Geib v. Performance Food Group (PFG) Company

Filing 44

MEMORANDUM. Signed by Judge George Levi Russell, III on 8/8/2016. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JASON GEIB,

:

Plaintiff,

:

v.

:

PERFORMANCE FOOD GROUP, INC.,

:

Defendant.

Civil Action No. GLR-13-2674

:
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant’s, Performance
Food Group, Inc. (“PFG”), Motion for Summary Judgment (ECF No.
28)

and

Plaintiff’s,

Jason

Geib,

Motion

to

Paragraphs of PFG’s Affidavits (ECF No. 39).
ripe

for

supporting

disposition.
documents,

Having
the

Court

reviewed
finds

no

pursuant to Local Rule 105.6 (D.Md. 2016).

Strike

Certain

The Motions are
the

Motions

hearing

and

necessary

For the reasons

outlined below, the Court will deny PFG’s Motion for Summary
Judgment and grant Geib’s Motion to Strike in part and deny it
in part.
I.

BACKGROUND1

PFG is a foodservice distributor that delivers products to
restaurants, schools, and other institutions.

PFG employed Geib

as warehouse manager at its Carroll County facility (“CCF”) in

Unless otherwise noted, the following facts are taken from
the parties’ briefings on the instant motions, and are viewed in
the light most favorable to the nonmoving party.
1

New Windsor, Maryland from September 25, 2006 to March 19, 2007.
Geib

was

hired

to

improve

warehouse

operations,

particularly

during the night-shift, which had declined substantially since
spring

of

2006

due

volume of produce.

to

understaffing

and

an

increase

in

the

As warehouse manager, Geib was responsible

for supervising, hiring, and training warehouse staff.
At the time Geib was hired, he reported directly to Carl
Bredberg, Vice President of Operations at CCF, until Bredberg’s
departure in January 2007.

Dave Russ, Regional Vice President

of Operations, supervised CCF until Jeffrey Wismans, selected to
be Bredberg’s replacement, began working on February 4, 2007.
As Geib’s interim supervisor, Russ sent Geib several emails from
January 11, 2007 to February 10, 2007, informing him of his
failure to complete timely reports, properly train and supervise
warehouse

staff,

meet

productivity

expectations,

communicate

effectively, and conduct observations of associates to ensure
they followed best practices within the warehouse.2
During Geib’s tenure, he hired several female employees.
On November 9, 2006, Julie Lawrence received an offer to work
for PFG as a food selector.

In November 2006, Russ and Dan

Pekscamp, Corporate Senior Vice President of Operations, told

2

Russ and Kyle Gardner, the night warehouse supervisor at
CCF, testified that conducting observations was an important
method of improving productivity in warehouses.
(Russ Dep. at
52, ECF No. 31-28; Gardner Dep. at 277–78, ECF No. 31-26).
2

Geib

to

remove

female

employees

from

the

warehouse.

Geib,

however, trained Lawrence and came to believe that she would be
a good candidate for a supervisory position.
Geib

spoke

candidate

to

Russ

for

a

about

supervisor

Julie

Lawrence

position.

In January 2007,
being

Russ

a

potential

responded

that

Pekscamp would not approve of Lawrence becoming a supervisor
because Pekscamp did not want women in the warehouse.

Also in

January 2007, Pekscamp told a night shift manager to fire a
female

employee

and

stated

that

Geib

needed

to

stop

hiring

women.
On February 7, 2006, Wismans emailed Steve Stacharowski,
Vice President of Human Resources for PFG, stating he wanted to
post a position for a night-shift selection trainer/supervisor.
The position was posted on a recruitment website on February 13,
2007, and the last date to apply was February 21, 2007.

It is

disputed when Geib told Lawrence about the position and asked
her to apply.

Lawrence faxed her resume and letter of interest

regarding the position to Geib on February 28, 2007.
In late February 2007, Geib noticed who he believed to be
external

applicants

being

interviewed

for

the

supervisory

position.

Geib went to Stacharowski’s office to follow-up on

Lawrence’s

application.

