Akridge v. Kroger Company, The
Filing
27
MEMORANDUM OPINION AND ORDER as set forth. Signed by Honorable Robert T. Dawson on May 21, 2015. (rw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
DEBORAH AKRIDGE
PLAINTIFF
v.
Case No. 14-6030
KROGER LIMITED PARTNERSHIP I
DEFENDANT
MEMORANDUM OPINION AND ORDER
Plaintiff Deborah Akridge, an employee of Defendant Kroger
Limited
Partnership
I,
brought
action1
this
alleging
that
Defendant demoted her on the basis of her age and sex, and in
retaliation for her complaints of discrimination.
the
Court
are
supporting
Defendant’s
documents
opposition
and
motion
(Docs.
for
17-19),
supporting
summary
Plaintiff’s
documents
Defendant’s reply (Doc. 25).
(Docs.
Now before
judgment
and
response
22-23),
in
and
For the reasons set forth below,
Defendant’s motion is GRANTED.
I.
Background
To the extent that Plaintiff, in responding to Defendant’s
statement
of
facts,
has
relied
on
pure
speculation
or
mere
denials or allegations without a proper basis in fact or clear
citation to facts already in the record, the Court will view
such
facts
as
essentially
undisputed.
1
See
Fed.
R.
Civ.
P.
Plaintiff filed her complaint in Garland County Circuit Court
on February 11, 2014, and Defendant removed the action to this
Court on March 7, 2014.
Page 1 of 16
56(e)(2) (“When a motion for summary judgment is properly made
and
supported,
an
opposing
party
may
not
rely
merely
on
allegations or denials in its own pleading; rather, its response
must . . . set out specific facts showing a genuine issue for
trial.”).
To
the
extent
they
are
relevant,
those
facts
not
specifically controverted by Plaintiff will be deemed to have
been admitted pursuant to Local Rule 56.1.
Where Plaintiff has
provided some basis in fact or in the record, however, the Court
has made all inferences in her favor, as is appropriate when
making a summary judgment determination. Canada v. Union Elec.
Co., 135 F.3d 1211, 1212-13 (8th Cir. 1998).
Defendant
is
an
Ohio
limited
partnership
that
Kroger grocery stores throughout the United States.
operates
Each store
is assigned one store manager who is responsible for the store’s
operations and policy compliance and who reports directly to a
district manager.2
or
In addition to the store manager, stores are
assigned
one
more
co-managers
who
report
to
the
store
manager.
When a store has a co-manager vacancy, an hourly store
clerk can be asked to fill in and cover the managerial void in a
special position called manager-in-charge (“MIC”).
2
Defendant operates through regional marketing divisions that
contain multiple districts. The Kroger stores involved in this
case are all within District 6 of the Delta Division.
Store
management reports to district management, which in turn reports
to division management.
Page 2 of 16
Plaintiff
is
a
63-year-old
woman
who
began
Defendant in 1977 as a part-time deli clerk.
working
for
She became a co-
manager in 1995 after completing management training, and was
promoted to store manager in 1999.
In 2011, Plaintiff was the Store Manager at Store 621 in
Hot Springs, Arkansas.
Human
Resources
On April 18, 2011, Rufus Wilson, the
Manager,
and
Michael
Cristal,
the
District
Manager and Plaintiff’s direct supervisor at the time, met with
Plaintiff
to
discuss
a
problem
involving
the
management employees in Plaintiff’s store.3
Plaintiff
a
follow-up
summarized
their
letter
instructions
dated
to
April
Plaintiff
scheduling
of
Mr. Cristal sent
25,
and
2011
that
advised
that
future instances of such conduct would not be tolerated.
The following year, Mr. Wilson nominated Plaintiff for a
national trade publication award, the “Progressive Grocer Top
Women
in
Grocery
Award,”
which
she
won.
On
her
annual
performance evaluation in April of 2012, Mr. Cristal indicated
that she meets expectations as a supervisor.
Then, in June of
2012, Plaintiff received a second letter from Mr. Cristal4 that
revisited
the
management
scheduling
problem
from
2011.
Mr.
Cristal noted “consistent reoccurrences of what we agreed would
3
Among other things, Mr. Cristal and Mr. Wilson determined one
of the MICs was working excessive overtime. Plaintiff maintains
that the amount of overtime was not excessive, but necessary.
