United States District Court, D. Arizona
FREDERICK J. MARTONE, District Judge.
We have before us defendants' motion for summary judgment (doc. 25), plaintiff's response (doc. 27), and defendants' reply (doc. 29).
Plaintiff was hired by defendant Sam's Club on November 16, 2006. She became a cashier in August of 2008. Sam's Club has a "Coaching for Improvement Policy" designed to help employees improve their job performance. If an employee receives four "coachings" within a twelve-month period, the employee is subject to termination. Cashiers are randomly given "shrink tests" by Sam's Club's audit team. During the test, items are hidden inside a shopping cart and cashiers are expected to discover the hidden items. Plaintiff received "coachings" for cash register overages and shortages and for failing shrink tests beginning in November 2010. Because she ultimately received four coachings within a twelve-month period, she was terminated on April 18, 2012.
Plaintiff alleges that Sam's Club started retaliating against her in August 2009 after she reported to management that other employees took extended breaks. She claims the retaliation included a reduction in her hours and an order by her supervisor to mop the floor. She filed her first Charge of Discrimination with the EEOC on May 24, 2011, complaining of mopping, extended breaks, and reduced hours. She filed a Second Charge of Discrimination on May 9, 2012, shortly after her termination, asserting claims related to her coachings and termination. Plaintiff filed this action on January 3, 2013, alleging that Sam's Club discriminated against her because of her age (75) and her race (African American), and retaliated against her for filing a discrimination charge with the EEOC.
In order to establish a prima facie case of discrimination, plaintiff has the burden of showing that (1) she belongs to a protected class; (2) she was performing according to her employer's legitimate expectations; (3) she was subjected to an adverse employment action; and (4) similarly situated employees not in her protected class were treated more favorably. McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973); Noyes v. Kelly Servs. , 488 F.3d 1163, 1168 (9th Cir. 2007). Once a plaintiff makes her prima facie showing, the burden shifts to the defendant to present legitimate, nondiscriminatory reasons for the employment actions. Id. at 1169. If the defendant satisfies its burden, the burden shifts back to plaintiff "to put forth specific and substantial evidence that [defendant's] reasons are really a pretext for... discrimination." Aragon v. Republic Silver State Disposal Inc. , 292 F.3d 654, 661 (9th Cir. 2002) (emphasis in original).
The EEOC issued its Dismissal and Notice of Right to Sue related to plaintiff's First Charge of Discrimination on August 16, 2011. She was notified that any civil action based on these allegations must be commenced within 90 days. See 42 U.S.C. § 2000e-5(f)(1). Plaintiff did not file her lawsuit until January 3, 2013, over a year late. Therefore, the allegations contained in the First Charge of Discrimination are time-barred. See Scholar v. Pacific Bell , 963 F.2d 264, 267 (9th Cir. 1992).
Plaintiff timely filed this action with respect to claims contained in her Second Charge of Discrimination, specifically unfair coachings and termination. These discrete allegations of discrimination do not support a continuing violation theory that would revive the time-barred allegations contained in plaintiff's First Charge of Discrimination.
Plaintiff has shown that she is a member of a protected class and suffered adverse employment actions. But she has not shown that she was performing satisfactorily or that similarly situated employees not in her protected classes were treated more favorably.
As evidence of discrimination, plaintiff suggests that race and age must have played a role in her unequal treatment because she was "the only African American cashier and the only cashier over the age of 40." Response at 5-6. But plaintiff cites no evidence to support this claim. And even if true, these facts do not establish unequal treatment. Plaintiff produced no evidence that similarly situated employees who are younger or not African American were treated more favorably.
Moreover, plaintiff has failed to show that she was performing according to her employer's legitimate expectations. She disputes that there were discrepancies in her cash drawer, but other than her own beliefs, she presents no evidence to support the claim.
Even if we decided that plaintiff had made a prima facie showing, we would nevertheless conclude that plaintiff has failed to support a claim of discrimination. Sam's Club has presented substantial evidence that plaintiff was not performing satisfactorily. Plaintiff received multiple coachings related to cash drawer discrepancies and failed shrink tests. This constitutes a legitimate, nondiscriminatory reason for Sam's Club's decision to terminate her. The burden then shifts back to plaintiff to set forth specific and substantial evidence that this reason is merely pretext for discrimination. But plaintiff has offered no evidence of pretext. Her subjective ...