PFG’s

policy

required

associates

to

have at least six months of service, or obtain the approval of
the president or a general manager of PFG, before they could
3

apply

for

worked

a

for

supervisor
PFG

Stacharowski
Stacharowski

for

to

position.

the

requisite

exempt

her

not

exempt

would

Because

from

six
the

Lawrence

Lawrence

months,

had

Geib

asked

requirement.
from

the

not

When

requirement,

Geib complained that Lawrence was not being considered because
she is a woman.

Geib also complained to Russ about Lawrence’s

application not being considered because she is a woman.

Both

Russ and Stacharowski dispute that these conversations ever took
place.

(Stacharowski Decl. ¶¶ 32–33, ECF No. 34; Russ Decl. ¶¶

30–32, ECF No. 33).
Due

to

the

lack

of

performance

improvements

within

the

warehouse, Russ sent an email to J. Michael Mattingly, President
of

PFG,

on

February

26,

2007

stating

he

would

make

recommendations regarding changes in the warehouse management
structure.

At

an

unspecified

time,

Mattingly

learned that the recommendation was to replace Geib.

subsequently
(Mattingly

Decl. ¶ 26, ECF No. 32).
On March 3, 2007, Geib emailed Wismans and Stacharowski,
stating that his wife was injured in a car accident and he
needed to travel to Oklahoma to take care of his children.
March

5,

2007,

Wismans

sent

an

email

to

Stacharowski

On

about

Geib’s lack of commitment to his job and their need to start a
confidential
replace Geib.

search

for

an

experienced

warehouse

manager

to

At some point between March 5 and March 16, 2007,
4

Gardner told Geib that his position was posted online.

On March

14, 2007, Geib emailed Stacharowski and Wismans stating that he
was hoping to return to work around March 26, 2007.

In response

to Geib’s email, on March 14, 2007, Stacharowski requested that
Geib contact him or Wismans prior to making plans to return
because there were “some things [they needed] to discuss.”
No. 31-21).

(ECF

Stacharowski states they needed to discuss the

decision he, Mattingly, and Wismans made to terminate Geib’s
employment.

(Stacharowski Decl. ¶ 24, ECF No. 34).

On March 16, 2007, Geib called Stacharowski to discuss PFG
posting his position online and whether PFG would offer him
financial assistance if he were terminated.

On March 18, 2007,

Geib sent Stacharowski an email with “PFG Separation” in the
subject line in an attempt to negotiate a severance package.

In

the email, Geib also stated “[s]ince entering into PFG-CCF, [he
saw]

and

tried

to

administer

systems

and

processes

through

racial and sexual discrimination of employment practices from
associates to management and management to associates.”

(ECF

No.

Geib

38-15).

terminating

On
his

March

19,

employment

2007,
and

Stacharowski
stating

emailed

“the

decision

terminate [his] employment was not made until [that day].”

to
(ECF

No. 31-23).
On

July

16,

2007,

Geib

filed

a

formal

Charge

of

Discrimination with the Maryland Commission on Human Relations
5

and the United States Equal Employment Opportunity Commission
(“EEOC”),

alleging

retaliation.

race-

and

sex-based

(ECF No. 38-17).

discrimination

On June 20, 2013, Geib received

a Notice of Right to Sue from the EEOC.
September

13,

2013,

Geib

and

initiated

(ECF No. 1-2).

this

action

On

alleging

retaliation in violation of Title VII of the Civil Rights Act of
1964

(“Title

(2012).

VII”),

(ECF No. 1).

(ECF No. 3).
Judgment.
Opposition

as

amended,

42

U.S.C.

§§

2000e

et

seq.

PFG filed an Answer on November 8, 2013.

On April, 6, 2015, PFG filed a Motion for Summary
(ECF

to

No.

the

28).

Motion

On
(ECF

May
No.

7,
38)

2015,
and

Geib

Motion

filed
to

an

Strike

Certain Paragraphs [of] Defendant’s Affidavits (ECF No. 39).

On

May 22, 2016, PFG filed an Opposition to the Motion to Strike
(ECF No. 40).

On June 16, 2015, PFG subsequently filed a Reply

to Geib’s Opposition.

(ECF No. 43).
II.