4
Dated June 15, 2012.
Page 3 of 16
stop over a year ago.”
that
the
letter
(Doc. 21-8, p. 1).
“serves
as
a
FINAL
He further cautioned
WARNING.
Future
reoccurrences of this nature will not be tolerated and could
result in disciplinary action up to and including discharge.”
Id.
In August of 2012, Andrea Tyson took over the District
Manager
position
previously
held
by
Mr.
Cristal.
Plaintiff
wrote Ms. Tyson a letter dated November 26, 2012, with copies to
Mr. Wilson and David Brislin, Vice President of Operations for
Kroger’s Delta Division.
In the letter, Plaintiff told Ms.
Tyson, “I do see a need to let you know [sic] an opportunity
that is hindering the happy and fun workplace you are trying to
establish.”
improve
(Doc. 21-12, p. 1).
communication,
which
“Here may be an opportunity to
usually
is
problem, but my fear is that it is more.”
say
that
she
and
some
of
her
store’s
the
Id.
basis
of
every
She goes on to
associates
“have
been
unnecessarily treated disrespectfully and in an overly punitive
manner,” id., and cites the following representative incidents:
On one occasion, the District Human Resources Coordinator,
Tina McBride, called and questioned one of Plaintiff’s comanagers, Mary Washington, about Plaintiff’s attendance and
work hours.
Ms. McBride also offered to arrange for help
for Ms. Washington if she were ever left without any help.
An investigation regarding store associates purchasing
marked-down general merchandise had upset the store’s chef.
Plaintiff had been chastised for not scheduling MIC hours
by company standards.
Page 4 of 16
Plaintiff
concluded
by
saying
that
in
spite
of
her
competent performance and loyalty, she wasn’t “even receiving
minimum respect from the process.” Id. at 2.
The letter does
not mention her age or sex, nor does it mention discrimination.
On January 26, 2013, Plaintiff informed Tina McBride, the
District 6 Human Resources Coordinator, of a potential sexual
harassment incident that had occurred at Store 621 involving
Danny Halter, a co-manager, and a female hourly drug/general
merchandise clerk.
Ms. McBride expressed concern that Plaintiff
did not report the incident to HR and other upper management
personnel
as
soon
as
she
became
aware
of
the
situation.5
Plaintiff conducted her own investigation of the incident by
interviewing the clerk and taking written statements from Mr.
Halter and another employee who witnessed the incident before
reporting it to HR.
an
investigation
After it was reported, Defendant conducted
that
involved
additional
statements
and
interviews.
On
February
7,
2013,
Ms.
Tyson,
Mr.
Wilson,
and
Niki
Harvey, the Associate and Labor Relations Manager at that time,
met with Plaintiff to follow up on the sexual harassment report.
At the meeting, Mr. Wilson advised Plaintiff that Store 621
5
The date of the incident is unknown, but Defendant’s
investigation concluded that it occurred during the first part
of January.
(Doc. 21-23).
Plaintiff believes she heard about
the incident early in the week of January 20th. (Doc. 21-19).
Page 5 of 16
needed new leadership and that she would no longer be the store
manager, and that she would be transferred to a store outside
the Hot Springs area.
At the end of the meeting, Plaintiff
questioned whether Mr. Halter was being punished as harshly as
she was and told the group, “This is clearly pretextual.”
(Doc.
21-25).
On February 11, 2013, Plaintiff met with Ms. Tyson at the
district office in Little Rock.
letter
stating
that
based
Ms. Tyson gave Plaintiff a
on
her
failure
to
respond
appropriately to a report of potential sexual harassment and the
previous incidents of poor management decisions, she was being
relieved
of
her
position
as
store
manager
of
Store
621.
Plaintiff was given the option of reassignment as a co-manager
at
a
store
in
Little
Rock
or
resigning
with
three
months’
severance pay.
Plaintiff chose reassignment, but requested to
be
to
transferred
Arkansas.
a
Defendant
store
closer
to
accommodated
her
home
Plaintiff’s
in
Malvern,
request
transferred her to Store 637 in Benton, Arkansas.
and
The store
manager position at Store 621 was filled by Bryan Shankle, who
was 42 years old at the time.
II.
Standard of Review
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Page 6 of 16
Fed. R.
