Nygren v. Dollar Tree Stores ( 2022 )

Case: 21-30584 Document: 00516427467 Page: 1 Date Filed: 08/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 10, 2022
No. 21-30584 Lyle W. Cayce
Clerk
Christine A. Nygren,
Plaintiff—Appellant,
versus
Dollar Tree Stores, Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-2714
Before Smith, Clement, and Haynes, Circuit Judges.
Per Curiam:*
In 2018, Dollar Tree Stores (DTS) implemented a new policy for its
zone managers: relocate to the zone you manage, change positions, or leave
the company. Christine Nygren, who did not live in the zone she managed,
wasn’t keen on changing her position or relocating. So, DTS terminated her.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-30584
Ms. Nygren then sued DTS for age discrimination, arguing that DTS
imposed its relocation policy on only its older zone managers.
The district court granted summary judgment in DTS’ favor on the
merits of Ms. Nygren’s age discrimination claims and dismissed the same
with prejudice. Ms. Nygren timely appealed. For the following reasons, we
AFFIRM.
I.
DTS’ operations in the United States are divided into six “zones.”
Each zone has a Zone Human Resources Director (ZHRD) and a Vice
President (VP) of Operations. Christine Nygren served as a ZHRD for
almost twenty years. From 2015 until her termination in 2019, she was the
ZHRD for zone 5. The parties agree on the facts contained in the following
chart:
Zone VP of
ZHRD ZHRD Lived in Zone VP of
Zone Operations
(Name, Age) Residence Zone? Operations
Residence
Mary Fulner, Killingworth, Virginia
1 Y Doug Yost
52 CT Beach, VA
Jerry Sankey, Chesapeake, Russ Manteo,
2 N
65 VA Harden NC
Terri Peters, Virginia Dawn St. Charles,
3 N
56 Beach, VA Martinez IL
Karen Rhoten, Temecula, Ginger Las Vegas,
4 Y
55 CA Chase NV
Christine Brian
5 Metairie, LA N Dallas, TX
Nygren, 69 Prettyman
Jeremie Virginia
6 Dublin, OH Y Pete Barnett
Mapes, 45 Beach, VA
At the time the events giving rise to this suit took place, Ms. Nygren
lived in Metairie, Louisiana, which is not in zone 5. On July 13, 2018, Ms.
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Nygren spoke on the phone with DTS’ VP of Human Resources—Steven
Schumacher—who informed her that DTS henceforth would be requiring its
ZHRDs to live in the zones they served. DTS would provide financial
relocation benefits to the ZHRDs who agreed to relocate; but those who did
not agree to relocate by a certain date could either apply for open positions at
DTS or accept a severance package. Mr. Schumacher communicated the
same message to the other two ZHRDs who did not live in the zones they
served: Jerry Sankey, ZHRD for zone 2; and Terri Peters, ZHRD for zone 3.
Mr. Schumacher designated specific places of relocation for Ms.
Nygren, Mr. Sankey, and Ms. Peters. For Ms. Nygren, it was Dallas; for Mr.
Sankey, it was Atlanta or Orlando; and for Ms. Peters, it was Chicago. The
reason for the relocation requirement was that DTS wanted its ZHRDs to
“live closer to the retail stores they supported and to live closer to the Zone
operations management team members, including Store Managers and
Assistant Managers, District Managers, Regional Directors and Zone VP of
Operations.”
DTS did not require Mr. Sankey or Ms. Peters to move to the city in
which their respective zone’s VP of Operations resided—just to a particular
city within the zone they served. In any event, neither agreed to move
anywhere within their zone, much less the city that DTS required. So, both
voluntarily accepted severance packages and agreed to a final working day of
April 5, 2019.
Ms. Nygren didn’t want to move to Dallas, but she was open to the
idea of moving to Houston because that’s where her daughter lived. This
suggestion apparently was not acceptable to DTS—at least not at first. So,
beginning in September and continuing into October 2018, Mr. Schumacher
sent Ms. Nygren three severance packages.
