Ellsworth v. Winn-Dixie Stores, Inc., No. 2:2014cv01666 - Document 58 (E.D. La. 2016)

Court Description: ORDER & REASONS granting 42 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 11/4/2016. (mmm)

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Ellsworth v. Winn-Dixie Stores, Inc. Doc. 58 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA WHITNEY ELLSWORTH VERSUS CIVIL ACTION NO. 14-1666 WINN-DIXIE MONTGOMERY, LLC SECTION “R” (3) ORD ER AN D REASON S Defendant Winn-Dixie Montgomery, LLC m oves for sum m ary judgm ent on Plaintiff Whitney Ellsworth’s claim s of age discrim ination under the Age Discrim ination in Em ployment Act of 1967 (ADEA) and the ADEA’s state-law counterpart, the Louisiana Em ployment Discrim ination Law (LEDL). 1 Because Winn-Dixie has subm itted evidence that it term inated Ellsworth because of violations of com pany policy, and Ellsworth has failed to raise an issue of fact that Winn-Dixie’s stated reason is pretextual, the Court GRANTS Winn-Dixie’s m otion. I. BACKGROU N D This is an age discrim ination suit by a form er em ployee against his form er em ployer. Defendant, Winn-Dixie Montgomery, LLC (Winn-Dixie) 1 R. Doc. 42. Dockets.Justia.com em ployed plaintiff, 61 year-old Whitney Ellsworth, from on or about September 1, 1973 until Winn-Dixie term inated Ellsworth on J anuary 22, 20 13. 2 Winn-Dixie replaced Ellsworth, an at-will em ployee, with som eone about 20 years younger. 3 Ellsworth filed this suit on J uly 19, 20 14. 4 The parties dispute why Ellsworth was term inated. Defendant asserts that Ellsworth was fired because of his perform ance, specifically that he violated com pany policy by not preventing a fraudulent telephone scam that caused significant m onetary losses to Winn-Dixie. 5 Ellsworth contends he was term inated because of his age. The evidence in the record is as follows. On J anuary 8, 20 13, at approximately 10 :30 p.m ., Ellsworth, then a co-director or co-m anager of the store, received a phone call. 6 The caller claim ed to be with “corporate,” and wanted to speak with an experienced cashier to “perform a procedure on the front end.”7 Ellsworth transferred the call to a part-tim e cashier, Winde Ricard, who then did as the caller asked. 8 Ricard loaded $ 6,0 0 0 onto several 2 R. Doc. 42-1 at 1 ¶¶ 1, 3. R. Doc. 21 at 6 ¶ 26. 4 R. Doc. 1. Ellsworth am ended his com plaint on September 2, 20 15. R. Doc. 21. 5 R. Doc. 42-2 at 3. 6 Id. at 4. 7 R. Doc. 50 -2 at 3 ¶ 11; R. Doc. 42-1 at 3 ¶ 14. 8 R. Doc. 42-1 at 4 ¶ 19. 2 3 NetSpend cards and provided the caller with the serial num bers of the cards. 9 The call proved to be a scam. Winn-Dixie provides evidence that before the fraudulent transaction, Ellsworth had received training on theft and fraud detection that warned against telephone scams and com pleting transactions by telephone. 10 Winn-Dixie also proffered evidence that Ellsworth received m ultiple Corrective Action Reports for poor perform ance before the fraud occurred, including violations of m erchandise display policies, failure to m eet labor goals, and a custom er com plaint about Ellsworth’s “rude and derogatory demeanor.”11 It is undisputed that the cashier, who was in her early twenties, and actually perform ed the fraudulent transaction, was not term inated. There is also evidence that in 20 13 Winn-Dixie fired or demoted other employees over 40 years old. 12 Ellsworth asserts claim s for age-based discrim inatory discharge under the Age Discrim ination in Em ployment Act of 1967 (ADEA), 29 U.S.C. §§ 621-32 (20 12), and under the ADEA’s state-law counterpart, the Louisiana 9 10 11 12 Id. ¶¶ 22-23. R. Doc. 42-4 at 13; R. Doc. 42-7 (Ellsworth’s Training Log) R. Doc. 42-2 at 2; R. Doc. 42-5. R. Doc. 50 -2 at 4 ¶¶ 15-17. 3 Em ploym ent Discrim ination Law (LEDL), La. Stat. Ann. §§ 23:30 1-314 (20 16). Winn-Dixie now m oves for sum m ary judgment. 