Fula v. Safeway Stores, Inc.

Filing 43

ORDER granting 29 Motion for Summary Judgment. Signed by Chief Judge Jeffrey L. Viken on 9/30/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
DEB FULA,
Plaintiff,
vs.
SAFEWAY STORES, INC.,
Defendant.

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CIV. 12-5071-JLV

ORDER

INTRODUCTION
Plaintiff Deb Fula filed a multi-count amended complaint against the
defendant, Safeway Stores, Inc., her former employer. (Docket 5). Ms. Fula
alleges unlawful discrimination in violation of Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of
1967, 29 U.S.C. § 633(a)(c), (“ADEA”), and SDCL § 20-13-10, the South
Dakota anti-discrimination law based on gender and age. Id. at ¶¶ 19-26.
Plaintiff also alleges a disparate impact claim based on gender and age. Id.
at ¶¶ 27-29. Defendant denies it discriminated against Ms. Fula. (Docket
10). This matter is presently before the court on defendant’s motion for
summary judgment as to all counts. (Docket 29). Plaintiff resists
defendant’s motion in its entirety. (Docket 35). For the reasons stated in
this order, defendant’s motion for summary judgment is granted.

STANDARD OF REVIEW
Under Fed. R. Civ. P. 56(a), a movant is entitled to summary judgment
if the movant can “show[] that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Once the moving party meets its burden, the nonmoving party may not rest
on the allegations or denials in the pleadings, but rather must produce
affirmative evidence setting forth specific facts showing a genuine issue of
material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). Only disputes over facts that might affect the outcome of the case
under the governing substantive law will properly preclude summary
judgment. Id. at 248. Accordingly, “the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Id. at 247-48 (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is
that a reasonable jury could return a verdict for the nonmoving party, then
summary judgment is not appropriate. Id. However, the moving party is
entitled to judgment as a matter of law if the nonmoving party fails to “make
a sufficient showing on an essential element of her case with respect to
which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). “There can be ‘no genuine issue as to any material fact,’ since a

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complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Id. at 323.
In determining whether summary judgment should issue, the facts
and inferences from those facts must be viewed in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587-88 (1986). In order to withstand a motion for summary
judgment, the nonmoving party “must substantiate [her] allegations with
‘sufficient probative evidence [that] would permit a finding in [her] favor on
more than mere speculation, conjecture, or fantasy.’ ” Moody v. St. Charles
County, 23 F.3d 1410, 1412 (8th Cir. 1994) (citing Gregory v. Rogers, 974
F.2d 1006, 1010 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1993)). “A
mere scintilla of evidence is insufficient to avoid summary judgment.”
Moody, 23 F.3d at 1412. The key inquiry is “whether the evidence presents
a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson, 477
U.S. at 251-52.
Once the moving party meets its burden, the nonmoving party may
not rest on the allegations or denials in the pleadings, but rather must
produce affirmative evidence setting forth specific facts showing a genuine
issue of material fact exists. Id. at 256; see also Thomas v. Corwin, 483
F.3d 516, 527 (8th Cir. 2007) (mere allegations, unsupported by specific

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facts or evidence beyond a nonmoving party’s own conclusions, are
insufficient to withstand a motion for summary judgment); Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (“The
nonmovant must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come forward with
specific facts showing that there is a genuine issue for trial. 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.”) (internal quotation
marks and citation omitted). The non-moving party’s own conclusions,
without supporting evidence, are insufficient to create a genuine issue of
material fact. Anderson, 477 U.S. at 256; Thomas, 483 F.3d at 527;
Torgerson, 643 F.3d at 1042.
UNDISPUTED MATERIAL FACTS
The following recitation consists of the material facts undisputed by
the parties. These facts are developed from the amended complaint (Docket
5), defendant’s answer (Docket 10), defendant’s statement of undisputed
material facts (Docket 31), plaintiff’s response to defendant’s statement of
undisputed material facts and additional statement of undisputed material
facts (Docket 36), and defendant’s reply to plaintiff’s additional statement of
undisputed material facts (Docket 41). Where a statement of fact is

