Pietszak v. Smith's Food & Drug Ctrs.

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MILISSA PIETSZAK, Plaintiff, v. SMITH'S FOOD AND DRUG CENTERS, INC., Defendant.

No. 1:22-cv-00027-DBP

United States District Court, D. Utah

August 23, 2023

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT SMITH'S FOOD & DRUG CENTERS, INC.'S MOTION FOR SUMMARY JUDGMENT

Dustin B. Pead, Magistrate Judge.

INTRODUCTION

The parties in this case consented to United States Magistrate Judge Dustin B. Pead conducting all proceedings, including entry of final judgment, with appeal to the United States Court of Appeals for the Tenth Circuit (ECF No. 14). See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73

Plaintiff Milissa Pietszak (“Pietszak”) alleges her former employer, Defendant Smith's Food and Drug Centers Inc.'s (“Smith's” or “Defendant”), retaliated against her in violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), and the Family and Medical Leave Act (“FMLA”), failed to accommodate her under the ADA and interfered with her FMLA rights.

Pending before the court, is Defendant's Motion for Summary Judgment (the “Motion”) (ECF No. 18) in which Smith's seeks dismissal of all claims alleged by Pietszak. Pietszak concedes summary judgment is appropriate on her FMLA interference claim but argues there are material disputes of fact that preclude summary judgment on her remaining claims. Oral argument on Defendant's Motion was held on July 20, 2023 (ECF No 26). Upon review and for the reasons set forth herein, the court GRANTS the Motion.

UNDISPUTED MATERIAL FACTS^[1]

Smith's hired Pietszak to work in its floral department in February 2010 at Smith's Store #30 in Ogden, Utah.^[2]In 2016 or 2017 Pietszak began working as a “selector” in the Smith's “Clicklist” department, where online grocery orders are filled.^[3]Pietszak's position was later renamed to “e-commerce selector.”^[4] While working as an e-commerce selector, Pietszak typically reported to a single department supervisor.^[5]Pietszak's job duties included “select[ing] customers' online orders in the most efficient manner with attention to freshness and quality.”^[6]Pietszak typically began her shifts at 5:00 a.m. so she could get orders out by 8:00 a.m.^[7]Pietszak averaged “probably about 26 [or] 27 hours” per week, but her hours were “always fluctuating.”^[8]

In or around January 2019, Pietszak made complaints to Smith's Human Resources Department regarding the actions of another Store #30 employee, Eric Taylor (“Mr. Taylor”).^[9]Pietszak alleges she complained to her supervisor, Michael Benshoof (“Mr. Benshoof”), as well as others in the store about harassment by Mr. Taylor.^[10]Pietszak also told Mr. Benshoof and others at Smith's that Mr. Taylor's actions “were causing her daily fear and aggravating her anxiety and depression.”^[11]Pietszak made these comments to management “every time something happened with [her] and [Mr. Taylor],” which she asserts was “a daily thing” during much of 2019.^[12]Also beginning in early 2019, Pietszak began making requests that she be transferred to other Smith's stores “because of the harassment” by Mr. Taylor and due to her “anxiety and panic attacks.”^[13]Pietszak was never granted a transfer, at least in part because other stores “never had enough hours to fully transfer [her] over.”^[14]

Throughout this time, Pietszak was aware of Smith's policies on time and attendance.^[15]Smith's policies provided that a first occurrence of tardiness or absenteeism would result in a verbal notice; a second occurrence would result in a written warning; a third occurrence would result in a three-day suspension without pay; and for any further occurrence within a 12-month period, the employee would be “subject to discharge.”^[16]Pietszak also understood that Smith's employees would be suspended without pay for a first no call, no show and terminated for a second no call, no show violation within two years.^[17]Pietszak acknowledged that Smith's “reserves the right to schedule work hours as business and organizational needs require” and that “work schedules may be changed at the complete discretion of Smith's.”^[18]Pietszak does not dispute that pursuant to Smith's policy “[i]t is [the employee's] responsibility to know [their] work schedule.”^[19]