13 II. LEGAL STAN D ARD A. Su m m ary Ju d gm e n t Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrains from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgm ent.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting Wright & Miller, Fed. Prac. and Proc. Civ.2d § 2738 (1983)). 13 R. Doc. 42. 4 If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal quotation om itted). The nonm oving party can then defeat the m otion by either countering with sufficient evidence of its own, or “showing that the m oving party’s evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. Id. at 325; see also Little, 37 F.3d at 10 75 (“Rule 56 ‘m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the 5 existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.’”) (quoting Celotex, 477 U.S. at 332). B. Th e Age D is crim in atio n in Em p lo ym e n t Act The ADEA prohibits an employer from firing an em ployee “because of such individual’s age”. 29 U.S.C. § 623(a)(1). To establish an ADEA claim , a plaintiff m ust “prove by a preponderance of the evidence (which m ay be direct or circum stantial), that age was the ‘but-for’ cause of the challenged em ployer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (20 0 9). In Gross, the Court held that a “m ixed-m otive jury instruction” is never available under the ADEA. Id. at 169. A m ixed-m otive jury instruction states that if an em ployee proves that an adverse em ployment action was the result of both perm issible and im perm issible m otives, the burden of persuasion shifts to the employer to dem onstrate that it would have proceeded with the em ploym ent action notwithstanding the im proper motive. Id. at 174 (citations om itted); see also Sm ith v. City of Allentow n, 589 F.3d 684, 690 91 (3d Cir. 20 0 9) (discussing the im plications of Gross on ADEA claim s). Gross overruled Fifth Circuit caselaw that used the m ixed-m otive analysis in ADEA claim s based on direct evidence of age discrim ination. See, e.g., Machinchick v. PB Pow er, Inc., 398 F.3d 345, 250 (5th Cir. 20 0 5) (“Plaintiffs 6 presenting direct evidence of age discrim ination m ay proceed under the ‘m ixed-m otive’ analysis set forth in Price W aterhouse.”). Gross also noted: “[T]he Court has not definitely decided whether the evidentiary fram ework of [McDonnell Douglass], utilized in Title VII cases is appropriate in the ADEA context.” Gross, 557 U.S. at 175-76 n.2. The Fifth Circuit continues to apply the McDonnell Douglas fram ework to ADEA claim s after Gross. See, e.g., Holliday v. Com m onw ealth Brands, Inc., 483 F. App’x 917, 921 (5th Cir. 20 12); Manaw ay v. Med. Ctr. of Southeast Tex., 430 F. App’x 317, 321 (5th Cir. 20 11); Moss v. BMC Softw are, Inc., 610 F.3d 917, 922-23 (5th Cir. 20 10 ); Jackson v. W estern Packaging Corp., 60 2 F.3d 374, 378 (5th Cir. 20 10 ) (“[W]e are bound by our circuit precedent applying McDonnell Douglas to age discrim ination cases.”). Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff m ust first establish a prim a facie case that: (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the tim e of the discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age. Holliday , 483 F. App’x at 921 (citation om itted). After the em ployee establishes a prim a facie case, the burden of production shifts to the em ployer 7 to articulate a “legitim ate, nondiscrim inatory reason for term inating the plaintiff.” Id. If the em ployer articulates a legitim ate, non-discriminatory reason for term inating the em ployee, the plaintiff m ust then rebut the em ployer’s purported explanation by showing that the em ployer’s reason is pretextual. Moss, 610 F.3d at 922. Consistent with Gross, the burden of persuasion rem ains with the employee at all tim es, but the “burden of production and the order of presenting proof” are allocated in accordance with the McDonnell Douglas fram ework. Jackson, 60 2 F.3d at 377-78. III. D ISCU SSION Winn-Dixie’s m otion for sum m ary judgm ent argues that Ellsworth cannot m ake out a prim a facie case under the ADEA or the LEDL, and that even if Ellsworth has established a prim a facie case, Ellsworth cannot establish that Winn-Dixie’s stated reason for term ination was pretextual. 