United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
This employment discrimination action is before the Court on Defendant's motion for summary judgment. Plaintiff Michael Hale, Jr., an African-American, filed suit against his former employer, Whole Foods Market Group, Inc. ("Whole Foods"), claiming racial discrimination, harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Missouri Human Rights Act ("MHRA"), Mo. Rev. Stat. § 213.010, et seq. For the reasons set forth below, Defendant's motion for summary judgment shall be granted on all claims.
Viewing the facts in the light most favorable to Plaintiff, the record establishes the following. Plaintiff was employed as a member of the Grocery Team at Defendant's store in Town & Country, Missouri, from June 2008 until his termination in November 2010. He began working on June 9, 2008, at a wage of $9.00 per hour. His direct supervisor when he began was the store's Grocery Team Leader Jerret Hotle. Defendant conducts a performance review, called a Job Dialogue, to evaluate each team member at least once a year. As part of the Job Dialogue, the employee completes a self-evaluation of his or her performance in various categories. The employee's supervisor then assesses the employee in the same categories and discusses that evaluation with the employee at a one-on-one meeting. The annual Job Dialogue coincides with awarding raises.
On June 3, 2009, Hotle conducted a Job Dialogue with Plaintiff. Out of 60 possible points, Plaintiff gave himself a score of 54 points and Hotle gave Plaintiff a score of 47 points. Plaintiff testified that he did not believe that the manner of Hotle's evaluation was discriminatory; however, following that Job Dialogue, Plaintiff received a raise of 3 percent, or $.27 per hour, which he did believe was discriminatory. (Pl.'s depo., Doc. No. 99-1 at 18.) Plaintiff testified that Hotle explained to him that the maximum possible raise was 3 percent, but Plaintiff believed a fair raise would have been between $.50 and $.75. Plaintiff further testified that he spoke to two white team members, Shannon Rice and Justin Whitmore, and they told him that they received raises higher than 3 percent. Plaintiff did not know what score they received on their Job Dialogues or the amount of their raises.
Plaintiff testified that he told the Store Team Leader, Matt Mel, that he believed his raise was discriminatory, and that Mel responded that Hotle "misunderstood how raises were issued out" and that a "3 percent raise is only reserved for salary employees." Plaintiff did not tell Mel what he believed a fair raise would be, and Mel did not suggest what raise Hotle should have awarded Plaintiff. Id. at 20-22. Shortly thereafter, on July 15, 2009, Plaintiff received a pay raise of $.23 per hour, bringing his hourly wage up to $9.50. The reason for the change was documented as a "market adjustment." (Doc. No. 114-2 at 26.) Plaintiff testified that when Hotle advised him of the increase, Hotle apologized for misunderstanding the 3 percent rule, and said that he had spoken with Mel. (Doc. No. 99-1 at 22.) After his pay was increased to $9.50, Plaintiff no longer felt that his pay was discriminatory. Id.
On December 13, 2009, Hotle asked Plaintiff to distribute samples of rice to customers in the store. Plaintiff was concerned that the rice was not sanitary and brought his concerns to Hotle's attention. According to a Situation Summary of the incident, Hotle was not completely aware of the state of the product, as he was upstairs, and directed Plaintiff to serve it anyway. Plaintiff refused and was sent home, ending his shift early that day, resulting in loss of pay for the remainder of the day. (Doc. No. 114-2 at 22-23.) Plaintiff acknowledged that he was sent home for "insubordination" and "refusing to follow instructions" by failing to distribute the rice samples, however, he testified that he was treated in a discriminatory way because white employees were not forced to end their shift early for refusing to follow instructions. The only specific instance Plaintiff could provide was that Dan Lake, a white employee, was not sent home when he refused to follow a supervisor's "specific instructions on cleaning" and called the supervisor a "bitch." Plaintiff did not know what discipline, if any, was issued to Lake for his insubordination. (Doc. No. 99-1 at 27.)
Believing that his punishment had been discriminatory, Plaintiff called Defendant's employee tip line and he also spoke to Mel about his concerns. Mel told Plaintiff that he would investigate the matter, and Plaintiff assumed Mel did so because, according to Plaintiff, "the situation was resolved." Id.
The next time Plaintiff felt he was discriminated against by Defendant involved "the James Schmidt situation." In March 2010, at Defendant's "Galleria" store, located approximately 11 miles away from the store at which Plaintiff worked, James Schmidt, a white employee, was told that an African-American co-worker was adopting a vegan diet. In response, Schmidt told a white co-worker, Nate Speak, "[a]ll black people want for dinner is chicken and watermelon." Id. at 29. Neither the African-American Galleria employee nor Plaintiff personally heard the comment. Speak told Plaintiff about Schmidt's statement and Plaintiff advised Speak to report the comment and "take it through the proper channels of leadership." Plaintiff testified that Speak agreed to do so, but Plaintiff was unaware of whether or not he did. Id. at 30.
