Mickens v. Moran Food, LLC

Filing 24

ORDER AND REASONS: IT IS ORDERED that the 18 Motion for Summary Judgment is GRANTED; IT IS FURTHER ORDERED that Defendant's 20 Motion to Strike Plaintiff's Untimely Opposition to Defendants Motion for Summary Judgment is DISMISSED as moot. Signed by Judge Ivan L.R. Lemelle on 9/25/2017. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEBRA MICKENS

CIVIL ACTION

VERSUS

NO. 16-15669

MORAN FOODS, D/B/A/ SAVE-A-LOT, LTD.

SECTION "B”(3)

ORDER AND REASONS

Considering

Defendant

Moran

Foods’

“Motion

for

Summary

Judgment” (Rec. Doc. 18), Plaintiff’s “Opposition to Defendant’s
Motion for Summary Judgment” (Rec. Doc. 19), Defendant’s “Reply to
Plaintiff's Opposition to Defendant's Motion for Summary Judgment”
(Rec. Doc. 23), and Defendant’s “Motion to Strike Plaintiff’s
Untimely Opposition to Defendant’s Motion for Summary Judgment”
(Rec. Doc. 20).
For the reasons discussed below,
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc.
18) is GRANTED;
IT IS FURTHER ORDERED that Defendant’s “Motion to Strike
Plaintiff’s Untimely Opposition to Defendant’s Motion for Summary
Judgment” (Rec. Doc. 20) is DISMISSED as moot.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of an employment dispute between Debra
Mickens

(“Plaintiff”)

and

Moran

Foods

d/b/a/

Save-A-Lot

(“Defendant”). Specifically, Plaintiff alleges that Defendant’s
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failure to promote her to the position of assistant manager was
the result of age discrimination.
Plaintiff was hired by the Defendant in July 2009 as a parttime store clerk. Rec. Docs. 19-1 and 18-2. At the time of her
hire, Plaintiff was 51 years of age. Id. Plaintiff worked as a
part-time

store

clerk

for

the

Defendant

in

various

store

locations, 1 until she was promoted in November 2013 to the position
of shift leader. Plaintiff is currently still employed by the
Defendant.
Between 2013 and 2015, Plaintiff alleges that she applied for
an assistant manager position with the Defendant on five (5)
occasions. Rec. Doc. 19-1. To date, Plaintiff has never been
promoted to an assistant manager position with the Defendant.
In October 2016, Plaintiff filed suit in district court
alleging: 1) that the Defendant discriminated against her based on
her age, in violation of the Age Discrimination Employment Act of
1967

(“ADEA”);

and

2)

that

Defendant

intentionally

inflicted

emotional distress (“IIED”) upon the Plaintiff.
LAW AND ANALYSIS
Summary judgment is proper “if the pleadings, the discovery
and disclosure materials on file, and any affidavits show that

1

The Uncontested Material Facts (Rec. Docs. 19-1 and 18-2) reveal that at her
own request Plaintiff was transferred between 3 store locations—Claiborne
Avenue, Carrollton Avenue, and MacArthur Drive—between 2012 up to the present
day.

2

there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(c). When considering a motion for summary judgment, the court
should view all facts and evidence in the light most favorable to
the non-moving party. United Fire & Cas. Co. v. Hixson Bros. Inc.,
453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory allegations are
insufficient to defeat summary judgment. Eason v. Thaler, 73 F.3d
1322, 1325 (5th Cir. 1996).
Exhaustion of Administrative Remedies
As an initial matter, a discrimination charge under Title VII
of the Civil Rights Act and the ADEA must be filed with the EEOC
within 300 days after the alleged discriminatory event. 29 U.S.C.
§ 633a(d); Aoyagi v. Straub Clinic & Hosp., Inc., 140 F. Supp. 3d
1043, 1052 (D. Haw. 2015). A “discrete act” such as failure to
promote is easy to identify; each incident of discrimination and
each

retaliatory

adverse

employment

decision

constitutes

a

separate actionable “unlawful employment practice.” Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Federal
jurisprudence has decided that:
There is a distinction between discrete acts of
discrimination
or
retaliation,
and
hostile
work
environment claims. A discrete act consists of an
unlawful practice that “occurred” on the day it
“happened,” which includes, for example, “termination,
failure to promote, denial of transfer, or refusal to
hire.” In comparison, hostile work environment claims
“are based on the cumulative effect of individual acts,”
“occur over a series of days or perhaps years and, in
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direct contrast to discrete acts, a single act of
harassment may not be actionable on its own . . .
Importantly, however, “discrete discriminatory acts are
not actionable if time barred, even when they are related
to acts alleged in timely filed charges.”
Aoyagi, 140 F. Supp. 3d at 1053 (citing Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21,(1993)).
In Aoyagi, the district court rejected the plaintiff’s
assertion that her age discrimination claim was timely based
on a continuing violation theory. Id. Similar to the facts in
the