14 A. Ells w o rth ’s Prim a Facie Cas e Ellsworth need only m ake a m inim al showing to shift the burden of production to Winn-Dixie. Baker v. Am . Airlines, Inc., 430 F.3d 750 , 754 (5th Cir. 20 0 5). Winn-Dixie does not seriously challenge that Ellsworth has m et his burden on the first three elem ents of the prima facie case, not 14 R. Doc. 42. 8 contesting that Ellsworth was fired, was qualified for his position, 15 and within the protected class at the tim e of his discharge. What Winn-Dixie disputes is whether Ellsworth has m et his burden on the fourth element. Winn-Dixie argues that Ellsworth has not satisfied the fourth elem ent because he cannot show that he was treated “less favorably than a sim ilarly situated individual.”16 Winn-Dixie relies on Abarca v. Metro Transit Authority , 40 4 F.3d 938 (5th Cir. 20 0 5). Abarca, however, addresses a prim a facie case for em ployment discrim ination based on race or national origin, not age. See id. at 941. In age discrim ination cases, the plaintiff can satisfy the fourth elem ent of a prim a facie case simply by showing that he or she was replaced by someone younger. See, e.g., Holliday , 483 F. App’x at 921 (citation om itted). There is no dispute that Ellsworth was replaced by Steve Stevens, and although there is some ambiguity as to Mr. Stevens’s age, 17 there is no dispute that he is younger than Ellsworth. Therefore, Ellsworth has m et this “low burden” and established his prim a facie case. 15 Although Winn-Dixie states conclusorily that Ellsworth “was not qualified for his position,” id. at 1, it abandons this argum ent and produces no evidence creating a factual dispute as to Ellsworth’s qualifications. 16 R. Doc. 42-2 at 8. 17 Ellsworth attests in his Declaration that Stevens is 38, R. Doc. 50 -2 at 1 ¶ 3, while Darlene J ohnson estim ates in her deposition that Stevens is 32 or 33. R. Doc. 50 -6 at 4. It is unclear from the record and from the lim ited deposition excerpt who Darlene J ohnson is or what her relation is to this litigation. 9 B. Le gitim ate , N o n -d is crim in ato ry Re as o n Ellsworth’s prim a facie case does not end the inquiry, it sim ply shifts the burden of production to Winn-Dixie. The rebuttal of a plaintiff’s prim a facie case, like the prim a facie case itself, requires only a m inim al showing. See, e.g., Am burgey v. Corhart Refractories Corp., 936 F.2d 80 5, 813 (5th Cir. 1991). Still, the explanation (if believed) m ust be legally sufficient to justify a judgm ent for defendant, and the defendant cannot m eet its burden m erely through an answer to the com plaint or by argument of counsel. Texas Dept. of Cm ty . Affairs v. Burdine, 450 U.S. 248, 255 n.9 (1981). Winn-Dixie has produced evidence that Ellsworth was term inated because of poor perform ance and violation of com pany policy. This evidence includes: • • • Two Corrective Action Reports dated November 9, 20 12 and J anuary 5, 20 13, detailing Ellsworth’s violations of com pany policy, including violations of m erchandise display policies, failure to m eet labor goals, and a custom er com plaint about Ellsworth’s “rude and derogatory dem eanor.”18 The Corrective Action Report after the fraudulent transaction dated J anuary 21, 20 13 and signed by then-Hum an Resource Generalist Mindy Savoy, stating that Ellsworth has been term inated for “not following procedure.”19 A sworn statement from Bryce Brown, the Store Director at the tim e of the fraudulent transaction, stating that Ellsworth was term inated for 18 19 R. Doc. 42-5; R. Doc. 42-6. R. Doc. 57 at 8. 