Hart v. St. Joseph School District et al

Filing 41

ORDER - the Court GRANTS Defendant Opaa! Food Management, Inc.'s (Opaa!) Motion for Summary Judgment 27 and DENIES Plaintiff's Motion to Allow Time for Discovery Under Rule 56(d) 32 . Signed on 3/24/17 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
KRISTEN HART,
Plaintiff,
vs.

OPAA! FOOD MANAGEMENT, INC.
Defendant.

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) No. 15-6159-CV-SJ-FJG
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ORDER
Currently pending before the Court is Defendant Opaa! Food Management, Inc.
(“Opaa!’s”) Motion for Summary Judgment (Doc. #27), and Plaintiff’s Motion to Allow
Time for Discovery Under Rule 56(d) (Doc.# 33).
I. BACKGROUND
Defendant Opaa! submitted a statement of uncontroverted facts in support of its
Motion for Summary Judgment. In plaintiff’s Memorandum in Support of Motion to Allow
Time for Discovery and in Opposition to Opaa!’s Summary Judgment motion, plaintiff
does not controvert any of the facts cited by Opaa!x or offer any additional facts.
Accordingly, the Court will rely on the facts cited in Opaa!’s motion.
Plaintiff began employment with the St. Joseph School District in 1999. In 1999,
plaintiff was a kitchen manager for an elementary school cafeteria. In this role, plaintiff
managed the operations of the cafeteria and the staff. For most of plaintiff’s tenure, her
direct supervisor was the School District’s Nutrition Department Supervisor. However,
since the beginning of the 2013-2014 school year, that position had been vacant. In late

October 2013 and early November 2013, Opaa! entered into a contract with the School
District to provide services related to the management of the District’s cafeterias and
food service operations. After Opaa! began working with the District, Tonya McCrea
was appointed as Opaa!’s Director of Nutritional Services, and became plaintiff’s direct
supervisor. On September 23, 2013, the school principal sent an email to plaintiff
regarding concerns she had about kitchen operations, including complaints made by
parents and referencing prior complaints. On September 30, 2013, the principal sent
another email to plaintiff regarding a complaint from a parent that a cafeteria worker had
taken food away from her child. On December 6, 2013, the principal sent another email
to plaintiff, copying Ms. McCrea, complaining about how dirty the lunchroom tables
were. On February 24, 2014, Ms. McCrea emailed the principal regarding concerns
related to plaintiff’s attendance, the frequency of her leaving the building to go to her car
and indicating that she intended to take written disciplinary action regarding these
issues. On March 17, 2014, plaintiff left work for a doctor’s appointment without
requesting leave or reporting her need to leave, in violation of policy. On March 18,
2014, plaintiff was issued a written disciplinary notice due to her excessive absences.
On August 18, 2014, Ms. McCrea emailed plaintiff a written follow up to a conversation
that had occurred that morning regarding a number of concerns with plaintiff’s kitchen.
Some of the concerns related to fruit being served with stickers on it, employees not
wearing hairnets, clothing violations and failure of a team member to attend a required
meeting. On August 22, 2014, plaintiff was presented with and signed a Performance
Improvement Plan. The plan indicated that plaintiff needed to improve her performance
in managerial tasks, ability to manage her staff and her attendance. During the meeting,

