Cole v. Family Dollar, Inc. et al
Filing
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MEMORANDUM OPINION. Signed by Judge Paula Xinis on 8/10/2018. (jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
FAY COLE,
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Plaintiff,
v.
FAMILY DOLLAR STORES OF
MARYLAND, INC.,
Civil Action No. PX-17-0393
Defendant.
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MEMORANDUM OPINION
Pending before the Court in this employment discrimination action is Defendant’s
Motion for Summary Judgment. ECF No. 44. The matter has been fully briefed, and no hearing
is necessary. See D. Md. Loc. R. 105.6. Upon consideration of the parties’ arguments, the Court
GRANTS Defendant’s Motion for Summary Judgment.
I.
BACKGROUND
On October 4, 2012, Defendant Family Dollar, Inc. (“Family Dollar”) hired Plaintiff Fay
Cole as a cashier at the Family Dollar store located at 4848 Addison Road South, Capitol
Heights, Maryland. ECF No. 17 ¶ 5. Cole suffers from a psychiatric condition and from
arthritis in her back and knees. ECF No. 17 ¶ 6. Prior to her hiring, Cole was interviewed by the
store’s manager, a woman whose name she cannot remember. ECF No. 17 ¶ 7; ECF No. 45 at
5–6 (Cole Dep. 72:20–73:2). Although Cole did not discuss her medical conditions with the
manager during the interview, she wore a brace on her knee to the meeting. ECF No. 45 at 6
(Cole Dep. 73:3–17). At some point after she was hired, Cole discussed her psychiatric
condition with the unnamed manager, and was given medical leave for a hospitalization. ECF
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No. 45 at 6–7 (Cole Dep. 73:18–74:10). Cole did not work during her hospitalization, which
lasted from November 1, 2012, until November 20, 2012. ECF No. 45 at 22–12 (Cole Dep.
82:19–83:8).
On or about November 4, 2012, during Cole’s hospital stay, Family Dollar assigned
Tiffanii Thompson to be the store manager for the Capitol Heights location. ECF No. 44-6 at 3
(Neely Aff. ¶ 8). Cole stated that, after she returned to work, Thompson made disparaging
remarks about Cole’s age. ECF No. 52-1 at 5 (Cole Dec. ¶ 8). Cole also stated that Thompson
spoke about her desire to hire younger workers, and that instead of assigning Cole additional
work hours when Cole requested them, Thompson hired a younger employee and then cut Cole’s
hours. ECF No. 52-1 at 5 (Cole Dec. ¶ 8).
Cole reported Thompson’s comments to a district manager, Marsha Walker, and
subsequently complained to Family Dollar’s Human Resources department in early January
2013. ECF No. 52-1 at 5 (Cole Dec. ¶ 9). After Cole complained, Walker held a meeting with
Cole and Thompson, during which Walker “scolded” Cole for her complaint, but took no action
to remedy Cole’s concerns. ECF No. 52-1 at 5 (Cole Dec. ¶ 10). As a result of her complaint,
Cole contends that Thompson retaliated against her by not assigning Cole shift hours and then by
terminating her employment on January 21, 2013. See ECF No. 45 at 34 (Cole Dep. 176:7–10).
Family Dollar contends that Thompson did not reduce Cole’s hours, but rather increased
them as Cole requested. Family Dollar further contends that Cole was fired for excessive
absences from work, specifically six unexcused absences in the two months after she returned in
late November, the final two of which occurred on January 18 and 19, 2013.1 The Family Dollar
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Cole disputes that she was scheduled to work on January 18 and 19, 2013. Cole bases this contention on
apparently incomplete information; the record—including audited timekeeping records submitted by Family
Dollar—supports that Cole was in fact scheduled to work both days. See ECF No. 44-6 ¶¶ 6, 7; ECF No. 56-2 at 7,
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attendance policy, as memorialized in the employee handbook, requires that an employee “speak
with his/her Manager daily if for any reason he/she is going to be late or absent.” ECF No. 45 at
44. Cole was aware of this requirement. ECF No. 45 at 8–9 (Cole Dep. 75:19–76:6). It is also
Family Dollar policy that an employee may be fired for a single unexcused absence from work.