10 violating com pany policy and for facilitating his subordinate’s violation of com pany policy. 20 • A statem ent from Nelson Fisher, Winn-Dixie’s Asset Protection Specialist. 21 Fisher states that Ellsworth was term inated for violating com pany policy, and his statem ent describes how Ellsworth’s actions violated com pany policy. 22 Ellsworth does not dispute that violating com pany policy is a legitim ate, nondiscrim inatory reason for his term ination. Rather, he asserts that because Winn-Dixie cannot identify who specifically m ade the decision to term inate him , Winn-Dixie cannot introduce any non-discrim inatory reason for his term ination. 23 Additionally, even if the Court accepts Winn-Dixie’s stated reason for his term ination, Ellsworth argues that this reason is a pretext for discrim ination. The Court rejects Ellsworth’s argum ent that Winn-Dixie cannot introduce a non-discrim inatory reason because it has not identified the specific decision-maker. In its response to Ellsworth’s interrogatory that asked for the identities of everyone who “participated” in the decision to term inate Ellsworth, Winn-Dixie objected to the interrogatory as overly broad and identified Mindy Savoy and form er District Director Perry 20 21 22 23 R. Doc. 42-10 at 2. R. Doc. 42-11. Id. R. Doc. 50 at 11. 11 Fontanille. 24 Ellsworth points to deposition testim ony by Savoy and Fontanille to contend that they were not responsible for m aking the final decision to term inate Ellsworth. This argum ent is unavailing. First, Savoy testified at her deposition that she participated in the decision to term inate Ellsworth and collaborated with the other decision-m akers. 25 Second, although Fontanille did state in his deposition that he did not participate in the decision to term inate Ellsworth, he said that he does not know who m ade the decision to term inate Ellsworth, and never m entioned Savoy. 26 Third, Ellsworth does not challenge the Corrective Action Report signed by Savoy that states that Ellsworth was terminated for not following com pany procedure. 27 Finally, Ellsworth does not challenge the other docum ents stating that Ellsworth was fired for violating com pany policy. 28 Winn-Dixie’s showing as to the identity of the decision-m akers and the existence of a nondiscrim inatory reason to term inate Ellsworth are sufficient evidence to satisfy its burden under the McDonnell Douglas fram ework. 24 25 26 27 28 R. Doc. 50 -7 at 8 ¶ 8. R. Doc. 50 -4 at 3-6. R. Doc. 50 -5 at 3-4. R. Doc. 57 at 8. See R. Doc. 42-10 ; R. Doc. 42-11. 12 C. Pre te xt To preclude summary judgm ent, Ellsworth m ust show that there is a genuine issue of material fact that Winn-Dixie’s reason for term inating him is pretextual. Moss, 610 F.3d at 922. Ellsworth can m ake this showing through evidence of disparate treatment or by evidence that Winn-Dixie’s explanation is “false or ‘unworthy of credence.’” Id. (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 20 0 3). A “mere scintilla of evidence of pretext” will not create an issue of m aterial fact in all cases. Craw ford v. Form osa Plastics Corp., 234 F.3d 899, 90 2-0 3 (5th Cir. 20 0 0 ). A plaintiff “m ust present sufficient evidence to find that the employer’s asserted justification is false.” Id. at 90 3 (internal quotation om itted). In determ ining whether a plaintiff has introduced sufficient evidence of pretext to preclude sum m ary judgment, “a court should consider the strength of plaintiff’s prima facie case, the probative value of the [evidence] that the em ployer’s explanation is false, and any other evidence that supports the em ployer’s case.” Id. at 90 2 (quoting Reeves v. Sanderson Plum bing Products, Inc., 530 U.S. 133, 148-49 (20 0 0 )). None of Ellsworth’s pretext arguments is sufficient to create a genuine issue of m aterial fact that Winn-Dixie’s justification for his term ination is either false or unworthy of credence. 