DISCUSSION

A. Motion to Strike
Geib requests that the Court strike certain statements made
in the Declarations PFG uses to support its Motion for Summary
Judgment pursuant to the sham affidavit doctrine.

Under the

sham affidavit doctrine, “a party cannot create a genuine issue
of

fact

sufficient

to

survive

summary

judgment

simply

by

contradicting his or her own previous sworn statement (by, say,
filing a later affidavit that flatly contradicts that party’s
6

earlier sworn deposition) without explaining the contradiction
or attempting to resolve the disparity.”

Ervin v. JP Morgan

Chase Bank NA, No. GLR-13-2080, 2014 WL 4052895, at *2 (D.Md.
Aug. 13, 2014) (quoting Cleveland v. Policy Mgmt. Sys. Corp.,
526 U.S. 795, 806 (1999)).

“Application of the sham affidavit

rule at the summary judgment stage ‘must be carefully limited to
situations

involving

flat

contradictions

of

material

fact.’”

Id. (quoting Zimmerman v. Novartis Pharm. Corp., 287 F.R.D. 357,
362 (D.Md. 2012)).
1. Russ’s Declaration
Geib argues paragraphs 28 through 32 of Russ’s Declaration
contradict his prior deposition testimony.

In the Declaration,

Russ states he never had a conversation with Geib about Lawrence
being

promoted

or

interested

in

trainer/night supervisor position.

or

interviewed

for

the

He also states he only spoke

to Geib about Lawrence being a capable employee in January 2007.
During

his

conversation

deposition,
with

Geib,

however,
in

which

Russ
Geib

states
stated

he

had

Lawrence

aptitude for a potential position as a supervisor.”

a

“had

The Court,

therefore, finds Russ’s statement in paragraph 32 that he never
discussed Lawrence being promoted is flatlly contradicts to his
prior

sworn

testimony

and

will

paragraphs will not be stricken.

7

strike

it.

The

remaining

2. Wismans’s Declaration
Geib argues paragraphs 17 and 18 of Wismans’s Declaration
contradict

his

deposition

testimony.

In

the

Declaration,

Wismans states he was not able to make a good assessment of Geib
as a person, but was able to assess Geib’s performance as a
manager based on the numbers in reports and his observations of
the

warehouse

operations.

during his deposition.
8).

The

Court

Wismans

made

similar

statements

(See Wismans Dep. 66:14–21, ECF No. 38-

will,

therefore,

deny

Geib’s

Motion

as

to

paragraphs 17 and 18.
Additionally,

Geib

argues

paragraph

10

of

Wismans’s

Declaration contains inadmissible hearsay evidence.
means

a

statement

that

the

declarant

does

not

“‘Hearsay’
make

while

testifying at the current trial or hearing; and a party offers
in evidence to prove the truth of the matter asserted in the
statement.”

Fed.R.Evid. 801(c).

According to Federal Rule of

Civil Procedure 56(c)(4), a declaration used to support a motion
for summary judgment must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
declarant is competent to testify on the matters stated.
declaration

“must

present

evidence

in

substantially

the

The
same

form as if the [declarant] were testifying in court,” Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir.
1996), and cannot be based on inadmissible hearsay, Md. Highways
8

Contractors Ass’n v. Maryland, 933 F.2d 1246, 1251–52 (4th Cir.
1991).
In paragraph 10, Wismans states he saw Geib standing in a
corner with a big stick and later heard from people that Geib
would pound his stick on the ground and state “Who am I going to
fire tonight?”

(Wismans Decl. ¶ 10, ECF No. 35).

Wismans’s

testimony regarding the statements he heard from other people
constitutes

inadmissible

hearsay—the

statements

of

the

unidentified people are being offered through Wismans for the
truth of the matter asserted.

The Court cannot consider the

inadmissible evidence to support PFG’s Motion.

As such, the

Court will strike the third-party statements in paragraph 10.
3. Stacharowski’s Declaration
Geib

argues

paragraph

29

of

Stacharowski’s

contradicts his prior deposition testimony.

Declaration

In paragraph 29,

Stacharowski testifies he sent an email to Geib stating the
decision to terminate Geib was made on March 19, 2007.