Between May 2019 and October 2019, Pietszak had numerous write-ups for tardiness and absenteeism. Pietszak admits she had difficulty showing up to her shifts on time due, in part, to ongoing methamphetamine use during this timeframe.^[20] On May 31, 2019, Pietszak was 5.5 hours late for work and signed a Written Warning.^[21]On June 25, 2019, Pietszak received a second written warning notice for being late to her shift and again signed a warning notice.^[22]On September 20, 2019, Pietszak received an “Associate/Manager Coaching Form” for “[b]eing late to [her] schedule[d] shift multiple times last 3 week[s] [sic].”^[23]Pietszak signed the coaching form and does not dispute that she was late “multiple times” leading up to receiving the notice.^[24]Shortly thereafter, on October 3, 2019, Pietszak's supervisor suspended Pietszak for being “two an[d] [a] half hours” late for her shift.^[25]Pietszak admits the foregoing discipline does not encompass all of the instances in which she was absent or late in 2019.^[26]

Throughout this time, Pietszak alleges that Mr. Benshoof began “talking to [her] less,” “swapping [her] schedule,” and “cutting [her] hours.”^[27]Further, Pietszak asserts that a male coworker in the same department who “didn't have anxiety issues” was disciplined less harshly than she was for similar incidents.^[28]Pietszak concedes that her male coworker may have been disciplined for some of his attendance infractions and that she only learned about her male coworker's situation by “communicat[ing] with him about [it]” .^[29]

On November 14, 2019, Pietszak emailed Smith's a letter from her therapist requesting leave until November 22, 2019, and stating that “[i]f [leave is] not possible a store transfer would be recommended for the stability of [Pietszak's] mental health.”^[30] Smith's granted the request for leave under the FMLA, through its third-party administrator MetLife, and was given continuous FMLA leave for 12 full weeks, from November 10, 2019, through February 1, 2020.^[31]Pietszak returned to work on February 2, 2020, with a certification from her medical provider stating that she was returning to work with “no restrictions.”^[32]Upon returning to work, Pietszak was reinstated to her same position, pay, and benefits.^[33]She was scheduled for five hours her first week back and was initially scheduled for 43.5 hours her second week back,^[34] but ultimately worked less than the 43.5 hours for which she was initially scheduled.^[35]Pietszak does not know why she received only five hours her first week back, but admits there was a “department-wide issue” with scheduling.^[36]Pietszak testified that “it wasn't just [her] schedule that was like that .... [T]he whole department was switched around and it was a mess.”^[37]She admits her supervisor was “trying” to fix scheduling issues in the department.^[38]

After her return to work, Pietszak felt “overworked” and began seeking employment at another Smith's store.^[39]On February 21, 2020, Pietszak “interviewed” at the Smith's “Sunset” store to obtain an entirely new position.^[40] Pietszak asserts that she told the Sunset store she was seeking employment at Sunset “because of [her] anxiety and PTSD” associated with working at Store #30.^[41]Pietszak did not speak to anyone at Store #30 about seeking to transfer and she did not tell her Store #30 supervisor that she had interviewed at the Sunset store.^[42]

The department's “scheduling confusion” continued after Pietszak's first two weeks back to work.^[43]Smith's generally posted the schedule two weeks in advance online and on the wall at the store for each eight-day period.^[44] Pietszak was aware of her schedule for February 15, 2020, through February 22, 2020, because the schedule was posted for those dates.^[45]Pietszak admits that despite knowing she was scheduled to work on February 22, 2020, Pietszak did not come to work on that day and did not notify anyone that she would be absent.^[46]Pietszak acknowledged she “should have showed up” but testified that she did not come to work on February 22, 2020, because she had “had enough shame” for prior absence problems.^[47]

Thereafter, when she was unable to reach a supervisor by phone, Pietszak also did not text or email anyone about her absence or come into the store to determine her work schedule for the days that followed, of which Pietszak claims she was unaware.^[48]

Pietszak alleges she was unaware of her schedule for February 23 and 24, 2020 and missed her schedule shifts on those days.^[49]Despite still being unable to reach a supervisor by phone, Pietszak also did not text or email anyone at Smith's about obtaining her schedule for February 23 or 24, 2020.^[50]On February 24, 2020, Pietszak went into the store “to figure out if [she] was working that day.”^[51]When she arrived, the Store Director notified Pietszak that she had been terminated for violating Smith's no call, no show policy.^[52]When asked why she was terminated, Pietszak stated that she “do[esn't] know, honestly.”^[53]

Pietszak filed her Charge of Discrimination against Smith's on September 25, 2020.^[54]

STANDARD OF REVIEW

Summary judgment is appropriate “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). In considering whether a genuine dispute of material fact exists, the Court determines whether a reasonable jury could find for the nonmoving party in the face of all the evidence presented. See Anderson v....