Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Martin v. Kroger Co.

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

November 30, 2017

SUSAN MARTIN, SANDRA LOY, PAULINE BUTLER, and SANDRA ROBERTS, Plaintiffs,
v.
THE KROGER CO., Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [#15]

          Denise Page Hood Chief Judge, United States District Court.

         I. INTRODUCTION

         Plaintiffs 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 Michigan law.

         On June 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.

         II. BACKGROUND

         As of 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”).

         For the 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.

         At the 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.

         Loy 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.

         Martin 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 in 1976.

         At the 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.

         Defendant 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.

         Plaintiffs 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 55-56, 60.

         Defendant 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.

         Council's 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.

         As a 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.

         Defendant 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.

         III. LEGAL STANDARD

         Rule 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.

         IV. ANALYSIS

         A. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.