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Cronk v. Dolgencorp LLC

United States District Court, E.D. Michigan, Southern Division

May 22, 2017



          Paul D. Borman United States District Judge

         Plaintiff Suzanne Cronk worked for Defendant Dolgencorp, LLC, d/b/a Dollar General, from 2011 until she was discharged in 2014. In this action, she alleges that Defendant violated her rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., in two respects: by interfering with her ability to take leave to which she was entitled by the FMLA, and by retaliating against her for exercising her rights under the FMLA. Defendant contends that Plaintiff was terminated for violating its policy regarding incidents of shoplifting.

         Now before the Court is Defendant's Motion for Summary Judgment. For the reasons set forth below, taking the facts in the light most favorable to Plaintiff, the non-moving party, Plaintiff has not met the burdens she must meet for either claim to survive summary judgment. Accordingly, the Court grants Defendant's Motion for Summary Judgment.

         I. BACKGROUND

         A. Plaintiffs Employment with Defendant and Defendant's Relevant Employment Policies

         Defendant hired Plaintiff as a cashier at its Lewiston, Michigan store on August 10, 2011. (ECF No. 12, Def.'s Mot. Ex. A, Deposition of Suzanne Cronk at 9:23-10:4.) The following May, Plaintiff was promoted to assistant store manager. (Cronk Dep. 10:5-8.)

         In February of 2013, at Plaintiffs request, she was transferred to Defendant's store in Cheboygan, Michigan and promoted to store manager. (Cronk Dep. 10:9-11, 13:17-14:1.) Then in May of 2013, after learning that the store manager at the Lewiston location had been fired, Plaintiff put in a request to district manager Patricia Dotson to be transferred back to the Lewiston store and work as store manager there. (Cronk Dep. 17:18-18:1.) Dotson agreed to Plaintiffs request, and Plaintiff managed the Lewiston store from May of 2013 until her termination in September of 2014. (Cronk Dep. 10:12-15, 19:4-13, 39:11-17.)

         In the course of her employment with Defendant, Plaintiff received a copy of Defendant's Employee Handbook, and had access to documents containing Defendant's Standard Operating Procedures. (Cronk Dep. 13:9-16.) Plaintiff admitted that she was familiar with both. (Def.'s Mot. Ex. C, Plaintiffs Responses to Defendant's Request for Admissions (“Plaintiffs RFA”) ¶¶ 3, 7 at 2-3, Pg ID 124-125.) Two of Defendant's policies that were set forth in those materials are relevant here: Defendant's FMLA leave policy, and Defendant's shoplifting prevention policy.

         1. Defendant's FMLA Leave Policy

         Defendant's family and medical leave programs, which include Defendant's FMLA leave program, are administered by a third-party vendor called Matrix Absence Management (“Matrix”). (Plaintiff's RFA Ex. 1, FMLA Leave Policy Excerpt of Employee Handbook at 6, Pg ID 128.) The version of the Employee Handbook in effect at the time relevant to this case provided that “[a]fter notifying his or her manager of the need for leave, the employee should immediately initiate a leave request with Matrix” by calling a phone number or by filing a request through the Matrix website, both of which were provided in the Employee Handbook. (Id. (emphasis in original).) In a separate section called “Leave Requirements: Employee Notice, ” the Employee Handbook relevantly provides as follows:

An employee must provide the Company with 30 days advance notice before FMLA leave is to begin if the need for leave is foreseeable: for example, if need for leave is based on an expected birth, placement for adoption or foster care, or planned medical treatment for your own or a family member's serious health condition. However, if 30 days advance notice is not practical or possible (e.g., an emergency), the employee must give notice as soon as practicable. To report the need for leave and initiate the approval process the employee must follow the steps below. Absent unusual circumstances, failure to comply will result in a delay or denial of the employee's FMLA Leave request.
The employee must provide notification to his or her manager as soon as the need for leave is known and provide the expected dates that the employee will not be at work.
After notifying his or her manager, the employee (or someone on the employee's behalf) must immediately contact Matrix . . . to report the leave of absence and initiate the leave approval process.

(Id. at 8, Pg ID 130.)

         In a similar vein, the Standard Operating Procedures provide that “[t]o request FMLA [leave], . . . the employee must contact Matrix” at the same phone number as is specified in the Employee Handbook. (Plaintiff's RFA Ex. 2, FMLA Leave Policy Excerpt of Standard Operating Procedures at 14, Pg ID 136.) The Standard Operating Procedures further provide:

Employees must immediately notify their manager of any leave request. Generally, when the need for leave is foreseeable, the employee should provide the manager and Matrix Absence Management 30 days advance notice or as soon as possible when 30 day advance notice is not possible.


         Plaintiff admitted that the Employee Handbook directs employees requesting FMLA leave to notify their supervisors and immediately contact Matrix. (Plaintiff's RFA ¶ 5 at 3, Pg ID 125.) Plaintiff also admitted that “[t]he Standard Operating Procedures state in part that Matrix notification is required for leave approval determination.” (Plaintiff's RFA ¶ 9 at 3, Pg ID 125.)

         2. Defendant's Shoplifting Prevention Policy

         Defendant's Shoplifting Prevention Policy urges employees to use a “proactive, non-confrontational approach” which is encapsulated in a four-step method called “ASAP.” (Def.'s Mot. Ex. B, Declaration of Justin Lambright, Ex. 2 (“Shoplifting Prevention Policy”).) The “ASAP” policy instructs employees who suspect a customer of shoplifting to “Approach Immediately, ” “Smile from 5 feet away, ” “Ask a ‘Face Saving Question, '” and “Proactively Offer Assistance.” (Shoplifting Prevention Policy at 11-12, Pg ID 117-118.) The Shoplifting Prevention Policy expressly states: “Never touch anyone suspected of shoplifting or touch his or her personal belongings.” (Id. at 13, Pg ID 119.)

