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Hart v. Opaa! Food Management, Inc.

United States District Court, W.D. Missouri, St. Joseph Division

March 24, 2017

KRISTEN HART, Plaintiff,
v.
OPAA! FOOD MANAGEMENT, INC. Defendant.

          ORDER

          FERNANDO J. GAITAN, JR. UNITED STATES DISTRICT JUDGE

         Currently pending before the Court is Defendant Opaa! Food Management, Inc. (“Opaa!'s”) Motion for Summary Judgment (Doc. #27), and Plaintiff's Motion to Allow Time for Discovery Under Rule 56(d) (Doc.# 33).

         I. BACKGROUND

         Defendant Opaa! submitted a statement of uncontroverted facts in support of its Motion for Summary Judgment. In plaintiff's Memorandum in Support of Motion to Allow Time for Discovery and in Opposition to Opaa!'s Summary Judgment motion, plaintiff does not controvert any of the facts cited by Opaa!x or offer any additional facts. Accordingly, the Court will rely on the facts cited in Opaa!'s motion.

         Plaintiff began employment with the St. Joseph School District in 1999. In 1999, plaintiff was a kitchen manager for an elementary school cafeteria. In this role, plaintiff managed the operations of the cafeteria and the staff. For most of plaintiff's tenure, her direct supervisor was the School District's Nutrition Department Supervisor. However, since the beginning of the 2013-2014 school year, that position had been vacant. In late October 2013 and early November 2013, Opaa! entered into a contract with the School District to provide services related to the management of the District's cafeterias and food service operations. After Opaa! began working with the District, Tonya McCrea was appointed as Opaa!'s Director of Nutritional Services, and became plaintiff's direct supervisor. On September 23, 2013, the school principal sent an email to plaintiff regarding concerns she had about kitchen operations, including complaints made by parents and referencing prior complaints. On September 30, 2013, the principal sent another email to plaintiff regarding a complaint from a parent that a cafeteria worker had taken food away from her child. On December 6, 2013, the principal sent another email to plaintiff, copying Ms. McCrea, complaining about how dirty the lunchroom tables were. On February 24, 2014, Ms. McCrea emailed the principal regarding concerns related to plaintiff's attendance, the frequency of her leaving the building to go to her car and indicating that she intended to take written disciplinary action regarding these issues. On March 17, 2014, plaintiff left work for a doctor's appointment without requesting leave or reporting her need to leave, in violation of policy. On March 18, 2014, plaintiff was issued a written disciplinary notice due to her excessive absences. On August 18, 2014, Ms. McCrea emailed plaintiff a written follow up to a conversation that had occurred that morning regarding a number of concerns with plaintiff's kitchen. Some of the concerns related to fruit being served with stickers on it, employees not wearing hairnets, clothing violations and failure of a team member to attend a required meeting. On August 22, 2014, plaintiff was presented with and signed a Performance Improvement Plan. The plan indicated that plaintiff needed to improve her performance in managerial tasks, ability to manage her staff and her attendance. During the meeting, plaintiff informed Ms. McCrea that she would be absent on the next business day, August 25, 2014 for a doctor's visit that she had previously known about. Employees were required pursuant to Opaa! and District policy to provide seven days' notice for non-emergency medical appointments. On August 24, 2014, the principal and Ms. McCrea spoke to plaintiff regarding missing money that had been sent in for a child's lunch, but was not deposited for that purpose. On August 25, 2014, plaintiff was issued a written warning for violation of district and Opaa! policy regarding the missing money. On September 12, 2014, an employee in plaintiff's kitchen, approached the assistant director of nutrition regarding plaintiff's treatment of her. The employee was quite upset and expressed dissatisfaction with plaintiff's management, including inconsistencies in instructions given by plaintiff. On September 17, 2014, plaintiff failed to properly complete her inventory for milk, bread and produce. This resulted in another written disciplinary action which mentioned plaintiff's previous problems with conducting inventory. On September 18, 2014, Ms. McCrea, the principal, and district administration employees participated in an email exchange regarding plaintiff's ongoing performance problems, noting that just that morning the cafeteria had run out of a breakfast item. On September 18, 2014, Ms. McCrea, the assistant director of nutrition and the principal met with plaintiff and informed her that she was being demoted from kitchen manager to a “line” staff employee and that her pay was being decreased. Plaintiff was transferred to a high school so that she would not have to work with her prior subordinates at the elementary school. Plaintiff worked at the high school cafeteria for approximately two weeks when she took a leave of absence for medical treatment. After returning only very briefly, plaintiff resigned her position with the district on November 3, 2014.