13 1. Pr e v io u s Co r r e ct iv e Act io n R e p o r t s Ellsworth first argues that the previous Corrective Action Reports in his file were unwarranted and recorded as an effort to “paper the file” to justify his term ination. 29 To support his contention, Ellsworth alleges that his perform ance was not deficient, and he should not have been disciplined for the supposed infractions because they were based on false allegations. Even if Ellsworth is correct that he unfairly or unjustly received these Corrective Action Reports, this would not create a genuine issue of material fact as to whether Winn-Dixie’s stated reason is pretextual. See Bienkow ski v. Am . Airlines, Inc., 851 F.2d 150 3, 150 8 (5th Cir. 1988). The ADEA “was not intended to be a vehicle for judicial second-guessing of em ploym ent decisions, . . . [and] cannot protect older employees from erroneous or even arbitrary personnel decisions.” Id., at 150 7-0 8; see also Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991) (“Even an incorrect belief that an em ployee’s perform ance is inadequate constitutes a legitim ate, nondiscrim inatory reason.”). More evidence is required to create a genuine issue of m aterial fact that Winn-Dixie’s stated reason for term inating Ellsworth is pretextual or unworthy of credence; disputes over Ellsworth’s previous job 29 R. Doc. 50 at 3. 14 perform ance are insufficient. Bienkow ski, 851 F.2d at 150 8; Republic Ref., 924 F.2d at 97. 2. Ot h e r Em p lo y e e s Te r m in a t e d b y W in n -D ixie Next, Ellsworth points to the 20 13 term ination or dem otion of three other older em ployees 30 at either the Winn-Dixie where Ellsworth worked or other local Winn-Dixies. In connection with these employm ent actions, Ellsworth refers to a May 13, 20 13 newspaper article noting that Winn-Dixie planned to save $ 10 0 m illion in labor costs by elim inating some positions. 31 Ellsworth argues that this plan to save m oney manifested itself in a discrim inatory pattern of term inating or dem oting older em ployees. Ellsworth’s argument fails for two reasons. First, Ellsworth has introduced no evidence suggesting that the other em ployees were fired because of their age. In fact, Ellsworth seems to suggest that those em ployees were fired as part of a larger plan to cut costs. The Fifth Circuit has m ade clear that the ADEA “prohibits discrim ination on the basis of age, not salary .” Arm endariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir. 1995) (citing Hazen Paper Co. v. Biggins, 50 7 U.S. 60 4, 60 9-15 (1993)) 30 The three are Byron Brown (age 54), Leo Schaefer (age 42 or 43), and Alton Preston (estim ated to be in his late 40 ’s or early 50 ’s). R Doc. 50 2 at 4 ¶¶ 15-17. 31 R. Doc. 50 -9. 15 (em phasis added). Therefore, if these employees were term inated or dem oted in an effort to save labor costs, this would not violate ADEA. Second, even if the Court found that this plan to save m oney m anifested itself in a discrim inatory fashion, Ellsworth has not m et his evidentiary burden to establish that there actually was a pattern of discrim ination. While discrim inatory patterns or practices can be evidence both of a prim a facie case and that an em ployer’s stated justification is pretextual, Moss, 610 F.3d at 922, a “pattern or practice” of discrim ination cannot be established by “isolated or sporadic discrim inatory acts by the em ployer.” Cooper v. Fed. Reserve Bank of Richm ond, 467 U.S. 867, 875 (1984). Instead, there m ust be evidence that “discrimination was the com pany’s standard operating procedure—the regular rather than the unusual practice.” Id. Additionally, the other em ployees m ust be sim ilarly situated to the plaintiff for the evidence to be probative of a pattern. W y vill v. United Com panies Life Ins. Co., 212 F.3d 296, 30 2 (5th Cir. 20 0 0 ) (citation om itted). Not only has Ellsworth failed to introduce evidence that the other