ECF No. 44-4 at 9 (Family Dollar Dep. 57:2–8).
The record reflects that Thompson fired twelve employees for absenteeism in the
approximately one year she spent as manager of the Capitol Heights store, including Cole. ECF
No. 44-6 at 3 (Neely Aff. ¶ 8). Of the employees fired, nine were under the age of 40 and three,
including Cole, were over the age of 40. ECF No. 44-6 at 3 (Neely Aff. ¶ 8). Of those twelve
fired employees, Cole was the only employee who requested an accommodation2 or who
complained of discriminatory treatment. See ECF No. 44-6 at 4 (Neely Aff. ¶ 9).
On February 14, 2013, Cole filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”). ECF No. 44-7. Cole subsequently filed suit in this Court,
alleging age discrimination in violation of the Age Discrimination in Employment Act, 29
U.S.C. §§ 623 et seq. (“ADEA”) and analogous provisions of the Prince George’s County Code
(Counts I & II), and disability discrimination in violation of the Americans with Disabilities Act,
42 U.S.C. §§ 12101 et seq. (“ADA”) and the Prince George’s County Code (Counts III & IV).
See ECF No. 17. Family Dollar moves for summary judgment on all counts. ECF No. 44. For
the following reasons, the Court grants Family Dollar’s motion.
44, 45, 52. Thus the Court does not credit Cole’s contention regarding these shifts because it is “blatantly
contradicted by the record.” See Scott v. Harris, 550 U.S. 372, 380 (2007).
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Family Dollar disputes whether Cole requested accommodations. This factual dispute is immaterial to the
summary judgment analysis.
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II.
STANDARD OF REVIEW
Summary judgment is appropriate when the Court, construing all evidence and drawing
all reasonable inferences in the light most favorable to the non-moving party, finds no genuine
dispute exists as to any material fact, thereby entitling the movant to judgment as a matter of law.
Fed. R. Civ. P. 56(a); see In re Family Dollar FLSA Litig., 637 F.3d 508, 512 (4th Cir. 2011).
Summary judgment must be granted “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In
responding to a proper motion for summary judgment,” the opposing party “must present
evidence of specific facts from which the finder of fact could reasonably find for him or her.”
Venugopal v. Shire Labs., 334 F. Supp. 2d 835, 840 (D. Md. 2004), aff’d sub nom. Venugopal v.
Shire Labs., Inc., 134 F. App’x 627 (4th Cir. 2005) (citing Anderson v. Liberty Lobby, 477 U.S.
242, 252 (1986); Celotex, 477 U.S. at 322–23)). The “mere existence of a scintilla of evidence in
support” of the party opposing summary judgment is insufficient to defeat the motion. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Genuine disputes of material fact are not
created “through mere speculation or the building of one inference upon another.” Othentec Ltd.
v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th
Cir. 1985)). Where a party’s statement of a fact is “blatantly contradicted by the record, so that
no reasonable jury could believe it,” the Court credits the record. See Scott v. Harris, 550 U.S.
372, 380 (2007).
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III.
DISCUSSION
A. Claims Under the Prince George’s County Code
As an initial matter, Family Dollar contends that Cole’s claims brought pursuant to the
Prince George’s County Code are time-barred. The Court agrees. Such claims must be filed in
court within two years of the alleged discriminatory act. Md. Code, State Gov’t § 20–
1202(c)(1); see Olawole v. ActioNet, Inc., 258 F. Supp. 3d 694, 707 (E.D. Va. 2017). It is
undisputed that Cole’s relationship with Family Dollar ended on the date of her termination:
January 21, 2013. Therefore, any action related to Cole’s case must have been filed by January
21, 2015. Cole did not bring this action until February 10, 2017—more than four years after the
termination of her employment. See ECF No. 1. Accordingly, all claims involving violations of
the Prince George’s County Code are time-barred.