case

at

bar,

the

plaintiff

in

Aoyagi

alleged

age

discrimination based on her manager’s comment that she was
not as “tech savvy” as younger co-workers. The court reasoned
that—assuming arguendo that her manager’s comments reflected
age

discrimination—the

statement

“hardly”

qualified

as

“sufficiently severe or pervasive to support a hostile work
environment claim on the basis of age discrimination.” Id. at
1054.
Here, Plaintiff’s EEOC Charge of Discrimination (“EEOC
Charge”) describes dates for discrimination that allegedly
occurred between May, 15, 2015 at the earliest and June 24,
2015 at the latest. Rec. Doc. 18-3, p. 130. The “particulars”
in the EEOC Charge refer to and allege Plaintiff’s May 15,
2015 application for promotion to assistant manager. This
Court rejects Plaintiff’s assertion in her Memorandum in
Opposition (Rec. Doc. 19) that the infraction referenced in

4

her EEOC Charge was a “continuation of events.” As a result,
only Plaintiff’s May 2015 application for promotion is to be
considered as actionable under a timely exhaustion of her
EEOC administrative remedies. 29 U.S.C. § 626(d)(1) (“No
civil action may be commenced by an individual under this
section

until

discrimination

60
has

days

after

been

filed

a

charge
with

the

alleging
Equal

unlawful

Employment

Opportunity Commission.”).
Age Discrimination Employment Act (“AEDA”)
A plaintiff bringing a discrimination claim pursuant to the
ADEA must prove, by a preponderance of the evidence that age was
the “but-for” cause of the challenged adverse employment action.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009). Claims
brought pursuant to the ADEA are to be analyzed under the threestep, burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell framework:
1) the employee must raise a genuine issue of material fact as to
each element of her prima facie case; then 2) the employer must
articulate

a

legitimate,

nondiscriminatory

reason

for

its

employment decision; finally, 3) the employee must raise a genuine
issue of material fact as to whether the employer's proffered
reason was merely a pretext for age discrimination. Medina v.
Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001).

5

Plaintiff’s initial burden to satisfy her prima facie case is
satisfied by a showing that 1) she belongs to the protected class,
2) she applied to and was qualified for a position for which
applicants were being sought, 3) she was rejected, and 4) another
applicant not belonging to the protected class was hired. Medina
v. Ramsey Steel Co., 238 F.3d 674, 682 (5th Cir. 2001).
Here, it is uncontested that Plaintiff, being 51 years old at
the time of her hire, is a member of the protected class. While
the Defendant attempts to deny a “rejection” of her application
for promotion, she was never promoted to the position of assistant
manager after she applied and this is most certainly a rejection
for our purposes. However, what remains unclear are the questions
of

Plaintiff’s

qualifications

for

the

position

of

assistant

manager, as well as who Defendant hired in lieu of Plaintiff that
was not a member of the protected class.
Objectively, Plaintiff meets the qualifications. “A prima
facie case is established once the plaintiff demonstrates that
objective employment qualifications have been met.” Id. at 681.
Subjective hiring criteria is to be engaged in the later stages of
analysis. She was promoted to shift leader in 2013—a position with
responsibilities that “direct the daily activities of the store
associate

team

in

the

absence

of

the

Store

Manager

and

the

Assistant Manager.” Rec. Doc. 18-2, 3. Unfortunately, neither
party has provided this court with information regarding who was
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hired as assistant manager in May 2015. Proceeding without this
information, this Court finds that plaintiff established a prima
facie case of age discrimination.
The

next

step

in

the

McDonnell

analysis,

requires

that

Defendant articulate a legitimate, nondiscriminatory reason for
its

decision

not

to

promote

Plaintiff.

Defendant

provides

summaries of four (4) performance evaluations completed by three
(3) different store managers, from 2013 – 2016. Rec. Doc. 18-2.
These evaluations reveal a consistent pattern that while Plaintiff
generally

met

termination,

expectations,
she

lacked

which

was

“urgency,”

sufficient
and

to

performed

avoid
below

expectations in productivity, communication, and exuded a general
sense of complacency.

