United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION & ORDER
AMUL R. THAPAR, District Judge.
Plaintiff Trena Taylor, a former manager at Dollar General, claims that she was fired because of her age. In support, Taylor points to a discriminatory policy expressed by her regional director, who said that Dollar General was "getting rid of older" employees. Dollar General has moved for summary judgment, arguing that Taylor has not identified evidence of age discrimination sufficient to survive summary judgment. The statement from the regional director, however, is adequate circumstantial evidence to defeat Dollar General's motion for summary judgment.
On summary judgment, the Court considers the facts in the light most favorable to Taylor as the nonmoving party. See Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009). In 1996, Taylor started working at Dollar General as a store clerk. R. 42-1 at 23 (Taylor Deposition). Several years later, Dollar General promoted Taylor to store manager of its Elkhorn City location. Id. As store manager, Taylor supervised up to 11 employees and was responsible for the store's day-to-day operations. Id. at 25; R. 42-5 at 10 (Woodward Deposition). During her tenure, the store received several performance-related awards. R. 42-3 at 21-31 (Second Taylor Deposition). According to Taylor, weekly operating statements showed that her store was the top store in her district. Id. at 30; see also id. at 31 (stating that a representative from Dollar General's corporate office noted that her store was in the top 400 in the nation).
Pursuant to the corporate chain of command at Dollar General, store managers like Taylor report to a district manager. R. 42-1 at 37; R. 42-4 at 14 (Dear Deposition). District managers, in turn, report to a regional director. R. 42-1 at 40; R. 42-4 at 13. Taylor had several district managers, but only two are relevant here. From December 2012 until July 2013, Taylor reported to Marty Parsons. R. 41-8 ¶ 2 (Parsons Affidavit). From July 2013 until her termination, Taylor reported to John Woodward. R. 42-1 at 38; R. 42-5 at 6. Woodward reported to Steve Dear, the regional director for that district. R. 42-5 at 21.
On November 5, 2013, Woodward, acting on instructions from Dear, fired Taylor after she fell victim to a phone scam and improperly activated several prepaid debit cards. The phone scam occurred four days earlier, when Taylor received a call from an individual who said he was an employee from Dollar General. R. 42-1 at 165; R. 42-2 at 55; R. 42-6 at 40. He asked Taylor to activate six prepaid cards, add $499.95 to each card, and provide him with the account numbers of the cards. R. 42-1 at 178-79, 183. Taylor followed his instructions. While activating the cards, and after being on the phone for between 10 and 20 minutes, Taylor determined that the caller was not from Dollar General. Id. at 183-85. Taylor hung up and attempted to reverse course by canceling the transactions. She was partially successful, but was unable to void approximately $1, 000 of the transactions. Id. at 99, 178-79.
Taylor then called the prepaid card company in another, ultimately futile, effort to void the transactions. Id. at 94-95. She estimates that she spoke with the company for approximately 20 minutes. Id. at 99. After that call, Woodward called, and they discussed the phone scam. Id. Once Taylor finished talking with Woodward, she received a call from Phillip Bramblett, the loss prevention manager for her region. Id. at 100. Bramblett asked Taylor why she activated the cards, and she told him that "she just wasn't thinking." R. 42-6 at 40. Taylor acknowledged that none of the conversations with Woodward and Bramblett involved her age. R. 42-1 at 102.
According to Bramblett's deposition, he was alerted to the scam upon receiving an email from the Dollar General fraud department earlier that day notifying him of the activation of a "substantial number" of prepaid cards. R. 42-6 at 35. After receiving this information, Bramblett testified that he tried to call Taylor for about 30 minutes but could not reach her. Id. at 36. He then called her district manager-Woodward-and relayed the information to him. Id. At his deposition, Woodward explained that he received a call from Bramblett and then immediately began calling the store. R. 42-5 at 18-19. He reached Taylor less than 30 minutes after he started calling. Id. at 19.
The next day Woodward visited Taylor at the store. R. 42-1 at 100. According to Taylor, Woodward said she would keep her job. Id. at 101. Three days later, however, Woodward came to the store again and told Taylor she was fired. Id. at 142-43. Both Woodward and Dear testified that Dear, the regional director, had instructed Woodward to fire Taylor. R. 42-4 at 20; R. 42-5 at 21. Dear explained that the reason for the termination was a failure to protect company assets. R. 42-4 at 20.
A court may grant summary judgment only where there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). On summary judgment, the court must "draw all reasonable inferences in favor of the non-moving party." Scheick v. Tecumseh Pub. Sch., 766 F.3d 523, 529 (6th Cir. 2014). A genuine dispute of material fact exists where there is "evidence on which the jury could reasonably find for the plaintiff." Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
The Kentucky Civil Rights Act ("KCRA") prohibits discrimination based on age, against individuals age forty and over, in hiring, firing, and other employment decisions. Ky. Rev. Stat. § 344.040(1)(a). Claims of age discrimination under the KCRA are "analyzed in the same manner" as claims under the Age Discrimination in Employment Act (ADEA). Allen v. Highlands Hosp. Corp., 545 F.3d 387, 393 (6th Cir. 2008); Johnson v. Lockheed Martin Corp., 598 F.Appx. 364, 368 (6th Cir. 2015). Under the ADEA, a plaintiff may prove her claim through either direct or circumstantial evidence. Allen, 545 F.3d at 394. Taylor contends that she can defeat summary judgment through either path.
I. Direct Evidence
Direct evidence is evidence that, if believed, requires no inference to prove the existence of a fact. Scheick, 766 F.3d at 530 (citing Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004)). After Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), direct evidence under the ADEA "requires the conclusion that age was the but for' cause of the employment decision." Scheick, 766 F.3d at 530 ("[T]he inquiry includes both a predisposition to discriminate and that the employer acted on that predisposition."). Examples of direct evidence include "a facially discriminatory employment policy or a corporate decision maker's express statement of a desire to remove employees in the protected group." Nguyen v. Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
Taylor argues that several statements, all to the effect of "Dollar General is getting rid of older employees, " constitute direct evidence. See R. 42 at 20-23. She points to statements from Dear and her former district manager, Marty Parsons. Dear and Parsons deny making such statements. See R. 42-4 at 55-56; R. 41-8 ¶ 5. Instead, Taylor offers these statements through her own deposition testimony and the deposition testimony of Amanda Magliaro, a former Dollar General store manager. Accordingly, two ...