Cole urges this Court to find her claims are equitably tolled. ECF No. 56 at 32. Cole is
“entitled to equitable tolling only if [s]he shows (1) that [s]he has been pursuing [her] rights
diligently, and (2) that some extraordinary circumstance stood in [her] way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005) (internal quotation marks omitted).
Cole states that she diligently pursued her rights by filing her complaint with the EEOC.
ECF No. 56 at 32. While it may be true that Cole “did not sleep on her charge” in regard to her
EEOC complaint, the state claims are a different matter. Limitations bars relief even when a
plaintiff is awaiting the result of an administrative decision. Olawole, 258 F. Supp. 3d at 707;
see Ward v. STG Int’l, Inc., No. PWG-14-4040, 2016 WL 3257823, at *6 n.5 (D. Md. June 14,
2016) (noting no basis for tolling due to administrative filings); Westmoreland v. Prince
George’s Cty., No. TDC-14-821, 2015 WL 996752, at *13 (D. Md. March 4, 2015) (no
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provision in the Maryland Fair Employment Practices Act tolls the statute of limitations during
the administrative process). Thus, Cole fails to meet the first prong for equitable tolling.
Cole also cannot demonstrate that extraordinary circumstances suspend the limitations
period. Although Cole’s initial pro se status, illness, and loss of housing in the six months
following her termination from Family Dollar are all undoubted actual impediments to pursuing
a claim, ECF No. 52 at 32–33, they do not justify equitable tolling. “Equitable tolling is
typically reserved for situations when the claimant has diligently pursued her judicial remedies
by filing a pleading, albeit defective, during the statutory period or where the claimant’s failure
to timely file was induced by her adversary’s misconduct.” Davis v. Montgomery Cty. Dep’t of
Trasp., Civil No. JFM-11-2637, 2012 WL 748392, at *6 (D. Md. March 6, 2012) (citing Irwin v.
Dept. of Veterans Affairs, 498 U.S. 89, 90 (1990)). “When an employee is generally aware of
her rights, ignorance of specific legal rights or failure to seek legal advice should not toll the
limitation period.” Id. at *7 (quoting McClinton v. Alabama By-Prods. Corp., 743 F.2d 1483,
1486 (11th Cir.1984) (marks omitted). “Principles of equitable tolling do not extend to garden
variety claims of excusable neglect.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003).
Here, Cole filed her discrimination claim with the EEOC within a month of her firing.
See ECF No. 44-7. Accordingly, she demonstrated a general awareness of her rights, but chose
not to pursue her state claims in parallel to her EEOC administrative complaint. Moreover, no
record evidence supports that Family Dollar induced Cole—through misconduct or otherwise—
to miss her filing deadline. Cole also readily admits that she was attentive to the status of her
EEOC claim, even while experiencing personal hardships. ECF No. 52 at 32.
That leaves open the significance of Cole’s mental illness. “Equitable tolling is
appropriate only in exceptional circumstances of profound mental incapacity.” Vinson v.
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Hershberger, No. DKC-09-2271, 2010 WL 458480, at *2 (D. Md. February 3, 2010) (citing
United States v. Sosa, 364 F.3d 507, 513 (4th Cir. 2004)); see also Arbas v. Nicholson, 403 F.3d
1379, 1381 (Fed. Cir. 2005) (equitable tolling for mental illness is appropriate if the infirmity
rendered the party incapable of rational thought or deliberate decision-making, or rendered the
party incapable of handling his own affairs or unable to function in society). “A mental
condition that burdens but does not prevent” timely filing “does not amount to an extraordinary
circumstance warranting equitable tolling.” Vinson, 2010 WL 458480, at *2. Without
discounting Cole’s hardships, the Court notes no further stays in the hospital after November
2012 or any other incidents that may have prevented Cole from filing her complaint. Cole also
timely filed her EEOC complaint and followed its progress diligently. Cole’s challenges do not
rise to the level sufficient to trigger the exception. See CVLR Performance Horses, Inc. v.