employees are sim ilarly situated to him , see id. at n.2, but even if they were, three employees is too sm all a sam ple to suggest that Winn-Dixie was engaged in a pattern of discrim ination. See Apsley v. Boeing Co., 691 F.3d 1184, 1198-20 0 1 (10 th Cir. 20 12) (finding that even if 1% of older 16 em ployees were discrim inated against, this would still be sporadic discrim ination, not evidence of a pattern). If the three em ployees were fired due to their age, the discrim ination is “isolated or sporadic,” not a pattern. Cooper, 467 U.S. at 875; see also Apsley , 691 F.3d at 120 1. Further, the finding that this is not a pattern is buttressed by the fact that Winn-Dixie term inated a younger employee for the same violation as Ellsworth. 32 3. Id e n t it ie s o f D e cis io n -M a k e r s Ellsworth also reiterates his decision-m aker argument, this tim e suggesting that discrepancies over who actually m ade the decision to term inate Ellsworth are evidence that Winn-Dixie’s stated justification is pretextual. While the Fifth Circuit has held that substantial inconsistencies or discrepancies in the defendant’s explanation for term ination, when considered with other evidence, can create an inference of pretext, see Gee v. Principi, 289 F.3d 342, 347-48 (5th Cir. 20 0 2), the Fifth Circuit has never held that discrepancies over the identities of decision-m akers alone is sufficient to find pretext. Ellsworth is also unable to cite any case suggesting otherwise. Though Ellsworth points to two cases in which courts considered the m isidentification of, or total failure to identify, the relevant decisionm aker in finding the employer’s stated reason to be pretextual, those cases 32 R. Doc. 42-11. 17 are dististinguishable. In Sabbrese v. Low e’s Hom e Centers Inc., a case which is not binding on this Court, the court found that the failure to identify the responsible decision-m aker was a factor suggesting that the defendant’s justification was pretextual. 320 F. Supp. 2d 311, 326 (W.D. Pa. 20 0 4). But there the pretext finding was heavily influenced by the fact that the em ployer’s stated justification was inconsistent with the facts of the case, a factor not present here. 33 Ellsworth also cites Turner v. Kansas City Southern Railw ay , 675 F.3d 887 (5th Cir. 20 12). In Turner, the court found the m isidentification of the decision-m aker relevant to whether the stated reason for term ination was pretextual. See id. at 90 1-0 3. The court did not hold that m isidentification alone was evidence of pretext, and Turner not only had direct evidence of race-based anim us, but also showed that there was a lack of evidence supporting the em ployer’s stated reason. See id. at 90 2-0 3. The opposite is true here, Ellsworth has introduced no direct evidence of age discrim ination, and there is evidence supporting Winn-Dixie’s stated reason. 33 Specifically, the court noted that it was im plausible that the em ployee was terminated for the employer’s stated reason of com m itting a battery against another em ployee, since the term inated em ployee was allowed to com plete his shift after the alleged battery and remained an em ployee for two weeks; he was term inated only after com plaining about discrim inatory treatm ent. Sabbrese, 320 F.3d at 324, 326. 18 Further, to the extent that Ellsworth argues that unidentified decisionm akers were motivated by age in terminating Ellsworth, there is sim ply no evidence to support this contention. Acknowledging this lack of evidence, Ellsworth argues that he did not have tim e to depose the other decisionm akers to determ ine if they were m otivated by age. 34 But Ellsworth had the nam es of the decision-m akers after Savoy’s deposition on J uly 13, 20 16, nearly a m onth before the discovery deadline. Furtherm ore, Ellsworth could have asked this Court for an extension of the discovery deadline, but he made no such request. Winn-Dixie has provided evidence that Savoy recomm ended Ellsworth be term inated because of his violation of com pany policy. 