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plaintiff informed Ms. McCrea that she would be absent on the next business day,
August 25, 2014 for a doctor’s visit that she had previously known about. Employees
were required pursuant to Opaa! and District policy to provide seven days’ notice for
non-emergency medical appointments. On August 24, 2014, the principal and Ms.
McCrea spoke to plaintiff regarding missing money that had been sent in for a child’s
lunch, but was not deposited for that purpose. On August 25, 2014, plaintiff was issued
a written warning for violation of district and Opaa! policy regarding the missing money.
On September 12, 2014, an employee in plaintiff’s kitchen, approached the assistant
director of nutrition regarding plaintiff’s treatment of her. The employee was quite upset
and expressed dissatisfaction with plaintiff’s management, including inconsistencies in
instructions given by plaintiff. On September 17, 2014, plaintiff failed to properly
complete her inventory for milk, bread and produce. This resulted in another written
disciplinary action which mentioned plaintiff’s previous problems with conducting
inventory. On September 18, 2014, Ms. McCrea, the principal, and district
administration employees participated in an email exchange regarding plaintiff’s
ongoing performance problems, noting that just that morning the cafeteria had run out of
a breakfast item. On September 18, 2014, Ms. McCrea, the assistant director of
nutrition and the principal met with plaintiff and informed her that she was being
demoted from kitchen manager to a “line” staff employee and that her pay was being
decreased. Plaintiff was transferred to a high school so that she would not have to work
with her prior subordinates at the elementary school. Plaintiff worked at the high school
cafeteria for approximately two weeks when she took a leave of absence for medical
treatment. After returning only very briefly, plaintiff resigned her position with the district

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on November 3, 2014.
Plaintiff in her resignation letter stated that she had been treated unfairly since
Opaa! came to the District and that Ms. McCrea “had it out for her.” The resignation
letter did not mention age or allege that she had been treated badly because of her age.
When questioned as to why Ms. McCrea had it out for her, plaintiff testified, “I don’t
know if it was my age, if she wanted younger people in there, if she wanted people to – I
don’t know exactly why. If she just didn’t like me personally. I wasn’t sure. I just felt that
way, that she just didn’t get along with me for some reason.” Plaintiff testified that she
believed that her replacement, was approximately thirty-six years of age. Plaintiff was
forty-five years of age at the time of her resignation. Plaintiff alleged that there were five
other employees who were demoted or terminated and replaced by younger employees.
However, plaintiff did not know why any of the five women were demoted and that it was
“just [her] opinion” that they were demoted because of their age. Plaintiff could only
provide first and last names of two employees allegedly demoted and replaced by
younger employees. Plaintiff provided only the first names and schools worked at for
the other three employees.
Plaintiff testified that at the time of her resignation, her working conditions were
not intolerable. Plaintiff testified that she had no evidence, documents or statements or
information of any sort that could support her belief that age was a factor in her
demotion. Plaintiff testified that no district employee or Opaa! employee ever told her
that she was demoted because of her age nor did anyone ever mention her age in any
way.

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II. STANDARD
A moving party is entitled to summary judgment on a claim only if there is a
showing that Athere is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.@ Fed.R.Civ.P. 56(c). A[T]he substantive law
will identify which facts are material. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.@ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). If the moving party meets this requirement, the burden shifts to the
non-moving party to Aset forth specific facts showing that there is a genuine issue for
trial.@ Anderson, 477 U.S. 242, 248 (1986). In Matsushita Electric Industrial Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the
Court emphasized that the party opposing summary judgment Amust do more than
simply show that there is some metaphysical doubt as to the material facts@ in order to
establish a genuine issue of fact sufficient to warrant trial. In reviewing a motion for
summary judgment, the court must view the evidence in the light most favorable to the
non-moving party, giving that party the benefit of all inferences that may be reasonably
drawn from the evidence. Matsushia, 475 U.S. 574, 588; Tyler v. Harper, 744 F.2d 653,
655 (8th Cir. 1984), cert. denied, 470 U.S. 1057 (1985).
III. DISCUSSION
A. Plaintiff’s Motion For Additional Time for Discovery
Plaintiff filed her Petition in the Circuit Court of Buchanan County on October 9, 2015.
Defendants removed the case to federal court on November 16, 2015. On February 5,
2016, the parties conducted their Fed.R.Civ.P. 26 conference. On February 8, 2016,

