United States District Court, N.D. Mississippi, Aberdeen Division
A. SANDERS, UNITED STATES MAGISTRATE JUDGE
matter arises on Defendant's Motion for Summary Judgment
. After considering the matter, the court finds as
and Procedural History
Nabors alleges her employer, Pete Malone, violated the Age
Discrimination in Employment Act by “routinely
providing much younger employees many more hours of work per
week than those scheduled for Plaintiff.” She also alleges
a claim of retaliation under the ADEA in that she suffered a
“demotion from the position of shift leader, unfair
disciplinary actions, and continuing subjective arbitrary
scheduling of fewer hours for her than for her much younger
and inexperienced co-workers” after filing a charge of
age discrimination with the Equal Employment Opportunity
Commission.[2" name="FN2" id=
"FN2">2] Nabors obtained right to sue letters from
the EEOC and filed suit.
judgment is warranted when the evidence reveals no genuine
dispute regarding any material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.p. 56(a).
The Rule “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322, 2548');">106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
moving party “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material
fact.” Id. at 323. The nonmoving party must
then “go beyond the pleadings” and
“designate ‘specific facts showing that there is
a genuine issue for trial.'” Id. at 324
(citations omitted). In reviewing the evidence, factual
controversies are to be resolved in favor of the non-movant,
“but only when . . . both parties have submitted
evidence of contradictory facts.” Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
When such contradictory facts exist, the Court may “not
make credibility determinations or weigh the evidence.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150, 20 S.Ct. 2097');">120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Conclusory
allegations, speculation, unsubstantiated assertions, and
legalistic arguments are not an adequate substitute for
specific facts showing a genuine issue for trial. TIG
Ins. Co. v. Sedgewick James of Wash., 276 F.3d 754');">276 F.3d 754, 759
(5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097
(5th Cir. 1997); Little, 37 F.3d at 1075.
moves for summary judgment, arguing that
1. Nabors has failed to make a prima facie case of
age discrimination or retaliation.
2. Nabors has failed to rebut Defendant's legitimate,
non-discriminatory reasons for her scheduled hours or for not
returning her store key.
3. Malone is not Nabors's employer within the meaning of
Court finds the third issue dispositive, and limits its
analysis to that issue alone. Under the ADEA, an employer may
not discriminate against an employee based on age or
retaliate against an employee for filing a charge of age
discrimination with the EEOC. 29 U.S.C. § 623(a) and
(d). The Act defines “employer” as
a person engaged in an industry affecting commerce who has
twenty or more employees for each working day in each of
twenty or more calendar weeks in the current or preceding
calendar year: Provided, That prior to June 30,
1968, employers having fewer than fifty employees shall not
be considered employers. The term also means (1) any agent of
such a person, and (2) a State or political subdivision of a
State and any agency or instrumentality of a State or a
political subdivision of a State, and any interstate ...