Ellis v. Office Max Inc

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SANDRA E. ELLIS,
Plaintiff-Appellant,

v. No. 98-1509

OFFICEMAX, INCORPORATED,
Defendant-Appellee.

SANDRA E. ELLIS,
Plaintiff-Appellant,

v. No. 98-1862

OFFICEMAX, INCORPORATED,
Defendant-Appellee.

Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CA-96-478-3-MU)

Submitted: October 20, 1998

Decided: November 17, 1998

Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

N. Clifton Cannon, Jr., Gastonia, North Carolina, for Appellant. W.
T. Cranfill, Jr., John M. Smith, MCGUIRE, WOODS, BATTLE &
BOOTHE, L.L.P., Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Sandra E. Ellis appeals from the district court's order granting
summary judgment in favor of Defendant OfficeMax, Inc.
("OfficeMax") in Ellis' employment discrimination action filed under
Title VII of the Civil Rights Act of 1964, 42 U.S.C.§§ 2000e-2,
2000e-5 (1994), and the Age Discrimination in Employment Act
(ADEA), 29 U.S.C.A. §§ 621-634 (West 1985 & Supp. 1998). Ellis
also appeals from the district court's denial of Ellis' motion to vacate
the judgment under Fed. R. Civ. P. 60(b)(2). Finding no error, we
affirm.

Ellis, a female in her mid-forties, was hired by Terry Vaughn, a
District Manager for OfficeMax, to work as an assistant manager in
OfficeMax's new store in Gastonia, North Carolina. Vaughn needed
an assistant manager with significant experience and who would be
able to act with a minimum of supervision, and hired Ellis mainly due
to her previous experience as a store manager with other companies.
Ellis received little formal training, but rather was expected to take
the initiative and learn specific OfficeMax procedures through manu-
als provided for her reference.

When Ellis first began work at the Gastonia store in January 1995,
the store manager and her direct supervisor was Matt Hefner. Hefner
issued Ellis a disciplinary action notice on February 15, 1995, which
stated that Ellis failed to pay attention when speaking with Hefner and
tended to talk instead of listen, resulting in her failure to learn certain
store procedures. The warning informed Ellis that immediate
improvement was needed. On March 2, 1995, Hefner issued Ellis
another disciplinary action notice relating to Ellis' failure to review
and monitor a payroll printout which resulted in 213.5 hours of
unpaid salary to other employees. On April 9, 1995, Hefner issued
Ellis another written disciplinary action notice, charging that she

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failed to have him initial employee evaluations before Ellis handed
them out to subordinate employees. The warning also reprimanded
Ellis for failing to inform upper management about a break-in at the
store, and again reprimanded Ellis for her failure to listen carefully
when receiving instructions.

On April 9, 1995, Hefner completed Ellis' performance review. In
the majority of categories reviewed, Ellis received a rating of "condi-
tional" or merely "satisfactory." Hefner pointedly informed Ellis of
areas where improvement was needed, including noting her failure to
learn appropriate store procedures, her failure to follow up on prob-
lems, and her difficulties with communicating, especially listening to
instructions.

Ken Stern replaced Hefner as store manager in May. Ellis' perfor-
mance did not improve under Stern, and he counseled her in July
regarding her poor performance. Specifically, because Ellis failed to
take the initiative in learning her duties and assuming responsibilities
on her own, Stern was forced to draw up "to do" lists with specific
tasks for Ellis to complete; Stern would then be forced to follow-up
on the lists. Despite having worked for OfficeMax since January, Ellis
had still failed to take home OfficeMax's procedure manuals and
learn the appropriate operating procedures. Overall, neither Stern nor
Ellis' subordinates had confidence in her abilities as assistant man-
ager.

In August, Stern informed Vaughn of the problems with Ellis' per-
formance. Vaughn determined that Ellis should be terminated, and
Vaughn terminated her as of August 14, 1995. Ellis was replaced by
a twenty-eight year old male who had previously been promoted from
hourly employee to customer service manager. At the time of her dis-
charge Ellis was forty-five years old. Ellis filed a complaint with the
Equal Employment Opportunity Commission (EEOC) in September
1995, contending that she was discharged because of her sex, in viola-
tion of Title VII, and her age, in violation of the ADEA.

We review the district court's grant of summary judgment de novo
and affirm only if the record reveals no genuine issue of material fact.
See Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). The scheme of
proof established in McDonnell Douglas Corp. v. Green, 411 U.S.

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792 (1973), applies to Ellis' sex discrimination claim under Title VII,
as well as her age discrimination claim under the ADEA. See
Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 239 (4th Cir. 1982).

Here, Ellis failed to make out a prima facie case of discrimination
because she failed to show that she was performing satisfactorily. See
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Carter v.
Ball, 33 F.3d 450, 459 (4th Cir. 1994). She did not take the initiative
to learn OfficeMax procedures even after months of employment.
This failure led to several specific performance deficiencies, for
which Ellis' supervisors counseled her. Ellis' supervisors were also
forced to draw up "to-do" lists for Ellis, to ensure that she completed
her duties. Overall, Ellis' job performance was deficient, and she did
not establish that her termination was based on either her gender or
her age. See St. Mary's Honor Ctr., 509 U.S. at 515, 518. Accord-
ingly, the district court did not err in granting OfficeMax's motion for
summary judgment.

After the district court's entry of summary judgment in Office-
Max's favor, Ellis filed a motion to vacate the judgment under Fed.
R. Civ. P. 60(b)(2), on the ground that she had material, newly dis-
covered evidence in support of her case. This evidence consisted of
an affidavit from Julie McConnell, one of Ellis' former co-workers at
OfficeMax. Ellis interviewed McConnell on February 20, 1998, and
McConnell executed her affidavit on February 23, 1998. However,
Ellis had previously listed McConnell as a material witness in an affi-
davit Ellis gave to the EEOC in September 1995. Ellis again listed
McConnell as an individual having knowledge of the facts and cir-
cumstances of the case in an October 1997 response to OfficeMax's
interrogatory. Further, although Ellis had McConnell's completed
affidavit as of February 23, 1998, she made no effort to submit it to
the district court before the court entered summary judgment on Feb-
ruary 26, 1998. The district court denied Ellis' motion because Ellis
could have discovered the information in time to support a motion for
a new trial under Fed. R. Civ. P. 59(b), and that in any event the infor-
mation would not lead the court to alter its earlier order.

The district court did not abuse its discretion by denying Ellis'
motion. See National Org. for Women v. Operation Rescue, 47 F.3d
667, 669 (4th Cir. 1995); Boryan v. United States, 884 F.2d 767, 771-

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72 (4th Cir. 1989). The information in the McConnell affidavit could
have been discovered by Ellis through the exercise of due diligence
well prior to its submission to the district court. Further, the affidavit
would not have changed the outcome of the case, as it does not con-
tradict the other record evidence showing that Ellis failed to perform
her job in a satisfactory manner.

We affirm the district court's grant of summary judgment in favor
of Defendant. We also affirm the district court's denial of Ellis'
motion to vacate the judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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