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plaintiff served her first requests for discovery to Opaa! and the School District. On
February 18 and 19, 2016, Opaa! and the School District served their initial Rule 26
disclosures. Plaintiff served her disclosures on February 22, 2016. On February 24,
2016, the School District served supplemental Rule 26 disclosures. The Court entered
a Scheduling and Trial Order on February 25, 2016 setting December 16, 2016 as the
date for the close of discovery. On March 30, 2016, Opaa! served responses to
plaintiff’s discovery requests. On April 8, 2016, the School District filed its responses to
plaintiff’s discovery requests. Plaintiff’s deposition was taken on April 22, 2016. Opaa!
filed its Motion for Summary Judgment on June 7, 2016. On June 30, 2016, plaintiff
filed her Motion Seeking Additional Time for Discovery and Suggestions in Opposition to
the Motion for Summary Judgment. In the motion, plaintiff acknowledges that the
parties have engaged in written discovery, have mediated the case and defendants
have deposed her. Plaintiff also states that shortly after the mediation, she reached a
settlement with the School District.
However, plaintiff states that additional discovery is necessary on the following
issues: 1) Plaintiff’s employment relationship with Opaa!; 2) the relationship between
Opaa! and the School District and whether Opaa! exercised oversight or control over
her employment; 3) the names and salaries of all employees working in food service in
St. Joseph schools between 2012 and 2015; 4) depositions of Tonya McCrea, Director
of Nutrition Services; Linda Schaiffer, Assistant Director of Nutrition Services; Craig
Cohen, Senior Vice-President of Operations for Opaa! and Dan Colgan, Superintendent
of Schools for the District. Plaintiff states that this discovery is necessary to show
Opaa!’s liability as a “joint” employer with the District and also to show that Opaa!

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engaged in a “pattern and practice of age discrimination.” Attached to her Motion is an
affidavit of plaintiff’s attorney which states as follows: “1. Additional discovery as
outlined in the Memorandum . . .is necessary to afford Plaintiff the adequate opportunity
to discover facts as outlined in the aforementioned Memorandum, to present her claim
for damages. 2. It is affiant’s belief that the information sought is in fact discoverable
through discovery, but is not yet available to Plaintiff to produce in response to the
pending Motion for Summary Judgment due to the early nature of the discovery process
in this litigation.”
Fed.R.Civ.P. 56(d) states “[i]f a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential to justify its opposition, the court
may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other appropriate order.” Courts have
noted that Rule 56(d) “should be applied with a spirit of liberality.” United States ex rel.
Bernard v. Casino Magic Corp., 293 F.3d 419, 426 (8th Cir. 2002). “Although Rule
56(d), ‘is not a shield that can be raised to block a motion for summary judgment
without even the slightest showing by the opposing party that his opposition is
meritorious.’” Jacobs v. PT Holdings, Inc., No. 8:11CV106, 2012 WL 705772, *2 (D.Neb.
Mar. 2, 2012)(quoting Wilmar Poultry Co. v. Morton-Norwich Prods., Inc., 520 F.2d 289,
297 (8th Cir. 1975)); see also Gardner v. Howard, 109 F.3d 427, 431 (8th Cir.
1997)(“Rule 56(f) does not condone a fishing expedition.”). In Elkins v. Medco Health
Solutions, Inc., No. 4:12CV2141TIA, 2014 WL 1663406, *9 (E.D.Mo. Apr. 25, 2014), the
Court stated:
“To obtain a continuance under [Rule 56(d) ], the movant must show good
reason for being unable to present facts essential to its response.”
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Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046, 1055 (8th
Cir.2007). Mere speculation that the nonmoving party controls relevant
facts is an insufficient basis for a Rule 56(d) continuance. Davis v. G.N.
Mortg. Corp., 396 F.3d 869, 885 (7th Cir. 2005). In addition, a plaintiff who
has been “dilatory in pursuing discovery” is generally not entitled to a Rule
56(d) continuance. Snyder v. Livingston, 2012 WL 32984, at *2 (N.D.Ind.
Jan. 5, 2012); accord Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1005
(9th Cir. 2002) (“The failure to conduct discovery diligently is grounds for
denial of a [Rule 56(d)] motion.”).
Id. at *9.
Opaa! raises numerous reasons why the Motion for a Continuance should be
denied, such as failure to comply with the affidavit requirement by having counsel
submit the affidavit instead of presenting her own affidavit, irrelevancy of the discovery
to her claims and the assertion of novel theories which would be barred because they
were not raised in her charge of discrimination. Additionally, Opaa! states that plaintiff
has had ample opportunity to discover facts relating to her employment relationship and
any other facts would be best known by her.
The Court notes that plaintiff did not file Reply Suggestions or respond to any of
Opaa!’s arguments regarding the Motion for a Continuance. The Court does not find
that this is a situation where plaintiff has had no opportunity to conduct discovery.
Rather, as noted above, this case was removed in November 2015, and the parties
conducted their Rule 26 conference and exchanged discovery requests in early
February 2016. The Scheduling and Trial Order was entered on February 25, 2016,
which gave the parties until December 16, 2016 to complete discovery. Thus, plaintiff
had over four months from the time the parties conducted their Rule 26 conference until
June 2016, when Opaa! filed its Motion for Summary Judgment. Plaintiff offers no
explanation for why she could not have noticed the depositions of the employees of

