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Gilberg v. Associated Wholesale Grocers, Inc.

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

July 27, 2018




         Before the Court is Defendants' Motion for Summary Judgment (Doc. 143).


         Summary judgment is proper if, viewing the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “Where there is no dispute of material fact and reasonable fact finders could not find in favor of the nonmoving party, summary judgment is appropriate.” Quinn v. St. Louis County, 653 F.3d 745, 750 (8th Cir. 2011). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the movant meets the initial step, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To do so, the moving party must “do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         A question of material fact is not required to be resolved conclusively in favor of the party asserting its existence. Rather, all that is required is sufficient evidence supporting the factual dispute that would require a jury to resolve the differing versions of truth at trial. Anderson, 466 U.S. at 248-49. “There is no ‘discrimination case exception' to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial.” Togerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc) (quoting Fercello v. Cnty. Of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010)).


         This matter arises from a dispute concerning Associated Wholesale Grocers, Inc.'s (AWG), decision to terminate the employment of three individuals: Teresa Leonard, David Gilberg, and Douglas Stokes. The stated reasons for their termination relate to what AWG considered violations of its IT and Anti-Harassment Policies. Plaintiffs have brought claims for age, gender, and disability discrimination under the Missouri Human Rights Act, Mo. Rev. Stat. § 213.010, et seq., on the theory that their status as members of a protected class contributed to their termination. The Court consolidated the actions brought by the three Plaintiffs for discovery and summary judgment purposes, and indicated that it would consider the merits of consolidation for a trial, if necessary. (Doc. 11).

         The Policies

         Each of the three Plaintiffs received and acknowledged AWG's Anti-Harassment Policy and AWG's Communications and Information Systems Policy (IT Policy) at various times throughout their employment. These policies were contained in employee handbooks or supplemental policies. As supervisors, each Plaintiff was required to indicate that they acknowledged and understood their obligations regarding AWG's Anti-Harassment Policy. The 2009 version of the policy, which all three Plaintiff's acknowledged receiving, stated, in relevant part:

Behavior prohibited by this Policy includes unwelcome conduct, whether verbal, physical, or visual, that is based upon or related to an individual's race gender, sex (whether same-sex or opposite-sex), pregnancy, color, religion, national origin, age, disability, ancestry, military or marital status or any other characteristic protected by law, and that (1) has the purpose or effect of creating an intimidating, hostile or offensive working environment (2) has the purpose or effect of unreasonably interfering with an individual's work performance or (3) otherwise adversely effects an individual's employment opportunities.
Examples of prohibited conduct in the form of sexual harassment include, but are not limited to . . . sexual jokes, comments, suggestions or innuendo; foul or obscene language or gestures; display of foul or obscene printed or visual material. . . .
Additional examples of prohibited conduct in the form of other illegal harassment include epithets, slurs, negative stereotyping, written or graphic material, including e-mails, that denigrate or show hostility toward an individual, or any other threatening or intimidating act that relates to race, gender, sex . . . disability. . . .
The Company's anti-harassment policy is violated when . . . (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, abusive or offensive working environment, even if it leads to no adverse job consequences.[1]

         As of May 2006, AWG's Employee handbook included an IT Policy, which stated:

No harassing, embarrassing, indecent, profane, abusive, sexually explicit, obscene, vulgar, intimidating, defamatory or otherwise offensive language or material (including, without limit, offensive material relating to sex, race, color, national origins, religion, age, disability or any other protected characteristic) may be sent, intentionally received, downloaded, stored or otherwise accessed or displayed on or using AWG's Communication Systems. AWG's policies prohibiting discrimination, and sexual or other forms of harassment apply fully to the use of its Communication Systems. Any employees encountering or receiving such material must immediately report the incident to his or her supervisor, department manager, or the Human Resources Department.

         The policy further indicated that violation of its terms could lead to discipline up to termination of employment. Each employee acknowledged receipt of the IT Policy. In September 2010, all employees in the Springfield division of AWG received an email containing AWG's IT Policy, which further indicated that violations of the policy by employees put their jobs at risk.

