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Kolasa v. Dunkin' Donuts Midwest Distributing Center

July 1, 2009


The opinion of the court was delivered by: Honorable David H. Coar


Barbara Kolasa, a former distribution clerk at defendant Dunkin' Donuts Midwest Distributing Center, Inc. ("DDMDC"), filed this lawsuit against the company, claiming that it discriminated against her based on her age and gender when it fired her, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. DDMDC has now filed a motion for summary judgment. In her response, Kolasa moves to voluntarily dismiss her age discrimination claim, and she proceeds only with her claim of gender discrimination. For the following reasons, DDMDC's motion is GRANTED.

I. FACTS*fn1

Barbara Kolasa worked as a distribution clerk at DDMDC from October 5, 2005 until her termination in February 2007. (DF ¶3,5.) Nick Jumes, a manager at DDMDC, hired Kolasa and, along with John Jennison, supervised her throughout her employment. (DF ¶¶6,8; KF ¶1.) The parties dispute whether Brian Cach also was Kolasa's supervisor. DDMDC contends that Cach was the warehouse manager and the night-shift supervisor, and that he acted as Kolasa's on-site supervisor during the night shift. Kolasa contends that Cach was responsible only for supervising the "pickers," not her, and that, even if he had supervisory authority over her, she was never told as much. (KF ¶¶9, 10; DF ¶9.) But Kolasa admits that, when she was working additional hours during the week she was fired, she would call Cach each night before she came in to let him know when to expect her. (KF ¶15.) Meanwhile, each night Jumes would call to check in on Kolasa until Jennison arrived. Jumes, who worked a day shift, would then arrive between 5:30 a.m. and 6 a.m., and if Kolasa had any problems or questions she would speak to him about them then. (KF ¶11; DF ¶8.)

Kolasa considered the work environment at the warehouse to be "a bit different" than any other job she had ever had. (KF ¶27.) For the most part there were only two women working in the warehouse office, although at times there were three. (KF ¶27.) (Neither party has said how many people worked in the office.) In the office, there was no language taboo; everyone used swear words, including the pickers, Jumes, Jennison, and Jim Ford. No one ever got in trouble for swearing, which was considered "shop talk." (KF ¶28.)

Initially, Kolasa worked night shifts (from 11 p.m. to 7 a.m.) Monday through Thursday, with an afternoon shift (3 p.m. to 11 p.m.) on Sunday. (KF ¶1.) Her responsibilities included answering the phone, directing calls, communicating with drivers, monitoring driver runs on her computer, and sorting and filing invoices upon completion of a driver run. (KF ¶2.) On Sunday nights, Kolasa was required to stay until all driver runs were completed and the invoices were sorted and filed. This meant that, at times, she would stay until 2 a.m. (KF ¶2.)

At times, male pickers and drivers were fired or quit, but they would be allowed to return to work the next day. And on one occasion, despite company policy stating that fighting on company premises is grounds for termination, two pickers fought in the warehouse. Jennison saw the fight and broke it up, but neither employee was disciplined. (KF ¶29.)

November 2006 -- February 2007

In November 2006, a day-shift position as a distribution clerk opened up. Susan Castillo took the position, leaving the afternoon shift open. Kolasa planned to move from the night shift to the afternoon shift once the company hired someone to take her current hours. (KF ¶3.) After running an ad and conducting interviews, Jumes hired a woman, whom Castillo trained for about three weeks. On the day the new hire was to start the night shift, however, she quit. (KF ¶4.)

While waiting for another distribution clerk to be hired, Castillo and Kolasa shared the afternoon-shift hours. Typically, Castillo would work the day shift until Kolasa's arrival, which was typically between 7:30 p.m. and 9:30 p.m., and Kolasa would then stay until 7 a.m., the end of the night shift. Kolasa did not have the stamina to work twelve-hour days, and the extra work was taking a toll on her. (KF ¶7, 24.) Although she tried to arrive earlier, Kolasa sometimes would not arrive until 10:30 p.m. or 11 p.m. (the beginning of a typical night shift, if there had been three distribution clerks sharing the work). (KF ¶7.) Kolasa considered this a voluntary effort on her part, and she believed she was obligated only to work a night shift during the week of February 25, 2007. Cach testified, however, that Kolasa's shift began at 9 p.m. that week.

(KF ¶¶6,7; DF ¶16.) Prior to the week of February 25, 2007, however, Kolasa had never been disciplined for tardiness, nor had she ever received a verbal warning or a write-up for any misconduct. (DF ¶17; KF ¶30.)

Some time before the week of February 25, 2007, the computer showed that a load had been picked, even though it had not been placed on a truck. When the company learned that the load was not on the truck, Kolasa, along with a picker named Matt Potete, searched the warehouse and found the load. Kolasa cites this as an example of her "take charge" personality. (KF ¶12.)

The Week of February 25, 2007

On Sunday, February 25, 2007, Kolasa again displayed what she considers her "take charge" personality. That evening she told three pickers, who were under Cach's supervision, to return to work on an unfinished order. (The parties dispute whether this was conveyed as a request or a demand.) (DF ¶¶11,12.) One of the three pickers, Greg Wooten, was repairing a company truck at the time, under Cach's orders. (KF ¶¶13,14; DF ¶¶12,13.) The other two pickers were taking a short break authorized by Cach. (DF ¶13.) Cach was present when Kolasa spoke to the pickers. (KF ¶14.)

Kolasa was not a supervisor and did not have authority to issue any instructions to the pickers. (DF ¶14.) She believed, nonetheless, that she was acting within her duties because the picker's compliance with her request would allow her to timely process an order so that she could leave for the day. (DF ¶11; KF ¶14.) She believes Cach was offended when Kolasa "took charge" in that instance. (KF ¶13.) Cach, meanwhile, interpreted Kolasa's behavior as giving directives to employees over whom she did not hold authority, and he considered it rude and disrespectful. (DF ¶15.)

After speaking to the pickers, Kolasa went back to the office and continued her work. (KF ¶14.) Approximately ten minutes later, Cach came into the office and said to Kolasa, "Don't you ever tell one of my workers what to do," and then returned to the warehouse. (KF ¶17.) A few minutes later, Kolasa took Cach aside and said, "I'm sorry if I overstepped my bounds." She contends that Cach then interrupted her by saying, "Then don't." Kolasa says she was offended by his attitude. Cach then said, "Don't you realize that I could send you home right now?" To which Kolasa laughed and said, "You may be all these pickers' supervisor, but you are certainly not mine." (KF ¶18.) The comment ...

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