Armstrong v. Hy-Vee, Inc. et al

Filing 78

MEMORANDUM AND ORDER - Armstrong's motion to dismiss (filing 58 ) is granted. The parties' stipulation (filing 74 ) is granted. Armstrong's motion to strike (filing 71 ) is denied. Hy-Vee's motion for summary judgment (filing 51 ) is granted. The plaintiff's complaint is dismissed. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JACQUE ARMSTRONG,
Plaintiff,
vs.

4:15-CV-3085
MEMORANDUM AND ORDER

HY-VEE, INC.,
Defendant.
This matter is before the Court on the defendant's motion for summary
judgment (filing 51) with respect to the plaintiff's age discrimination claim.
The Court will grant the defendant's motion.
BACKGROUND
The plaintiff, Jacque Armstrong, was employed by the defendant, HyVee, Inc., as a floral department manager at the defendant's grocery store in
northeast Lincoln. Filing 53 at 7.1 She was born in 1957. Filing 54-3 at 142.
Armstrong's supervisor was the store director, Rod Burns, who
assumed that job in October 2012. Filing 53 at 7. After taking over the store,
Burns received customer service complaints relating to the floral department
that Armstrong managed. Filing 54-2. Those complaints were addressed with
Armstrong when they occurred, but on October 31, 2013, Burns met with
Armstrong and presented her with a letter setting forth a detailed "list of
[Burns'] concerns and minimum standards and expectations of [Armstrong]
as the department manager and [her] staff in the floral department." Filing
54-2 at 2, 26-27. The letter, which was signed by Burns and Armstrong and
witnessed by two others, advised Armstrong that "any further issues or
customer complaints about the floral department could result in [Burns']
decision to make a floral managerial change up to and including
termination." Filing 54-2 at 27.

Pursuant to NECivR 56.1, a party moving for summary judgment must include in its brief
a statement of material facts about which the movant contends there is no dispute, and the
party opposing summary judgment must include in its brief a concise response to that
statement of facts, noting any disagreement. Properly referenced material facts in the
movant's statement are considered admitted unless controverted in the opposing party's
response. NECivR 56.1(b)(1).
1

Armstrong does not deny that the complaints occurred or that she
received the October 31, 2013 letter. See filing 61 at 3-4. She has, however,
denied the substance of the complaints. A lost order, for instance, she said
occurred while she was on vacation. Filing 54-3 at 42. Other incidents, she
said, were the fault of other employees. Filing 54-3 at 43-44. And in some
instances, according to Armstrong, either the complaint had been unfounded
or the customer had been mistaken. Filing 54-3 at 54-55, 66-67.
After that meeting and letter, there was a negative customer care
survey and a customer complaint regarding an incomplete order, although
Burns might not have been aware of them. See, filing 54-2 at 3, 20-22; filing
54-4 at 15. But it is not disputed that on May 22, 2014, a floral department
customer called the store and complained to a manager about the service she
had received from Armstrong in the floral department. Filing 53 at 9. The
manager informed Burns, who directed the manager to write a record of the
conversation. Filing 53 at 9. Burns fired Armstrong the next day. Filing 53 at
10. Armstrong's replacement was born in 1981. Filing 66-4 at 12; filing 54-4
at 47. Armstrong claims that she was fired because of her age, in violation of
the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621
et seq., and Nebraska's Age Discrimination in Employment Act, Neb. Rev.
Stat. § 48-1001 et seq. Filing 14.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The mere existence of a scintilla of evidence in support of the
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nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
DISCUSSION
Before discussing the merits of Armstrong's age discrimination claim, it
is necessary to establish both the claims at issue and the scope of the record.
First, Armstrong has filed a motion to dismiss (filing 58), voluntarily
dismissing a retaliation claim asserted in her complaint. The Court will grant
that motion, so Armstrong's sole remaining claim is that her termination
resulted from unlawful age discrimination.
Second, Armstrong has filed a motion to strike (filing 71), asserting
that certain evidence offered in Hy-Vee's reply index "lacks foundation,
relevance, materiality and is replete with hearsay."2 Filing 72 at 5. The
parties have since entered into a stipulation (filing 74) that resolves the
hearsay objection, and that stipulation will be granted. Armstrong continues
to assert objections based on relevance and materiality, but those objections
will be overruled. The Court will instead consider Armstrong's arguments as
they relate to the weight of the evidence,3 and will deny her motion to strike.
That brings the Court to the merits of Armstrong's age discrimination
claim. The ADEA prohibits discrimination against employees age 40 and over
because of their age. See, 29 U.S.C. §§ 623(a), 631(a); Tramp v. Associated
Underwriters, Inc., 768 F.3d 793 at 798, 800 (8th Cir. 2014). The Nebraska
age discrimination statutes offer similar protection, see Neb. Rev. Stat. § 48–
1004(1)(a), and are interpreted in conformity with the ADEA. See Billingsley
v. BFM Liquor Mgmt., Inc., 645 N.W.2d 791, 801 (Neb. 2002). The parties
have not separately analyzed Armstrong's state and federal claims, and the
Court will apply the same analysis to both.
"[T]he ordinary meaning of the ADEA's requirement that an employer
took adverse action 'because of' age is that age was the 'reason' that the
Ordinarily, the better practice would be to simply object, rather than move to strike:
pursuant to Rule 56(c)(2), "[a] party may object that the material cited to support or dispute
a fact cannot be presented in a form that would be admissible in evidence." "There is no
need to make a separate motion to strike." Rule 56 advisory committee's note to 2010
amendment. But given that the objected-to evidence was filed in conjunction with Hy-Vee's
reply brief, the Court understands the position Armstrong's counsel was in.
2

