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Harkness v. Bauhaus U.S.A., Inc.

United States District Court, N.D. Mississippi, Oxford Division

February 6, 2015


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[Copyrighted Material Omitted]

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For June Harkness, Plaintiff: Jim D. Waide, III, LEAD ATTORNEY, Ronnie Lee Woodruff, WAIDE & ASSOCIATES, PA, Tupelo, MS.

For Bauhaus U.S.A., Inc., Defendant: Martin Joseph Regimbal, LEAD ATTORNEY, THE KULLMAN FIRM - Columbus, Columbus, MS; Peyton S. Irby, Jr, THE KULLMAN FIRM, Jackson, MS; Taylor B. Smith, THE KULLMAN FIRM, Columbus, MS.

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This is an age discrimination action brought by Plaintiff June Harkness against her former employer, Defendant Bauhaus U.S.A., Inc. Doc. #1. Plaintiff alleges that Defendant wrongfully terminated her employment in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. Id. Before the Court is Defendant's motion for summary judgment. Doc. #43.


Summary Judgment Standard

" Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law." Norwegian Bulk Transp. A/S v. Int'l Marine Terminals P'ship, 520 F.3d 409, 411 (5th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,

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91 L.Ed.2d 265 (1986)). To award summary judgment, " [a] court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Norwegian Bulk Transp. A/S, 520 F.3d at 411-12 (internal quotation marks omitted). To this end, " [t]he moving party bears the burden of establishing that there are no genuine issues of material fact." Id. at 412.

" If, as here, the nonmoving party bears the burden of proof at trial, the moving party may demonstrate that it is entitled to summary judgment by submitting affidavits or other similar evidence negating the nonmoving party's claim, or by pointing out to the district court the absence of evidence necessary to support the nonmoving party's case." Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998) (citation omitted). If the moving party makes the necessary demonstration, " the burden shifts to the nonmoving party to show that summary judgment is inappropriate." Id. In making this showing, " the nonmoving party must go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Cotroneo v. Shaw Env't & Infrastructure, Inc., 639 F.3d 186, 191-92 (5th Cir. 2011) (citation and internal punctuation omitted). When considering a motion for summary judgment, the Court " resolve[s] factual controversies in favor of the nonmoving party." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).


Relevant Facts

Plaintiff is a white female who was born on August 1, 1941. Doc. #43-1 at Ex. 10. She is a high school graduate with approximately six months of college education. Doc. #49-1 at 8.

From 1961 to 2005, Plaintiff performed clerical work for three different furniture manufacturers: (1) Stratford, from 1961 until 1998; Benchcraft, from 1998 to 2003; and (3) Alan White Manufacturing Company, from 2003 to 2005. Id. at 10-12. At an unspecified time during her employment with Alan White, Plaintiff received a telephone call from Defendant " asking if [she] would like to have a job there." Id. at 12. Plaintiff accepted this offer and, on November 30, 2005, began employment with Defendant as a customer service representative.[1] Id. At that point, Plaintiff had never been disciplined by an employer. Id. at 10-12. Plaintiff was then sixty-four years old.

From 2005 until May 2009, Plaintiff worked in Defendant's Sales Service Department (" Department" )[2] under its manager, Lynn McFerrin. Doc. #49-1 at 13. Generally, the representatives in the Department covered order entry, parts entry, credits for accounts, and customer warranties. Doc. #49-2 at 8. Plaintiff was never disciplined or written up during McFerrin's tenure as manager. Doc. #49-6 at 13.

In May 2009, Kathy Jaggers assumed the role of manager of the Department. Doc. #49-1 at 13. During the time period relevant to this action, Jaggers reported directly to Britt Allred, Defendant's Vice

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President of Sales and Marketing; who, in turn, reported directly to Al Wiygul, Defendant's President. Id. at 14.

During Plaintiff's employment, Defendant maintained a Standards of Conduct policy. Doc. #43-1 at 15. While Plaintiff never saw the policy itself,[3] she was " aware" of the information it included. Id. at 16.

A. Jaggers' Treatment of Customer Service Representatives

At the time Jaggers took over the Department in May 2009, there were three customer service representatives: (1) Plaintiff; (2) Ellen Mink, who was born on or about 1940; and (3) Nancy Dobbins, who was born on or about 1953. Doc. #49-15 at 5-6; Doc. #43-8 at ¶ ¶ 1, 4; Doc. #43-1 at 12; Doc. #49-5 at 6. On February 8, 2010, Sabrina Hawkins Hupper, who was born on or about 1986, was hired as a customer service representative. Doc. #49-5 at 5. Another customer service representative, Lisa White, whose age is unknown, worked in the office for a " few months" in 2010. Id. at 6.

