United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
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.
plaintiff, Jacque Armstrong, was employed by the defendant,
Hy-Vee, Inc., as a floral department manager at the
defendant's grocery store in northeast Lincoln. Filing 53
at 7. She was born in 1957. Filing 54-3 at 142.
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.
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.
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.
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. SeeFed.
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.
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 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.
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
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." 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,  and will deny her
motion to strike.
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. SeeBillingsley v. BFM
Liquor Mgmt., Inc., 645 N.W.2d 791, 801 (Neb. ...