The Court notes that it does not find the objected-to evidence to be particularly weighty—
it was not worth mentioning above, and absent that evidence the Court would still have
granted Hy-Vee's motion for summary judgment.
3

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employer decided to act." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176
(2009). To establish a claim under the ADEA, 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. Tramp, 768
F.3d at 800. In other words, whatever the employer's decisionmaking process,
a disparate treatment claim cannot succeed unless the employee's protected
trait actually played a role in that process and had a determinative influence
on the outcome. Id. at 801 (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,
610 (1993)). This is not to say that age must have been the only factor in the
employer's decisionmaking process, but only that as among several factors,
age was the factor that made a difference. Id.
A plaintiff may establish a claim of intentional age discrimination
either by offering direct evidence of discrimination or by satisfying the
McDonnell Douglas burden-shifting framework. Holmes v. Trinity Health,
729 F.3d 817, 821 (8th Cir. 2013); see McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-803 (1973). Armstrong does not claim to have direct evidence,
see filing 61 at 21, so the Court will apply the McDonnell Douglas framework.
Under McDonnell Douglas, a plaintiff must first establish a prima facie
case of discrimination. McDonnell Douglas, 411 U.S. at 802; Tramp, 768 F.3d
at 800. Once the plaintiff establishes a prima facie case, the burden of
production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its adverse employment action. Tramp, 768
F.3d at 800. If the employer carries its burden, the presumption is eliminated
and the burden shifts back to the employee, who must then prove the
employer's asserted reason was merely pretext for discrimination. Johnson v.
Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 611 (8th Cir. 2014).
To establish a prima facie case of age discrimination, a plaintiff must
show she (1) was at least 40 years old, (2) suffered an adverse employment
action, (3) was meeting her employer's legitimate expectations at the time of
the adverse employment action, and (4) was replaced by someone
substantially younger. Gibson v. Am. Greetings Corp., 670 F.3d 844, 856 (8th
Cir. 2012); see Blackwell v. Alliant Techsystems, Inc., 822 F.3d 431, 435 (8th
Cir. 2016). Hy-Vee does not dispute that Armstrong was over age 40 at the
time of the challenged decision and suffered an adverse employment action,
nor that she was replaced by someone younger. See Hilde v. City of Eveleth,
777 F.3d 998, 1004 (8th Cir. 2015). Hy-Vee does contend, however, that
Armstrong was not meeting Hy-Vee's legitimate expectations,4 and has
At least, that argument is presented in Hy-Vee's reply brief. See filing 67. It is far less
clear that Hy-Vee questioned Armstrong's prima facie case in her initial brief. See filing 53.
In any event, the caselaw in the Eighth Circuit regarding the "legitimate expectations"
4

