Fula v. Safeway Stores, Inc.

DEB FULA, Plaintiff, v. SAFEWAY STORES, INC., Defendant.

CIV. 12-5071-JLV

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

September 30, 2014

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 acomplete 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 specificfacts 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 isadmitted 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.

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 Catalinacoupons, 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 monthsbefore 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 ("...