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Webb v. Kroger Ltd. Partnership I

United States District Court, W.D. Virginia, Roanoke Division

February 14, 2017

DIEDRA C. WEBB, Plaintiff,
v.
KROGER LIMITED PARTNERSHIP I, Defendant.

MEMORANDUM OPINION

          MICHAEL F. URBANSKI UNITED STATES DISTRICT JUDGE.

         This Title VII case is before the court on defendant Kroger Limited Partnership Fs motion for summary judgment, which is docketed as two separate motions for partial summary judgment-one as to Counts II and III (ECF No. 27) and the other as to Count I (ECF No. 30). Also pending on the docket are Kroger's motions to strike affidavits (ECF Nos. 23 & 48), motion for leave to file response to nine of plaintiff s statement of facts (ECF No. 47). The issues have been extensively briefed and oral argument was held on January 13, 2017.[1]

         In her complaint, plaintiff Diedra C. Webb alleges that while working as co-manager of Kroger Store #345 in Christiansburg, Virginia, she was subjected to sexual harassment (Count I), gender discrimination (Count II), and retaliation (Count III), all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e, et seq. Webb has since abandoned the gender discrimination claim set forth in Count II of her complaint. See PL's Mem. in Opp. to Def.'s Mots, for Partial Summ. J., ECF No. 44, at n.2. As regards the remaining claims, Webb asserts she was subjected to a hostile work environment as a result of store manager Richard Almond's sexual harassment. She further claims that she was disciplined and ultimately terminated because she complained of Almond's unlawful employment practices.

         Because there is insufficient evidence from which a jury could find in Webb's favor on either of these claims, the court will GRANT Kroger's motions for summary judgment and dismiss this action with prejudice.

         I.[2]

         Webb began working for Kroger as a management trainee in 2007. Dep. Ex. 1, ECF No. 29-13. Following her training, Webb was assigned to various area stores, where she worked as co-manager, and then to the district office where she served as deli/bakery coordinator. Webb Dep., ECF No. 29-2, at 39-41. Webb moved back into store operations in April 2010, at which time she was assigned to Store #402 in Blacksburg. Id. at 42. She was subsequently transferred to Store #345 at the end of March 2012, where she again served as co-manager. Id. at 45, 97. Co-managers are part of the management team and serve under the associate manager and store manager. Id. at 52-53.

         Webb testified she was apprehensive about the transfer to Store #345 because of its "inability to meet key retailing goals. Their conditions, meaning their out of stocks, what was on the shelf and what was not. The overall operation of that particular store." Id. at 103. Webb testified she was being transferred to this particular store in order to "push [store manager Richard] Almond into getting some of the procedures, meaning key retailing, out of stocks, things of that nature, I could push him to get some of those things in place that were not currently in place there." Id. at 98. Webb was particularly concerned about whether she could "get the job done" because she "knew from working and training [at Store #345] that Mr. Almond was not comfortable with change at all." Id. at 104.

         Webb claims that over the course of her eighteen-month employment as co-manager of Store #345, store manager Richard Almond made discriminatory and harassing remarks to her and other female employees. She claims that she "had issues" with Almond on a daily basis: "Every day that I worked with him he made a comment about my make-up, my weight, my attitude, me taking medication, if I was taking care of my husband." Id. at 170. At least three times per week, Almond would tell Webb to put make-up on or ask if she brought her make-up with her to work. Id. at 169. Almond advised Webb she needed to take medication when she was not acting "feminine enough."Id. at 227. He told Webb twice that she needed to lose weight. Id. at 235-37.[3] Almond asked Webb three times-and he asked Webb's husband three times-whether she was "having PMS." Id. at 273. On occasion, Almond made comments about how "women use their womanly ways to get what they want, " Id. at 171, 256-57, how "most women need office jobs, " Id. at 273, and how women should "stay home and raise babies, " Id. at 209; see also Id. at 271-73. Almond asked Webb once a week to have "motherly talks"[4] with other female employees, Id. at 195, 221, and, on one occasion, told another store employee to "use her motherly voice" and talk to associates "like they were her children, " Id. at 210. Once, when plaintiff and her husband were upstairs at Store #345, the copy machine was not working. Almond came over, pushed a button to start the machine, and said, "See, it's like a woman. You have to rub them to get them started, " or words to that effect. Dep. Ex. 33, ECF No. 29-15, at ¶ 7(b)(iii).