Wynne, 792 F.3d 469, 476 (4th Cir. 2015) (equitable tolling is an extraordinary remedy reserved
for rare instances where enforcement of the limitation period would be unconscionable and gross
injustice would result). Accordingly, Cole’s claims invoking the Prince George’s County Code
are time-barred, and to the extent Cole seeks recovery under the Code in Counts I–IV of her
Amended Complaint, summary judgment is granted in Family Dollar’s favor.
B. ADA and ADEA Claims
The Court next turns to Cole’s disability claims brought under the ADA, and her age
discrimination claims under the ADEA.
1. Exhaustion
Briefly, the Court notes that the parties dispute whether Cole properly exhausted her
claims. Exhaustion by filing a charge with the EEOC is a necessary prerequisite to pursuing
claims in this Court. Balas v. Huntington Ingalls Indus., Inc., 711 F. 3d 401, 406 (4th Cir. 2013).
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Where the plaintiff has failed to exhaust administrative remedies, this Court lacks subject matter
jurisdiction over the claims. See Brown v. Target, Inc., No. 14-00950, 2015 WL 2452617, at *5
(D. Md. May 20, 2016) (internal quotations omitted). The Court “may only consider those
allegations included in the EEOC charge.” Balas, 711 F. 3d at 407. That said, because “EEOC
charges often are not completed by lawyers,” the charges “must be construed with utmost
liberality.” Brown, 2015 WL 2452617, at *5 (quoting Balas, 711 F. 3d at 408) (internal
quotation marks omitted).
In her EEOC charge, Cole marked the boxes for “age,” “disability,” and “retaliation.”
ECF No. 44-7. Cole alleges that her hours were reduced and given to a younger employee, and
that she was fired in retaliation for complaining to Walker. See ECF No. 44-7. Although Cole
does not mention her mental illness in particular, the Court can conclude that claims premised on
Cole’s mental illness are reasonably related to the EEOC charge and would be expected to
follow from an administrative investigation. See Smith v. First Union Nat. Bank, 202 F. 3d 234,
247 (4th Cir. 2000). This is of no great moment, however, because Cole’s claims fail on the
merits.
2. Discriminatory Discharge (Counts II & IV)
Cole claims that she was wrongfully discharged based on her age and disability. Cole’s
discriminatory discharge claims are governed by the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Royster v. Gahler, 154 F. Supp. 3d 206, 232
(D. Md. 2015); Webster v. Henderson, 32 F. App’x 36, 40–41 (4th Cir. 2002). To establish a
prima facie case of discrimination, a plaintiff must show (1) that the plaintiff was a member of
the relevant protected group; (2) that she suffered an adverse employment action; (3) that at the
time of the adverse employment action, the plaintiff was meeting her employer’s legitimate
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expectations; and (4) that the circumstances of her discharge raise a reasonable inference of
unlawful discrimination. See Young v. Giant Food Stores, LLC, 108 F. Supp. 3d 301, 318 (D.
Md. 2015); Connor v. Giant Food, Inc., 187 F. Supp. 2d 494, 495 (D. Md. 2002). If Cole
establishes a prima facie case of discrimination, Family Dollar must offer a legitimate, nondiscriminatory reason for her discharge. See Guessous v. Fairview Property Investments, LLC,
828 F.3d 208, 216–17 (4th Cir. 2016); Royster, 154 F. Supp. 3d at 232. In the event that Family
Dollar offers such a reason, Cole must then point to evidence sufficient to give rise to a genuine
dispute as to whether Family Dollar’s proffered reason is pretext for discrimination. See
Guessous, 828 F.3d at 216–17.
