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Nabors v. Malone

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

June 26, 2019

MALINDA NABORS PLAINTIFF
v.
PETE MALONE d/b/a SUBWAY DEFENDANT

          MEMORANDUM OPINION

          DAVID A. SANDERS, UNITED STATES MAGISTRATE JUDGE

         This matter arises on Defendant's Motion for Summary Judgment [71]. After considering the matter, the court finds as follows:

         Facts and Procedural History

         Malinda 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.”[1] 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.

         Summary Judgment Standard

         Summary 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).

         The 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.

         Analysis and Discussion

         Defendant 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 the ADEA.

         The 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 ...

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