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admitted by the opposing party, the court will only reference the initiating
document.
Safeway is a business affecting commerce as defined under 29 U.S.C.
§ 630(h). Safeway employed twenty or more employees for each working day
during each of twenty or more calendar weeks in the current or preceding
calendar year. As a result, Safeway is an employer within the meaning of
29 U.S.C. § 630(h).1 (Docket 5 at ¶ 4). At all times pertinent to this
litigation, Ms. Fula was a 58-year-old female employee of Safeway Store
#1554 located at 730 Mt. View Road, Rapid City, South Dakota. Id. at
¶¶ 6-8.
Ms. Fula began her employment as a cashier at Store #1554 on
January 26, 2000. (Docket 31 at ¶ 1). She worked as a cashier until her
termination in 2010. Id. at ¶ 2. Ms. Fula was terminated on or about
August 4 or 5, 2010. (Docket 5 at ¶ 9). When Ms. Fula began at Store
#1554 in 2000, she was earning a minimum wage of $5.71 per hour. When
she was terminated in 2010, she was earning $10.60 per hour. (Docket 36
at ¶ 56). At the time of her termination, Ms. Fula’s benefits included three
weeks paid vacation and full health insurance coverage. Id. at ¶ 60.

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The court finds plaintiff’s additional statement of material facts as it relates
to Safeway’s corporate structure is irrelevant to the issues before the court.
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Safeway’s Store Rules (“Store Rules”) state that “pilferage, theft,
misappropriation, conversion, or concealment of Company property,
merchandise, or funds, regardless of value, are strictly prohibited.” (Docket
31 at ¶ 4). The Store Rules restrict the use of vendor coupons (“Catalina
coupons”) which “are generated specifically for the use of the customer
only.” Id. at ¶ 5. Ms. Fula understood that if a customer’s purchase
generated a Catalina coupon but the customer did not want the coupon,
employees were not allowed to use the coupon. Id. at ¶ 8. When her
customers did not want the coupon, Ms. Fula would rip it up and throw it
away. Id. The Money Handling and Register Policy of the Store Rules states
“[e]mployees found to be in violation of these Money Handling and Register
Policies shall be subject to appropriate discipline, up to and including
termination.” (Docket 31 at ¶ 9; see also Docket 37-3).
Safeway operates a program allowing customers to use their club card
to receive certain sale prices and benefits. (Docket 31 at ¶ 10). Ms. Fula
knew employees were not allowed to use anyone else’s club card when
shopping at Safeway. Id. at ¶ 11.
On July 14 and 19, 2010, while shopping at Store #1554, Ms. Fula
made several purchases using Catalina coupons. Id. at ¶ 12. By reviewing
the scan-bars, Safeway confirmed Ms. Fula used other customers’ coupons.
Id. at ¶ 16. During a subsequent investigation of Ms. Fula’s use of Catalina

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coupons, she admitted either finding the coupons in the break room, on the
sales floor, or the coupons were given to her by others. Id. at ¶ 17.
Mr. Ryland was the manager at Store #1554. (Docket 36 at ¶ 37).
He admitted that when employees are off the clock they are treated like any
other customer but are still held accountable for the Store Rules. (Dockets
36 at ¶ 81; 41 ¶ 81).
After reviewing the results of Safeway’s investigation, Doug Martinez,
Safeway’s Labor Contract Administrator at the Division Office in Denver,
Colorado, made the decision to terminate Ms. Fula. (Docket 31 at ¶ 20).
This decision was based on her violation of Safeway policy, specifically her
use of coupons not generated by her own purchases and the use of another
customer’s club card. Id. Mr. Martinez did not know Ms. Fula’s age or wage
rate at the time of her discharge. Id. at ¶¶ 21 & 31. Ms. Fula did not know
Mr. Martinez and had no reason to believe he discriminated against women
or any person over 40 years of age. Id. at ¶ 25.
During her employment at Store #1554, Ms. Fula was the subject of
several disciplinary actions, was accused of making racially discriminatory
and sexual comments, and was warned concerning Safeway’s workplace
violence policy, due to an altercation with another employee four months