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presented evidence that poor customer service, not age, was the reason for
Armstrong's termination. In such circumstances, the Court may presume the
existence of a prima facie case and move directly to the issue of pretext. Id.
At the pretext stage, proof that the explanation is false is necessary,
but not sufficient, to show a pretext for discrimination under the ADEA.
Tramp, 768 F.3d at 800. The plaintiff must show that the employer's stated
reason was false and that age discrimination was the real reason. Id. A
plaintiff provides sufficient evidence of pretext by showing that the
employer's explanation is unworthy of credence because it has no basis in
fact, or by persuading the Court that a prohibited reason more likely
motivated the employer. Hilde, 777 F.3d at 1004. Either route amounts to a
showing that the prohibited reason, rather than the employer's stated reason,
actually motivated the adverse action. Guimaraes v. SuperValu, Inc., 674
F.3d 962, 975 (8th Cir. 2012).
At all times, however, the plaintiff retains the burden of persuasion to
prove that age was the but-for cause of the adverse employment action.
Johnson, 769 F.3d at 611; Hilde, 777 F.3d at 1004. And the employee's
attempt to prove pretext requires more substantial evidence of discrimination
than required to make a prima facie case because this evidence is viewed in
light of the reasons articulated by the employer. Id. To survive summary
judgment, the employee must both discredit the employer's articulated
reason and demonstrate that the circumstances permit a reasonable
inference of discriminatory animus. Id.
Armstrong offers several reasons why, she says, Hy-Vee's claimed
reason for firing her—poor customer service—is pretextual. Primarily, she
claims that she was treated unfairly—that customer complaints against her
were unfounded and that it was unreasonable to hold her accountable for the
acts and omissions of her subordinates. See filing 61 at 22. She contends that
other managers were not disciplined for what their subordinates did, and
that other employees were not terminated for customer complaints. See filing
61 at 22-23.
But it is important to remember that the question is not whether
Armstrong was treated fairly. The pretext inquiry is "limited to whether the
employer gave an honest explanation of its behavior, not whether its action
was wise, fair, or correct." McKay v. United States Dep't of Transp., 340 F.3d
695, 700 (8th Cir. 2003). The critical inquiry is not whether Armstrong
actually engaged in the conduct for which she was terminated, but whether
element of the prima facie case is not entirely clear. See Haigh v. Gelita USA, Inc., 632 F.3d
464, 468-70 (8th Cir. 2011). And the Court need not determine whether Armstrong met her
initial burden of proving a prima facie case if she failed to carry her ultimate burden of
proof. See id. at 470.