Plaintiff testified that on another occasion, Schmidt said "[t]he way you avoid having children by a black woman is you pull out." Id. Again, this statement was made at the Galleria store and Plaintiff did not hear the comment, but learned of it from a Galleria employee. Plaintiff testified that he considered the statement "as a death threat. That's saying that kids shouldn't be born. They shouldn't exist." Id. at 31. Plaintiff further testified that Schmidt, angered that team members had reported the two above incidents, said, "I'm tired of you men complaining like these women like your coochy is hurting." Id. at 32. Plaintiff was not present for this comment either, but heard of it through a Galleria employee. Plaintiff believed the comment was "an insult to everyone's mother, " and he found the comment to be "[v]ery insulting." Id.
Plaintiff reported Schmidt's three comments to Mindy James, a human resources representative for Defendant. He testified that James told him later that she had relayed the report to Defendant's Regional Team Member Services Coordinator, Heather Sulic, who promised to investigate. Plaintiff also met with Michael Bashaw, Mid-West Regional President of Whole Foods, about his racial discrimination and harassment concerns. Plaintiff did not know what discipline, if any, was issued to Schmidt as a result of Schmidt's comments. Plaintiff was also unaware of whether or not Schmidt held a supervisory position at the time that he made his comments. Id. at 29-35.
Sulic attested that Brian Gourley, Store Leader at the Galleria store, investigated Schmidt's comments and reported back to her, whereupon she concluded that Schmidt's statements, "while offensive, were not made maliciously." (Sulic Aff., Doc. No. 99-2 at 33.) Gourley and Sulic decided Schmidt would be demoted, transferred to a different shift, and placed on final warning. Plaintiff submitted the affidavit of another employee that Gourley told him, regarding complaints against Schmidt, that Gourley did not believe what was said about Schmidt and that Schmidt was "not racist because he listens to rap music." (Doc. No. 114-6 at 1.)
Plaintiff testified that, as a result of Schmidt's comments, it was harder for him to do his work at the Town &Country store "[b]ecause [it was] a constant reminder of how black men can't get justice" and it "[kept] him from being 100 percent." (Doc. No. 99-1 at 39.)
On July 5, 2010, Plaintiff sent an email to Defendant's Global Human Resources Support Specialist John Morgan asserting that team members were deceived by the store's leadership regarding the amount of pay increases that were available; African-American men and women were not considered for employment by the Town & Country store; minorities were excluded from interview panels; female supervisors were not paid at the same rate as male supervisors; supervisors were not disciplined after instances of business abuse were reported; a supervisor allowed his friend to transfer to the Town & Country store when the friend was in danger of being terminated at another location; Team Leaders gave "speed tests" to team members in order to deny raises and promotions; Team Leaders used intimidation tactics to make team members fear reporting wrongdoing; team members were "pre-trained" for promotions before the positions were posted; the tip line for reporting misconduct did not work; team members were not given equal opportunities for vacation days; team members were advised that they spent too much time with customers; Team Leaders were permitted to alter their schedules; Team Leaders decided who received an attendance point for being late or absent; and team members were denied opportunities to transfer to other teams.
Plaintiff acknowledged that he was not subjected to many of the complaints that he identified in this email. Specifically, he testified that he was not subjected to discriminatory hiring; was not administered a "speed test"; was not subjected to intimidation tactics to make him fear reporting infractions; was not denied training opportunities to prepare for promotions; did not experience any instances in which the tip line did not work; and did not receive unfair treatment regarding his schedule or the allocation of attendance points.
With respect to other matters raised in the email to Morgan, Plaintiff testified that a request he made to serve on an interview panel for selection of a new Store Team Leader was denied, but he did not know who served on the panel and whether minorities did. He testified that on one occasion, the paperwork that he submitted to request vacation time was lost, but he did not know if this was intentional or if any other team members had their vacation requests disregarded or misplaced. And he testified that a request he made for a lateral transfer to a Bakery Team was denied, but he did not know who was hired to fill that position.
On September 5, 2010, Plaintiff had a Job Dialogue with Grocery Team Leader Alex Hanna (an African-American) and Associate Team Leader Jason Nosser. The scoring for the Job Dialogue had changed, but the process remained the same. Plaintiff assessed himself 15 points out of a possible 21, which placed him in the category of "consistently meets standards." (Doc. No. 114-1 at 4-10.) Plaintiff was awarded 12 points categorizing him as "needs improvement meeting standards." Id. Plaintiff did not hink that any portion of the Job Dialogue assessment was discriminatory. (Doc. No. 99-1 at 60.) However, in connection with this Job Dialogue, Plaintiff received a raise of $.30 per hour, which he did believe was discriminatory; he believed a raise of $1.50 per hour would have been fair. Id.
