Nelms v. Ross Stores, Inc.

853 F. Supp. 883, 1994 U.S. Dist. LEXIS 2666, 64 Empl. Prac. Dec. (CCH) 43,036, 65 Fair Empl. Prac. Cas. (BNA) 1106, 1994 WL 241755
CourtDistrict Court, M.D. North Carolina
DecidedJanuary 20, 1994
DocketCiv. No. 6:92CV00772
StatusPublished
Cited by1 cases

This text of 853 F. Supp. 883 (Nelms v. Ross Stores, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nelms v. Ross Stores, Inc., 853 F. Supp. 883, 1994 U.S. Dist. LEXIS 2666, 64 Empl. Prac. Dec. (CCH) 43,036, 65 Fair Empl. Prac. Cas. (BNA) 1106, 1994 WL 241755 (M.D.N.C. 1994).

Opinion

MEMORANDUM OPINION

BULLOCK, Chief Judge.

This case comes before the court on Defendants’ motion for summary judgment. Plaintiff Mary L. Nelms alleges that she was disciplined and discharged by Defendants Ross Stores, Inc., d/b/a Ross Dress for Less, (“Ross”) and her former manager Denise Gupton because of her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1988) (“ADEA”).

[884]*884Because there is a lack of evidence to support Plaintiffs claim, the court will grant Defendants’ motion for summary judgment.

FACTS

Plaintiff was hired in 1986 at the age of fifty-one to work in the shoe department of the Ross Dress for Less store in Winston-Salem, North Carolina. During her employment with Ross, Plaintiff was supervised by at least three different managers: Fred Bar-ger, Joe Cutts, and Denise Gupton.

Before July 1991, Plaintiff was instructed on various occasions to improve her substandard attendance record, remain in the department during work hours, provide better customer service, cease disrupting the department with gossip or complaints, and report concerns directly to management.

On July 9, 1991, Plaintiff, responding to a co-worker who had been teased by others, said words to the effect of, “that’s what happens when the store is staffed by a bunch of kids.” Pl.’s Aff. ¶6 (filed Sept. 20, 1993). On July 15, Plaintiff was given a written corrective action report based on her comments. It instructed her to refrain from complaining and making comments about others and to report problems directly to management, as she had previously been instructed to do. As at least one other personnel report had done, the July 15 report also warned that further problems could result in “disciplinary action up to and including termination.” Corrective Action Report of July 15, 1991 (Defs.’ Ex. 10, filed Sept. 3, 1993); Individual Personnel Report of November 16, 1989 (Defs.’ Ex. 7, filed Sept. 3, 1993). Two of the employees who had participated in the teasing were also written up for their conduct.

During the remainder of 1991, Plaintiff was told to increase her attendance, improve her working relationships, and avoid gossiping. Like other store employees, she was asked to assume broader responsibilities in the store. Once in the fall of 1991 and once in the spring of 1992, after at least two customers complained about her rudeness, she was told to provide more prompt and earing customer service. In the spring of 1992, she was also told to follow fitting room policies, especially to monitor the garment tags given to customers as a theft-prevention measure.

On July 28,1992, Plaintiff was given a final corrective action report which set out short-term performance goals and warned that if her performance had not risen to an acceptable level in thirty (30) days she would be fired. Nevertheless, after the warning, she failed to account for the absence of a check from her cash drawer or respond promptly or adequately to an instruction to organize the shoes in the department. Finally, on August 12,1993, during Plaintiffs shift in the fitting room, a customer left the store with a magnetized garment tag that activated an alarm. Defendants believe that this occurred because Plaintiff failed to collect all the tags.

Gupton discussed these incidents with the district manager, Willis Archer, who had no knowledge of Plaintiffs “kids” comment. He recommended that Plaintiff be discharged. Plaintiff was discharged that afternoon.

Plaintiff filed a charge of age discrimination with the EEOC on August 27, 1992, and filed this lawsuit on December 22, 1992.

DISCUSSION

Summary judgment must be granted if the record reveals no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The movant bears the burden of persuasion on these issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A non-movant may survive the motion by producing “evidence from which a jury might return a verdict in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The substantive law applicable to the case determines whether a fact is material. Id. at 248,106 S.Ct. at 2510. In considering evidence, all reasonable inferences are to be drawn in favor of the non-moving party. Id. at 255, 106 S.Ct. at 2514.

Plaintiff concedes that she suffered no discrimination before she made her “kids” comment of July 9,1991. She claims, however, that starting on July 15, Gupton discrimi[885]*885nated against her in violation of the ADEA by means of a series of disciplinary measures that culminated in discharge. To prevail on her claim, Plaintiff must prove that but for Defendants’ intentional discrimination against her on the basis of her age she would not have been disciplined as severely as she was. To that end, Plaintiff presents the following evidence: her own age at the time (ñfty-seven), her “Mds” comment, and her “intuition.” Pl.’s Dep. at 70, 204 (filed Sept. 8, 1993). This evidence may be indicative of her opinion of younger people, but it is not indicative of Defendants’ opinion of older ones. It is insufficient evidence of Defendants’ discriminatory motivation.

Because Plaintiff has presented insufficient direct evidence of Defendants’ discrimination, the court will analyze the facts according to a scheme of proof adapted from the model in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under that scheme, Plaintiff must first establish a prima facie case of discrimination. To this end, she has shown that she was at least forty (40) years old, and thus in the age group protected by the ADEA, when disciplinary measures that culminated in discharge were taken against her. To complete her prima facie case, however, Plaintiff must also show that she engaged in prohibited conduct comparable in seriousness to that of a person less than forty (40) years old and that the younger person was disciplined less severely. See Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir.1993); Moore v. City of Charlotte, 754 F.2d 1100, 1105-06 (4th Cir.), cert. denied, 472 U.S. 1021, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985). Plaintiff does not establish a prima facie case.

Plaintiff was disciplined on July 15, 1991, for “complaining, gossiping, and talking about others ... [as] this contributes to low morale.” Corrective Action Report of July 15, 1991.

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853 F. Supp. 883, 1994 U.S. Dist. LEXIS 2666, 64 Empl. Prac. Dec. (CCH) 43,036, 65 Fair Empl. Prac. Cas. (BNA) 1106, 1994 WL 241755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelms-v-ross-stores-inc-ncmd-1994.