Civ. P. 56(a).
“The movant bears the initial responsibility of
informing the district court of the basis for its motion, and
must identify those portions of the record which it believes
demonstrate the absence of a genuine issue of material fact.”
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.
2011) (en banc) (internal quotation omitted).
Once the movant
demonstrates that the record does not disclose a genuine dispute
on a material fact, the opposing party may not rest upon the
mere allegations or denials in the pleadings, but must provide a
response, by affidavits or as otherwise provided in Rule 56,
that sets forth specific facts showing that there is a genuine
issue for trial.
1998).
The
Ghane v. West, 148 F.3d 979, 981 (8th Cir.
Court
must
view
the
facts
in
the
light
most
favorable to the non-moving party “only if there is a genuine
dispute
as
to
those
facts.”
Torgerson,
643
F.3d
at
1042
(quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009)).
III. Discussion
A.
“In
Age and Sex Discrimination
both
ADEA
and
Title
VII
discrimination
cases,
the
claimant may either offer direct evidence of the discrimination
or satisfy the burden-shifting scheme established by McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–803, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973).”
Holmes v. Trinity Health, 729 F.3d 817,
821 (8th Cir. 2013) (citing Gibson v. Am. Greetings Corp., 670
Page 7 of 16
F.3d
844,
855–56
(8th
Cir.
2012)
(standard
for
age
discrimination cases); Torgerson v. City of Rochester, 643 F.3d
1031,
1044
cases)).
(8th
Cir.
2011)
(standard
for
sex
discrimination
Plaintiff presents no direct evidence of intentional
discrimination.
Therefore,
to
succeed
on
her
discrimination
claims, she must create an inference of unlawful discrimination
based on circumstantial evidence.
The McDonnell Douglas framework requires the plaintiff to
first establish a prima facie case of discrimination, at which
point the burden then shifts to the employer to articulate a
legitimate,
nondiscriminatory
discriminatory action.
reason
for
the
allegedly
Gordon v. Shafer Contr. Co., 469 F.3d
1191, 1196 (8th Cir. 2006).
If such a reason is established,
the burden of production then shifts back to the plaintiff to
show
that
the
employer’s
proffered
pretext for unlawful discrimination.
explanation
Id.
was
merely
a
The focus of inquiry
at the summary judgment stage always remains on the ultimate
question of law:
whether the evidence is sufficient to create a
genuine issue of fact as to whether the employer intentionally
discriminated
characteristic.
against
the
employee
because
of
a
protected
Strate v. Midwest Bankcentre, Inc., 398 F.3d
1011, 1018 (8th Cir. 2005).
To establish a prima facie case of age discrimination with
circumstantial evidence, Plaintiff must prove she:
Page 8 of 16
(1) was at
least
40
years
expectations;
old;
(3)
(2)
was
meeting
an
adverse
suffered
Defendant’s
employment
legitimate
action;
(4) was replaced by someone sufficiently younger.
and
Anderson v.
Durham D & M, L.L.C., 606 F.3d 513, 523 (8th Cir. 2010).
Defendant
argues
that
Plaintiff
substantially younger employee.
filled
the
store
manager
was
not
replaced
The Court disagrees.
position
at
Store
Shankle, who was transferred from Store 619.
born in 1977, while Plaintiff was born in 1951.
621
by
a
Defendant
with
Bryan
Mr. Shankle was
The Court finds
Plaintiff has established this element of her prima facie case
of age discrimination, and Defendant does not challenge any of
the other elements.
Assuming that Plaintiff has established a prima facie case
of age discrimination, Defendant is still entitled to summary
judgment
because
Plaintiff
failed
to
show
that
Defendant’s
legitimate, non-discriminatory reason for Plaintiff’s demotion
was
mere
Plaintiff
pretext.
was
Defendant’s
because
of
stated
poor
reason
management
for
demoting
judgment.
To
substantiate this reason, Defendant submitted evidence that the
demotion was based on Defendant’s belief that Plaintiff did not
respond appropriately to a report of potential sexual harassment
and previous incidents of poor management decisions.
concludes
that
discriminatory
Defendant
has
justification
for
provided
a
Plaintiff’s
Page 9 of 16
The Court
legitimate,
demotion.
nonSee
Floyd v. Mo. Dep’t of Soc. Servs., Div. of Family Servs., 188
F.3d
932,
936
(8th
nondiscriminatory
Cir.