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Opaa! and the School District during this time period or why she could have not
submitted additional interrogatories or requests for production to defendants seeking the
names and salaries of the other food service workers. Plaintiff could have conducted the
discovery described above, filed a motion for an extension of time to respond to the
Motion for Summary Judgment and sought leave to supplement her response to the
Motion for Summary Judgment. Thus, the Court finds that plaintiff has failed to offer an
explanation as to why she couldn’t have conducted the discovery she seeks in the time
period between February and June 2016. Additionally, the Court also finds that the
reasons advanced by plaintiff do not justify granting such a continuance.
Plantiff states that further discovery is necessary on the issue of her employment
relationship with Opaa!. Plaintiff states that Opaa! has alleged that she was not their
employee and that further discovery is necessary regarding the business relationship
between Opaa! and the School District because they could be considered a “joint
employer.” She states that she needs additional discovery to establish the amount of
oversight and involvement Opaa! had as it related to her employment. Opaa! states
that plaintiff herself would be the most knowledgeable regarding her employment and
how much control and oversight Opaa! employees exercised over her. Plaintiff testified
in her deposition that she did not consider herself to be an Opaa! employee. Opaa!
states that plaintiff has had ample opportunity to provide further affidavit testimony
should she wish to do so and has had the benefit of written discovery from Opaa! and
the School District on this subject. Thus, the Court finds that plaintiff has failed to
identify any specific facts that she could obtain through additional discovery which
would demonstrate that Opaa! was her employer.

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Plaintiff also argues that she believes that “discovery of the names and salaries
of all employees working in food service schools that made up the St. Joseph, Missouri
School District from 2012 through 2015 is necessary to assist in demonstrating the
pattern and practice of the age discrimination that occurred.” (Motion for Continuance,
p. 4). Plaintiff makes this argument with regard to her claims for Age Discrimination
under the ADEA, MHRA and her claim for Constructive Discharge. The Court finds that
any discovery regarding the name and salaries of the food service workers would be
irrelevant to plaintiff’s claims for three reasons: 1) plaintiff has not raised a “pattern or
practice” claim; 2) demoting or firing workers simply due to the fact that they were paid
more is not illegal discrimination and 3) the information is not relevant to plaintiff’s
claims against Opaa!. First, as one commentator has noted, “[a] pattern or practice
claim is one type of systemic disparate treatment claim in which the plaintiff alleges that
an employer ‘regularly and purposefully’ engaged in discrimination against a class of
employees protected by Title VII. . . .Moreover, private plaintiffs asserting a pattern or
practice of discrimination under Title VII generally seek class-wide relief and, therefore,
must seek certification under Federal Rule of Civil Procedure 23.”1 In the instant case,
plaintiff has not asserted a class action pattern or practice type of claim. Instead, she
has only brought a disparate treatment claim against Opaa! and the District on her own
behalf. Additionally, Opaa! argues plaintiff failed to assert any type of pattern and
practice claim in her charge of discrimination, so even if she were attempting to make
such a claim, she has failed to exhaust her administrative remedies regarding this claim
because she did not raise it in her charge of discrimination.
1

