United States District Court, W.D. Arkansas, Hot Springs Division
MEMORANDUM OPINION AND ORDER
ROBERT T. DAWSON, District Judge.
Plaintiff Deborah Akridge, an employee of Defendant Kroger Limited Partnership I, brought this action alleging that Defendant demoted her on the basis of her age and sex, and in retaliation for her complaints of discrimination. Now before the Court are Defendant's motion for summary judgment and supporting documents (Docs. 17-19), Plaintiff's response in opposition and supporting documents (Docs. 22-23), and Defendant's reply (Doc. 25). For the reasons set forth below, Defendant's motion is GRANTED.
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. See Fed.R.Civ.P. 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 operates Kroger grocery stores throughout the United States. 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. In addition to the store manager, stores are assigned one or 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").
Plaintiff is a 63-year-old woman who began working for Defendant in 1977 as a part-time deli clerk. 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. On April 18, 2011, Rufus Wilson, the Human Resources Manager, and Michael Cristal, the District Manager and Plaintiff's direct supervisor at the time, met with Plaintiff to discuss a problem involving the scheduling of management employees in Plaintiff's store. Mr. Cristal sent Plaintiff a follow-up letter dated April 25, 2011 that summarized their instructions to Plaintiff and 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. Cristal that revisited the management scheduling problem from 2011. Mr. Cristal noted "consistent reoccurrences of what we agreed would stop over a year ago." (Doc. 21-8, p. 1). He further cautioned that the letter "serves as a FINAL 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." (Doc. 21-12, p. 1). "Here may be an opportunity to improve communication, which usually is the basis of every problem, but my fear is that it is more." Id. She goes on to say that she and some of her store's 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 co-managers, 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.
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. Plaintiff conducted her own investigation of the incident by interviewing the clerk and taking written statements from Mr. Halter and another employee who witnessed ...