As Plaintiff acknowledged, according to Defendant's Midwest Regional Wage Administration Guidelines ("Wage Guidelines"), a Job Dialogue score for team members between 8 and 13 qualified for a recommended raise of $.25 per hour; a score between 14 and 17 qualified for a recommended raise of up to $.50 per hour; and a score between 18 and 21, qualified for a recommended raise of up to $1.00 per hour. (Doc. No. 114-1 at 12.) Plaintiff testified that Michael Bashaw (Midwest Regional President) told him raises were a matter of a Team Leader's discretion. He testified that "white team members were getting dollars and $.75 [raises], " but he acknowledged that he did not know his coworkers' Job Dialogue scores or the amounts of their raises. (Doc. No. 99-1 at 61.)
One of Plaintiff's white co-team members at the time of his 2010 September Job Dialogue was Kathryn Cook. In August/September 2010, Cook received a Job Dialogue score of 17, "exceeds standards, " and a raise of $.65 per hour ($.15 more than the raise recommended by the Wage Guidelines). In June 2010, another white co-team member, Justin Whitmore, received a Job Dialogue score of 14, categorizing him as "consistently meets standards, " and his raise was $.40 per hour ($.10 less that the maximum recommended by the Wage Guidelines). And in July 2010, grocery buyer Ryan Mattingly, who was also white, received a Job Dialogue score of 17 and was awarded a $.75 per hour raise ($.25 more than the raise recommended by the Wage Guidelines).
On September 12, 2010, Plaintiff made a tip line complaint about his raise. At a meeting with James and the Town & Country Store Leader Shannon Chronister shortly thereafter, Plaintiff was presented with a list of goals that would result in a larger salary increase. Plaintiff testified that he did not believe that some of the goals, such as "increase task speed, " and "improve communication skills with leadership, " were fair. Id. at 64.
On September 21, 2010, Plaintiff filed a Charge of Discrimination with the Missouri Commission on Human Rights and the Equal Employment Opportunity Commission ("EEOC") claiming racial discrimination and retaliation based on (1) Schmidt's comments and the allegation that no action was taken in response to Plaintiff's complaint about them; (2) not hearing back from Morgan or Bashaw in response to Plaintiff's July 2010 email; (3) being sent home early on July 30, 2010, due to budget constraints while a higher-paid white worker was allowed to stay; and (4) receiving a "poor performance rating" from Chronister in September 2010 and a low raise based on the rating, and not having his concerns that this was discriminatory and retaliatory addressed by Chronister or James. (Doc. No. 114-1 at 17-18.)
On October 8, 2010, Defendant introduced a checklist form at the Town & Country store to assign team members work and for team members to check off tasks they completed. Previously, the employees' tasks were delegated by writing them out on a board. Under the new system, the team members received a piece of paper at the beginning of a shift indicating what each team member was supposed to do. Team members were also directed to indicate on the sheet what tasks they had done. The new system was modified on October 16 and October 31, but generally all versions involved a piece of paper with each team member's tasks for that shift and a place for them to indicate performance of a task. Plaintiff's job duties remained the same; the only thing that changed was the way in which those duties and responsibilities were assigned, and the way employees indicated that they had done assigned tasks. (Doc. No. 99-1 at 68-69.)
Plaintiff testified that he believed the new system was a way to target him for termination because it was introduced so soon after he filed his EEOC charge. Plaintiff testified that the October 31 version of the checklist form "gave multiple instructions" because at the top it said employees should check off the completed tasks and at the bottom it said they should initial the form, and that he was not trained on how to use the form. Id.
On November 1, 2010, Plaintiff worked on restocking the frozen section and the bulk foods section of the Grocery Department, but he did not in any way indicate on the checklist form the work he had done. The next day, Hanna asked Plaintiff why he did not check off that he had done the bulk and frozen work. Hanna told Plaintiff that he spent 20 minutes working the bulk back stock because Plaintiff had not marked it as completed. Plaintiff testified that he told Hanna he did not check the form because he had not completed the tasks. Additionally, Plaintiff testified that he objected to Hanna asking him to "sign" the form and despite Hanna's request, Plaintiff did not sign or initial it. (Doc. No. 99-1 at 72.)
On November 3, 2010, Chronister questioned Plaintiff about his refusal to sign the checklist form on the previous day and asked him whether or not he was going to sign it. Plaintiff refused to sign the form and stated that he was going to call his attorney. Chronister testified that Plaintiff told him that he believed the checklist was a way to target team members to fire, and refused to sign the form despite Chronister asking him to do so three times. Chronister testified that he did not know at the time that Petitioner had filed a charge with the EEOC. He believed Plaintiff was being insubordinate and contacted Defendant's regional human resources office about the matter. (Doc. No. 99-2 at 114.) Chronister suspended Plaintiff, and by letter dated November 8, 2014, Chronister terminated Plaintiff from employment for the stated reason of his insubordination in refusing to sign the checklist. The letter stated: "This incident is but one example of your apparent frustration with your job leading to a ...