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Han v. Whole Foods Market Group, Inc.

United States District Court, N.D. Illinois, Eastern Division

May 28, 2014

JANE HAN, Plaintiff,

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For Jane Han, Plaintiff: James Hjalmar Whalen, Lipe Lyons Murphy Nahrstadt & Pontikis Ltd., Chicago, IL; Raymond Lyons, Jr., Lipe Lyons Murphy Nahrstadt & Pontikis, Ltd., Chicago, IL.

For Whole Foods, Lincoln Park, Defendant: Joseph Daniel Ryan, LEAD ATTORNEY, Law Offices of Joseph D. Ryan, P.C., Highland Park, IL; Scott Bryan Dolezal, Law Offices of Joseph Ryan, P.C., Highland Park, IL.

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Joan H. Lefkow, U.S. District Judge.

Jane Han filed a four-count complaint against her former employer, Whole Foods Market Group, Inc. (" Whole Foods" ), alleging

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age discrimination, race discrimination, and retaliation in violation of the Age Discrimination in Employment Act (" the ADEA" ), 29 U.S.C. § § 621 et seq. , and Title VII of the Civil Rights Act (" Title VII" ), 42 U.S.C. § § 2000e et seq. Whole Foods has moved for summary judgment.[1] For the following reasons, Whole Foods' motion is granted.


Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine issue of material fact exists if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To determine whether any genuine fact issue exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record to view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Fed.R.Civ.P. 56(c); Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The court may not weigh conflicting evidence or make credibility determinations. Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011). If a claim or defense is factually unsupported, the court should dispose of it at the summary judgment stage. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Id. at 323. In response, the non-moving party cannot rest on bare pleadings but must designate specific material facts showing there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000).[2]


As an initial matter, the court must note that the evidence provided by both parties is incomplete, internally contradictory, and confusing. These background facts are gleaned mostly from deposition testimony with significant holes. Han's deposition is marked with inconsistent statements and confusing answers. The depositions of other Whole Foods employees also include contradictions and fail to provide a comprehensive picture of the store's policies. Although the court has made every attempt to credit the evidence presented and make inferences in favor of Han, it is the non-moving party's responsibility to support

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her case on summary judgment and point to disputes of material fact that make the case appropriate for trial. The court cannot take Han's subjective speculations as fact where she failed to adduce sufficient evidence to support her contentions during discovery. Summary judgment is the time to discard such unsupported claims.

I. Han's Employment With Whole Foods

Han was born in China on March 21, 1952. She began working at the Whole Foods store in Lincoln Park, Chicago (" the Lincoln Park Whole Foods" ) in August 2003. Prior to this, she worked as a cook at a Whole Foods in River Forest and had a license to cook.[3] In 2003, Han was hired to work full time in the prepared foods department. She was paid at a rate of $9.50 per hour. Han was assigned to the salad bar, which she stocked and cleaned, and for which prepared items.

When she was hired by Whole Foods, Han signed an acknowledgment indicating that she had received Whole Foods' General Information Guide (" the GIG" ), which contains Whole Foods' employment policies. The GIG provides that " [a]ll merchandise is to be paid for at the cash register before it is consumed or taken home." (Dkt. 65, Ex. E (" GIG" ) at 58.) Violating this policy is a " major infraction[ ]" that " may lead to discharge." ( Id. at 43.) As an exception to this policy, a cook employed at Whole Foods may taste up to two ounces of a food he is preparing to offer to customers for sale. The GIG also tells employees to " keep receipts for your purchases throughout the day" and that if an employee " can't produce a receipt, the product will be considered stolen." [4] ( Id. at 58.) Han was aware that she could be terminated for consuming an item without paying for it.

II. Han's Shift Change

When Han began working at the Lincoln Park Whole Foods, she worked from 6:30 a.m. until 2:00 p.m. Her shift was then changed to a " mid-shift," from 10:00 a.m. until 6:00 p.m. (Def. L.R. 56.1 ¶ 9.) Han had been the only person on her team to work mid-shifts, and a supervisor testified that these shifts were " not conducive to the store" and " causing some problems with other team members, since [Han] was the only [one] that was receiving that schedule." [5] (Dkt. 65, Ex. K, Deposition of Mike Soucy (" Soucy dep." ) at 49:14-50:5.) In the spring of 2005, Jane Wild became Han's new team leader and eliminated the mid-shift.[6] Wild assigned Han to the closing shift, from 2:00 p.m. until 10:00 p.m. Wild received permission to change Han's

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shift from Mike Soucy, the associate store team leader. Han was advised that the mid-shift was being eliminated because the salad bar was not busy enough, but she could request to have someone come help her at the salad bar if she became very busy. Han testified that her workload increased as a result of the mid-shift elimination because " three people's work have to be taken by two people." [7] (Dkt. 65, Ex. 1, Deposition of Jane Han (" Han Dep." ) at 68:2-3.) When she asked for help with heavy work, however, her request was denied.[8]

III. Han's Relationship With Her Supervisor, Jane Wild

Soon after Wild became Han's supervisor, the two began quarrelling. Han told her co-workers about her disagreements with Wild, and testified at her deposition that " maybe some people will tell her that I'm talking behind her, so she didn't like me." (Han dep. at 75:8-10.) Han also testified that Wild was unhappy with her after a co-worker reported negative comments Han made about Wild on a team leadership survey. In addition, at several meetings of the prepared foods team, Han disagreed with Wild about the length of time items could remain on the salad bar. In addition, Han believed Wild disliked her because of her age and ethnicity. ( Id. at 91:6-8.) In particular, Han testified that " [Wild] said I'm an old woman." [9] ( Id. at 80:1-2.)

