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Stringfield v. Cosentino's Food Stores

United States District Court, W.D. Missouri, Western Division

September 5, 2017



          Fernando J. Gaitan, Jr. United States District Judge

         Currently pending before the Court is plaintiff's Motion for Summary Judgment (Doc. # 62); Cosentino's Food Stores (“Cosentino's”) Motion to Strike Plaintiff's Motion for Summary Judgment (Doc. # 66); Cosentino's Motion for Summary Judgment (Doc. # 67), Cosentino's Motion to Strike or for Leave to File Sur-Reply (Doc. # 70) and Cosentino's Motion to Strike Plaintiff's Additional Suggestions in Support of Summary Judgment (Doc. # 79).

         I. BACKGROUND

         Plaintiff began working for Cosentino's Food Stores in May 2010 as a deli worker at Store #105. Cosentino has an Attendance Policy which is included in its Employee Handbook. The Attendance Policy states in part:

[a] good attendance record is required of every employee. Our customers and fellow employees depend on you to help the store operate successfully. You are responsible for working all of your scheduled shifts, for reporting to work on time, and for working until the end of your scheduled shift. . . .If it is necessary for you to leave during the work day, please provide advance notice to your Department Manager.

         Cosentino's Rules of Conduct Policy states in part:

Obviously, it is impossible to list every reason for which an employee may be disciplined or discharged . . .but some behaviors are considered so egregious that summary termination may be appropriate. The following list, while certainly not exhaustive, contains examples of the types of conduct that could be grounds for immediate termination:
1. Leaving your assigned work area or the store premises during your shift without authorization from your Store Director or Department Manager.
Cosentino also had a Family and Medical Leave of Absence Policy. The policy stated in part:
The Company has a Family and Medical Leave Policy that is in compliance with The Family and Medical Leave Act of 1993 (FMLA), which provides for a leave of absence in certain circumstances. . . .Employees who wish to take FMLA leave must notify the company's Benefits Coordinator in as far advance of the leave as possible.

         On September 14, 2010, plaintiff received a verbal warning for violating the attendance policy. The description of the incident stated that “[o]n September 9 (Thurs) you left your shift early at approx. 7:30 p.m. You were scheduled til [sic] 8:00. You failed to ask store mgr if you could leave early. If no supervisor is in deli on duty you must ask store manager.” On October 15, 2014, plaintiff received a Final Written Warning for violation of the attendance policy. “[E]xcessive absenteeism including leaving work early” on four occasions (July 12, 2014 - October 8, 2014). The form stated: “Michelle is expected to work entire work schedule and as a shift supervisor lead by example and appropriately support Dept. Mgr.” The form also notes that there was previous counseling regarding this issue:

Jan. 4, 2014 Written = Insubordination & job performance Jan. 13, 2014 Suspension = Sales Transaction w/ family member & herself.

         The form indicates that the employee has been told that further incidents or violations will result in termination. Under employee signature it states: “Refused to Sign.”

         Plaintiff testified that she met with three managers on October 15, 2014 who gave her a final written warning:

Q. Okay. So basically my point with this, Ms. Stringfield, is that you were given a final written warning. You were told that you needed to complete your shifts; is that correct?
A. Yes.
Q. And you knew that if you were going to leave the store premises during your shift, that you needed to notify a store manager or a department manager; is that correct?
A. That's correct. There was no managers around.
Q. Okay. And you went ahead, knowing those things, and you clocked out and you left; is that true?
Q. That's true. . . .
Q. Hold on just a minute. Let me finish my question. You were in this meeting with them and you never said before you left, I'm not feeling good because of this meeting, I need to go home; is that true?
A. I didn't say nothing in the meeting.
Q. Okay. And then they asked you after you left the meeting to go back to the deli and to send the deli manager, Fran Roc - - how do you say her last name?
A. Roccoro.
Q. Roccoro. Back to the front office. And when you saw Fran, you didn't say, Fran, I'm not feeling good. I need to leave. Is that true?
A. That's true.
Q. Okay. So you passed four managers on your way out of the store and you didn't notify any ...

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