A. Morrison, Duke-ing Out Pattern or Practice After Wal-Mart: The EEOC As Fist, 63
Am.U.L.Rev. 87, 93 (Oct. 2013).
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Secondly, any evidence relating to the salaries of other workers would not show that
Opaa! discriminated against plaintiff on the basis of her age. Hazen Paper Co. v.
Biggins, 507 U.S. 604, 613 (1993)(“Because age and years of service are analytically
distinct, an employer can take account of one while ignoring the other, and thus it is
incorrect to say that a decision based on years of service is necessarily ‘age based.’”);
Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1125-26 (7th Cir.1994)(“[Plaintiff]
could not prove age discrimination even if he was fired simply because [Employer]
desired to reduce its salary costs by discharging him.”); Schroeder v. Shawano County,
870 F.Supp.2d 622, 630 (E.D.Wis. 2012)(Plaintiff alleged that the County treated her
differently than younger employees to save money, but this is not actionable under
ADEA.); (Williams v. City of New York, No. 12:CIV8518(RJS), 2014 WL 1383661, *11
(S.D.N.Y. Mar. 26, 2014), aff’d, 602 Fed.Appx. 28 (2015)(same). Thus, the Court finds
that granting a continuance to allow plaintiff time to request the names and salaries of
all food service employees in the district would not support her claim that she was
terminated because of her age, because “while seniority may be ‘empirically correlated’
with age, it is ‘analytically distinct’, such that discrimination on the basis of the former
does not necessarily constitute discrimination on the basis of the latter. . . .An employer
who fires an employee solely to save money . . .does not, for that reason alone, engage
in age discrimination under the ADEA.” Williams, Id. at *11(quoting Hazen, 507 U.S. at
608-110).
Finally, the Court also finds that such a continuance is not necessary because any
evidence of the names and salaries of the other food service workers is not relevant to
plaintiff’s claims against Opaa!. Opaa! states that it has never been accused of having

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paid or set the salaries for any district employees. Opaa! did not even begin working in
the District until late 2013. The Court agrees and finds that this information is not
relevant to plaintiff’s claims against Opaa!. Thus, because plaintiff has had ample time
to conduct the requested discovery and has failed to offer any reasons why she could
have obtain the requested information and also because the information requested is
not relevant to plaintiff’s claims against Opaa!, there is no basis on which to grant the
Motion for a Continuance. Thus, the Court finds that Opaa!’s Motion for Summary
Judgment is ripe for consideration and will proceed to consider it.
B. Defendant’s Motion for Summary Judgment
1. Can Opaa! Be Considered Plaintiff’s Employer ?
Opaa! argues that summary judgment should be granted in its favor because while it is
an employer as that term is defined in by the ADEA and the MHRA, Opaa! was never
plaintiff’s employer. Plaintiff was hired by the School District in 1999, she was at all
times paid by the district and Opaa! did not issue her tax documents or pay employment
taxes for her. Opaa! also states that it lacked the authority to hire, fire, promote or
demote plaintiff. Plaintiff also stated in her deposition that she did not consider herself
to be an employee of Opaa!.
In Diaz v. Autozoners, 484 S.W.3d 64 (Mo.App.2015), the Court notes that the
MHRA defines “employer” as “any person employing six or more persons within the
state, and any person directly acting in the interest of an employer.” Mo.Rev.Stat. §
213.010(7). “Person” for purposes of the statute “acting directly in the interest of an
employer” has been defined to include both individuals and corporations. Mo.Rev.Stat.
§ 213.010(14). In Diaz, the Court stated that when applying the economic realities test