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before her termination.2 Id. at ¶ 3. Mr. Greene, the assistant manager of
Store #1554, participated in most of Ms. Fula’s employee evaluations over
several years. (Docket 36 at ¶ 137). Mr. Greene testified Ms. Fula was “a
great employee. She was right up until the time . . . she got terminated for
theft. I thought she was a great employee.” (Dockets 36 at ¶ 139; 41 at
¶ 139).
In 2010, four other employees were terminated by Mr. Martinez for
using Catalina coupons that were not generated from the employees’ own
purchases. (Docket 31 at ¶ 24). The employees terminated included a
19-year-old female and two males, ages 17 and 18. Id.
Ms. Fula filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on January 6, 2011, alleging age and
gender discrimination. Id. at ¶ 26. Ms. Fula claims her termination in
August 2010 was the adverse employment action giving rise to the EEOC
charge. Id. at ¶ 28; see also Docket 36 at ¶ 28.
Ms. Fula alleges Safeway’s conversion of checkout lanes into
self-service lanes somehow discriminated against her. But to her
knowledge, no cashiers were terminated as a result of this transition,

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Ms. Fula objects to this statement as irrelevant and immaterial. (Docket
36 at ¶ 3). She also denies these allegations are true. Id. However, the
statement is that she was “accused” of making these comments. Ms. Fula
does admit to being cautioned regarding the workplace violence policy on two
occasions. Id.
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including herself and another female cashier in her early forties. Ms. Fula
acknowledged that the conversion would impact every cashier, irrespective
of race, disability, gender or age. (Docket 31 at ¶ 29). The conversion to self
checkout lanes did not discriminate against Ms. Fula. (Docket 36 at ¶ 29).
Ms. Fula was transferred to a self checkout lane and was not terminated.
(Docket 41 at ¶ 29). Two other female cashiers affected by the transition
were over the age of forty, were paid a higher hourly wage than Ms. Fula,
and neither of them were terminated. (Dockets 31 at ¶ 30; 36 at ¶ 30; 41 at
¶ 30).
Ms. Fula does not recall Mr. Ryland making any comments relating to
gender or age. (Dockets 31 at ¶ 33; 36 at ¶ 33). After Ms. Fula’s
termination, the next five new cashier hires were ages 17, 18, 23, 42, and
60, with the first hire being the 42-year-old individual. (Dockets 36 at ¶ 77;
41 at ¶¶ 55 & 77).
DISCUSSION
A.

AGE DISCRIMINATION CLAIM
The ADEA prohibits employers from taking adverse employment

actions against employees because of their age. King v. United States, 553
F.3d 1156, 1160 (8th Cir. 2009). A plaintiff may establish a claim of
intentional age discrimination through either direct or indirect evidence. Id.
Where plaintiff presents direct evidence of discrimination, the court

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evaluates the claim under the mixed-motives framework established in Price
Waterhouse v. Hopkins.3 Id. Where plaintiff presents indirect evidence of
discrimination, the court evaluates the claim under the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green.4 Id.
Under the McDonnell Douglas framework, a plaintiff may establish a
prima facie case of age discrimination by showing (1) she is over the age of
forty; (2) she was qualified for the position; (3) she suffered an adverse
employment action; and (4) similarly-situated employees outside the class
were treated more favorably. Anderson v. Durham D & M, L.L.C., 606 F.3d
513, 523 (8th Cir. 2010). In discriminatory discharge cases, plaintiff may
establish the fourth element by demonstrating she was replaced by a
substantially younger individual. Id. Once plaintiff establishes a prima
facie case of age discrimination, the burden of production shifts to the
employer to demonstrate a legitimate, non-discriminatory reason for its
employment action. King, 553 F.3d at 1162. Plaintiff then bears the
burden of demonstrating the employer’s stated reason was a mere pretext
for discrimination. Id. Ms. Fula does not present any direct evidence of
discrimination, so the court must use the McDonnell Douglas framework to
analyze her claim.

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490 U.S. 228, 278-79 (1989).