1. Jaggers' Treatment of Dobbins

When Jaggers took over the Department, Dobbins was in her ninth year in her position. Doc. #49-15 at 8. In her nine years, Dobbins had been written up once -- for an infraction in 2006. Id.

Dobbins believes that Jaggers mistreated her by being too critical and refusing to help Dobbins or answer questions. Doc. #49-15 at 7-8. Dobbins testified that she does not believe she was mistreated because of her age. Id. at 8. Rather, Dobbins explained that the relationship between her and Jaggers " was more of a personal issue that probably happened long before she became our office manager and over our department." Id.

On March 4, 2010, Jaggers issued Dobbins and Plaintiff a " Disciplinary Action, Verbal" for a " verbal confrontation." Doc. #43-2 at Ex. 10. Dobbins explained that this conflict was " over some parts orders and then that was straightened out." Doc. #49-15 at 20. The same day, Jaggers issued Dobbins a " Disciplinary Action Form" for a series of issues relating to " Attitude, Cooperation & Attendance." Doc. #43-2 at Ex. 10.

On March 26, 2010, Jaggers issued Dobbins a " Disciplinary Action, Verbal Discussion" as a " Follow up to Written Disciplinary Action of March 4th, 2010." Doc. #43-2 at Ex. 10. On the form, Jaggers observed that " Nancy continues to make errors [and c]ontinues to delay responses to consumers ...." Id.

Jaggers terminated Dobbins' employment on March 30, 2010. Doc. #49-15 at 5. Jaggers explained that the termination was due to Dobbins' " excessive tardiness and costly errors." Doc. #43-2 at ¶ 21. Following the termination, Jaggers first assigned Dobbin's territories to White, but then " assigned the majority of the territory for which [Dobbins] had been responsible to ... Hupper, because ... Hupper was the newest Customer Service Representative and had the fewest number of territories at the time." Id.; Doc. #49-5 at 6.

2. Jaggers' Treatment of Plaintiff

Plaintiff testified that she believed Jaggers " was insecure and disliked it when [employees] would have more knowledge of entering a particular order," and that this insecurity " played a role" in how Jaggers treated her. Doc. #49-1 at 57-58.

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a. August 12, 2011, Write-up

Sometime in the summer of 2011, Plaintiff made a data entry error which resulted in Defendant sending an incomplete shipment to a client. Doc. #43-2 at ¶ 3. This error caused the customer to complain and " resulted in Bauhaus paying $359.45 in freight to ship the missing pieces ...." Id.

In July 2011, Plaintiff " fail[ed] to notice an entry error [which] resulted in the production of twelve pieces of furniture." Doc. #43-2 at ¶ 4; Doc. #43-1 at Ex. 4. According to Jaggers, " whether an error is due to a customer's entry mistake or otherwise, it is the responsibility of the Customer Service Representative who is responsible for the customer to identify any errors and to insure that the order is correct before production." Doc. #43-2 at ¶ 5. Due to the erroneous production, Defendant " had to sell [the pieces] at ... a loss of $2,460." Id. at ¶ 4.

On August 12, 2011, Jaggers issued Plaintiff a " Verbal Discussion." Doc. #43-1 at 20-21; Doc. #43-2 at ¶ 3. The Verbal Discussion states that Plaintiff " was counseled ... concerning some of the reasons listed below. This conference serves as a corrective measure and as a warning that continued infractions may lead to termination." Doc. #43-1 at Ex. 4. As grounds for discipline, the Verbal Discussion listed the missing shipment and the erroneous production of furniture. Id. During the counseling session, Plaintiff " tended to downplay [the errors] as trivial." Doc. #43-2 at ¶ 6. Jaggers explained that this response " was a key reason I issued her the Verbal Discussion." Id.

b. September 20, 2011, Write-Up

On September 20, 2011, Jaggers issued Plaintiff a " Disciplinary Action Form" for " [e]rrors in entry and proofing." Doc. #43-1 at Ex. 5. Specifically, the Disciplinary Action Form listed four errors allegedly committed by Plaintiff: (1) failure to recognize an " incorrect matching configuration" in a customer order; (2) issuance of an invoice with incorrect pricing; (3) entry of a wrong design for a customer order; and (4) entry of an incorrect shipping location. Id.

