United States District Court, E.D. Michigan, Southern Division
SUSAN MARTIN, SANDRA LOY, PAULINE BUTLER, and SANDRA ROBERTS, Plaintiffs,
THE KROGER CO., Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Page Hood Chief Judge, United States District Court.
Susan Martin, Sandra Loy, Pauline Bulter, and Sandra Roberts
are former employees of Defendant, each of whom was
terminated by Defendant shortly after the 2015 Memorial Day
weekend. Plaintiffs filed this action on June 17, 2016,
alleging that Defendant discriminated against them on the
basis of their age and gender. Plaintiffs allege four counts
of sex discrimination under Title VII and the Michigan
Elliot-Larsen Civil Rights Act (“ELCRA”), four
counts of age discrimination in violation of The Age
Discrimination Act in Employment (“ADEA”) and
ELCRA, and four counts of wrongful discharge, in violation of
8, 2017, Defendant filed a Motion for Summary Judgment [Dkt.
No. 15], and the Motion has been fully briefed. The Court
held a hearing on the Motion on August 30, 2017. For the
reasons that follow, the Court grants the Motion in its
entirety and dismisses Plaintiffs' cause of action.
May 28, 2015, all four Plaintiffs worked for Defendant at a
Kroger store (“Store #486) in Warren, Michigan. Butler
was 54 years old and had worked for Defendant for 10 years,
most recently as back-up seafood manager. Martin was 63 years
old and had worked for Defendant at Store #486 for 18 years,
most recently as the Meat Manager (but apparently had worked
for Defendant since 1976). Loy was 61 and had worked for
Defendant for 25 years, most recently as a Direct Store
Delivery receiver. Roberts was 72 years old and had worked
for Defendant for 38 years, most recently as a Meat Clerk.
All Plaintiffs were members of a collective bargaining unit
represented by the United Food and Commercial Workers, Local
876 (the “Union”) and covered by the terms of a
collective bargaining agreement (“CBA”).
2015 Memorial Day weekend, Store #486 had received 10 cases
of chicken tenders and 12 cases of whole chicken fryers, with
each case containing 10-12 packages of chicken, all of which
was marked as expiring on May 29, 2015. On May 28, 2015,
Craig Carter (the Assistant Manager of Store #486), after
consulting with Martin, determined that all of the remaining
chicken tenders and whole fryers with a May 29, 2015
expiration date would be marked down significantly for quick
sale (the “discounted chicken”). In order to
prepare the discounted chicken at the reduced price, Martin
and Roberts re-wrapped the packages and labeled them with the
discounted price. While they were doing so, several employees
walked through the meat department, grabbed some of the
discounted chicken packages, and told other employees about
the discounted chicken packages. Plaintiffs state that a
cooler on the sales floor was filled with some of the
discounted chicken packages, and Martin and Roberts each
testified that they took marked down chicken packages out to
the sales floor. Dkt. No. 19, Ex. H at 94 and Ex. K at 37.
After viewing a video of the sales floor from May 28, 2015
(no video of the meat room exists), Antonio Council
(Defendant's Loss Prevention Manager for the District)
and Ron Vanneste (Store #486's Meat Coordinator)
testified that they saw a cart containing the discounted
chicken on the sales floor. Dkt. No. 19, Ex. M at 36, Ex. O
at 24. Those discounted chicken packages were located in a
cooler on the sales floor near the other chicken products
that had later expiration dates. The discounted chicken
packages that were not put out in the cooler on the sales
floor were stored in the meat room, to be used to replenish
the sales floor cooler, as necessary.
end of her shift on May 28, 2015, Butler took 10 packages of
discounted chicken tenders from a cart in the meat room
(which was not accessible for customers). Butler stated that
she took the discounted chicken packages from there (a) so
that co-workers would not have to do additional work by
stocking the store coolers, and (b) to leave discounted
packages in the cooler for Defendant's customers to
purchase. Butler then went to the front of the store, punched
out, and purchased the discounted chicken packages. On July
7, 2015, Butler was questioned about removing the discounted
chicken packages from the meat room and purchasing them at
the end of her shift on May 28, 2015. She was suspended, then
terminated, by Defendant. According to a letter from
Defendant dated August 21, 2015, she was terminated for a
“Violation of Store Rule #28.” Butler had one
“significant reminder” (not defined) in her
disciplinary record in the 10 years she worked for Defendant.
punched out at 2:02 p.m. at the front of the store, then got
a shopping cart and went into the meat room, where she had
previously seen the discounted chicken packages on a meat
cart. Loy took 12 discounted packages of chicken tenders and
10 discounted whole fryers from the meat cart, placed them in
her shopping cart, then paid for them at the checkout. Loy
stated that she took the discounted chicken packages from the
meat cart in the meat room rather than the cooler on the
sales floor so that customers could purchase the discounted
chicken packages in the cooler. There is no evidence that Loy
had any history of disciplinary problems.
