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Norma Perez v. Thorntons

October 23, 2012

NORMA PEREZ, PLAINTIFF,
v.
THORNTONS, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Blanche M. Manning

MEMORANDUM AND ORDER

"All you need is love. But a little chocolate now and then doesn't hurt." -Lucy Van Pelt in Peanuts (by Charles Schulz)

To prepare for ghouls and goblins reaching out bags and chanting "Trick or Treat," Americans buy more chocolate during the Halloween season than during any other time of year-90 million pounds by one account.*fn1 But for plaintiff Norma Perez, Halloween 2009 must not have satisfied her sweet tooth because just days later, on November 4, 2009, she purchased 80 candy bars from the convenience store she managed. The trouble began when she performed a price override to purchase the bars not at the sales price, 2 for $2.22, but rather for 15ó each-a retail price not seen since 1974.*fn2

After her employer, defendant Thorntons, Inc., caught wind of what she had done, it terminated her. Thorntons states that it fired Perez because she cost the company $115.20 in lost candy bar sales. But Perez contends that she was fired because she is a Hispanic woman. She sued Thorntons for national origin and gender discrimination. Thorntons now seeks summary judgment on the claim against it. For the reasons that follow, the motion for summary judgment is granted.

BACKGROUND

The following facts are undisputed except where noted. Thorntons is a retailer that sells gasoline along with convenience items such as fountain drinks, groceries, and candy bars. Thorntons hired Perez in January 2005 as a customer service representative at its Store #5 in Cicero, Illinois. One year later, the man who hired Perez, Region 7 Manager Bill Darlington, promoted her to the position of Retail Store Manager of Store #5. In November 2008, Darlington transferred Perez to be the Retail Store Manager of Store #301 in Summit, Illinois, so that Perez would have experience managing a bigger store.

The parties do not agree on Perez's reaction to the transfer. According to Thorntons, news of the transfer was well-received by Perez. But according to Perez, she asked Darlington not to transfer her because Store #301's General Manager, Don Koziol, told her that he does not want to work with women. Perez contends that Darlington responded that she must either accept the transfer or leave the company.

According to Perez, shortly after arriving at Store #301 she began to be reprimanded. The first reprimand occurred in May 2009, when Darlington wrote her up for submitting an outdated survey of gas prices at nearby competitors. According to Thorntons, the data Perez originally submitted was obviously outdated, and when she was supposed to be out gathering fresh data, video surveillance footage showed that she had not left the premises. Perez denies that she submitted outdated data, and contends that when Koziol failed to submit gas price surveys when due, he was never written up.

The second reprimand occurred on April 9, 2009, when she admittedly left the store two hours early without clocking out. Perez contends she was away conducting an investigation into theft, though she does not remember where she went. She further contends that Thorntons did not believe her claim that she was away conducting an investigation, though it did believe Koziol when he was once questioned about his conduct by a supervisor and claimed it was part of an investigation.

The events that preceded Perez's termination began in October 2009. During that month, Thorton's offered several sales on a variety of candy bars, as detailed in an October Sales Planner distributed to its stores. Among the items for sale were king size Nestle candy bars, which were on sale 2 for $2.22. During a visit to Store #301 that month, Region 7 Manager Darlington discussed with Koziol and Perez the store's noticeably low inventory of candy bars. He found out that Koziol and Perez had allowed their customer service representatives to ring up candy bars that were on sale, but to then let the customer walk out with a more expensive, non-sale candy bar, causing a loss to Thorntons. Darlington warned Koziol and Perez that the practice violated the October Sales Planner, and warned that future violations could result in termination. Thorntons contends that Darlington also warned Koziol and Perez to adhere to all of the directives in the company's sales planners, but Perez denies that Darlington discussed any issue other than the substitution of candy bars.

On November 4, 2009, the October Sales Planner was supplanted by the November Sales Planner, and on that date stores were directed to conduct a "change over," which involves rearranging how items are displayed and advertised. Perez worked that day and spent her shift, in part, engaged in the following conduct: - at 4:45 p.m., she purchased 25 Nestle Crunch candy bars. The bars rang up at a price of $1.59 each, but Perez performed a manual price override, reducing the price to 15ó each;

- at 4:45 p.m., she purchased 25 Baby Ruth candy bars. The bars rang up at a price of $1.59 each, but Perez performed a manual price override, reducing the price to 15ó each; and

- at 7:58 p.m., she purchased 30 Butterfinger candy bars. The bars rang up at a price of $1.50 each, but Perez performed a manual price override, reducing the price to 15ó each.

The bars that Perez purchased had been part of the 2 for $2.22 promotion that Thorntons' stores conducted as directed by the October Sales Planner. As a result of the overrides, she purchased 80 candy bars for $12.00, $115.20 less than the register price. She took the candy bars home.

Perez acknowledges that at the time of her overrides, Thorntons had a Write-Off Policy that governed the disposition of merchandise that was being discontinued or unsafe. Under that policy, store managers could write-off more than $25.00 worth of merchandise only in the presence of an auditor or with the preapproval of a Regional Manager or Category Manager.

On November 6, 2009, after reviewing surveillance video of Perez's candy bar purchases, Darlington met with Perez at Store #301, with Northern Division Human Resources Manager Lori Roberts participating in the meeting by phone. During the meeting, Darlington asked Perez to explain the price overrides. According to Thorntons, Perez admitted to Darlington that she could not explain the price overrides, had not obtained permission to perform them, ...


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