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411 U.S. 792 (1973).
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Ms. Fula was 58 years of age at the time of her termination and she
was qualified for her cashier position, having been in that position for ten
years. Termination is an adverse employment action. Anderson, 606 F.3d
at 523. For purposes of this summary judgment motion only, Safeway
concedes Ms. Fula met the first three elements of a prima facie case of age
discrimination. (Docket 30 at p. 6).
The question then becomes—was Ms. Fula replaced by a substantially
younger employee? Anderson, 606 F.3d at 523. The undisputed evidence is
that Ms. Fula was replaced by a 42-year-old person. (Dockets 36 at ¶ 77;
41 at ¶¶ 55 & 77). The replacement employee was within the same
protected class as Ms. Fula. O’Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308, 312-13 (1996) (prima facie case requires evidence adequate to
create inference of discrimination, which cannot be drawn from the
replacement of one worker with another worker insignificantly younger).
Ms. Fula presented no evidence she was “replaced by another person
sufficiently younger to permit the inference of age discrimination.”
McGinnis v. Union Pacific R.R., 496 F.3d 868, 876 (8th Cir. 2007) (internal
quotation marks and citation omitted).
“Summary judgment is proper if a plaintiff fails to establish any
element of her prima facie case.” Wilking v. County of Ramsey, 153 F.3d
869, 873 (8th Cir. 1998) (referencing Weber v. American Express Co., 994

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F.2d 513, 515-16 (8th Cir. 1993) (“if the plaintiff fails to establish a factual
dispute on each element of the prima facie case, summary judgment is
appropriate . . . .”) (referencing Celotex Corp., 477 U.S. at 322-23; other
citations omitted) (Weber, abrogated on other grounds by Torgerson, 643
F.3d 1031).
Even if Ms. Fula established a prima facie case of age discrimination,
her claim must fail because she offered no evidence indicating Safeway’s
reasons for terminating her were pretextual. King, 553 F.3d at 1162.
Safeway says it terminated Ms. Fula for violating the Store Rules,
particularly, using coupons not generated by her own purchases and using
someone else’s club card. (Docket 31 at ¶ 20). In 2010, Safeway terminated
four other employees for the same conduct—using coupons awarded to
others. Id. at ¶ 24. Against this factual background, Ms. Fula offers no
evidence, beyond her own speculation and conjecture, to suggest that
Safeway’s reasons for terminating her were pretextual. “[T]he showing of
pretext necessary to survive summary judgment requires more than merely
discrediting an employer’s asserted reasoning for terminating an employee.
A plaintiff must also demonstrate that the circumstances permit a
reasonable inference of discriminatory animus.” Haigh v. Gelita USA, Inc.,
632 F.3d 464, 470 (8th Cir. 2011) (quoting Roeben v. BG Excelsior Ltd.

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Partnership, 545 F.3d 639, 643 (8th Cir. 2008) (internal quotation marks
and citation omitted).
Defendant is entitled to summary judgment on Ms. Fula’s age
discrimination claim.
B.

GENDER DISCRIMINATION CLAIM
“Title VII of the Civil Rights of 1964, 42 U.S.C. §§ 2000e-2000e-17,

prohibits discrimination in employment on the basis of sex.” Wierman v.
Casey’s General Stores, 638 F.3d 984, 993 (8th Cir. 2011). Where a
claimant does not show direct evidence of discrimination, “she can preclude
summary judgment only by creating an inference of discrimination under
the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792 . . . (1973).” Id. “Under McDonnell Douglas, [claimant] must first
establish a prima facie case of discrimination: 1) she is a member of a
protected group; 2) she was qualified for her position; 3) she suffered an
adverse employment action; and 4) she was discharged under
circumstances giving rise to an inference of discrimination.” Id. If Ms. Fula
“establishes a prima facie case, the burden of production shifts to [Safeway]
to articulate a non-discriminatory, legitimate justification for its conduct,
which rebuts the employee’s prima facie case. . . . If [Safeway] meets this
burden, [Ms. Fula] must then produce evidence sufficient to create a
genuine issue of material fact showing that [Safeway’s] explanation is merely