         Plaintiff in her resignation letter stated that she had been treated unfairly since Opaa! came to the District and that Ms. McCrea “had it out for her.” The resignation letter did not mention age or allege that she had been treated badly because of her age. When questioned as to why Ms. McCrea had it out for her, plaintiff testified, “I don't know if it was my age, if she wanted younger people in there, if she wanted people to - I don't know exactly why. If she just didn't like me personally. I wasn't sure. I just felt that way, that she just didn't get along with me for some reason.” Plaintiff testified that she believed that her replacement, was approximately thirty-six years of age. Plaintiff was forty-five years of age at the time of her resignation. Plaintiff alleged that there were five other employees who were demoted or terminated and replaced by younger employees. However, plaintiff did not know why any of the five women were demoted and that it was “just [her] opinion” that they were demoted because of their age. Plaintiff could only provide first and last names of two employees allegedly demoted and replaced by younger employees. Plaintiff provided only the first names and schools worked at for the other three employees.

         Plaintiff testified that at the time of her resignation, her working conditions were not intolerable. Plaintiff testified that she had no evidence, documents or statements or information of any sort that could support her belief that age was a factor in her demotion. Plaintiff testified that no district employee or Opaa! employee ever told her that she was demoted because of her age nor did anyone ever mention her age in any way.

         II. STANDARD

         A moving party is entitled to summary judgment on a claim only if there is a showing that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c). A[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party meets this requirement, the burden shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. 242, 248 (1986). In Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Court emphasized that the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts" in order to establish a genuine issue of fact sufficient to warrant trial. In reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. Matsushia, 475 U.S. 574, 588; Tyler v. Harper, 744 F.2d 653, 655 (8th Cir. 1984), cert. denied, 470 U.S. 1057 (1985).

         III. DISCUSSION

         A. Plaintiff's Motion For Additional Time for Discovery

         Plaintiff filed her Petition in the Circuit Court of Buchanan County on October 9, 2015. Defendants removed the case to federal court on November 16, 2015. On February 5, 2016, the parties conducted their Fed.R.Civ.P. 26 conference. On February 8, 2016, plaintiff served her first requests for discovery to Opaa! and the School District. On February 18 and 19, 2016, Opaa! and the School District served their initial Rule 26 disclosures. Plaintiff served her disclosures on February 22, 2016. On February 24, 2016, the School District served supplemental Rule 26 disclosures. The Court entered a Scheduling and Trial Order on February 25, 2016 setting December 16, 2016 as the date for the close of discovery. On March 30, 2016, Opaa! served responses to plaintiff's discovery requests. On April 8, 2016, the School District filed its responses to plaintiff's discovery requests. Plaintiff's deposition was taken on April 22, 2016. Opaa! filed its Motion for Summary Judgment on June 7, 2016. On June 30, 2016, plaintiff filed her Motion Seeking Additional Time for Discovery and Suggestions in Opposition to the Motion for Summary Judgment. In the motion, plaintiff acknowledges that the parties have engaged in written discovery, have mediated the case and defendants have deposed her. Plaintiff also states that shortly after the mediation, she reached a settlement with the School District.

         However, plaintiff states that additional discovery is necessary on the following issues: 1) Plaintiff's employment relationship with Opaa!; 2) the relationship between Opaa! and the School District and whether Opaa! exercised oversight or control over her employment; 3) the names and salaries of all employees working in food service in St. Joseph schools between 2012 and 2015; 4) depositions of Tonya McCrea, Director of Nutrition Services; Linda Schaiffer, Assistant Director of Nutrition Services; Craig Cohen, Senior Vice-President of Operations for Opaa! and Dan Colgan, Superintendent of Schools for the District. Plaintiff states that this discovery is necessary to show Opaa!'s liability as a “joint” employer with the District and also to show that Opaa! engaged in a “pattern and practice of age discrimination.” Attached to her Motion is an affidavit of plaintiff's attorney which states as follows: “1. Additional discovery as outlined in the Memorandum . . .is necessary to afford Plaintiff the adequate opportunity to discover facts as outlined in the aforementioned Memorandum, to present her claim for damages. 2. It is affiant's belief that the information sought is in fact discoverable through discovery, but is not yet available to Plaintiff to produce in response to the pending Motion for Summary Judgment due to the early nature of the discovery process in this litigation.”

         Fed.R.Civ.P. 56(d) states “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Courts have noted that Rule 56(d) “should be applied with a spirit of liberality.” United States ex rel. Bernard v. Casino Magic Corp., 293 F.3d 419, 426 (8th Cir. 2002). “Although Rule 56(d), ‘is not a shield that can be raised to block a motion for summary judgment without even the slightest showing by the opposing party that his opposition is meritorious.'” Jacobs v. PT Holdings, Inc., No. 8:11CV106, 2012 WL 705772, *2 (D.Neb. Mar. 2, 2012)(quoting Wilmar Poultry Co. v. Morton-Norwich Prods., Inc., 520 F.2d 289, 297 (8th Cir. 1975)); see also ...


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