See Rec. Doc. 18-2, 3-5. In particular,

store manager Woosley noted in his 2015 evaluation of Plaintiff
that he had not “seen the growth expected with Debra’s [Plaintiff]
advance to shift leader.” Id. The duties of an assistant manager
include and require much of the characteristics and traits that
Plaintiff’s evaluations document she lacked. These evaluations
were documented by four separate managers, some at different store
locations, and all have reoccurring themes. As a result, Defendant
has met its burden of articulating a legitimate non-discriminatory
reason for not promoting Plaintiff.
Thus, the burden now shifts to Plaintiff to raise genuine
issue of material fact(s) as to whether the Defendant’s proffered
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reasons are merely a pretext for age discrimination. Plaintiff has
offered no material facts to meet this burden. The remarks provided
by Plaintiff are insufficient. Remarks may serve as sufficient
evidence of age discrimination if they are: 1) age related, 2)
proximate in time to the employment decision, 3) made by an
individual with authority over the employment decision at issue,
and 4) related to the employment decision at issue. See Brown v.
CSC Logic, Inc., 82 F.3d 651, 655–56 (5th Cir.1996). However, the
alleged remarks by Defendant fail to qualify under the above
prerequisites. Plaintiff alleges that a prior store manager, Ed
Woosley, referred to her as “slow” and unable to perform certain
stocking tasks. However, slow is neither an age-related comment
nor was it made by an individual with authority over her promotion.
Ed Woosley was the store manager in 2013, when plaintiff received
her

promotion

to

shift

leader.

Not

only

does

this

negate

Plaintiff’s claims that Woosley discriminated against her because
of

age—she

Plaintiff
Honeycutt.

received
accredits

a

promotion

her

under

promotion

to

Woosley’s
district

leadership—
manager

John

Presumably, John Honeycut was the authority presiding

over Plaintiff’s non-promotion, not Woosley.
A review of the record demonstrates that Plaintiff has failed
to produce evidence raising a fact issue as to whether Defendant’s
reason was pretextual. Plaintiff has not offered prior experience
as an assistant manager. Plaintiff also fails to point to an
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individual that was hires as assistant manager in favor of her.
The one individual Plaintiff points to—Kenny Rogers—was hired in
October 2012, which is prior to Plaintiff’s applications for the
assistant manager position. 2 Rec. Docs. 19-1 and 19-3.
Intentional Infliction of Emotional Distress (“IIED”)
Under Louisiana law, Plaintiff has a high burden to overcome
to prevail on her claim for IIED. In Louisiana, “a plaintiff must
prove that (1) the conduct was extreme and outrageous; (2) the
emotional distress suffered was severe; and (3) the defendant
desired to inflict severe emotional distress or knew that severe
emotional distress would be certain or substantially certain to
result.” White v. Monsanto, 585 So.2d 1205, 1209 (La.1991). The
conduct must be “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community.” Nicholas v. Allstate Ins. Co., 765 So.2d 1017, 1022
(La.2000).
Louisiana

courts

have

denied

IIED

claims

for

much

more

indecent remarks than the Plaintiff alleges here. See Monsanto,
585 So.2d 1205 (La.1991)(Supreme Court of Louisiana held that a
one-minute outburst of profanity directed at three employees was
not such extreme and outrageous conduct as to give rise to recovery

2

Plaintiff alleges five (5) applications for assistant manager between 2013
and 2015. Rec. Doc. 19-1, 3.

9

for

intentional

Iturralde

v.

2013)(Comment

infliction

Shaw
about

Grp.,
an

of

emotional

Inc.,

512

employee's

F.

distress.);
App'x

Cuban

430

heritage

see

also

(5th

Cir.

did

not

demonstrate racial animus of an extreme or atrocious nature, as
required for employee to establish a claim against employer for
intentional infliction of emotional distress.).
“Recognition of a cause of action for intentional infliction of
emotional distress in a workplace environment has usually been
limited to cases involving a pattern of deliberate, repeated
harassment over a period of time.” Monsanto Co., 585 So. 2d 1205,
1210 (La. 1991). Plaintiff here alleges she was called “slow” by
her store manager. She also claims that she was not given certain
stocking responsibilities, and that these experiences caused her
to suffer emotional distress. Not only are these claims frivolous,
Plaintiff has offered no evidence of any actual damages suffered
aside from her own self-serving and conclusory statements. The
statements certainly do not meet the high burden set in order to
prevail on an IIED claim.

New Orleans, Louisiana, this 25th day of September, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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