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in the context of the MHRA, it must be modified to account for the statutory requirement
that an entity that is not the employer-in-fact “directly act[s] in the interest of” the
employer-in-fact. Mo.Rev.Stat.§ 213.010(7). The Court stated that the following factors
should be considered:
(1) Who was responsible for establishing policies and training employees
concerning harassment; (2) who was responsible for receiving,
investigating, and responding to harassment complaints; and (3) who
had the power to discipline employees who may have failed to comply
with anti-harassment policies. These factors are relevant to determining
whether an entity may be properly considered an “employer” for
purposes of the MHRA, because it is only when these factors are present
that an entity can be deemed to be “directly acting in the interest of an
employer,” as that phrase has been interpreted in prior cases.

Diaz, 484 S.W.2d at 80. In Kossmeyer v. Lillibridge Healthcare Services, Inc., No.
4:14CV1748HEA, 2015 WL 1976273 (E.D.Mo. Apr. 30, 2015), the Court stated:
In determining whether a “joint employer” relationship exists, the Eighth
Circuit considers four factors: (1) interrelation of operations; (2) common
management; (3) centralized control of labor relationship; and (4) common
ownership or financial control. . . .No single factor is outcome
determinative.
Id. at *3 (internal citations omitted). The parties did not discuss any of the factors
referenced in either of the cases above or engage in any analysis of whether Opaa!
could be considered to be “acting in the interests of the employer” or considered a “joint
employer.” The Court need not make a determination on this issue and will for
purposes of considering the summary judgment motion assume that Opaa! was
plaintiff’s employer.
2. ADEA Claim
The ADEA makes it “unlawful for an employer . . .to discharge any individual or
otherwise discriminate against any individual with respect to his compensation, terms,
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conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §
623 (a)(1). Plaintiff can meet her burden of showing intentional discrimination through
either direct or indirect evidence.
In cases involving indirect evidence of age discrimination, courts apply the
burden shifting analysis set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). . . .Under the McDonnell Douglas framework,
Plaintiff must first establish a prima facie case of age discrimination. . . .To
establish a prima facie case of age discrimination, Plaintiff must show (1)
[s]he is a member of a protected age group; (2) [s]he was performing [her]
job at a level that met Defendant’s legitimate expectations; (3) [s]he was
terminated; and (4) [s]he was replaced by a younger person. . . .A plaintiff
may create an inference of age-based discrimination by showing that
similarly-situated employees outside the protected class were treated
more favorably. . . .However, to do so, a plaintiff must show that the other
employees were similarly situated in all relevant respects. . . .Individuals
used for comparison must have dealt with the same supervisors, have
been subject to the same standards, and engaged in the same conduct
without any mitigating or distinguishing circumstances. . . .If Plaintiff
establishes a prima facie case of age discrimination, then the burden of
production shifts to Defendant to articulate a legitimate, nondiscriminatory
reason for any adverse employment action taken against Plaintiff.
Gafford v. McDonald, No. 4:14-cv-01603-JAR, 2016 WL 7242159,*7-8, (E.D.Mo. Dec.
15, 2016)(internal citations omitted).
In the instant case, Opaa! argues that plaintiff has no direct evidence of
discrimination, so the Court must determine whether plaintiff has asserted a prima facie
claim of age discrimination. The parties do not contest that plaintiff is over the age of
forty and is thus a member of the protected age group. Opaa! argues however that
plaintiff cannot show that she was meeting the legitimate expectations of her position or
that she was replaced by a significantly younger person.
As discussed above, beginning in the fall of 2013, the principal sent emails to
plaintiff complaining about issues related to the lunch service and how students were
being served. Beginning in December 2013, the principal began copying Tonya McCrea
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regarding the complaints. In February, Tonya notified the principal that she is going to
give plaintiff a written warning. On March 18, 2014, plaintiff was issued a written
disciplinary notice due to her excessive absences. In April 2014, plaintiff failed to call in
before she left work for a doctor’s appointment. Issues with plaintiff’s performance
continued into the following school year. On August 18, 2014, Tonya McCrea emailed
plaintiff noting several concerns regarding service of the food, failure of kitchen staff to
wear hairnets and not wearing appropriate clothing and failing to ensure that a staff
member attended a meeting. On August 22, 2014, plaintiff was placed on a
Performance Improvement Plan. The plan stated that plaintiff needed to improve her
performance in managerial tasks, ability to manage staff and her attendance. During
the meeting on August 22, 2014, plaintiff informed Ms. McCrea and her assistant, that
she would be absent on August 25, 2014 for a doctor’s appointment. Plaintiff had
known about the appointment in advance and was in violation of District policy for failing
to provide seven days’ prior notice of the appointment. On August 25, 2014, the
principal and Ms. McCrea spoke to plaintiff about missing money that had been sent in
for a child’s lunch account. On August 25, 2014, plaintiff was issued a written warning
for violation of the District and Opaa!’s policies regarding the missing money. On
September 12, 2014, an employee in plaintiff’s kitchen, complained about plaintiff’s
treatment of her. On September 17, 2014, plaintiff failed to properly complete her food
inventory, which resulted in a written disciplinary documentation. On September 18,
2014, plaintiff was demoted from her position as a kitchen manager to a line staff
employee and her pay was decreased. Plaintiff was also transferred to a different
school. Opaa! argues that plaintiff has failed to produce any evidence to suggest that