Viewing the record most favorably to Cole, no rational fact-finder could conclude that
she was fired because of her age or disability. Rather, the evidence demonstrates that she was
terminated for repeatedly violating Family Dollar’s attendance policy. When Cole returned to
work after her hospitalization and after Thompson had been assigned as store manager,3 Cole
accrued six unexcused absences in the two months immediately preceding her termination by
Family Dollar. ECF No. 44-6 at 3 (Neely Aff. ¶ 5). It is well-established that employers may
fire at-will employees who violate the employer’s attendance policy. See Ford v. Berry Plastics
Corp., Civil Action No. RDB-12-0977, 2013 WL 5442355, at *11 (D. Md. Sept. 27, 2013); see
also Brantley v. Nationwide Mut. Ins. Co., No. RDB-07-1322, 2008 WL 2900953, at *11 (D.
Md. July 22, 2008) (“Noncompliance with company policy is a legitimate, nondiscriminatory
reason for firing someone.”); Gibson v. Marjack Co., Inc., 718 F. Supp. 2d 649, 656 (D. Md.
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The Court notes Family Dollar’s contention that Family Dollar has no records granting Cole a leave of
absence for her stay in the hospital. ECF No. 44-1 at 5–6. However, for the purposes of this discussion, the Court
discusses only Cole’s absences from the time she returned from the hospital and started working under Thompson’s
management.
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2011) (“Violation of company policy has been recognized as a legitimate reason for terminating
an employee.”).
Thompson and Walker both testified that Cole was fired for excessive absences. ECF
No. 44-3 at 3 (Thompson-Sanders Dep. 25:3–9); ECF No. 44-5 at 3 (Walker Dep. 151:3–10).
The Court finds no evidence in the record to undercut this testimony or to indicate that Cole’s
firing had anything to do with her age or disability. “When an employer gives a legitimate, nondiscriminatory reason for discharging the plaintiff, it is not [the Court’s] province to decide
whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason
for the plaintiff’s termination.” Hawkins v. Pepsico, Inc., 203 F. 3d 274, 279 (4th Cir. 2000)
(quoting DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (internal quotation marks
omitted).4 Accordingly, Family Dollar is entitled to summary judgment on Counts II and IV.
3. ADA Claim—Failure to Accommodate (Count III)
Cole additionally claims that Family Dollar violated the ADA by failing to accommodate
her disability when it counted her absences during her hospitalization in November 2012 as
unexcused, and then firing her for those absences. To sustain this claim, Cole must demonstrate
that (1) Cole is a qualified individual with a disability; (2) her employer had notice of her
disability; (3) with a reasonable accommodation she could perform the essential functions of her
position; and (4) her employer refused to make that accommodation. Fierce v. Burwell, 101 F.
Supp. 3d 543, 549 (D. Md. 2015). “Implicit in the fourth element is the ADA requirement that
the employer and employee engage in an interactive process to identify a reasonable
accommodation.” Haneke v. Mid-Atl. Capital Mgmt., 131 F. App’x 399, 400 (4th Cir. 2005); see
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Cole points to Family Dollar hiring a new, younger employee as evidence of discriminatory animus. But
the Court cannot credit the inference of animus as plausible. Cole was still being assigned hours and called to fill-in
for absent employees in the weeks between her hospitalization and her firing. See ECF No. 45 at 32–33, 37 (Cole
Dep. 174:13–175:22, 180:1–10); ECF No. 44-1 at 115–137. Cole’s claim that Thompson made disparaging remarks
alone does not suffice. See Arthur v. Pet Dairy, 593 F. App’x 211, 220–22 (4th Cir. 2015).
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Wilson v. Dollar Gen. Corp., 717 F.3d 337, 346 (4th Cir. 2013). “The duty to engage in an
interactive process to identify a reasonable accommodation is generally triggered when an
employee communicates to [her] employer [her] disability and [her] desire for an
accommodation for that disability.” Wilson, 717 F.3d at 346–47.