         Almond sporadically referred to Webb as the "Kronos[5] Nazi, " Webb Dep. at 165-66, 245-46, would speak to her "like [she] can't do [her] job, " Id. at 165, would tell other store associates not to listen to Webb, Id., and once reversed a scheduling change decision she made, Id. at 241. He told subordinates, "you know how Ms. Webb is, " and, "time to get the confetti and balloons out Ms. Webb is on vacation." Id. at 226. Almond declined to take corrective action against a male subordinate who refused to listen to Webb until she calmed down and who referred several times to women being "emotional." Id. at 238. Several times a week, Almond made demeaning comments towards women in general, such as how women in the store and parking lot looked, Id. at 233-35, and how good the female Virginia Tech track team members looked in their uniforms, Dep. Ex. 31, ECF No. 29-15, at ¶ 16; Dep. Ex. 33, ECF No. 29-15, at¶ 7(b)(iv).

         Other store employees were subject to harassing conduct by Almond. On occasion, Almond commented on employee Tiffany Linkous' dress, make-up, and hair, as well as how she "would talk to people in her little girl voice to get what she wanted." Webb Dep. at 195. Specifically, Almond commented one December about Linkous' Santa shirt with a white furry collar, id;, at 196, and occasionally would say something about Linkous' hair when she pulled it back to save time when she overslept, ii at 196-97. One time, Almond observed Linkous crying over a breakup with her boyfriend and invited her to "[c]ome here and sit on [his] lap and tell [him] what the problem is." Id. at 197.

         Two or three times, when die seasons changed, Almond would ask Ester Richardson, "When are we going to see your legs in the skirt?", and comment about Richardson's skirt being short when she did wear one, or her legs being tan when she returned from vacation. Id. at 198-99. Almond also made Richardson take down a calendar of shirtless firemen displayed out of public view in the bakery-but allowed employee Mike Mull to display the 2013 Sports Illustrated Swimsuit calendar on his desk.[6] Id. at 198-99, 242-44.

         Once, Almond "popped" Christy Smith on the buttocks in front of Webb and Smith's mother and said, "You sure do look good in those jeans since you've lost weight." Id. at 172, 259. He also recounted conversations he had had with Smith's ex-husband while on a hunting trip and would "laugh when [Smith] would get upset." Id. at 201.

         Almond referred to administrative assistant Ashley Griffith as "a little girl." Id. at 193. One time when Griffith was affixing a band-aid to her boyfriend's cut, [7] Almond stated "that's exactly where men like to see women, on their knees in front of them, " or something of that nature. Id.

         At least twice, Webb witnessed Almond hugging a young, female employee named Ashley Wells. Id. at 203-05. Almond would hug younger, attractive females in "a two-armed full bear hug, " but would give older females and customers "side hugs." Id. at 260-61.

         Almond told Tina Gordon that Kroger "is only hiring women to be diversified." Id. at 206. He also told Gordon to brush off a negative comment by another male store employee to Gordon about biracial children, [8] stating the employee "doesn't mean it" and to "just let it go." Id. at 207-08.