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she was meeting the legitimate expectations of her position at the time of her demotion.
The Court agrees and finds that plaintiff has not met the second element of her prima
facie claim.
With regard to the third element, Opaa! argues that plaintiff cannot establish that
she was replaced by a significantly younger employee. Plaintiff stated in her deposition
that she was replaced by Heather Taylor, who plaintiff believed to be thirty-six years of
age. At the time that plaintiff was demoted, she was forty-five years of age. Opaa!
argues that a nine year age difference has been found not to be enough to infer age
discrimination. In Girten v. McRentals, Inc., 337 F.3d 979, 982 (8th Cir. 2003), the Court
stated, “[t]he nine-year age difference between [plaintiff] and his replacement may not
be sufficient to infer age discrimination.” In Savoie v. Genpak, LLC, No. 131229(DWF/SER), 2014 WL 6901783 (D.Minn. Dec. 5, 2014), the Court stated, “the
Eighth Circuit not only requires the employee to be replaced by someone younger, but
someone who is substantially younger. . . .Courts have reasoned that evidence of a
substantial age difference reasonably allows the conclusion that the plaintiff’s age
factored into the employer’s decision.” Id. at *5 (internal citations and quotations
omitted). The Court agrees and finds that the nine year gap between plaintiff and her
replacement is too small to show that she was replaced by a “substantially younger”
employee. Accordingly, the Court finds that plaintiff has failed to establish the second
and fourth prima facie elements of an ADEA claim. Thus Opaa! is entitled to summary
judgment on this claim.
3. MHRA Claim
[T]he MHRA employs a more lenient standard that the ADEA in
determining whether an employee has been discriminated against. . . .To
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survive summary judgment on the MHRA claim, [the plaintiff] must
demonstrate that age was a contributing factor in the decision to promote
others instead of him. . . .A contributing factor has been defined as one
that contributed a share in anything or has a part in producing the effect.
Lin Gao v. St. Louis Language Immersion Schools, Inc., No. 4:13-CV-1956-SPM, 2014
WL 6871166, *8 (E.D.Mo. Dec. 5, 2014) aff’d, 607 Fed.Appx. 621 (8th Cir. 2015)(internal
citations and quotations omitted).
When asked in her deposition to explain why she felt that she was not treated
fairly or justly by her supervisors, plaintiff responded: “I just felt that they, Ms. McCrea
seemed to have it out for me.” When asked why she believed this, plaintiff responded:
“I don’t know if it was my age, if she wanted younger people in there, if she wanted
people to – I don’t know exactly why. If she just didn’t like me personally. I wasn’t sure.
I just felt that way, that she just didn’t get along with me for some reason.” When asked
besides the fact that her replacement was younger, what else led her to believe that age
had anything to do with Ms. McCrea’s treatment, plaintiff responded, “I’m not sure.”
(Plaintiff’s Depo. Ex. 2, pp. 104-105). When asked why she believed that age played a
role in the defendant’s actions, plaintiff responded: “I think they were trying to cut costs
by getting rid of older employees that made more money than the younger ones did.”
When asked besides this belief, if she had any other evidence in documents,
statements or information of any sort that supported that belief, plaintiff responded,
“No.” (Ex. 2, p. 136). When plaintiff was asked if anyone at Opaa! or the School District