Cole contends that, during her communications with the unnamed Family Dollar store
manager, she made known that she needed to be hospitalized, and thus Family Dollar was
obligated to provide reasonable accommodations for her disability. According to Cole, she
provided paperwork to document her illness, and the store manager agreed to medical leave.
ECF No. 52-1 at 4 ¶ 5. Cole fails to provide any corroboration that she made Family Dollar
aware of her disability.5 That said, it appears from the record that Family Dollar effectively
granted Cole an accommodation in November, counting her absences as “unexcused” but not
“unscheduled” in its records. ECF No. 52 at 27; see ECF No. 52-2 at 119. Regardless, Cole was
allowed to return to work after her absences in November, and later was terminated for
additional, subsequent absences. See ECF No. 44-6 at 3 (Neely Aff. ¶ 5); ECF No. 52-2 at 119.
Because Cole was not denied a reasonable accommodation for her disability, summary judgment
as to Count III of Cole’s Amended Complaint is appropriate.
C. Retaliation Claim (Count I)
Cole also claims that her hours were cut and she was fired in retaliation for complaining
of age discrimination in violation of the ADEA. ECF No. 17 at ¶¶ 18–19. The retaliation claim
is subject to the same burden-shifting framework as the discriminatory discharge claims. See
Strothers v. City of Laurel, 895 F.3d 317, 327 (4th Cir. 2018); see also Ullrich v. CEXEC, Inc.,
233 F. Supp. 3d 515, 524, 533–34 (E.D. Va. 2017); Staley v. Gruenberg, 575 F. App’x 153, 155
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The Court notes Family Dollar’s policy that a leave of absence like the one Cole supposedly requested
cannot be approved by a store manager but rather it must be approved by Family Dollar’s Corporate Human
Resources Department. ECF No. 44-6 at 3 (Neely Aff. ¶ 4).
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(4th Cir. 2014). To establish a prima facie case of retaliation, a plaintiff must demonstrate that
(1) she engaged in protected activity; (2) the defendant took an adverse action against her, and
(3) a causal link exists between the two actions. See Strothers, 895 F.3d at 327; Royster, 154 F.
Supp. 3d at 234.
Viewing the evidence most favorably to Cole, Cole cannot demonstrate that Family
Dollar retaliated against her after she complained. After Cole met with Walker and Thompson,
Thompson continued to schedule Cole for shifts, including asking Cole to fill in for other
employees. Cole met with Walker and Thompson in early January of 2013. ECF No. 56-1 at 12
(Cole Dep. 173:3–5). In the last week of December and first week of January, Cole worked
14.22 hours. ECF No. 56-1 at 12 (Cole Dep. 173:9–14). Between January 6, 2013, and January
12, 2013, Cole worked 12.92 hours. ECF No. 56-1 at 13 (Cole Dep. 174:16–22). The following
week she worked 8.68 hours, ECF No. 56-1 at 15 (Cole Dep. 175:13–15), and missed two
scheduled shifts totaling 11 hours. Had Cole worked those shifts, she would have worked more
hours than she had in the preceding weeks. The record does not support that Cole’s hours were
cut after her meeting with Walker and Thompson.
As to a retaliation claim based on her termination, Cole has not rebutted Family Dollar’s
evidence that she was fired for absenteeism. Cole was absent from work six times over two
months without justification or proper notice. This provides Family Dollar an uncontroverted
legitimate and nonpretextual reason to terminate Cole’s employment. Further, no evidence
supports Cole’s conspiracy theory that Walker and Thompson concocted a plan to fire Cole after
she complained. ECF No. 52 at 24; see Othentec Ltd., 526 F.3d at 140. Accordingly, summary
judgment as to Count I is granted in Family Dollar’s favor.
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IV.
CONCLUSION
Based on the forgoing, Family Dollar’s Motion for Summary Judgment is GRANTED.
A separate Order follows.
8/10/2018
Date
/S/
Paula Xinis
United States District Judge
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