1999)
(“The
justification
is
burden
not
to
articulate
onerous,
and
a
the
explanation need not be demonstrated by a preponderance of the
evidence.”).
Because
Defendant
discriminatory
reason
has
for
articulated
Plaintiff’s
a
legitimate,
demotion,
the
nonburden
shifts back to Plaintiff to present evidence that creates (1) a
genuine
dispute
of
material
fact
as
to
whether
Defendant’s
proffered reason is pretext, and (2) a reasonable inference that
age was a determinative factor in the decision to discharge
Plaintiff.
To establish that Defendant’s reason was a pretext
for unlawful discrimination, Plaintiff “must pass the rigorous
test to show that she and more favorably treated employees were
similarly
situated
in
all
relevant
respects.”
Evance
v.
Trumann Health Servs., LLC, 719 F.3d 673, 678 (8th Cir.), cert.
denied, 134 S. Ct. 799 (2013) (quotations omitted).
After
reviewing
the
record,
the
Plaintiff failed to meet this burden.
Court
concludes
that
Plaintiff contends that
there is evidence that younger and male employees were treated
more
leniently
seriousness.
a
48-year-old
when
they
committed
infractions
of
comparable
She argues that the best comparator is Mr. Halter,
co-manager
who
was
transferred
to
a
different
store after he “initiated inappropriate physical contact” with
Page 10 of 16
Ms. Barker. According to Plaintiff, they are similarly situated
because they were both salaried management-level employees who
were
subject
to
the
same
standards
regarding
professional
behavior and reporting harassment.
The Court concludes Mr. Halter is not a valid comparator
because he was Plaintiff’s subordinate and did not engage in the
same conduct as Plaintiff.
See Evance, 719 F.3d at 678 (“The
individuals used for comparison must have dealt with the same
supervisor, have been subject to the same standards, and engaged
in the same conduct without any mitigating or distinguishing
circumstances.”) (quotation omitted).
Unlike Mr. Halter, whose
transfer was based on an isolated incident, Plaintiff’s conduct
involved failing to report an incident that Defendant determined
should have been reported, as well as previous incidents of poor
judgment.
that
Mr.
Plaintiff
Based on the foregoing, Plaintiff failed to establish
Halter
also
is
similar
suggests
sufficient comparators.
to
that
her
in
various
all
relevant
other
aspects.
employees
are
However, none of the employees held the
same management status as Plaintiff, nor were they engaged in
the same conduct.
Finally, Plaintiff argues that the disputed material facts
show that Defendant’s stated reason for her demotion is unworthy
of credence.
facts
in
The Court disagrees.
this
case,
they
do
not
Although there are disputed
support
Page 11 of 16
an
inference
of
discrimination and do not show that Defendant’s stated reason is
pretext.
Among other things, Plaintiff takes issue with whether
Defendant was justified in issuing the warning letters on April
25, 2011, and June 15, 2012, and with their conclusion that she
failed to timely report the sexual harassment incident.
Based
on the extensive documentation provided in the record, nothing
indicates
that
the
events
surrounding
the
issuance
of
these
letters involved Plaintiff’s age or sex aside from Plaintiff’s
own deposition testimony.
Plaintiff testified that she believed
the warning letters were issued because of her age and sex, but
she did not provide any explanation for her belief aside from
one of her managers using a harsh tone of voice.
1, pp. 12, 17).
Plaintiff
has
(See Doc. 21-
Without more, the Court cannot infer that
shown
that
Defendant’s
analysis
applicable
stated
reason
for
her
demotion is pretext.
The
same
discrimination
discrimination.
claim
applies
to
to
Plaintiff’s
Plaintiff’s
claim
of
age
sex
Assuming that Plaintiff has established a prima
facie case of sex discrimination, Defendant has come forward
with
a
legitimate,
non-discriminatory
reason
for
Plaintiff’s
demotion, as discussed above.
Plaintiff has failed to produce any evidence to support an
inference
of
sex
discrimination.
Plaintiff
has
submitted
evidence that shows male employees received disciplinary letters
Page 12 of 16
but
were
not
demoted
when
confrontations with customers.
they
engaged
in
physical
However, nothing indicates that
the employees in the examples provided are valid comparators to
Plaintiff,
as
the
employees
were
co-managers
and
were
not
engaged in the same conduct as Plaintiff.