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Ms. Nygren thought it no coincidence that the three ZHRDs who
DTS told to relocate were the three eldest; whereas, DTS said nothing of a
relocation requirement to the three youngest ZHRDs. Accordingly, Ms.
Nygren hired a lawyer who, on February 13, 2019, sent a letter to DTS
alleging that its relocation policy was discriminatory based on age. It also
made settlement demands.
On March 6, 2019, DTS sent Ms. Nygren a response unequivocally
denying her allegations of age discrimination and claiming that it instituted
the relocation policy to advance legitimate business interests. It did,
however, indicate that it would allow Ms. Nygren to move to Houston and
keep her job as the zone 5 ZHRD. Not long after, Mr. Schumacher called
Ms. Nygren to tell her that DTS would be happy to keep her employed if she
lived in Houston. Ms. Nygren told him that she didn’t want to have any
further conversation about the matter and that he should reach out to her
lawyer.
Ms. Nygren’s final day with DTS was April 5, 2019. On October 22,
2019, Ms. Nygren filed her charge of age discrimination with the EEOC. A
year later, she filed a complaint in federal district court, alleging various
claims for age discrimination under the Age Discrimination in Employment
Act (ADEA) and Louisiana employment discrimination laws.
The district court granted summary judgment in DTS’ favor and
dismissed Ms. Nygren’s claims with prejudice. First, the district court struck
Ms. Nygren’s unsworn declaration, which she submitted as an exhibit to her
opposition to DTS’ motion for summary judgment, as a sham affidavit on the
ground that it materially contradicted certain portions of her deposition
testimony. Nygren v. Dollar Tree, Inc., No. CV 20-2714, 2021 WL 3741526,
at *5–7 (E.D. La. Aug. 24, 2021). It then held that, to the extent Ms.
Nygren’s claim was that DTS discriminatorily fired her based on her age, she
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could not prove that DTS’ proffered reason for terminating her was
pretextual. Id. at *13–15. Finally, the district court held that if her claim was
instead a challenge to the discriminatory nature of the relocation policy
itself—rather than a challenge to her termination—that claim would be time-
barred. Id. at *15–17. Ms. Nygren timely appealed.
II.
We review a district court’s order granting a motion for summary
judgment de novo, applying the same standard as the district court. Hyatt v.
Thomas, 843 F.3d 172, 176 (5th Cir. 2016). Summary judgment is appropriate
when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A disputed
fact is material if it “might affect the outcome of the suit under the governing
law[.]” Hyatt, 843 F.3d at 177 (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). “We construe all facts and inferences in the light most
favorable to the nonmoving party[.]” Dillon v. Rogers, 596 F.3d 260, 266 (5th
Cir. 2010) (quoting Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005)).
III.
A.
The question on appeal is whether the district court erred by granting
summary judgment in DTS’ favor on Ms. Nygren’s ADEA disparate
treatment claim. We think not.
The ADEA prohibits employers from “discharg[ing] any individual or
otherwise discriminat[ing] against any individual with respect to h[er]
compensation, terms, conditions, or privileges of employment, because of
such individual’s age.” 29 U.S.C. § 623(a)(1); Phillips v. Leggett & Platt, Inc.,
658 F.3d 452, 455 (5th Cir. 2011).
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Where, as here, an ADEA plaintiff presents only circumstantial
evidence of age discrimination, “we apply the modified McDonnell Douglas
burden-shifting framework.” Jenkins v. City of San Antonio Fire Dep’t, 784
F.3d 263, 267–68 (5th Cir. 2015). Under this approach, Ms. Nygren must
make out a prima facie case of age discrimination by showing she was:
(1) “within the protected class;” (2) “qualified for the position;” (3) subject
to an “adverse employment decision;” and (4) “replaced by someone
younger or treated less favorably than similarly situated younger employees
(i.e., suffered from disparate treatment because of membership in the
protected class).” Smith v. City of Jackson, 351 F.3d 183, 196 (5th Cir. 2003),
aff’d on other grounds, 544 U.S. 228 (2005).