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a pretext for unlawful discrimination. . . .” Id. (internal quotation marks
and citations omitted). “[T]he issue is whether the plaintiff has sufficient
evidence that unlawful discrimination was a motivating factor in the
defendant’s adverse employment action.” Id. For purposes of this summary
judgment motion only, Safeway concedes Ms. Fula satisfies the first three
elements of a prima facie case. (Docket 30 at p. 3).
Safeway presented a legitimate reason for terminating Ms. Fula.
(Docket 31 at ¶ 20). As with her age discrimination claim, Ms. Fula offers
no evidence, beyond her own speculation and conjecture, to suggest that
Safeway’s reasons for terminating her were pretextual. Ms. Fula argues
because of her ten-year record of positive evaluations, Safeway should have
given her “the benefit of the doubt.” (Docket 35 at p. 29). Notwithstanding
her admitted violation of the Store Rules, Ms. Fula claims allowing two male
employees from outside Store #1554 to investigate and then terminate her is
“a decision-making process designed by the corporation to take face-to-face
interaction, empathy and the human element out of its investigations and
personnel decisions . . . .” Id.
Ms. Fula’s argument misses the mark. “Employers are free to make
employment decisions based upon mistaken evaluations, personal conflicts
between employees, or even unsound business practices. Federal courts do
not sit as ‘super personnel departments reviewing the wisdom or fairness of

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the business judgments made by employers, except to the extent that those
judgments involve intentional discrimination.’ ” Edmund v. MidAmerican
Energy Co., 299 F.3d 679, 685-86 (8th Cir. 2002) (quoting Cronquist v. City
of Minneapolis, 237 F.3d 920, 928 (8th Cir. 2001) (internal citations
omitted)). Other than suggesting a male employee within Safeway made the
termination decision, Ms. Fula cannot establish a reasonable basis for
inferring that the decision was pretextual and based on her gender.
Wierman, 638 F.3d at 993.
Defendant is entitled to summary judgment on Ms. Fula’s gender
discrimination claim.
C.

DISPARATE IMPACT CLAIM
Defendant asserts Ms. Fula failed to include a disparate impact claim

in her EEOC charge of discrimination. (Docket 30 at p. 9). Because of Ms.
Fula’s failure to make a disparate impact claim, defendant argues she failed
to exhaust her administrative remedies and the claim is now barred. Id.
Ms. Fula did not respond to defendant’s argument. See Docket 35 at pp.
32-33.
Defendant’s undisputed material facts state Ms. Fula filed a charge of
discrimination with the EEOC on January 6, 2011, alleging age and gender
discrimination. (Docket 31 at ¶ 26). Ms. Fula did not dispute this
statement. (Docket 36 at ¶ 26). Additionally, defendant’s statement of

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undisputed material facts says “Fula’s charge [with the EEOC] made no
mention of ‘harassment,’ ‘harassing comments,’ or a ‘hostile work
environment,’ nor did it contain any reference to ‘disparate impact’ claims.”
(Docket 31 at ¶ 27). Ms. Fula responded:
[Paragraph 27 is] [p]artially disputed because it does not reflect
the totality of the facts and circumstances. She states in her
charge that the manager had followed her while she was shopping.
It was discovered during the deposition of store manager, Tom
Ryland, that he, in fact, followed her himself while she was
shopping as a regular customer at Safeway. He found that she
had behaved within normal capacity and had done nothing
improper. Mr. Ryland also had other employees . . . following and
watching her while she was at Safeway. Therefore, although the
word “harassed” wasn’t actually stated, it would appear that
harassing behavior, on part of the store manager, did take place,
but these acts were part of the age and gender discrimination, not
a separate charge of harassment. . . . “Disparate impact” is a legal
analysis of age and gender discrimination charges, which were
alleged in the charge of discrimination filed with the EEOC.
(Docket 36 at ¶ 27).
“A plaintiff seeking to prove discrimination under the disparate impact
theory must show that a facially neutral employment practice has a
significant adverse impact on members of a protected minority group.”
Chambers v. Omaha Girls Club, Inc., 834 F.2d 697, 700 (8th Cir. 1987).
“In Title VII, Congress set up an elaborate administrative procedure,
implemented through the EEOC, that is designed to assist in the
investigation of claims of . . . discrimination in the workplace and to work
towards the resolution of these claims through conciliation rather than