         After its summary of the “ASAP” approach, the Shoplifting Prevention Policy contains a section entitled “Shoplifter Stops.” (Id. at 14, Pg ID 120.) This section of the policy states that “[m]embers of store management are the only store employees allowed to make a shoplifting apprehension.” (Id.) The parties do not dispute that Plaintiff was a member of store management. The policy states that “[if the ASAP] approach fails, a member of management may make a shoplifting stop or apprehension only if all the following steps have been taken.” (Id.) The policy then lists eight steps: the member of management must (1) observe the suspect take a store item; (2) see the suspect conceal the item; (3) ensure that the suspect is in view of a member of store management at all times; (4) ensure that the suspect has passed all points of purchase and not offered payment for the concealed items; (5) approach the suspect with a sales associate and know where the item is located; (6) say “Excuse me, I believe you may have forgotten to pay for (concealed item)”; (7) escort the suspect to the register and ask how he or she wishes to pay for the item; and (8) allow the suspect to purchase the item and leave. (Id.) If the suspect cannot pay for the merchandise or refuses to produce it, the policy instructs the manager to ask the suspect to remain at the cash register area, contact law enforcement and specified company personnel, and seal “[a]ll evidence kept from a shoplifting case” in a bag to be kept in the store office. (Id. at 15, Pg ID 121.) If the suspect does not remain, the policy directs the manager to obtain a description of the suspect, to get a description of the suspect's vehicle and license plate number (if this can be done without leaving the store), and to contact law enforcement and specified company personnel. (Id.)

         In two separate sections, the Shoplifting Prevention Policy states that “[a]t no time should [an employee or manager] go outside of the store [after] a suspected shoplifter.” (Id. at 14-15, Pg ID 120-121.)

         B. First Shoplifting Incident (March 2014)

         In March of 2014, Plaintiff caught a customer shoplifting after seeing her conceal certain items in her purse, pay for certain other items at the cash register, and leave the store without paying for the items in her purse. (Cronk Dep. 25:20- 27:3.) Plaintiff testified that she waited outside of the front of the store for the customer to emerge, and when the customer did, she asked the customer whether she had items that she had not paid for. The customer responded that she did not. Plaintiff asked to look inside the customer's purse, and when the customer refused her request, Plaintiff threatened to call the police. The customer relented, handed Plaintiff her purse, and followed Plaintiff to an office inside the store. There, Plaintiff instructed the customer to sit, put the customer's purse on the floor, and called the authorities. She then called Dotson, who as Plaintiffs district manager was her immediate supervisor, informed Dotson that she had caught a shoplifter, and alleges that Dotson congratulated her. (Cronk Dep. 27:5-28:8.)

         C. First Conversation Regarding FMLA Leave (July 2014)

         At some point during or prior to February of 2013, Plaintiff injured her wrist while working at a cash register. She first sought medical treatment for that injury on or around February 13, 2013. (Cronk Dep. 31:15-32:13.)

         On July 11, 2014, Plaintiff called Dotson to discuss her wrist injury. (Cronk Dep. 17:23-18:1, 32:21-33:18.) Plaintiff testified that she informed Dotson that the injury was painful and affecting her work, and that a doctor who had been treating her with cortisone shots believed she needed surgery. Plaintiff told Dotson that she would have to take medical leave to have the surgery in December of 2014, both because the store would be too busy until then for her to take leave earlier, and because she would have to have the surgery before the end of the calendar year to be able to pay the deductible with benefits that her husband had accrued at his job. (Cronk Dep. 34:3-35:24.) According to Plaintiffs testimony, Dotson responded that Plaintiff could not take the leave in December of 2014 because the store would be too busy. Plaintiff responded that she needed the surgery because she could not tolerate the pain any longer, and that because of the deductible she had to have it before the end of 2014; Dotson simply reiterated that she could not have the surgery in December.[1] (Cronk Dep. 35:25-36:12.) Plaintiff did not provide Dotson with any alternative dates for her surgery.

         Plaintiff admitted that she “did not contact Matrix to seek leave in 2014 for carpel tunnel surgery.” (Plaintiffs RFA ¶ 10 at 3, Pg ID 125.)

         D. Second Shoplifting Incident (August 2014)

         The Lewiston store incurred another shoplifting incident later in the summer. On or around August 10, 2014, Plaintiff noticed two women enter the store whom the staff had suspected of shoplifting in the past. The women split up inside the store, and as Plaintiff approached one of them, she saw the customer kneeling and putting toy cars inside of her purse. When the customer noticed Plaintiff was watching she took them out and put them on the shelf. Plaintiff asked the customer if she could help her, and the customer said no, and hurried to the cash register to pay for some items. (Cronk Dep. 40:3-25.)

         After looking around for the other customer, Plaintiff found her at the cash register, and noticed that the customer's bag looked bigger than it had when she came in, and that she wasn't paying for DVDs that Plaintiff had seen her holding. (Cronk Dep. 41:2-9.) Plaintiff testified as follows about what happened next:

[A]fter she got done paying for her items I went next to her and I said, do you have any items in your purse that you didn't pay for. And she pushed past -- she tried pushing past me and going out the door. . . . And I just grabbed onto the handle of her purse . . . and told her, I said, you're going to have to show me what's in your purse. And she was trying to get out that door.
Well, then she wanted to go to the bathroom and she was pushing her way towards the bathroom. And I wouldn't let go of her purse. And then I had the phone and I was -- I had 911 on. And I had three ...

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