United States District Court, W.D. Virginia, Roanoke Division
DIEDRA C. WEBB, Plaintiff,
KROGER LIMITED PARTNERSHIP I, Defendant.
MICHAEL F. URBANSKI UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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. 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" 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).
sporadically referred to Webb as the
"Kronos 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).
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.
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. Id. at 198-99, 242-44.
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.
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,
Almond stated "that's exactly where men like to see
women, on their knees in front of them, " or something
of that nature. Id.
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.
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,  stating the
employee "doesn't mean it" and to "just
let it go." Id. at 207-08.
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,
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,  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.
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.
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.
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."
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.
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.
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.
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 ...