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Steak N Shake Inc. v. White

United States District Court, E.D. Missouri, Eastern Division

January 7, 2020

STEAK N SHAKE INC., Plaintiff,
v.
MELISSA WHITE, Defendant.

          MEMORANDUM AND ORDER

          STEPHENR. CLARK UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on several pending motions. Plaintiff Steak N Shake moves to exclude the testimony of Dr. Catherine Hutt [77] and Dr. Jeffrey Tomberlin [79], two experts offered by Defendant Melissa White. Steak N Shake separately moves for summary judgment [94] on all of White's counterclaims. Steak N Shake has also filed a Partial Motion to Strike [116] White's amended responses to Steak N Shake's Statement of Undisputed Material Facts. Finally, White moves for leave to file a sur-reply [118] in opposition to Steak N Shake's Motion for Summary Judgment.

         I. FACTS AND BACKGROUND

         White worked for Steak N Shake from July 2016 to January 2018. This case arises from the events leading up to and immediately following the termination of White's employment.

         Steak N Shake initiated this action on January 17, 2018 asserting a defamation claim against White. The gravamen of Steak N Shake's Complaint is that White falsely posted to Facebook that Steak N Shake sold customers meat contaminated with live worms. White countersued, asserting claims against Steak N Shake for wrongful termination, sex discrimination, and intentional infliction of emotional distress. White's counterclaim for wrongful termination alleges that Steak N Shake fired her for reporting the presence of contaminated meat to her supervisors.

         Except where otherwise indicated, the following facts are undisputed[1] for purposes of Steak N Shake's Motion for Summary Judgment on White's counterclaims:

         White's employment with Steak N Shake ended on January 5, 2018. At the time of her termination, White's position at Steak N Shake was service trainer at the Steak n Shake store located at 1955 N. Lindbergh, Florissant, Missouri. As service trainer, White helped with the day-to-day operations of the restaurant and trained other staff members. White's general manager, Mr. George Nicholson, described White as one of his top servers. White's co-workers described her as friendly, kind, and a hard worker.

         A. Discovery of the Allegedly-Contaminated Meat

         On January 5, 2018, at around 10:30 a.m., White was working at the Steak N Shake store and took a sanctioned meal break. She went to the grill at the back of the store to have a hamburger made. As White approached the grill, she perceived the meat by the grill to have a strange odor and color. White testified that the meat “stunk and was brown” and “smelled rotten.”[2] White entered the store's walk-in cooler and retrieved a single hamburger patty for herself from a pan of meat. White returned to the grill, began cooking the patty, and then noticed what she perceived to be something moving in the patty. White testified that she saw worms crawling out of the patty.[3] White removed the patty from the grill and placed it in a to-go container.

         White first showed the meat to manager Rashad Lambert. White also showed the patty to operations supervisor Theresa Mann. White attempted to call general manager Nicholson, who was not at the store. After Nicholson did not answer the phone on multiple attempts, White attempted to contact district manager Frank Tardy. After White sent Tardy a text message describing worms in the meat, Tardy called her back. Tardy informed White that he was on the way to the store and would be there as soon as he could. White asked Tardy whether they should contact the health department, and Tardy told her not do anything until he got there and could do an inspection himself, and that he would call the health department if he needed to do so.

         B. Inspection by District Manager Frank Tardy

         Tardy arrived at the store and approached the grill to inspect the area. Tardy did not open up or manipulate any of the meat on the grill. White approached Tardy at the grill area to show him the patty that she still had in a to-go container. She attempted three times to give Tardy the patty. Tardy did not want to look at the hamburger patty at that time. White testified that Tardy told her “I'll ask for the patty when I want the patty.”[4] According to Tardy, he told White to wait because he did not want his investigation to be influenced by discussion with White or any other Steak N Shake employees at the store.[5] White admits that she did not know anything about the protocol Tardy needed to follow in inspecting the meat for possible contamination. General manager Nicholson arrived at the store some time after Tardy arrived.

         Continuing his inspection, Tardy entered the walk-in cooler with Lambert. Tardy took one patty from each pan of meat in the cooler for inspection. When he was ready, Tardy asked Nicholson to retrieve the suspect patty from White. White refused to give the patty to Nicholson. When Tardy asked White why she had not turned the patty over to Nicholson, she replied “You told me not to talk to anyone about it, ” or words to that effect. When Tardy asked White directly to turn over the patty, she told him it was gone and that she was taking it to the health department. White admits that she refused to turn over the patty to Tardy when he asked for it.

         C. White's Termination

         White testified that Tardy involuntarily terminated her employment. Doc. 96-4 at 14; 140:22-141:21. Steak N Shake disputes that characterization, and has offered a statement from Tardy asserting that White told him she was “clocking out and never coming back.” Doc. 96-13 at ¶ 28. Both Parties agree that, during their conversation in which White refused to turn over the patty, Tardy asked her to leave the store more than once and acquiesced to the idea of White never returning to the store. White clocked out at 11:31 a.m. on January 5, 2018, but did not immediately leave the store. White testified that she was crying and asking why she had been fired. She told customers that she was crying because she had just been fired for reporting worms in the meat. Tardy called the police to have White removed from the store, and she ultimately left voluntarily after police arrived. After she left the store, White went to the Florissant Health Department and reported her belief that Steak N Shake had contaminated meat. White took the hamburger patty with her when she left the Steak N Shake store.