He

further testifies that statement was “not exactly correct” and
the decision to terminate Geib was made in late February 2007,
but the decision to make Geib’s termination effective was made
on March 19, 2007.

(Stacharowski

Decl. ¶ 29, ECF No. 34).

In his deposition, Stacharowski states he believes that the
decision to terminate Geib was made on March 19, 2007.

PFG

attempts to explain this contradiction by arguing the record
9

evidence demonstrates PFG decided to terminate Geib prior to
March 18, 2007 because Wismans emailed Stacharowski on March 5,
2007 about Geib’s lack of commitment and their need to search
for

Geib’s

replacement
entitled

replacement;
on

“PFG

March

PFG
2007;

7,

began
and

Separation”

the
Geib

concerning

a

search
emailed
severance

for

Geib’s

Stacharowski
package

on

March 18, 2007.
Additionally, the record reflects that on March 14, 2007,
Stacharowski

asked

Geib

to

contact

him

or

Wismans

prior

to

returning to work because they needed to discuss PFG’s decision
to terminate Geib.
ECF No. 34).

(ECF No. 31-21; see Stacharowski Decl. ¶ 24,

Also, on March 16, 2007, Geib called Stacharowski

to discuss PFG posting his job online and whether PFG would
offer him financial assistance if he were terminated.

Based on

the evidence in the record, the Court concludes that paragraph
29, while contradictory to the March 19, 2007 email, is not a
flat contradiction of Stacharowski’s deposition testimony.

As

such, the Court will deny the Motion as to paragraph 29.
B. Motion for Summary Judgment
1. Standard of Review
Under Rule 56(a), the Court must grant summary judgment if
the moving party demonstrates there is no genuine issue as to
any material fact, and the moving party is entitled to judgment
as a matter of law.

In reviewing a motion for summary judgment,
10

the Court views the facts in a light most favorable to the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144,
157 (1970)).

Once a motion for summary judgment is properly

made and supported, the opposing party has the burden of showing
that a genuine dispute exists.

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
“[T]he
between

mere

the

existence

parties

will

of
not

some

alleged

defeat

an

factual

otherwise

dispute
properly

supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.”
at 247-48.

Anderson, 477 U.S.

A “material fact” is one that might affect the

outcome of a party’s case.

Id. at 248; see also JKC Holding Co.

v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th
Cir. 2001)).

Whether a fact is considered to be “material” is

determined by the substantive law, and “[o]nly disputes over
facts

that

governing

might
law

judgment.”

affect

will

the

outcome

properly

of

preclude

the

the

suit

entry

under
of

the

summary

Anderson, 477 U.S. at 248; accord Hooven-Lewis, 249

F.3d at 265.
2. Analysis
Title
employment

VII

provides

practice

for

that
an

“[i]t

employer
11

shall
.

.

.

be
to

an

unlawful

discharge

any

individual, or otherwise to discriminate against any individual
with

respect

privileges

to

of

his

compensation,

employment,

because

of

terms,
such

individual’s

color, religion, sex, or national origin.”
2(a)(1).
in

conditions,

or

race,

42 U.S.C. § 2000e-

Title VII prohibits discrimination against an employee

retaliation

for

the

employee’s

opposing

of

an

employer’s

illegal discrimination practices or participating in Title VII
enforcement proceedings.

42 U.S.C. § 2000e-3(a).

A plaintiff must establish a retaliation claim under the
“burden-shifting” scheme set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 807 (1973).
Supp.

2d

governed

601,
by

613

the

(D.Md.

same

See Vicino v. Maryland, 982 F.

2013)

proof

(“Claims

schemes

of

retaliation

applicable

to

Title

are
VII

discrimination claims, except that proof of retaliation requires
but-for causation; the mixed-motive analysis is inapplicable to
retaliation claims.” (citing EEOC v. Navy Fed. Credit Union, 424
F.3d 397, 405–06 (4th Cir. 2005))).
a. Prima Facie Case
To

support

a

claim

for

retaliation,

a

plaintiff

must

demonstrate: (1) “that he engaged in a protected activity,” (2)
“that the employer took an adverse action against him,” and (3)
“that

a

causal

relationship

existed

between

activity and the employer’s adverse action.”

his

protected

Baqir v. Principi,

434 F.3d 733, 747 (4th Cir. 2006) (citing Price v. Thompson, 380
12

F.3d 209, 212 (4th Cir. 2004)).

