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Short v. Ultra Foods

September 24, 2008


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Plaintiff Betty Short ("Short"), an African-American woman, worked for Defendant SVT, LLC, doing business as Ultra Foods ("SVT"), from 1997 until SVT terminated her employment on March 29, 2007. Short sued SVT in a four-count complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and 42 U.S.C. § 1982 et. seq. At this time, Short's only surviving claim is Count II, in which she complains that she was terminated because of her race in violation of Title VII.

SVT now moves for summary judgment on the remaining discrimination claim and also moves to strike portions of Plaintiff's Statement of Additional Facts, the declarations of two of Plaintiff's witnesses, and Plaintiff's Response to Defendant's Statement of Material Facts. For the reasons stated below, this court grants summary judgment in favor of SVT on the discriminatory termination claim and denies SVT's motion to strike as moot.


I. The Parties

The facts are recounted in a light most favorable to Short, the non-moving party. Short began working as a clerk in the deli department of SVT's Ultra Foods supermarket in Lansing, Illinois, in 1997. (Def.'s 56.1 ¶ 1.) Short was supervised by Dolores Kerr ("Kerr"), the deli manager, and by two assistant managers, Albina Bachmeier ("Bachmeier") and Donna Cohen ("Cohen"), both white women. (Def.'s 56.1 ¶ 3.) Bob Townes, the assistant store manager who terminated Ms. Short, is African-American; Vince McConnell, the store manager, is white. (Def.'s 56.1 ¶¶ 4, 5, 53.)

SVT maintains an Associates Handbook ("Handbook") that sets forth the company's rules and procedures. (Def.'s 56.1 ¶ 23; Handbook, Ex. 14 to Short Dep.) On April 4, 2005, Short, in writing, acknowledged receiving the handbook and agreed to abide by its guidelines. (Def.'s 56.1 ¶ 23; Handbook Policy Acknowledgment, Ex. 13 to Short Dep.) That Handbook explains SVT's Equal Employment Opportunity Policy, which prohibits discrimination on the basis of race, and the company's Harassment Policy, which prohibits harassment on the basis of race as well as retaliation against an employee who has complained of discrimination or harassment. (Def.'s 56.1 ¶ 24; Handbook at 6, 26.) In the event of alleged harassment or discrimination, the Handbook instructs the aggrieved employee to report the matter so that there can be an investigation and, if necessary, corrective action. (Id.)

In addition, the SVT Handbook states that all food consumed by employees within the store must be purchased before it is eaten, and prohibits employees from taking food items unless full payment has first been made. (Def.'s 56.1 ¶ 25; Handbook at 17.) Employees are required to have a receipt verifying any purchases for their personal use; the Handbook states explicitly that "failure to follow this rule may result in termination." (Def.'s 56.1 Resp. ¶ 10; Handbook at 12, 17.) The Handbook later reiterates that termination shall result for employees who give "unauthorized discounts to any customers" or "who consume food or drink that they did not purchase and are unable to provide a receipt." (Id. at 20.) Furthermore, the Handbook also provides that "[p]rogressive disciplinary action will be used except in those instances where the company decides more severe action to be more appropriate." (Id. at 46.)

II. Short's Termination

On March 28, 2007, Short was observed consuming a peach cobbler valued at $4.99 without first paying for it. (Employee Termination Form, Ex. 20 to Short Dep.) When Kevin Wagner ("Wagner"), a manager in the non-foods department, questioned her about it, Short admitted to consuming food for which she had not paid. (Def.'s 56.1 ¶ 53; Employee Termination Form.) Short was issued a Corrective Action Notice that suspended her employment "indefinately [sic] pending investigation." (March 28, 2007 Corrective Action Form, Ex. 21 to Short Dep.) The Notice further stated that "[Short] will need to see the store manager before her next scheduled shift." (Id.) The following day, on March 29, 2007, Bob Townes, the assistant store manager, terminated Short's employment. (Pl.'s 56.1 Resp. ¶ 53.) In his declaration, Townes asserts that he terminated her employment "because she admitted to me that she consumed food within SVT's store without paying for it on March 28, 2007." (Declaration of Bob Townes ("Townes Decl.") ¶ 6.) Short does not believe that Townes discriminated against her or lied about her because of her race. (Pl.'s 56.1 Resp. ¶ 53.) She nevertheless contends that her conduct in eating food without paying for it was not the actual reason for her termination. She asserts that it is not clear how the manager on duty learned that Short had consumed the peach cobbler. (Employee Termination Form.) In her deposition, Short repeatedly denied that she was observed actually consuming the food (Short Dep. 153:5-9, 156:5-7), but it is apparently undisputed that she acknowledged having done so similarly situated individuals were not discharged for the same infraction, and that she was terminated based upon her race. (Id. at ¶ 54.)