         Leonard's Termination

         Plaintiff Teresa Leonard began working at AWG in 1985, and was 59 years old with 29 years of service at AWG at the time of her termination on April 4, 2014. She reported directly to Defendant Todd Cooper from January 2011 to March 2012, and worked as a second shift warehouse supervisor from early 2012 until her termination in 2014. During her employment, Plaintiff Leonard attended training regarding AWG's Anti-Discrimination and Anti-Harassment Policies, and she knew it was her duty as a supervisor to prevent discrimination or harassment. She further knew that she could take any questions she had about those policies to the HR Department.

         In late March 2014, an email was discovered on a printer at AWG's office in Nashville, Tennessee. That email contained the following language:

To ALL Contractors, Plumbers, and Electricians The term “N***** Rigged”[2] is absolutely no longer acceptable.
You will now refer to it as a “Presidential Solution.”

         Plaintiff Leonard received this email on her work email address from someone outside of AWG. The printout found in Nashville identified Plaintiff Leonard's email address in the corner. Plaintiff Leonard denies printing the email in Nashville, but admits to having received the email and printing it in Springfield before showing it to two co-workers. The email was presented to the Director of HR for AWG's Nashville Division, who contacted Tom Fenton, the HR Director for the Springfield Division, and also Susan Ott, AWG's Corporate VP of HR.

         The discovery of this email led to an investigation headed by Jerry Burke, AWG's Corporate Security Manager. Mr. Burke has a background in law enforcement but limited experience in information technology and its security. Burke, with the assistance of AWG's IT Department, traced the email to a “Toughbook” laptop computer used by Plaintiff Leonard at the time the email was sent to the Nashville printer. That investigation further determined that the printing of the email in Springfield and Nashville was separated by two seconds.[3] Burke then gained access to Plaintiff Leonard's email account and further investigated the contents of her account. He found the above-cited email in her account.

         On April 4, 2014, Tom Fenton (HR Director for Springfield) and Anita King (an HR employee in Springfield) met with Plaintiff Leonard to discuss the email. At that time, Plaintiff Leonard denied printing the email in Nashville but admitted that she printed it in Springfield and showed it to two other fellow supervisors. The Court notes that Plaintiff Leonard has testified in her deposition that she does not believe AWG made up the fact that the email was sent from her computer to the Nashville printer during a time when she was signed on to the Toughbook. Mr. Fenton told Plaintiff Leonard that her employment was being terminated for printing and sharing the email because these actions constituted “egregious” and “fatal” violations of AWG's policies. At the conclusion of the meeting, Plaintiff Leonard then told Burke that other AWG employees were sending emails that might violate AWG's policy and should be investigated.

         Plaintiff Leonard has contended that she was treated differently than younger male employees who were not terminated for violations of the Anti-Harassment and IT Policies. However, Plaintiff Leonard is not aware of any other employees who have used the word “n*****” in a work environment or who showed co-workers emails or other documents using the word.

         Plaintiff Leonard has claimed discrimination based on both age and gender because she believes those statuses contributed to her termination. She believes that her age contributed to it based on a few different factors. Another supervisor, Scott Kamysz (age 35), sent an email using another employee's email account, without the knowledge or the permission of that employee, containing sexual references to Defendant Todd Cooper. Kamysz's punishment was both delayed and limited to a letter of reprimand. Plaintiff Leonard was neither counseled nor given an opportunity to correct her behavior. Instead, she was immediately fired. Furthermore, Plaintiff Leonard had a very high salary due to her length of time with AWG and her prior positions at AWG - her salary was 147% of the midrange salary for a warehouse supervisor. This unusually high salary for her position was based on her previous position in which such a salary would be normal, but that position was eliminated. She was moved to the warehouse supervisor position but was allowed to keep her salary. AWG admits Defendant Todd Cooper made comments regarding Plaintiff Leonard's salary, for example, that she was paid more than Cooper; that she was paid more than other warehouse supervisors; and that Cooper believed her salary was inappropriate.

         Plaintiff Leonard asserts she was passed over for two promotions in favor of younger women, even though she believes she was the best qualified person. Plaintiff Leonard also points to her participation and vested status in a pension plan that AWG no longer made available to more recent hired employees as a factor in her termination and as evidence of age discrimination. AWG stopped enrolling individuals in its old pension plan starting in 2012, but grandfathered in employees who were already eligible to participate in it.[4] However, considering all of these assertions, Plaintiff Leonard has never heard a manager or director make any age-related comments during her employment.