A plaintiff first bears the

burden of proving a prima facie case of discrimination by a
preponderance of the evidence.
Burdine,

450

U.S.

248,

Texas Dep’t of Cmty. Affairs v.

252-53

(1981).

If

a

plaintiff

successfully presents a prima facie case, the burden shifts to
the

employer

to

provide

a

justification for its action.
Douglas, 411 U.S. at 802).

legitimate,
Id.

at 253

nondiscriminatory
(citing

McDonnell

Finally, if the employer carries its

burden, the plaintiff must show that the employer’s legitimate,
nondiscriminatory reason is merely a pretext for discrimination.
Id. (citing McDonnell Douglas, 411 U.S. at 804).
In a retaliation claim “a protected activity may fall into
two categories, opposition and participation.”
at 406.

EEOC, 424 F.3d

Activities that constitute opposition include informal

protests, such as voicing complaints to employers or using an
employer’s grievance procedures under Title VII.

DeMasters v.

Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015)

(quoting

Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th
Cir. 1998)).

The opposition does not have to rise to the level

of formal charges of discrimination.

See Armstrong v. Index

Journal Co., 647 F.2d 441, 448 (4th Cir. 1981).
Additionally, the opposition by a plaintiff does not need
to stand alone and apart from any other criticism of management,
nor does a plaintiff need to utter “the magic words ‘Title VII’”
13

to have engaged in protected activity.
Health

Auth.

of

St.

Mary’s,

Inc.,

4868095, at *6 (D.Md. 2010).

Weintraub v. Mental

No.

DKC

08-2669,

2010

WL

The Supreme Court has defined the

scope of a plaintiff’s opposition broadly.

“When an employee

communicates to her employer a belief that the employer has
engaged

in

.

.

.

a

form

communication

virtually

opposition

the

to

of

employment

always

activity.”

discrimination,

constitutes
Crawford

v.

the
Metro.

that

employee’s
Gov’t

of

Nashville & Davidson Cty., 555 U.S. 271, 276 (2009).
Further,

“[a]

causal

connection

for

purposes

of

demonstrating a prima facie case exists where the employer takes
adverse

employment

action

against

an

learning of the protected activity.”

employee

shortly

after

Pascual v. Lowe’s Home

Ctrs., Inc., 193 F.App’x 229, 233 (4th Cir. 2006) (quoting Price
v.

Thompson,

proximity

380

between

F.3d

209,

the

213

adverse

(4th

Cir.

employment

2004)).
action

Temporal
and

the

employer’s knowledge of the protected activity “gives rise to a
sufficient inference of causation to satisfy the prima facie
requirement.”

King v. Rumsfeld, 328 F.3d 145, 151 (4th Cir.

2003) (citing Williams v. Cerberonics, Inc., 871 F.2d 452, 457
(4th Cir. 1989)).
There is a genuine dispute regarding whether Geib engaged
in protected activity.
about

Lawrence

being

Geib testifies that he spoke to Russ
a

potential
14

candidate

for

a

supervisor

position in January 2007 and complained to Stacharowski and Russ
about Lawrence not being considered for a promotion because she
is a woman in late February 2007.
conversation occurred.

It is disputed whether these

It is undisputed, however, that Geib

sent an email to Stacharowski on March 18, 2007, stating that
“[s]ince entering into PFG-CCF, [he saw] and tried to administer
systems and process through racial and sexual discrimination of
employment

practices

management

to

Given

the

broad

Court

finds

from

associates

associates.”

that

(ECF

interpretation
the

email

No.
of

to

31-22)

management
(emphasis

“protected

constitutes

an

and

added).

activity,”

opposition

to

the
an

unlawful employment practice.
Additionally, there is a genuine dispute regarding whether
a causal connection exists between Geib’s protected activity and
his termination.