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litigation.” Duncan v. Delta Consolidated Industries, Inc., 371 F.3d 1020,
1024 (8th Cir. 2004), abrogated on other grounds by Torgerson, 643 F.3d
1031 (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 180-81
(1989) (citing 42 U.S.C. § 2000e-5(b)). “Title VII requires claimants to timely
file a discrimination charge with the EEOC before . . . she may bring a Title
VII action in court.” Id. (referencing 42 U.S.C. § 2000e-5(e)(1)). “It is
generally recognized that exhaustion of administrative remedies is central to
Title VII’s statutory scheme because it provides the EEOC the first
opportunity to investigate discriminatory practices and enables it to perform
its roles of obtaining voluntary compliance and promoting conciliatory
efforts.” Id. (internal quotation marks, citations and brackets omitted).
The court does “not require that subsequently-filed lawsuits mirror
the administrative charges.” Id. at 1025. “However, the sweep of any
subsequent judicial complaint may be [only] as broad as the scope of the
EEOC investigation which could reasonably be expected to grow out of the
charge of discrimination.” Id. (internal quotation marks omitted).
“Allegations outside the scope of the EEOC charge . . . circumscribe the
EEOC’s investigatory and conciliatory role, and for that reason are not
allowed.” Id. (internal quotation marks omitted).
Based on the undisputed facts, Ms. Fula did not assert a disparate
impact claim with the EEOC. Having failed to exhaust her administrative

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remedies on the disparate impact claim, that claim is barred. Kells v.
Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 837 (8th Cir. 2000),
abrogated on other grounds by Torgerson, 643 F.3d 1031 (summary
judgment is appropriate where the claimant “failed to exhaust [her]
administrative remedies with regard to [her] harassment claims.”).
The disparate impact claim fails even if the court finds Ms. Fula’s
claim was impliedly incorporated into her age and gender discrimination
charge with the EEOC. Having failed on both her age and gender
discrimination claims, there is nothing left upon which a disparate impact
claim could be based. Ms. Fula was terminated for her admitted violations
of the Safeway Store Rules. Ms. Fula “fail[s] to identify any particular policy
or practice employed by [Safeway] that produces a disparate impact.” Oti
Kaga, Inc. v. South Dakota Housing Development Authority, 188 F. Supp.
2d 1148, 1164 (D.S.D. 2002), aff’d, 342 F.3d 871 (8th Cir. 2003). It is
Safeway’s business prerogative to fire any employee for theft so long as the
termination is not a pretext to hide discrimination in violation of Title VII.
Defendant is entitled to summary judgment on Ms. Fula’s disparate
impact claim.

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D.

SOUTH DAKOTA ANTI-DISCRIMINATION CLAIMS
Ms. Fula’s action includes an anti-discrimination claim under South

Dakota law. (Docket 5 at ¶ 25). State law provides:
It is an unfair or discriminatory practice for any person, because
of race, color, creed, religion, sex, ancestry, disability, or national
origin, to fail or refuse to hire, to discharge an employee, or to
accord adverse or unequal treatment to any person or employee
with respect to application, hiring, training, apprenticeship,
tenure, promotion, upgrading, compensation, layoff, or any term
or condition of employment.
SDCL § 20-13-10. The South Dakota Supreme Court determined “SDCL
20-13-10 is comparable to the corresponding provision in Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., . . . .” Huck v. McCain
Foods, 479 N.W.2d 167, 169 (S.D. 1991). See also Mutua v. Texas
Roadhouse Management Corp., 753 F. Supp. 2d 954, 958 (D.S.D. 2010)
(“discrimination claims under Title VII and SDCL 20-13-10 are analyzed
under the same framework.”) (referencing Ross v. Kansas City Power & Light
Co., 293 F.3d 1041, 1050 n. 1 (8th Cir. 2002) (federal and state
discrimination laws should be analyzed under the same framework); Huck,
479 N.W.2d at 169).
The court concluded Ms. Fula’s age and gender discrimination claims
fail under Title VII. Because South Dakota requires a plaintiff to satisfy the
elements of a Title VII claim to prevail under § 20-13-10, the court finds Ms.
Fula’s state claim also must fail.

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Defendant is entitled to summary judgment on Ms. Fula’s South
Dakota anti-discrimination claim.
ORDER
Based on the above analysis, it is hereby
ORDERED that defendant’s motion for summary judgment (Docket
29) is granted.
IT IS FURTHER ORDERED that plaintiff’s amended complaint (Docket
5) is dismissed with prejudice.
Dated September 30, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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