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Hy-Vee in good faith believed that Armstrong was guilty of the conduct
justifying discharge. Blackwell, 822 F.3d at 436; Johnson, 769 F.3d at 612.
The Court does not sit as a super-personnel department, reviewing the
wisdom or fairness of the business judgments made by employers, except to
the extent that those judgments involve intentional discrimination. Bone v.
G4S Youth Servs., LLC, 686 F.3d 948, 955 (8th Cir. 2012). The Court may not
second-guess an employer's personnel decisions, and employers are free to
make their own business decisions, even inefficient ones, so long as they do
not discriminate unlawfully. Haigh, 632 F.3d at 470-71.
It is true that an employee may demonstrate pretext by showing that it
was not the employer's policy or practice to respond to such problems in the
way that it responded in the employee's case. Ridout v. JBS USA, LLC, 716
F.3d 1079, 1984 (8th Cir. 2013). But in order to show pretext by comparing
her treatment to that of other employees, the other employees must be
similarly situated in all relevant respects—a rigorous standard. Nash v.
Optomec, Inc., No. 16-2186, 2017 WL 780872, at *4 (8th Cir. Mar. 1, 2017);
see Johnson, 769 F.3d at 613; Bone, 686 F.3d at 956. And to be probative
evidence of pretext, the misconduct of more leniently disciplined employees
must be of comparable seriousness. Bone, 686 F.3d at 956; see Ridout, 716
F.3d at 1085. While the search is "for a substantially similar employee, not
for a clone[,]" Ridout, 716 F.3d at 1085, the individuals used for comparison
must have dealt with the same supervisor, been subject to the same
standards, and engaged in the same conduct without any mitigating or
distinguishing circumstances, Johnson, 769 F.3d at 613.
Armstrong points to complaints that, she says, were ultimately the
responsibility of a store manager—the "manager of perishables," who did
report to Burns—and notes that he was not disciplined for those complaints.
See filing 61 at 13-15. But Armstrong has failed to demonstrate that the
manager of perishables, who is responsible for several departments of the
store, is a comparable position to managing the floral department, nor has
she demonstrated that any of those complaints were about his personal
treatment of a customer, as was the complaint that precipitated Armstrong's
termination. Armstrong also points to a Hy-Vee policy that, she says,
permitted disciplinary actions issued to younger high school students to fall
off their disciplinary record after a year. Filing 61 at 20. Hy-Vee disputes that
characterization of its policy. Filing 67 at 15. But in any event, the Court also
finds the situation of high school age students to be distinguishable from that
of the floral department manager.
The closest Armstrong comes to finding a similarly situated employee is
her own replacement, who she says was permitted to take a different position
in the floral department despite "unsatisfactory job performance." Filing 61
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at 19. But the record establishes that under Armstrong's replacement, the
floral department was failing to meet sales expectations, and as a result, HyVee suggested Armstrong's replacement as floral department manager step
back to being a floral designer. Filing 54-4 at 9-10. Permitting a manager to
take a less responsible position due to disappointing sales does not prove
terminating another manager for poor customer service was pretextual.
Armstrong's evidence, even taken in the light most favorable to her,
does not demonstrate that the reason offered for her termination was
pretextual. Evidence of pretext and discrimination is viewed in light of the
employer's justification, and evidence of discrimination that is merely
colorable, or that is not significantly probative, cannot be the basis for a
denial of summary judgment. Wagner v. Gallup, Inc., 788 F.3d 877, 886-87
(8th Cir. 2015). And a justification cannot be proved to be a pretext for
discrimination unless it is shown both that the justification was false, and
that discrimination was the real reason. Bone, 686 F.3d at 955. It is true that
proof of pretext, coupled with a strong prima facie case, may suffice to create
a triable question of fact as to whether termination was motivated by
intentional discrimination. Id. But here, Armstrong's proof of pretext is
lacking, her prima facie case is not particularly strong, and there is little if
anything to suggest that age discrimination was at work.
The ADEA serves the narrow purpose of prohibiting discrimination
based on age—it does not prohibit employment decisions based upon poor job
performance, erroneous evaluations, personal conflicts between employees, or
even unsound business practices. Haigh, 632 F.3d at 471. Even if Armstrong
was treated unfairly, there is nothing but the barest circumstantial evidence
to connect her termination to her age—and that does not suffice to prevent
summary judgment. See Wagner, 788 F.3d at 887. Hy-Vee's motion for
summary judgment will be granted.
IT IS ORDERED:
1.

Armstrong's motion to dismiss (filing 58) is granted.

2.

The parties' stipulation (filing 74) is granted.

3.

Armstrong's motion to strike (filing 71) is denied.

4.

Hy-Vee's motion for summary judgment (filing 51) is
granted.

5.

The plaintiff's complaint is dismissed.

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6.

A separate judgment will be entered.

Dated this 7th day of March, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge

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