         Plaintiff Leonard has also asserted a claim for gender discrimination. Plaintiff Leonard believes that Defendant Cooper treated her differently because of her high salary and her gender. Plaintiff Leonard has alleged that Cooper said it was “bullshit” that she kept her salary after her transfer to the warehouse. Plaintiff Leonard points to a comment made by Defendant Cooper as possibly being gender-motivated: Defendant Cooper once asked her what she was going to do in the warehouse, which Plaintiff Leonard took as a statement challenging her ability to perform warehouse duties. This comment was made nine years prior to her termination. Plaintiff Leonard has also asserted that she received less desirable shifts and work assignments, including having to clean up things when she was a sanitation supervisor. However, Plaintiff Leonard has no knowledge of whether men were asked to work similar shifts or perform similar tasks. At no time did Plaintiff Leonard file a claim of age or gender discrimination with AWG until after her termination.

         Gilberg's Termination

         Plaintiff David Gilberg began working for AWG in March 1982. During his employment, Plaintiff Gilberg attended training regarding AWG's Anti-Discrimination and Anti-Harassment Policies, and he knew it was his duty as a supervisor to prevent discrimination or harassment. He further knew that he could take any questions he had about those policies to the HR Department.

         In early 2010, Plaintiff Gilberg received an email from Jerry Rhodes, who was then also employed by AWG, containing twenty-six nude photos of women.[5] In April 2010, Plaintiff Gilberg forwarded that email to three AWG employees Brian Reynolds, Ben Walker, and John Hale, at their AWG email addresses.[6] That email was titled “SYBSTD Second Edition. It's Send Your Buddy Some Titties Day.” This email was discovered as part of Burke's investigation following the termination of Plaintiff Leonard's employment. Plaintiff Gilberg's employment with AWG was terminated on April 28, 2014, at the age of 57 after 32 years of service.

         Plaintiff Gilberg has made a claim for age discrimination alleging his age contributed to the decision to terminate him, particularly in light of the fact that the email in question was four years old at the time it was discovered. Plaintiff Gilberg claims the denial of an opportunity to correct his behavior also reflects some discriminatory intent. He joins Plaintiff Leonard in pointing out that Scott Kamysz, a younger AWG supervisor, accessed a different employee's email account and used it to send a sexually suggestive email but only received a letter of reprimand as discipline. Plaintiff Gilberg also thinks that age played a role in his termination due to his salary, vested position in the old pension plan, and what he called his “disposability” compared to other supervisors with other skills. Plaintiff Gilberg, like Plaintiff Leonard, never heard Defendant Todd Cooper or any other management person at AWG make age-related comments.

         Stokes's Termination

         Plaintiff Douglas Stokes began working at AWG in 1984. During his employment, Plaintiff Stokes attended training regarding AWG's Anti-Discrimination and Anti-Harassment Policies, and he knew it was his duty as a supervisor to prevent discrimination or harassment. He further knew that he could take any questions he had about those policies to the HR Department.

         A handful of emails are at issue regarding Plaintiff Stokes's termination. Plaintiff Stokes received the following three emails:[7] One was titled “If men wrote advice columns, ” received on September 21, 2012, which purported to give advice to women regarding their husbands and made numerous references to oral sex and cooking meals for their husbands. The second was titled “Blow Dryer Mishap, ” received on January 16, 2013, and it referenced oral sex. And the third was titled “It's Frank, ” received on February 3, 2012 which makes an innuendo about pubic hair. Regarding the “Frank” email, Plaintiff Stokes admits to sending it to someone outside of AWG using his AWG email account. There is some degree of dispute at to whether Plaintiff Stokes ever actually received the other two emails.[8]

         Further, Plaintiff Stokes sent numerous emails to Vicki Gibson, a non-supervisory employee of AWG's front office from October 2010 to March 2014.[9] These emails included references to the fact that Stokes was in bed while Gibson was at work, comments on Gibson's weight, statements that Plaintiff Stokes was trying to keep his mind out of the gutter, that Plaintiff Stokes was watching Gibson on video, that he could help her home if she needed a ride, and comments on Gibson's hair ...

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