III. Alleged Policy Violations by Other SVT Employees

In the last ten years, the only other instance at the Lansing, Illinois, store in which an employee was terminated for misconduct similar to Short's occurred on July 17, 2006. (Def.'s 56.1 Resp. ¶ 58; Employee Apprehension Form, Ex. H to Pl.'s 56.1 Resp.) Margarita Franco ("Franco"), an Hispanic deli crew leader at SVT, was discharged after being caught on tape discounting and giving away deli food to bakery employee Gabby Pop ("Pop"). (Id.) As a deli crew leader, Franco's duties differed from those of a deli clerk like Short: a deli crew leader functions independently, supervises other deli employees, supervises tasks and orders, and receives $0.50 more per hour than a deli clerk. (Def.'s 56.1 Resp. ¶ 1.) Gabby Pop, the bakery employee involved in the 2006 incident, was also discharged. (Def.'s 56.1 Resp. ¶ 19; Short Dep. 210:24-211:13.)

Short characterizes Franco's misconduct differently; she asserts that Franco engaged in a price-changing scheme that is not analogous to consumption of food without payment. (Pl.'s 56.1 Resp. ¶ 58.) Short insists that although SVT maintained a policy prohibiting consumption of food without paying for it, that policy was not enforced, and other employees also ate food without paying for it but suffered no consequence. (Pl.'s 56.1 Resp. ¶¶ 25, 57.) She apparently made the same assertion during her termination meeting; Townes recalls asking Short to identify other employees "who had been eating food without paying for it," but Short "did not name any other employee who had eaten unpaid for food." (Id. at ¶ 57; Townes Decl. ¶ 9.) Short acknowledged that she had never reported to SVT management that any other employees had eaten food without paying for it. (Pl.'s 56.1 Resp. ¶ 57; Short Dep. 157:12-14.) She explained that "[she] couldn't report it to anyone because everybody--every manager in that store eat, every manager except Vince [McDonnell]. I have never seen Vince eat anything, but everybody else come back there and eat." (Pl.'s 56.1 Resp. ¶ 57; Short Dep. 157:3-10.)

Although she did not report it at the time of her termination, Short now asserts that, on the same day Short ate the peach cobbler, Donna Cohen was also in the back of the store, eating rib tips without paying for them, and that another deli employee, Joan Robinson ("Robinson"), was also eating food for which she had not paid. (Pl.'s 56.1 Resp. ¶ 57; Short Dep. 156:14-20.) Cohen herself denies this, and testified that Robinson was not in the back area on March 28, 2007. (Pl.'s 56.1 ¶ 57; Cohen Dep. 44:20-22, 45:5-10, 45:14-19.) In addition, Short believes that other non-African American deli employees also consumed unpaid-for food on other occasions, but were not disciplined or terminated as a result. (Id.) She submitted the declarations of Dorothy Shaw ("Shaw") and Grace Simon ("Simon"), two former SVT employees, both of whom stated that they had witnessed non-black employees who had consumed food without payment but were not disciplined or terminated. Shaw and Simon specifically identified Dorothy Drysdale ("Drysdale"), Phyllis Malecki ("Malecki"), and Gina Foore ("Foore"). (Pl.'s 56.1 Stmt. ¶¶ 15, 17; Declaration of Dorothy Shaw ("Shaw Decl.") ¶ 8, Ex. C to Pl.'s 56.1 Resp.; Declaration of Grace Simon ("Simon Decl.") at ¶ 8, Ex. D to Pl.'s 56.1 Resp.)

Both Shaw and Simon also declare that on a frequent and regular basis, they witnessed non-black managers and assistant managers, including Bachmeier, Kerr, Cohen, and Susan Draus ("Draus")*fn2, consume food for which they had not paid, and that these employees were never disciplined or terminated as a result. (Pl.'s 56.1 Stmt. ¶¶ 16, 18.; Shaw Decl. ¶ 10; Simon Decl. ¶ 10.) Shaw and Simon acknowledge that some of the food was "new" food to the store that the managers and assistant managers would have had permission to sample without first purchasing; on many other occasions, however, Shaw and Simon insist, these managers and ...

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