PFG asserts the decision to terminate Geib was

made in late February 2007, but the decision to make Geib’s
termination
Stacharowski’s

effective
March

was
19,

made

2007

on

email,

March
however,

decision to terminate Geib was made that day.

19,
states

2007.
the

Because the date

of Geib’s termination is disputed, the Court will look to the
remaining prongs of the McDonnell-Douglas test.
b. Legitimate, Nondiscriminatory Reason and Pretext
Assuming a prima facie case can be shown, PFG has proffered
evidence of a legitimate non-discriminatory reason for Geib’s
15

discharge—Geib’s

inability

to

improve

performance

within

the

warehouse,3 his poor attendance,4 and PFG’s perception that Geib
lacked a commitment to his job.
Geib,

he

must

be

able

to

Shifting the burden back to
show

that

PFG’s

legitimate,

nondiscriminatory reason is merely a pretext for discrimination.
“[W]hen

an

employer

gives

a

legitimate,

non-discriminatory

reason for discharging the plaintiff, ‘it is not our province to
decide

whether

ultimately,

so

the
long

reason
as

plaintiff’s termination.’”

was
it

wise,

truly

fair,

was

the

or

even

reason

correct,
for

the

Hawkins v. PepsiCo, Inc., 203 F.3d

3

Stacharowski testified that Geib was responsible for the
performance of the entire warehouse and was expected to work
constantly to fix the problems with the warehouse structure, but
his performance was lacking in October, November, and December
of 2006.
Russ testified that Geib was terminated for his poor
performance and attendance.
Wismans testified that Geib was
expected to fix the warehouse operations, reduce error rates,
reduce damage, improve service to customers, and ensure timely
delivery of products to customers.
Wismans further testified
that the warehouse’s operations remained chaotic because the
staff was not following procedure during Geib’s tenure. Lastly,
PFG provides documentation regarding the warehouse’s “night
thruput,” which measures the warehouse’s productivity during the
night shift. (ECF No. 31-5).
The document shows the warehouse
underperformed for the majority of Geib’s tenure. (Id.; see ECF
No. 31-6 (demonstrating that “mispicks” and “not on trucks”
increased during Geib’s tenure)).
4
Geib’s work schedule required him to work each week from
Sunday through Thursday beginning at around 12:00 p.m. Based on
the documents produced by both parties (ECF Nos. 31-10, 38-21,
38-22), Geib was absent from work on November 23, 2006; November
26–30, 2006; December 24, 2006; December 31, 2006; January 1–3,
2007; one day during the week of January 22 to 28, 2007;
February 11–15, 2007; February 25, 2007; and March 4–19, 2007
(to care for his children).
16

274, 279 (4th Cir. 2000) (quoting DeJarnette v. Corning Inc.,
133 F.3d 293, 299 (4th Cir. 1998)).
A court should not second-guess an employer’s appraisal.
Id. at 280.

Rather, the Court’s sole concern should be “whether

the reason for which the defendant discharged the plaintiff was
discriminatory.”
The

plaintiff

court

that

Id.

“bears
[she]

[retaliation].’”
243,

252

(quoting DeJarnette, 133 F.3d at 299).

(4th

the
has

‘ultimate
been

burden

the

of

victim

persuading
of

the

intentional

Foster v. Univ. of Maryland-E. Shore, 787 F.3d
Cir.

2015)

(quoting

Hill

v.

Lockheed

Martin

Logistics Mgmt., Inc, 354 F.3d 277, 285 (4th Cir. 2004)).
First, Geib argues PFG’s reasons for his termination are
meritless, but it is not the Court’s province to make such an
assessment.

Second,

Geib

argues

PFG

created

reasons

to

terminate him after his complaints about sex discrimination.
Geib testified that he initially complained to Russ and
Stacharowski in late February 2007 when he believed Lawrence was
not being considered for a supervisor position because of her
gender.

Russ, tasked with supervising CCF from January 2007 to

February 4, 2007, emailed Geib several times from January 11,
2007
about

to

February

Lawrence’s

10,

2007—before

Geib’s

application—regarding

disputed
Geib’s

complaints
failure

to

complete timely reports, properly train and supervise warehouse
staff, meet productivity expectations, communicate effectively,
17

and conduct observations of associates.