If Ms. Nygren can establish a prima facie case of age discrimination,
then the burden shifts to DTS to “articulate a legitimate, nondiscriminatory
reason for the adverse employment action.” Id. If DTS does so, “the
inference of discrimination drops, and [Ms. Nygren] may then attempt to
prove discrimination by offering evidence that [DTS’] stated reason is
pretextual.” Id.Here, the district court assumed that Ms. Nygren had established a
prima facie case of age discrimination. It then found that DTS had articulated
a legitimate, nondiscriminatory reason for terminating Ms. Nygren’s employ
and concluded that Ms. Nygren had “fail[ed] to offer any evidence of
pretext.” Nygren, 2021 WL 3741526, at *13. We agree; assuming Ms.
Nygren makes it past the prima facie stage, she cannot show that DTS’
reason for firing her was pretextual.
DTS had an obvious, nondiscriminatory reason for terminating Ms.
Nygren’s employ. Namely, she did not relocate as DTS required.
Accordingly, it was Ms. Nygren’s burden to show that this reason was
pretextual.
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In an attempt to do so, Ms. Nygren argued that DTS did not require
its three youngest ZHRDs—Ms. Fulner, Ms. Rhoten, and Mr. Mapes—to
relocate. But as the district court observed, DTS had a perfectly good
explanation for not requiring Ms. Fulner, Ms. Rhoten, and Mr. Mapes to
relocate—they already lived in the zones they served.
Even still, she argued, DTS did not require Ms. Fulner, Ms. Rhoten,
and Mr. Mapes to live in the same city as their respective zone’s VP of
Operations. But neither did it ultimately require that of Ms. Nygren, Mr.
Sankey, or Ms. Peters. The record reflects that DTS told Mr. Sankey to
move to Atlanta or Orlando, even though his zone’s VP of Operations lives
in Manteo, North Carolina. And it told Ms. Peters to move to Chicago, even
though her zone’s VP of Operations lives in St. Charles, Illinois.
While DTS initially told Ms. Nygren to move into her zone, and
specifically to Dallas to live in the same city as her zone’s VP of Operations,
it later reneged on that demand. DTS informed Ms. Nygren via letter and
phone call—which both parties agree occurred—that she could move to
Houston and retain her position.
In sum, assuming that Ms. Nygren made out a prima facia case of age
discrimination, her claim fails because she offered no evidence that DTS’
proffered reason for terminating her—non-compliance with its relocation
policy—was pretextual. Thus, the district court was correct to grant
summary judgment in DTS’ favor on this claim.
B.
Ms. Nygren also appeals the district court’s decision to strike her
unsworn declaration as a sham affidavit. The reason the district court struck
her declaration is because it contained statements that contradicted her
deposition testimony. Nygren, 2021 WL 3741526, at *5–7.
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We need not reach this issue. Whether and to what extent Ms.
Nygren’s unsworn declaration contained statements contradicting her
deposition testimony goes primarily to when she knew, or reasonably should
have known, that the consequence of not relocating was termination. That is
a question about the timeliness of her claim, the resolution of which does not
bear on its merits. Because we conclude that Ms. Nygren’s claim fails on its
merits, we do not address whether the district court abused its discretion by
striking her unsworn declaration. E.g., Gilbert v. Donahoe, 751 F.3d 303, 311
(5th Cir. 2014) (“Under our precedent, we may affirm on any ground
supported by the record, including one not reached by the district court.”
(internal quotation marks and citation omitted)).
IV.
For the foregoing reasons, the district court did not err by granting
summary judgment in DTS’ favor with respect to Ms. Nygren’s ADEA
disparate treatment claim.
The judgment is AFFIRMED.
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