35 Additionally, Savoy testified that Nelson Fisher participated in the decision to term inate Ellsworth. 36 Winn-Dixie has subm itted the contemporaneous incident report on the telephone scam, signed by Fisher, detailing Ellsworth’s violations of com pany policy. 37 Winn-Dixie has also subm itted a statement by Fisher stating that he completed the incident report, gave the report to Savoy, and was present when Savoy term inated Ellsworth. 38 Ellsworth has 34 35 36 37 38 R. Doc. 50 at 12. R. Doc. 50 -4 at 4. Id. R. Doc. 57 at 8. R. Doc. 42-11. 19 introduced no evidence that any of the identified decision-m akers were m otivated by age in deciding to term inate him . Without m ore, any discrepancies over who participated in the decision to terminate Ellsworth is insufficient to create a genuine issue of m aterial fact as to whether WinnDixie’s reason was pretextual. 4. Co m p a r a t o r Em p lo y e e Next, Ellsworth argues that his term ination for his role in the fraudulent phone transaction while the younger cashier involved was not term inated is evidence of pretext. At the outset, Ellsworth is not disputing his role in the fraudulent transaction or that allowing a fraudulent transaction to occur on his watch could be a legitim ate reason for term ination. 39 Still, whether the failure to term inate Winde Ricard is evidence of pretext depends on whether she is sim ilarly situated to Ellsworth. See, e.g., Lee v. Kansas City S. Ry . Co., 574 F.3d 253, 259-60 (5th Cir. 20 0 9). Ellsworth’s com parator evidence fails to raise an inference of pretext. From the record, it is apparent that Ellsworth and Ricard are not sim ilarly situated. First, Ellsworth was the store co-director; Ricard was a cashier. Ellsworth’s position gave him supervisory and training responsibilities that Ricard’s position does not include. Ellsworth received training on telephone 39 R. Doc. 42-4 at 12. 20 scams and repeated warnings about not com pleting transactions by phone. 40 There is no evidence in the record that Ricard received the same warnings as Ellsworth. Second, Ricard had a duty to follow Ellsworth’s instructions, not vice versa. 41 Third, Ellsworth and Ricard do not have the sam e or even com parable violation histories. Id. at 260 (com paring work responsibilities and violation histories to determ ine if em ployees are sim ilarly situated). Ellsworth’s employee file includes at least two corrective action reports for violations of com pany policy and custom er complaints. 42 There is no evidence in the record indicating any previous policy violations by Ricard. Finally, although Ellsworth and Ricard were both involved in the fraudulent transaction, their conduct in question was not “nearly identical.” Id. (citations om itted). Winn-Dixie subm its the statem ent of its Asset Protection Specialist Nelson Fisher. Fisher states that Ellsworth violated com pany policy not only by failing to identify the caller, but also by directing his subordinate Ricard to handle the caller’s transaction. 43 By his own adm ission, Ellsworth did not identify the caller or take steps to verify that the caller was actually with Winn-Dixie corporate, even though he had been 40 41 42 43 R. Doc. 42-7; R. Doc. 42-4 at 13. R. Doc. 42-4 at 6. R. Doc. 42-5; R. Doc. 42-6. R. Doc. 42-11. 21 cautioned to do so. 44 Ellsworth also adm its that he was Ricard’s superior, that she was required to follow his instructions, and he told her to help the caller with “a procedure on the front-end.”45 Therefore, Ellsworth’s conduct and Ricard’s conduct were not nearly identical. That the failure to term inate Ricard is not evidence of pretext is also supported by evidence that Winn-Dixie term inated other co-directors for the same violation as Ellsworth’s. Winn-Dixie has subm itted evidence, unchallenged by Ellsworth, that Winn-Dixie term inated two other local store co-directors for allowing fraudulent card transactions to occur on their watch. 