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Armstrong v. Hy-Vee Inc.

United States District Court, D. Nebraska

March 7, 2017

JACQUE ARMSTRONG, Plaintiff,
v.
HY-VEE, INC., Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge.

         This 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.

         BACKGROUND

         The 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.[1] She was born in 1957. Filing 54-3 at 142.

         Armstrong's 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.

         Armstrong 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.

         After 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.

         STANDARD OF REVIEW

         Summary 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.

         On a 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.

         DISCUSSION

         Before 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 discrimination.

         Second, 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."[2] 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, [3] and will deny her motion to strike.

         That 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. ...


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