punched out at 6:02 p.m. and began shopping. She picked up
discounted chicken packages from the meat room rather than on
the sales floor so that the discounted chicken packages would
remain on the store floor for customers to purchase. Martin
then purchased her groceries. She did not hear anything else
about the matter until July 7, 2015, when she was questioned
about removing the discounted chicken packages from the meat
room and purchasing them at the end of her shift on May 28,
2015. Martin was suspended, then terminated, by Defendant.
According to a letter from Defendant dated August 21, 2015,
she was terminated for a “Violation of Store Rule
#28.” There is no indication Martin had been subject to
any disciplinary action since she began working for Defendant
end of her shift, Roberts grabbed three packages of
discounted chicken tenders from the meat room, put them in a
shopping cart she kept in the back of the store to assist her
in walking, then punched out before paying for the discounted
chicken tenders. On July 7, 2015, Roberts was questioned
about removing the discounted chicken packages and paying for
them at the end of her shift on May 28, 2015. She was
suspended, then terminated, by Defendant. There is no
indication Roberts had any disciplinary problems.
has an Employee Handbook (“Handbook”) which is
periodically distributed to all employees. The Handbook
contains various rules and procedures, including a policy on
employee purchases (the “Policy”). The Policy
provides that all shopping by employees is to be made
“when the employee is off the clock.” The Policy
further states that “any violation of Employee Purchase
Policy will result in discharge.” Dkt. No. 15, Ex. 11
at 21. Both the Handbook and the Policy cover all
Defendant's grocery stores in the state of Michigan. The
Policy was included in the Handbooks that were provided to
Plaintiffs. Id. at Ex. 1 at 27.
have testified that, at all relevant times, they were aware
that the Policy required employees to punch out prior to
shopping at their store and that employees cannot purchase
anything that is not offered to customers for the same price.
Plaintiffs acknowledged that shopping without punching out is
a serious Policy violation that will result in discharge.
Id. at Ex. 1 at 116; Ex. 2 at 26; Ex. 3 at 34; Ex. 4
at 76). Plaintiffs also admitted that accumulating product in
a department prior to the checkout and taking product from
the back (meat) room are violations of the Policy.
Id. at Ex. 1 at 128-29; Ex. 3 at 45-46; Ex. 4 at
represents that its decision to terminate Plaintiffs was
based on the investigation it conducted after the events of
May 28, 2015, an investigation that was triggered when
Council received a MAX report indicating that only employees
had purchased the discounted chicken packages of Store #486,
whereas non-employee customers had purchased chicken packages
only at the regular price. The MAX report specifically
flagged six employees: Jack Adams, Beverly Henderson, and the
four Plaintiffs. Council states that he reached out to Store
#486's management team to inform them of the MAX
report's findings and conducted an investigation that
included reviewing the store's videotapes to track down
all the discounted chicken packages.
investigation team concluded the initial part of the
investigation and scheduled interviews with all six suspected
employees. Council, Vanneste, and a union representative were
present during each employee's interview. During the
interviews, Council presented the evidence Defendant had
gathered on each employee as of that date and interviewed
each employee regarding his or her discounted chicken package
purchases. Each employee was given an opportunity to write a
statement regarding the incident.
result of the investigation, employee interviews, and
Plaintiffs' written statements, Defendant issued each
Plaintiff a “Constructive Advice Record” and
suspended her pending advisability of discharge. After
reviewing all the evidence, Stephanie Spangler-Opdyke
(Defendant's Labor Relations Manager) made the decision
to terminate Plaintiffs for violation of the Policy. Council
was unable to conclude that Adams violated the policy, and
based on his review of the videotape and employee interviews,
Council concluded that Henderson was off the clock both when
Roberts gave her three discounted chicken packages and when
Henderson purchased the discounted chicken packages. For
those reasons, Adams and Henderson were not disciplined for
violating the Policy.
contends that the Policy has been consistently enforced.
Id. at Ex. 12 at 19, 36; Ex. 13 at 63; Ex. 14 at 43;
Ex. 15 at 38-39. Vanneste, Spangler-Opdyke, and Carter
testified that, to their knowledge, in every case in Michigan
where Defendant's store management knew of a violation of
the Policy, the employee was terminated, irrespective of the
employee's work record or length of service. Id.
at Ex. 12 at 19, 36; Ex. 14 at 43; Ex. 15 at 38-39. Since
2015, 21 employees statewide have been terminated
specifically for violating this policy, including 13
employees under the age of 40 and nine male employees.
Id. at Ex. 12 at 36; Ex. 16 at ¶5.
56(a) of the Rules of Civil Procedures provides that the
court “shall grant summary judgment if the movant shows
that 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). The presence of factual disputes will
preclude granting of summary judgment only if the disputes
are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
about a material fact is “genuine” only if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Although the Court must view the motion in the light most
favorable to the nonmoving party, where “the moving
party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). Summary judgment must be entered 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. In such a situation, there can be “no genuine
issue as to any material fact, ” since a complete
failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other
facts immaterial. Celotex Corp., 477 U.S. at 322-23.
A court must look to the substantive law to identify which
facts are material. Anderson, 477 U.S. at 248.