         Webb complained about this behavior to Almond directly and to Human Resources Coordinator Eric Williams. While Webb could not recall how many times she complained to Williams about Almond, the specific dates of those conversations, or exactly what she said, she testified: "I know that it was every conversation that I had with Mr. Williams. I always expressed my concern, my frustration, my fear, in having to associate and deal with Mr. Almond in the way that I did. He was very well aware of that from die very first time that I ever interacted with him as the [Human Resources Coordinator]." Id. at 161. Webb related to Williams her concern that Almond did not like her, gave her push-back, did not support her, and spoke to her like she "can't do [her] job." Id. at 159-65. She further testified that she told Williams once that Almond had referred to her as the "Kronos Nazi, " Id. at 166, that Almond told her to put on make-up, Id. at 167-68, 231-32, that Almond made comments such as "you know how women are, " Id. at 171, that Almond asked her to have "motherly talks" with female associates, id 224-25, that Almond told her she needed to lose weight, Id. at 236-37, and that Almond commented about how women use their "womanly ways, " Id. at 256-57. Webb stated Williams would always respond by saying he would speak to Almond about it or that he would look into it. See Id. at 237, 258.

         However, Webb did not tell Williams about inappropriate comments Almond allegedly made about women in general, Id. at 234-35, 272-74, or, for the most part, tell him about Almond's behavior towards other female associates at Store #345, [9] see, e.g., id. at 194, 200, 203, 205, 208-09, 210, 212. Webb stated these issues did not come up in her discussions with Williams because "we were talking about me." See, e.g., id. at 203.

         Webb claims she was uncomfortable, stressed and anxious as a result of Almond's harassing conduct. Her husband testified she was withdrawn and would come home in tears. John Webb Dep., ECF No. 29-12, at 30.

         On September 3, 2013, district manager David Dant2ler, along with Eric Williams, and operations coordinator Tracy McDaniel, met with Webb and terminated her employment with Kroger. Webb Dep. at 181. A complaint had been lodged against Webb on August 21, 2013 about the way she addressed front-end manager Christy Smith concerning scheduling. Dep. Ex. 43, ECF No. 29-16. While Webb thought nothing of this encounter with Smith, it left Smith in tears. Webb Dep. at 173-82; Dep. Ex. 25, 26 & 27, ECF No. 29-15. An investigation ensued and ultimately determined that Webb's behavior was inappropriate and unprofessional. Dep. Ex. 39, ECF No. 29-16. At the September 3 meeting, Dantzler advised Webb she was not entitled to any more warnings. Webb Dep. at 182; Dep. Ex. 45, ECF No. 29-16.

         At the rime, Webb was on what is known as a Management Development Plan (MDP), a plan that contained sixteen personal and professional objectives Webb was required to complete-one of which was to complete an anger management program. Dep. Ex. 23, ECF No. 29-15. This plan was designed to improve the way Webb communicated with store associates. Webb Dep. at 182. Webb was placed on this 2013 MDP after receiving a disciplinary letter on February 13, 2013 for speaking to a store associate in a demeaning and derogatory manner the previous month. Dep. Ex. 21, ECF No. 29-15. The letter stated: "You are also 'on final notice' that any future incidents of this nature, will indeed lead to disciplinary action, up to and including, discharge." Id.

         This was not the first time Webb was disciplined for the way she communicated with store associates. While working as co-manager at Store #402 in 2011, Webb received a disciplinary letter and was placed on an MDP for similar conduct. Dep. Ex. 11 & 12, ECF No. 29-15. The 2011 disciplinary letter informed that multiple people had reported Webb speaks to store associates in a demeaning and derogatory manner. Dep. Ex. 11, ECF No. 29-14.

         At her September 2013 termination, Webb was provided a severance package in exchange for her signature on a waiver and release. Webb Dep. at 182-83. She was told to read it and see if she accepted the terms and was informed she had seven days to rescind after she signed it. Id. at 183. Webb was given an opportunity to ask questions. The only question she asked whether she could still shop at any Kroger store. Id. at 184.

         On June 27, 2014, Webb filed a charge of discrimination with the Equal Opportunity Employment Commission alleging sexual harassment, sex discrimination and retaliation. Dep. Ex. 31, ECF No. 29-15. This lawsuit followed.

         II.

         Pursuant to Federal Rule of Civil Procedure 56(a), the court must "grant summary-judgment if 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." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett. 477 U.S. 317, 322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court should consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with . . . [any] affidavits" filed by the parties. Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex ...


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