The Court, therefore,

finds that Russ’s criticisms of Geib’s job performance could not
have been made because of Geib’s disputed complaints.
Additionally,

on

February

26,

2007—around

the

time

of

Geib’s disputed complaints—Russ emailed Mattingly stating that
he would make recommendations regarding changes in the warehouse
management structure, i.e., replacing Geib.

(Mattingly Decl. ¶

26, ECF No. 32). Later, after Geib sent his March 3, 2007 email
informing Wismans that he would travel to Oklahoma to take care
of

his

children

due

to

his

wife’s

injury,

Wismans

emailed

Stacharowski and Mattingly, stating “I would like a few minutes
from both of you today so we can determine a move forward plan
with Jason and his lack of commitment and now this,” referring
to

Geib’s

March

3,

2007

email.

(ECF

No.

31-12)

(emphasis

added).
Lastly,

after

receiving

Geib’s

“PFG

Separation”

email

seeking a severance package for his perceived termination5 and

5

It is clear to the Court that Geib believed PFG terminated
him before the date of his email. In the March 18, 2007 email,
Geib states PFG’s “unethical decision” to post his position
online has left him “out in the cold trying to fend for income
and benefits to cover his current situation.” (ECF No. 38-15).
He further states the only factor leading to his “separation” is
his wife’s injury. (Id.). Geib’s requested severance included
pay for loss of employment for eight weeks, moving expenses to
return his belongings to Oklahoma, and a buy-out of his leased
housing.
(Id.).
Lastly, Geib requested a letter that his
“dismissal” was due to a medical emergency and he “left [his]
job in good standing.” (Id.).
18

complaining

about

gender

discrimination,

Stacharowski

Geib terminating his employment on March 19, 2007.

emailed

A reasonable

fact-finder could conclude that Geib’s termination was based on
Geib’s

need

to

take

leave

to

care

for

his

children

and

exacerbated by his prior use of three weeks of paid time off
during the first five months of his less than six-month tenure
(see

ECF

No.

38-22)

and

his

poor

job

performance.

While

terminating an employee because he must leave work to tend to
his family’s welfare may not be fair or wise, such a basis is
not discriminatory.6
Conversely, Geib presents evidence that he did not perform
poorly

as

warehouse

manager

because

the

warehouse’s

underperformance was due to severe understaffing and an increase
in the volume of produce.

(Bredberg Dep. at 23, ECF No. 38-6;

Gardner Dep. at 63, 157; ECF No. 38-5).

After Geib’s disputed

gender

Wismans

discrimination

Stacharowski

to

begin

complaints,
a

confidential

search

instructed
for

Geib’s

replacement and Stacharowski requested that Geib contact him or
Wismans before returning from Oklahoma because they needed to
discuss PFG’s decision to terminate him.

After Geib’s March 18,

2007 email complaining about gender discrimination, Stacharowski

6

The Court will not address whether Geib was entitled to
leave under the Family Medical Leave Act, 29 U.S.C. §§ 2601 et
seq. (2012), and whether his termination can give rise to a
claim for violation of the Act.
19

informed Geib that PFG decided to terminate him on March 19,
2007.
A

reasonable

fact-finder

could

conclude

that

Russ

and

Wismans sought to replace Geib because of his late February 2007
gender discrimination complaints and PFG decided to terminate
Geib on March 19, 2007 because of the discrimination complaint
made

in

his

March

18,

2007

email.

The

Court,

therefore,

concludes that Geib has presented sufficient evidence that PFG’s
explanation for terminating him was pretextual.

Accordingly,

the Court will deny PFG’s Motion for Summary Judgment.
III. CONCLUSION
For

the

reasons

stated

above,

PFG’s

Motion

for

Summary

Judgment (ECF No. 28) is DENIED and Geib’s Motion to Strike (ECF
No. 39) is DENIED in part and GRANTED in part.

A separate Order

follows.
Entered this 8th day of August, 2016

/s/
_____________________________
George L. Russell, III
United States District Judge

20