ever said anything to her about her age or that she was demoted because of her age,
plaintiff replied “No.” When asked if any superior ever said anything to her about her
age, plaintiff replied “No.” (Ex. 2, pp. 198-199). In Lin Gao, the Court found that plaintiff
had no evidence other than her own unsworn and unsupported allegations that age
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played any role in the defendant’s decisions. Thus, the Court in that case found that
plaintiff had failed to create any genuine issue of fact as to whether plaintiff’s age was a
contributing factor. Similarly, in this case, the Court also finds that plaintiff has offered
nothing other than her own belief that age was a factor in her demotion. However,
plaintiff even admitted that she wasn’t exactly sure why she felt that Ms. McCrea “had it
out for her” stating that it could have been her age or just simply because she did not
like her personally. The Court finds that this is insufficient to show that age was a
contributing factor to plaintiff’s demotion. Accordingly, the Court finds that Opaa! is
entitled to summary judgment on plaintiff’s MHRA Claim.
4. Constructive Discharge Claim
To establish a case of constructive discharge, [plaintiff] must show that (1)
a reasonable person in her situation would find the working conditions
intolerable, and (2) the employer intended to force her to quit. An
employee must, however, grant her employer a reasonable opportunity to
correct the intolerable condition before she terminates her employment . . .
The Eight Circuit Court of Appeals has consistently recognized that an
employee is not constructively discharged if she quits without giving [her]
employer a reasonable chance to work out a problem.
Blake v. MJ Optical, Inc., No. 8:14CV317, 2016 WL 3351919,*6 (D.Neb. Apr. 13,
2016)(internal citations and quotations omitted). The Court finds that plaintiff has failed
to state the elements of a constructive discharge claim. When asked what about
working at the high school she found to be intolerable, plaintiff responded that she was
only there for a short time and that it was humiliating to no longer be a manager.
However, when asked if she felt it was intolerable, plaintiff responded, “I wouldn’t say
intolerable, no. I didn’t use that word.” (Ex. 2, p. 128). When plaintiff was asked what the
defendants had done to make her resign from her position, she replied, “Nothing.” (Ex.
2, p. 137). When plaintiff was asked about her transfer from the elementary to the high
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school after she was demoted, and whether she considered the transfer itself to be a
problem, plaintiff responded “No.” When asked if she saw it as a negative action, she
responded “No.” (Ex. 2, p. 197). Thus, the Court finds that plaintiff has failed to show
that a reasonable person in her situation would find the working conditions intolerable or
that Opaa! intended to force her to quit by transferring her to a different position at a
different school. Accordingly, the Court finds that Opaa! is entitled to summary
judgment on plaintiff’s Constructive Discharge claim.

I.

CONCLUSION

Accordingly, for the reasons stated above, the Court hereby GRANTS Defendant
Opaa! Food Management, Inc.’s (“Opaa!”) Motion for Summary Judgment (Doc. #27)
and DENIES Plaintiff’s Motion to Allow Time for Discovery Under Rule 56(d) (Doc.# 33).

Date: March 24, 2017
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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