c. October 26, 2011, Write-Up

On October 26, 2011, Jaggers issued Plaintiff a second " Disciplinary Action Form" for " [e]rrors in entry and proofing." Doc. #43-1 at Ex. 7. The form listed three errors: two failures to " proof" and catch an error in an order; and an inconsistent entry of pricing for an order. Id. Jaggers explained that, as with the Verbal Discussion, " a key reason [she] issued [the second] Disciplinary Action form was [Plaintiff's] attitude that the errors were trivial." Doc. #43-2 at ¶ 8.

d. April 30, 2012, Write-Up and Termination

In January 2012, Jaggers, at the request of Allred, put into place a procedure " so that we could be kept apprised of cover shortages." [4] Doc. #49-2 at 52. Under this procedure, customer service representatives were required to " fill out a hard copy for ... Allred for information regarding cover shortages." Id.

At an unspecified time in the spring of 2012, Jaggers went to the Customer Service Department to investigate " cover shortages at order entry." Doc. #49-2 at 52-53. Jaggers looked at the book intended to contain the hard copies of cover shortage documentation and discovered that Plaintiff and Ellen Mink, another customer service representative, " had not been using it." Id. at 53. Upon further investigation, Jaggers concluded that Plaintiff and Mink had " ignored the procedure

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that was put in place." Id. Jaggers also noted that while Hupper had not made any " recent" entries, she denied ignoring the procedure. Id. Additionally, Jaggers claimed that a recently hired representative, Carrie Milner,[5] was not required to follow the procedure because she was only responsible for part orders. Doc. #43-2 at ¶ 16. During her interaction with the Department representatives regarding the procedure, Jaggers was speaking in a " loud manner" to everyone, but was particularly " loud with" Mink. Doc. #49-1 at 50.

As explained more below, Mink received a write-up for the alleged departure from procedure. However, Jaggers explained that " it was not necessary ... to issue Disciplinary Action Forms to ... Milner or ... Hupper ... because ... Milner was only entering parts and not account orders at that time and because when I asked ... Hupper about the procedure she denied ignoring the procedure and I found no orders where ... Hupper had failed to follow the procedure." Doc. #43-2 at ¶ 16.

Plaintiff later explained that the procedure was that " if you received an order and it had a cover problem on it, then you listed it on a form and kept it on your desk, and then copies were made for [Jaggers] and the vice-president of sales." Doc. #49-1 at 37-38. Plaintiff testified that, while she complied with this procedure, following " a certain time[, t]here wasn't anything to log in." Id. at 38. Although Plaintiff felt that she complied with the procedure, she declined to discuss the issue when Jaggers inquired about the book. Id. at 38.

Also in the spring of 2012, Defendant received an order from J.C. Penney which had to be separated into two categories -- closeouts and retail. Doc. #49-2 at 54. Jaggers contacted Brian Tackitt, an employee of Defendant, and was told that " he did not have everything he needed" from Plaintiff. Id. at 56. When Jaggers contacted Plaintiff to find out whether Plaintiff had sent Tackitt all the necessary information, Plaintiff stated that she had spoken with Tackitt and that " he already has what he needs" and that " he didn't need anything." Id. Jaggers then asked Plaintiff to provide her " a list of the purchase orders." Id. Jaggers explained that Plaintiff acted inappropriately because " she was not cooperative in telling me what I had asked for." Id. at 56-57. Plaintiff testified that, during this interaction, Jaggers' " mannerism was very rude" and that she " used a loud voice." Doc. #49-1 at 49. When asked to clarify how Jaggers was rude, Plaintiff explained that her mannerism was " upset." Id.

Plaintiff, for her part, called the incident " a misunderstanding" and testified that she gave Tackitt and Jaggers the information provided. Doc. #49-1 at 35. However, Plaintiff stated that she could not remember whether she had given Tackitt the information prior to Jaggers requesting the information again. Id. at 35-36. Plaintiff also testified that she complied with Jaggers' request by providing her the purchase order numbers. Id. at 36-37.

On April 30, 2012, Jaggers met with Plaintiff and Dick Bridges, then Defendant's Director of Human Resources. Doc. #43-2 at ¶ 9. The purpose of the meeting was to issue Plaintiff a " Written Disciplinary Action Form" and to terminate her employment. Id. The Written Disciplinary Action Form listed two allegations of misconduct. Doc. #43-1 at Ex. 9. First, the form alleged that Plaintiff willfully disregarded company policy requiring

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her to notify Allred and Jaggers of product shortages. Id. Second, Jaggers claimed Plaintiff was not " cooperative" when Jaggers inquired about the information submitted to Tackitt and that, when Jaggers requested information, Plaintiff " put her head down." Id. The form included a notation that " [t]his ...

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