Jones v. J.C. Penney Co.

889 F. Supp. 432, 1995 U.S. Dist. LEXIS 9618, 67 Empl. Prac. Dec. (CCH) 43,910, 1995 WL 400813
CourtDistrict Court, D. Kansas
DecidedJune 1, 1995
DocketNo. 93-2239-JWL
StatusPublished
Cited by1 cases

This text of 889 F. Supp. 432 (Jones v. J.C. Penney Co.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. J.C. Penney Co., 889 F. Supp. 432, 1995 U.S. Dist. LEXIS 9618, 67 Empl. Prac. Dec. (CCH) 43,910, 1995 WL 400813 (D. Kan. 1995).

Opinion

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

This is an employment discrimination action in which the plaintiff, Shirley A.E. Jones, claims she was the victim of unlawful race and age discrimination and unlawful retaliation for the filing of a complaint with the Equal Opportunity Employment Commission (EEOC), in violation of the Civil Rights Act of 1964, as amended by the CM Rights Act of 1991 (Title VII), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. She contends that the defendant, J.C. Penney Company, Inc. (Penney),1 unlawfully discriminated and/or retaliated against her when it demoted her from her position as a merchandise assistant manager, denied her promotional opportunities, and reduced the hours she was permitted to work at the Penney store in Overland Park, Kansas. Plaintiff seeks compensatory, punitive and liquidated damages for her claims.

A trial to the court was held in this matter on May 23 and 24, 1995. The court is now prepared to issue its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). For the reasons set forth fully below, the relief requested by plaintiff is denied and judgment is to be entered in favor of the defendant in this action.

Findings of Fact

1. Plaintiff Shirley Jones is an African American female and is fifty-six years of age. She was employed by defendant Penney for approximately 22 years, the last five of which were at defendant’s retail store in Oak Park Mall, Overland Park, Kansas.

2. Plaintiff began work at Penney’s Oak Park Mall store in September of 1989. She first worked in the catalog department, but was promoted shortly thereafter to the position of Merchandising Assistant.

3. Larry O’Shea, a Caucasian male who was the personnel manager at the Oak Park Mall store, promoted plaintiff to the position [435]*435of Merchandising Assistant. Mr. O’Shea has worked for Penney in various positions, at various locations, for twenty-eight years. He is presently an Assistant Manager at a Penny’s store in Springfield Missouri. He worked at the Oak Park Mall from 1981 to April of 1992 and was in charge of personnel during the period of time relevant to this lawsuit.

4. In late 1991, no departments at the Oak Park Store were managed by a minority employee and only a small percentage of all employees were African American.

5. The merchandising assistant position is, at least in part, a supervisory-type of position and requires providing leadership and direction to the salespersons in a particular department of the store. It also entails administrative duties, retail selling and working with the store’s computerized cash register system.

6. As a merchandising assistant, plaintiff worked in the men’s sportswear area. She reported to Clyde Harmon, a Caucasian male who was the merchandise manager. He had overall responsibility for the men’s sportswear, clothing and accessories area, as well as the young men’s sportswear area. Mr. Harmon still works for the Oak Park Mall store.

7. While a merchandising assistant, plaintiffs performance was reviewed several times by Mr. Harmon. Several written reviews were shown to her and placed in her employment file. On April 15, 1990, plaintiff received an overall rating of “3,” “meets job requirements,” on a scale of “1” to “5” (“1” being an “outstanding” rating). She received ratings of either “meets job requirements” or “exceeds requirements” in every area of performance. On November 1, 1990 she received an overall rating of “2,” “exceeds requirements,” and was deemed to have met or exceeded all requirements of her position. In April of 1991, she received an overall rating of “2.” That review provides that she did not meet the requirements of her position with respect to her on-time record, but that she met or exceeded all other requirements of her position. In her reviews it was noted that plaintiff did an excellent job in providing customer service and had excellent “people skins.”

8. In 1990, plaintiff was absent two days and late seven times. Her review as of October 1,1990 did not indicate any deficiency in her attendance or “on time” record. In 1991, plaintiff was late five times and absent nine times. Six of those absences, however, were attributed to a single incident in which plaintiff was injured in a car accident and could not work. For purposes of Penney records and attendance policies, her supervisors treated the six absences from the car accident as a single absence. Thus, for official purposes, plaintiff was absent four times in 1991. Mr. Harmon’s review of plaintiffs 1991 performance, done in 1992 pursuant to Penney’s policy of reviewing for the preceding year, indicated that her attendance record did not meet Penney requirements, a less favorable rating than the year before.

9. On September 28, 1991, plaintiff failed to notify the store that she was going to be late and was, in fact, approximately 3-1/2 hours late to work that day. Mr. Harmon verbally warned plaintiff that her failure to call was unacceptable. The day in question was a Saturday, the busiest day of the workweek during the non-holiday season. Mr. Harmon believed plaintiff was late because of another job she was working.

10. On December 12, 1991, plaintiff had an argument with Carol Szymanski, an Asian American female who was forty-five years of age and was another merchandising assistant in the men’s department. Plaintiff believed that Ms. Szymanski inappropriately chastised a salesperson in front of a customer. During the confrontation, plaintiff “mumbled” something about Ms. Szymanski being a “witch” or “being on a broom.” Mr. Harmon spoke with both women about the incident. He believed that plaintiff improperly “side[d] with other employees against [a] fellow merchandising assistant.” He believed that plaintiff “had a tough time understanding her loyalties” to management and other managing assistants. He also believed her actions were a poor example for the salespeople and did not provide proper leadership.

11. The day after Christmas is one of the, if not the, busiest day of the year in the [436]*436men’s department at the Penny store. A large number of customers are present for after-holiday sales and there are traditionally a large number of returns and exchanges that day. Penney does not permit employees to take vacation or personal holiday time on this day.

12. Plaintiff was scheduled to work on December 26, 1991. She called the store receptionist, Robyn Glosenger, a Caucasian female, shortly after 8:00 a.m. and told her that she would be taking the day off. Ms. Jones explained that she unexpectedly had to take her daughter to the airport and had other things she needed to do. She did not tell Ms. Glosenger that she was ill, nor did she sound hoarse on the phone. Ms. Glosen-ger wanted plaintiff to speak with Mr. Harmon, but he was unavailable, so she directed plaintiffs call to Marcea Brown, a Caucasian female who was another employee in the department. Plaintiff told Ms. Brown that she was ill and would not be coming to work.

13. Ms.

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889 F. Supp. 432, 1995 U.S. Dist. LEXIS 9618, 67 Empl. Prac. Dec. (CCH) 43,910, 1995 WL 400813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-jc-penney-co-ksd-1995.