         D. Health Department Inspection

         An inspector from the St. Louis County Health Department arrived at the store at approximately 2:50 pm. on January 5, 2018 and spent over an hour inspecting the food in the store. At the end of the inspection, the health inspector provided Tardy with a copy of the written inspection report. The report provides in relevant part:

Complaint: Worms in the ground beef
Spoke with District Manager regarding complaint and was aware of the complaint. District Manager stated that the situation occurred this morning and that it appeared to be fat particles. District Manager inspected all of the beef patties (approximately 9) that were remaining in the pan at the cook's line, and found no worms inside of the beef patties. The beef patties from this morning were discarded and not available. District Manager also inspected the beef patties from the walk-in cooler and freezer, and no worms were observed. During the investigation, beef patties were inspected from the walk-in cooler and the cook's line, and no worms were observed. The cooks from this morning and during the investigation observed no worms. No violations observed. No further action taken.

Doc. 96-11.

         E. White's Facebook Post

         Within an hour after she clocked out on January 5, 2018, White posted the following statement on Facebook:

#SHARESHARESHARE JUST GOT FIRED FROM STEAK N SHAKE IN FLORISSANT ON FLORISSANT AND LINDBERGH ROAD BECAUSE I FOUND LIVE WORMS WHILE COOKING A STEAKPATTY MOVING INSIDE OF IT AND REFUSED TO SELL THAT MEAT … WELL RIGHT NOW #RIGHT NOW THEY ARE STILL SELLING SAME MEAT #NOONEEVENCHECKEDIT. I JUST DON'T WANT EVERYONE GETTING SICK. I JUST GOT FIRED FOR NOTHING I HAVE A FAMILY THIS SHIT IS NOT RIGHT I DID NOTHING WRONG #FOX2 #ELLIOT WYA

Doc. 96-8. White's Facebook post was liked 7, 400 times and shared 36, 654 times by January 22, 2018.

         F. Steak N Shake Company Investigation Policy

The Steak N Shake Associate Handbook contains the following policy:
Cooperation with Company Investigations: There may be times when Steak N Shake needs to investigate matters such as Associate or customer complaints. Steak N Shake expects and requires all Associates to cooperate fully and completely in such investigations. … Failure to cooperate fully and completely with a Steak N Shake investigation is grounds for disciplinary action up to and including termination of employment.

Doc. 96-6, pg. 6. White admits that she received and was familiar with the Steak N Shake Associate Handbook during her employment.

         G. Prior Complaints Regarding Cleanliness and Food Safety

         January 5, 2018 was not the first time White had raised concerns with Tardy or Nicholson regarding cleanliness or food safety. For several months before White's employment ended, Tardy was White's district manager, and Nicholson was White's general manager. During that time, White previously raised multiple complaints to them, including complaints about bugs in the restaurant, people leaving food out uncovered, and other cleanliness concerns. White admits that Tardy did not express anger with her for these prior complaints.

         H. Other Steak N Shake Employees

         White was not the only employee who raised safety or cleanliness concerns at the Steak N Shake store before January 5, 2018. Other employees who raised such concerns included Lambert, Mann, Dennis Holbrook, and Jane Still. Further, White was not the only employee at the Steak n Shake store on January 5, 2018 who discussed the alleged contamination in the hamburger patty or suggested that the staff should call the health department. White testified that (in addition to herself) both Mann and employee Elmo Green told the managers that the health department should be contacted. White, Green and employee Pamela Unger all took photos of the allegedly contaminated patty. Both White and Green told management that they were going to contact the health department.

         Green, Unger, and Mann each remained employed by Steak N Shake for months after January 5, 2018. According to White's own testimony, she was the only employee who was involuntarily terminated on January 5, 2018. Green, Unger, and Mann did not refuse to cooperate with the company investigation that Tardy conducted on January 4, 2018. Green, Unger, and Mann did not have control over the allegedly-contaminated patty and did not refuse to turn it over to Nicholson or Tardy.

         I. Allegations of Sex Discrimination

         White admits that, during the conversation when Tardy allegedly terminated her employment, Tardy made no comments regarding her race or sex. White did not identify any statement made by Tardy during her employment that related to her race or sex. White identified one statement by Nicholson that she believes was harassing based on her sex. On or about December 10, 2017, Nicholson told her “All you do is bitch and eat donuts all day.” Nicholson testified that he did not intend “bitch” as a gendered term, but rather as a synonym for “complain.” White admits that Nicholson apologized and that she felt like they were able to move forward after this incident. White also admits that she was not privy to every discussion Nicholson had with male employees.

         II. LEGAL STANDARD

         A. Motion to Exclude Expert Testimony

         Federal Rule of Evidence 702, which governs the admission of expert testimony in federal court, provides in relevant part:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Under Rule 702, district courts act as gatekeepers, ensuring that expert testimony is “not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (quoting Daubert, 509 U.S. at 597). The reliability requirement means “the party offering the expert testimony must show by a preponderance of the evidence both that the expert is qualified to render the opinion and that the methodology underlying his conclusions is scientifically valid, ” while the relevance requirement demands “the proponent must show that the expert's reasoning or methodology was applied ...


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