MCCLURE (DORIS) VS. DOLLAR GENERAL STORE, LTD.Annotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN BATES, JUDGE
ACTION NO. 05-CI-00328
DOLLAR GENERAL STORES, LTD.
AFFIRMING IN PART AND
REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE: NICKELL AND THOMPSON, JUDGES; ROSENBLUM,1 SPECIAL
ROSENBLUM, SPECIAL JUDGE: Doris McClure appeals the August 3, 2007,
order of the Grant Circuit Court granting summary judgment in favor of Dollar
Retired Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution.
General Stores, Ltd. (DGS) in McClure’s lawsuit against DGS for unlawful
termination. We affirm in part and reverse and remand in part.
McClure was an employee of DGS from January 1992 until May
2005. During the last several years of her employment with DGS, McClure was
the store manager of the DGS located in Dry Ridge, Kentucky. From April 9,
2005, through May 13, 2005, McClure was on a special assignment where she
rotated between fifteen stores and conducted inventory. During this time, Debra
Burden was in charge of the Dry Ridge store. On May 10, 2005, money was
missing from the deposit of the Dry Ridge store. McClure stopped by the store to
assist DGS employees in finding the money. The money was not found.
On May13, 2005, McClure was terminated by District Manager Mike
Pennington for being listed as the store manager at the time the money was lost.
McClure contacted the DGS corporate office and was informed that she had, in
fact, been terminated and an investigation was pending in her personnel file for the
missing money. As its reason for McClure’s termination, DGS contends that
McClure violated store policy by giving the safe combination to other DGS
employees and by permitting non-employees to perform employee tasks.
On July 15, 2005, McClure filed a complaint against DGS in the
Grant Circuit Court. In her complaint, McClure alleged age discrimination, gender
discrimination, intentional infliction of emotional distress, negligent
supervision/training, slander per se and vicarious liability of DGS for the acts of its
employees. McClure also sought attorney fees. DGS moved for summary
judgment. After discovery and an attempt at mediation, the trial court granted
DGS’s motion for summary judgment. The trial court order read in part:
[w]ith regard to Plaintiff’s claims of gender
discrimination, age discrimination, outrage or intentional
infliction of distress, defamation, and negligent
supervision, the Court finds that there is no genuine issue
as to any material fact and Defendant is entitled to
judgment as a matter of law.
This appeal followed.
On appeal, McClure argues that the grant of summary judgment
should be reversed and remanded so that a jury can resolve all factual disputes. By
McClure’s own admission, her claims of intentional infliction of emotional distress
and negligent supervision were waived at the trial court level and have been
voluntarily withdrawn at this level. Accordingly, those claims will not be
addressed and this Court will review only the claims of age discrimination, gender
discrimination and defamation.
The standard of review of a trial court's grant of summary judgment is
“whether the trial court correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment as a matter of
law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996). Summary judgment is
proper when it appears that it would be impossible for the adverse party to produce
evidence at trial supporting a judgment in his favor. James Graham Brown
Foundation, Inc. v. St. Paul Fire Marine Ins. Co., 814 S.W.2d 273, 276 (Ky.1991).
An appellate court must review the record in a light most favorable to the party
opposing the motion and must resolve all doubts in his favor. Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). “Because
summary judgments involve no fact finding, this Court reviews them de novo, in
the sense that we owe no deference to the conclusions of the trial court.” Pinkston
v. Audubon Area Community Services, Inc., 210 S.W.3d 188, 189 (Ky.App. 2006)
In order to establish a prima facie case of defamation, a plaintiff must
prove defamatory language about the plaintiff which is published and which causes
injury to reputation. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky.
2004) (citation omitted). “The notion of “publication” is a term of art, and
defamatory language is “published” when it is intentionally or negligently
communicated to someone other than the party defamed.” Id. at 794.
McClure alleges that she was defamed by Pennington’s statements to
other DGS employees regarding the missing money and by the investigation
performed by the corporate office. She claims that these acts had a disparate
impact on her reputation in the small community where she worked. Although
McClure refers to these instances in which she believes she was defamed, she
offers no evidentiary citations in her brief that would support a judgment in her
favor. Issues of fact cannot be created by making conclusory statements which are
unsupported by any citation to specific evidence. Accordingly, the summary
judgment with regard to her defamation claim is affirmed.
Because McClure’s claim of gender discrimination was withdrawn
during oral argument before this Court, we affirm the summary judgment in regard
to that claim and next turn our attention to her claim of age discrimination.
It is an unlawful practice for an employer: To fail or
refuse to hire, or to discharge any individual, or
otherwise to discriminate against an individual with
respect to compensation, terms, conditions, or privileges
of employment, because of the individual's race, color,
religion, national origin, sex, age forty (40) and over, . . .
In the absence of direct evidence of discriminatory intent, a plaintiff
alleging age discrimination must satisfy the burden-shifting test of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
That analysis places the burden on the plaintiff to establish a prima facie case of
discrimination by showing that “(1) she is a member of a protected group; (2) she
was subjected to an adverse employment decision; (3) she was qualified for the
position; and (4) she was replaced by a person outside the protected class, or
similarly situated non-protected employees were treated more favorably.” Peltier
v. U.S., 388 F.3d 984, 987 (6th Cir. 2004); see also, McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In age
discrimination cases, the fourth element is modified to require replacement by a
significantly younger person, even if they are within the protected class. Williams
v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 496 (Ky. 2005). See also Turner v.
Pendennis Club, 19 S.W.3d 117, 120-21 (Ky.App. 2000) (citing O'Connor v.
Kentucky Revised Statutes.
Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d 433
(1996)) (supporting the supposition that the fourth element of an age
discrimination case does not require replacement by a person outside the protected
class, but by a significantly younger person).3
Once a plaintiff makes a prima facie case under this test, the burden
then shifts to the employer to articulate a legitimate, nondiscriminatory reason for
the termination. McDonnell, 411 U.S. at 802. If the employer articulates such a
reason, the burden then shifts back to the plaintiff to show that the explanation is
merely pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
In support of her claim for age discrimination, McClure offers the
testimony of former DGS employee Debra Burden that Pennington had
commented on McClure’s age and her necessity to retire because of it. During her
deposition, Burden stated that Pennington “made the comment, he said, well, at her
age, she needed to retire anyway, because she was 67 years old.” (Burden Dep.
19). Later in her deposition, Burden stated “[h]e just made the comment that, you
know, at 67, she needed to retire and stuff.” (Burden Dep. 39). An affidavit of
Burden also states “I heard Pennington state that [McClure] was getting too old to
work for Dollar General and the she needed to retire because of her age.”4 (Burden
DGS argues that Turner does not apply to the case sub judice, because Turner was a case
involving pay discrimination. We do not agree. Under KRS 344.040(1), employment
discrimination is equally unlawful whether it is the basis of discharge or disparate compensation.
DGS calls attention to the fact that the testimony in the affidavit and the testimony at deposition
are not identical. For the purposes of summary judgment we do not believe the minor
Aff. 2; see also R. at 293). It is also worth noting that similar testimony was
offered by DGS employee Betty Varner, who testified that Pennington “said she
was at the age . . . that she needed to retire.” (Varner Dep. 17-18). An affidavit of
Varner’s also states “I heard Pennington state that [McClure] was getting too old to
work for Dollar General and that she needed to retire because of her age.” (Varner
Aff. 2; see also R. at 295).
DGS argues that the statements of Pennington, as testified to by
Burden and Varner, are inadmissible hearsay. We do not agree.
“Hearsay” is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.
KRE5 801(c) (emphasis added). McClure does not offer Pennington’s statements
to prove that she was at an age which would necessitate her retirement. Rather, the
statements are offered to demonstrate the state of mind of Pennington regarding
age at the time she was terminated. KRE 803(3). Therefore, any testimony as to
comments made by Pennington in regard to her age are admissible and serve as
sufficient direct evidence to create an issue of material fact as to McClure’s age
discrimination claim. We believe these statements could be considered by a jury to
be the “cold hard facts” from which an inference of age discrimination can be
drawn. Handley, 827 S.W.2d at 700.
McClure is also successful in establishing a prima facie case of age
discrimination by showing that: 1) she is of the protected group, over 40 years of
discrepancies in the testimony to be relevant.
Kentucky Rules of Evidence.
age; 2) she was subjected to an adverse employment decision; 3) she was qualified
for her position; and 4) she was replaced by someone significantly younger.
DGS further argues that if McClure is successful in establishing a
prima facie case of age discrimination, her claim fails because she cannot show
that DGS’s reasons for her termination are in fact pretext. We do not agree.
[A] plaintiff may establish that the proffered reason was a
mere pretext by showing that 1) the stated reason had no
basis in fact; 2) the stated reason was not the actual
reason; and 3) that the stated reason was insufficient to
explain the defendant's action.
Logan v. Denny's, Inc., 259 F.3d 558, 574 (C.A.6 (Ohio) 2001)6. DGS has
articulated two legitimate, nondiscriminatory reasons for terminating McClure: (1)
giving out the safe combination and (2) allowing non-employees to perform
employee tasks. Both acts were violations of DGS policy, acknowledged by
McClure and thus preclude her from establishing pretext under the first and third
methods set out in Logan. However, the evidence introduced by McClure satisfies
the second method set out in Logan, i.e., that DGS’s stated reasons are not its
actual reasons. Therefore, for the purposes of the summary judgment motion,
McClure has made a sufficient showing which would allow a jury to reasonably
conclude that the reasons for her termination were mere pretext. When construing
the facts in a manner most favorable to McClure, it does not appear to be
impossible for her to produce evidence at trial supporting a judgment in her favor.
While we take notice that the 6th Circuit Court of Appeals used the word “and” between the
second and third ways to show pretext, we are under the impression that the Court intended to
use the word “or.” See Wheeler v. McKinley Enterprises, 937 F.2d 1158
(C.A.6 (Tenn.) 1991).
Accordingly, the summary judgment with respect to the age discrimination claim is
reversed and remanded.
In her appeal before this Court, McClure makes three final arguments:
(1) that she exercised reasonable diligence to secure substantially equivalent
employment, (2) that she is entitled to punitive damages, and (3) that she is entitled
to damages for pain and suffering. These issues were not addressed by the trial
court in its order granting summary judgment and therefore are not properly before
us. We will note, however, that punitive damages are not available for a claim
brought under the Kentucky Civil Rights Act, which is the source of McClure’s
discrimination claim. Kentucky Dept. of Corrections v. McCullough, 123 S.W.3d
130 (Ky. 2003). Therefore, because McClure’s common law claims were
withdrawn and only the discrimination claims remain, punitive damages are not a
remedy available to her. McClure will have an opportunity to address the
remaining two issues upon remand to the trial court and, assuming proper
preservation, will be entitled to appeal them if necessary.
For the foregoing reasons, the August 3, 2007, order of the Grant
Circuit Court is affirmed in part and reversed and remanded in part for additional
proceedings consistent with this opinion.
BRIEFS AND ORAL ARGUMENT
BRIEF AND ORAL ARGUMENT
Shane C. Sidebottom
Jonathan O. Harris