Han and Wild also disagreed over Han's job duties. Han was asked to move or lift

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items about once per week, but she testified that she could not do so because they were too large or were too high for her to reach. She also testified that it was too cold for her to go into the freezers. In response to Han's complaints, Wild told Han that moving items in the freezer was part of her job, and at one point told Han that if she complained about Wild, she would " take the consequences." ( Id. at 82:11-83:2.)

Despite Han's tense relationship with Wild, there were generally few complaints about Han's performance. Soucy testified that, to his knowledge, she had never been in any disciplinary trouble, had never been late, and had never been reported for failure to perform her job adequately. After votes by department employees, Han won a $50 reward for being an outstanding team member in the salad bar category on two occasions. When Wild became Han's supervisor, she eliminated the salad bar section on the ballot. Han testified she could no longer be considered for the award.[10] Han was never promoted while at the Lincoln Park Whole Foods.

Approximately six months before Han was terminated, Wild was promoted to Associate Store Team Leader ( i.e., assistant manager) and Adam Eckert became Han's direct supervisor. Before Han was fired, however, Wild chose to step down from her managerial position and rejoined the prepared foods team as a team member. She did not become Han's supervisor again.

IV. Transfer Requests

Over the course of Han's employment at the Lincoln Park Whole Foods, she inquired about transferring to other departments and being promoted to a cook.[11] Other than becoming a cook, these transfer requests all involved lateral transfers. Han wished to transfer to avoid working for Wild and to avoid having to enter the freezer used by the prepared foods team. As a vegetarian, Han also wished to move away from away from meat preparation.[12] She testified that Whole Foods had a policy allowing employees to rotate positions. When Han asked to be transferred, Wild would inform her there were no open positions.[13] Wild told Han that if Han found openings in other departments, she should " let [Wild] know." (Han dep. at 98:1-3.) When Eckert was Han's team leader, he said that Han had to ask the other departments and they had to approve the transfer. ( Id. at 138:19-22.) But, in the six months prior to Han's termination,

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she was told by the bakery department that a " young" Whole Foods employee had inquired about an open position in that department before Han did and that Han would " have to wait a while." ( Id. at 139:1-4.) Han also requested a transfer to the produce and flower departments but was told by the department leader that there were no openings.[14]

V. Review and Raise Process

Performance reviews at Whole Foods, called " job dialogues," determine whether an employee will receive a raise. Employees are eligible to receive a raise of up to $1.00 per hour based on their performance rating. The employee and supervisor each assign the employee scores in various categories. Typically, employees with the same scores receive similar raises. Han testified that younger, non-Asian employees received larger raises than she during her last year of employment at Whole Foods. In particular, she identified three employees (identified only as Amanda, Robert, and Erin) whom she claimed received $1.00 raises when she only received $0.25.[15] Han provides no information about their performance ratings as compared to her own.

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Wild and Han assessed Han's work at Han's job dialogue in April 2007 in thirteen categories, with a maximum score of five points in each category and sixty-five points total. (Dkt. 65, Ex. N.) Han awarded herself a sixty-two.[16] Wild awarded her a forty-four. Based on this score, Han received a $0.25 raise.[17] Soucy testified that this score would be classified as " average to good" and would correlate to either a $0.25 or $0.50 raise. (Soucy dep. at 40:4-21.)

VI. Han's Complaints

Han began complaining to the human resources department about Wild when Wild changed Han's shift. Han told Jennifer Walsh,[18] the payroll benefits specialist, that Wild did not like Han and was trying to make her change her shift. Han told Walsh that she believed the changes to her schedule were being made because of her age, and that her age prevented her from finding another position. Han also informed Walsh she felt that Wild's decision to change the schedule was related to Han's race because she had mentioned her desire to transfer departments. ( See Han dep. at 112:10-15; 112:4-7.) Walsh responded that Han should try to maintain a good working relationship with Wild, and explained that the elimination of the mid-shift was a management decision. Han also complained to Richard Howley, the store team leader, about the elimination of the mid-shift. Howley responded that a team leader may eliminate shifts and positions.

In addition, Han complained to Walsh about the raise that a co-worker named Erin received. Han asserted that Erin received a $1.00 raise because Erin was dating her team leader.[19] At her deposition, Han testified that other " young" and " white" co-workers received larger raises than she, although she did not state that she voiced this complaint to Walsh. (Han dep. at 140:20-142:18.) Han also testified that after she complained to Walsh about her $0.25 cent pay raise as compared to her co-workers' $1.00 pay raise, Walsh " made the decision to give me half a dollar raise," but then also asserted that it was Eckert who made the decision to give Han the pay raise when he became Han's supervisor. (Han dep. at 109:24-110:20.) Han also testified that younger white employees Amanda and Robert received higher raises than she.

VII. The Danish Incident

On December 23, 2007, Han was scheduled to work from 2:00 ...

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