivated by age in deciding to terminate him.
Without more, any
discrepancies over who participated in the decision to terminate Ellsworth is
insufficient to create a genuine issue of material fact as to whether WinnDixie’s reason was pretextual.
4.
Comparator Employee
Next, Ellsworth argues that his termination for his role in the
fraudulent phone transaction while the younger cashier involved was not
terminated is evidence of pretext. At the outset, Ellsworth is not disputing
his role in the fraudulent transaction or that allowing a fraudulent
transaction to occur on his watch could be a legitimate reason for
termination. 39
Still, whether the failure to terminate Winde Ricard is
evidence of pretext depends on whether she is similarly situated to Ellsworth.
See, e.g., Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259-60 (5th Cir. 2009).
Ellsworth’s comparator evidence fails to raise an inference of pretext.
From the record, it is apparent that Ellsworth and Ricard are not similarly
situated. First, Ellsworth was the store co-director; Ricard was a cashier.
Ellsworth’s position gave him supervisory and training responsibilities that
Ricard’s position does not include. Ellsworth received training on telephone
39
R. Doc. 42-4 at 12.
20
scams and repeated warnings about not completing transactions by phone. 40
There is no evidence in the record that Ricard received the same warnings as
Ellsworth. Second, Ricard had a duty to follow Ellsworth’s instructions, not
vice versa.41 Third, Ellsworth and Ricard do not have the same or even
comparable violation histories. Id. at 260 (comparing work responsibilities
and violation histories to determine if employees are similarly situated).
Ellsworth’s employee file includes at least two corrective action reports for
violations of company policy and customer complaints. 42
There is no
evidence in the record indicating any previous policy violations by Ricard.
Finally, although Ellsworth and Ricard were both involved in the
fraudulent transaction, their conduct in question was not “nearly identical.”
Id. (citations omitted).
Winn-Dixie submits the statement of its Asset
Protection Specialist Nelson Fisher. Fisher states that Ellsworth violated
company policy not only by failing to identify the caller, but also by directing
his subordinate Ricard to handle the caller’s transaction. 43 By his own
admission, Ellsworth did not identify the caller or take steps to verify that
the caller was actually with Winn-Dixie corporate, even though he had been
40
41
42
43
R. Doc. 42-7; R. Doc. 42-4 at 13.
R. Doc. 42-4 at 6.
R. Doc. 42-5; R. Doc. 42-6.
R. Doc. 42-11.
21
cautioned to do so.44 Ellsworth also admits that he was Ricard’s superior,
that she was required to follow his instructions, and he told her to help the
caller with “a procedure on the front-end.”45 Therefore, Ellsworth’s conduct
and Ricard’s conduct were not nearly identical.
That the failure to terminate Ricard is not evidence of pretext is also
supported by evidence that Winn-Dixie terminated other co-directors for the
same violation as Ellsworth’s.
Winn-Dixie has submitted evidence,
unchallenged by Ellsworth, that Winn-Dixie terminated two other local store
co-directors for allowing fraudulent card transactions to occur on their
watch. 46 Unlike Ricard, these employees appear to be similarly situated to
Ellsworth. See id.
For the foregoing reasons, Ellsworth’s comparator evidence fails to
raise an inference of pretext.
5.
Progressive Discipline Policy
Finally, Ellsworth argues that his termination was not in compliance
with Winn-Dixie’s internal progressive discipline policy,47 and that this
noncompliance is evidence of pretext.48 Ellsworth asserts that Winn-Dixie’s
44
45
46
47
48
R. Doc. 42-4 at 11, 13.
Id. at 6, 10.
R. Doc. 42-11.
R. Doc. 50-10 at 8.
R. Doc. 50 at 13.
22
policy is to not terminate employees until they have received three “writeups,” and points to the deposition testimony of Ms. Savoy to support his
assertion.49 Ellsworth’s argument is not supported by the facts. Savoy’s
deposition testimony refutes Ellsworth’s allegation that he was not fired in
compliance with Winn-Dixie’s policy, as she notes that serious violations can
lead to terminations regardless of prior warnings.50 Further, Winn-Dixie’s
employee handbook expressly allows for immediate termination, regardless
of prior write-ups, for certain violations.51 The handbook contains a list of
violations that may call for immediate termination, and the list, which is not
meant to be exhaustive, includes ignoring conduct by others that results in
embezzlement of company funds or assisting another to commit theft.52
Additionally, Ellsworth acknowledged in his deposition that failure to
identify a caller seeking an over-the-phone transaction is grounds for
termination. 53
Ellsworth maintains that under Winn-Dixie’s policy, he should have
received a write-up for his conduct related to the fraudulent transaction, not
termination. As explained above, the ADEA is not a vehicle to second-guess
49
50
51
52
53
Id.
R. Doc. 50-4 at 11.
R. Doc. 50-10 at 8.
Id.
R. Doc. 42-4 at 12.
23
erroneous or even arbitrary employment decisions. Bienkowski, 851 F.2d at
1507-08; Republic Ref., 924 F.2d at 97. Without some nexus between
Ellsworth’s termination and his age, even if there were evidence that WinnDixie did not follow company procedures, this would not rise to a level
sufficient to infer pretext. See Wyvill, 212 F.3d at 305 (holding that even
assuming company did not follow standard procedure in terminating
plaintiff, the evidence was insufficient to infer pretext without “nexus
between the employment actions taken . . . and the employee’s age”)
(quotation omitted). Ellsworth’s bald assertion that his termination was
motivated by his age simply will not suffice. Id.
Based on the lack of evidence relevant to his claim, the Court concludes
that no rational factfinder could find that Ellsworth’s age was the “but-for”
cause of his termination. See Price, 283 F.3d at 720; Gross, 557 U.S. at 177.
Accordingly, the Court grants summary judgment against Ellsworth on his
ADEA claim.
D.
LEDL Claim
Ellsworth alleges the same set of facts in support of both his ADEA
claim and his LEDL claim. 54 Federal and Louisiana courts consider the two
statutes to be substantively identical and apply the same legal standards
54
R. Doc. 21 at 7 ¶ 38.
24
under each. See, e.g., Deloach v. Delchamps, Inc., 897 F.2d 815, 818 (5th
Cir. 1990); LaBove v. Raftery, 802 So. 2d 566, 573 (La. 2001). Thus,
summary judgment is granted on Ellsworth’s LDEL claim for the same
reasons as those cited for granting summary judgment on his ADEA claim.
IV.
CONCLUSION
For the foregoing reasons, Winn-Dixie’s motion is GRANTED.
4th
New Orleans, Louisiana, this _____ day of November, 2016.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
25
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