46 Unlike Ricard, these em ployees appear to be sim ilarly situated to Ellsworth. See id. For the foregoing reasons, Ellsworth’s com parator evidence fails to raise an inference of pretext. 5. Pr o g r e s s iv e D is cip lin e Po licy Finally, Ellsworth argues that his termination was not in com pliance with Winn-Dixie’s internal progressive discipline policy, 47 and that this noncom pliance is evidence of pretext. 48 Ellsworth asserts that Winn-Dixie’s 44 45 46 47 48 R. Doc. 42-4 at 11, 13. Id. at 6, 10 . R. Doc. 42-11. R. Doc. 50 -10 at 8. R. Doc. 50 at 13. 22 policy is to not term inate em ployees until they have received three “writeups,” and points to the deposition testim ony of Ms. Savoy to support his assertion. 49 Ellsworth’s argument is not supported by the facts. Savoy’s deposition testim ony refutes Ellsworth’s allegation that he was not fired in com pliance with Winn-Dixie’s policy, as she notes that serious violations can lead to term inations regardless of prior warnings. 50 Further, Winn-Dixie’s em ployee handbook expressly allows for im m ediate term ination, regardless of prior write-ups, for certain violations. 51 The handbook contains a list of violations that m ay call for im m ediate term ination, and the list, which is not m eant to be exhaustive, includes ignoring conduct by others that results in em bezzlement of com pany funds or assisting another to com m it theft. 52 Additionally, Ellsworth acknowledged in his deposition that failure to identify a caller seeking an over-the-phone transaction is grounds for term ination. 53 Ellsworth m aintains that under Winn-Dixie’s policy, he should have received a write-up for his conduct related to the fraudulent transaction, not term ination. As explained above, the ADEA is not a vehicle to second-guess 49 50 51 52 53 Id. R. Doc. 50 -4 at 11. R. Doc. 50 -10 at 8. Id. R. Doc. 42-4 at 12. 23 erroneous or even arbitrary em ploym ent decisions. Bienkow ski, 851 F.2d at 150 7-0 8; Republic Ref., 924 F.2d at 97. Without som e nexus between Ellsworth’s term ination and his age, even if there were evidence that WinnDixie did not follow com pany procedures, this would not rise to a level sufficient to infer pretext. See W y vill, 212 F.3d at 30 5 (holding that even assum ing com pany did not follow standard procedure in term inating plaintiff, the evidence was insufficient to infer pretext without “nexus between the em ployment actions taken . . . and the em ployee’s age”) (quotation om itted). Ellsworth’s bald assertion that his term ination was m otivated by his age sim ply will not suffice. Id. Based on the lack of evidence relevant to his claim , the Court concludes that no rational factfinder could find that Ellsworth’s age was the “but-for” cause of his term ination. See Price, 283 F.3d at 720 ; Gross, 557 U.S. at 177. Accordingly, the Court grants sum m ary judgment against Ellsworth on his ADEA claim . D. LED L Claim Ellsworth alleges the sam e set of facts in support of both his ADEA claim and his LEDL claim . 54 Federal and Louisiana courts consider the two statutes to be substantively identical and apply the same legal standards 54 R. Doc. 21 at 7 ¶ 38. 24 under each. See, e.g., Deloach v. Delcham ps, Inc., 897 F.2d 815, 818 (5th Cir. 1990 ); LaBove v. Raftery , 80 2 So. 2d 566, 573 (La. 20 0 1). Thus, sum m ary judgm ent is granted on Ellsworth’s LDEL claim for the same reasons as those cited for granting summ ary judgm ent on his ADEA claim . IV. CON CLU SION For the foregoing reasons, Winn-Dixie’s m otion is GRANTED. 4th New Orleans, Louisiana, this _ _ _ _ _ day of November, 20 16. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 25

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