Plaintiff has come forward with nothing, other than her own
opinion,
to
indicate
that
age
or
sex
decision to demote her to co-manager.
played
a
role
in
the
Speculation, absent any
proof, is insufficient to make her case.
See Dammen v. UniMed
Med. Ctr., 236 F.3d 978, 981 (8th Cir. 2001).
Plaintiff has not
provided the Court with sufficient evidence of discrimination to
survive summary judgment.
B. Retaliation
Defendant
contends
that
Plaintiff
has
not
exhausted
administrative remedies for her retaliation claim.
the
It is well
established that a “plaintiff will be deemed to have exhausted
administrative
remedies
as
to
allegations
contained
in
a
judicial complaint that are like or reasonably related to the
substance of charges timely brought before the EEOC.”
Williams
v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir.
1994).
“To determine whether an allegedly discriminatory action
falls within the scope of a claim, the administrative complaint
must be construed liberally in order to further the remedial
purposes
of
applicable
legislation.”
Page 13 of 16
Dorsey
v.
Pinnacle
Automation Co., 278 F.3d 830, 838 (8th Cir. 2002).
particular
Title
VII
claim
grows
out
of
the
Where a
discrimination
alleged in a plaintiff’s EEOC charge, the claim is properly
before the court.
Wentz v. Maryland Cas. Co., 869 F.2d 1153,
1154 (8th Cir. 1989).
In her EEOC charge of discrimination, Plaintiff checked the
“sex” and “age” boxes to describe the discrimination of which
she
complained.
Plaintiff
described
the
particulars
of
her
charge as follows:
I was hired on or about June 7, 1977, with
my most recent position as that of CoManager.
On February 7, 2013, I was
suspended.
On February 11, 2013, I was
demoted from my position of Manager to CoManager.
I was told that I was being given time off
to think.
I was told that I was being
demoted because of an incident that happened
in my store.
I believe I was suspended and demoted
because of my age, 61. [sic] in violation of
The Age Discrimination in Employment Act of
1967, and because of my sex, female in
violation of Title VII of The Civil Rights
Act of 1964, as amended.
This description encompasses Plaintiff’s claims for age and
sex discrimination but not her retaliation claim.
failed
to
allege
charge
that
any
would
facts
raise
in
the
the
narrative
issue
Page 14 of 16
of
Plaintiff
section
retaliation,
of
her
either
directly or by implication.
Accordingly, Defendant is entitled
to summary judgment on Plaintiff’s retaliation claim.
In her response to Defendant’s statement of material facts
and again in her response brief, Plaintiff moves to conform the
pleadings to the evidence to add a claim for retaliation under
the
Arkansas
Plaintiff
conform
Civil
asserts
to
the
Rights
that
a
evidence
Act,
Ark.
motion
can
be
to
made
Code
Ann
amend
at
the
any
before trial when opposing summary judgment.
16-123-107.6
§
pleadings
time,
to
including
However, the case
law cited by Plaintiff is inapposite and Federal Rule of Civil
Procedure 15 dictates otherwise.
The
Court
construes
Plaintiff’s
motion
as
a
motion
for
leave to amend the complaint to add a claim under Federal Rule
of
Civil
Procedure
15(a)(2).
Although
Plaintiff
has
not
complied with the Local Rules of Court for amending pleadings,
she has provided sufficient information regarding the potential
claim and there is ample documentation on the record for the
Court
to
determine
that
leave
to
amend
would
be
futile.
Plaintiff’s motion for leave to amend is DENIED.
6
Ark. Code Ann § 16-123-107 does not require Plaintiff to file
an EEOC charge before asserting a retaliation claim.
Page 15 of 16
IV.
Conclusion
For the reasons set forth above, Defendant’s motion for
summary judgment (Doc. 17) is GRANTED and Plaintiff’s complaint
is DISMISSED WITH PREJUDICE.
The jury trial set to begin on June 22, 2015 at 9:00 a.m.
is CANCELLED.
A separate judgment will be entered in accordance
with this order.
The parties are to bear their own fees and
costs.
IT IS SO ORDERED this 21st day of May, 2015.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge
Page 16 of 16
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