Rose Page v. Winn-dixie Montgomery Inc. .

702 F.Supp.2d 1334

Rose PAGE, Plaintiff,

v.WINN-DIXIE MONTGOMERY, INC., et al., Defendants.

Civil Action No. 09-0021-WS-M.

United States District Court,

S.D. Alabama,

Southern Division.

March 18, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Ronnie L. Williams, Mobile, AL, for Plaintiff.

Thomas A. Davis, Mieke A. Hemstreet, Jackson Lewis LLP, Birmingham, AL, for Defendants.

ORDER

WILLIAM H. STEELE, Chief Judge.

This matter comes before the Court on Defendants' Joint Motion for Summary Judgment (doc. 45) and Plaintiff's Motion for Partial Summary Judgment (doc. 47). Both Motions have been extensively briefed and are ripe for disposition.

I. Nature of the Action.

Plaintiff, Rose Page, brought this action for race discrimination and retaliation under 42 U.S.C. § 1981 against her employer, Winn-Dixie Montgomery, Inc. (“Winn-Dixie”), as well as a § 1981 race discrimination claim against her former supervisor, Brent Sellers. The Complaint originates from an incident that occurred on December 20, 2006, at Winn-Dixie Store No. 578, a food supermarket in Mobile, Alabama. At that time, company officials discovered that approximately $1,000 was missing from the store safe. After investigation, Winn-Dixie took disciplinary action against two African-American employees, Page and Markale Jackson, by demoting them for failing to follow company cash-handling policies. Winn-Dixie took no comparable action against the store manager and co-manager, both of whom are white, despite Page's contention that they were equally culpable for this loss.

Both Page and Jackson (who are represented by the same counsel) filed federal lawsuits under § 1981 against Winn-Dixie, although Jackson's preceded Page's by a full year. This Court granted Winn-Dixie's motion for summary judgment in the Jackson matter less than two weeks before Page filed her Complaint. See Jackson v. Winn-Dixie, Inc., 2008 WL 5435576 (S.D.Ala. Dec. 31, 2008), aff'd 353 Fed.Appx. 179 (11th Cir.2009). ¹ Although the record and legal issues are not identical in the two cases, there is substantial overlap between Winn-Dixie's motion for summary judgment in the Jackson matter and defendants' joint motion for summary judgment here. In large part, the parties' dueling Rule 56 motions in this case turn on the degree to which the rulings in Jackson are applicable to Page.

II. Background Facts. ²

Notwithstanding the parties' verbose submissions (spanning more than 150 pages of briefing in the aggregate), the relevant facts are largely undisputed and the relevant legal issues are narrow. ³

A. Management Structure and Page's Duties.

During the time period in question, Page was employed at Winn-Dixie Store # 578 as the In-Store Coordinator (“ISC”). (Page Dep., at 76-77.) ⁴ According to a Winn-Dixie job description, the ISC position includes the following duties: (i) to manage front end accounting and cash media reconciliation in compliance with applicable law and company procedures; (ii) to improve customers' experience by providing fast service, a friendly atmosphere, and successful resolution of customer concerns; and (iii) to lead, develop and supervise front end operations. (Page Dep., Exh. 8 at 1.) In the view of Irvin Landry, Winn-Dixie's decision-maker in this case, “[t]he ISC's primary purpose is to oversee and manage the money in the safe and to ensure that the accounting of the office is done in accordance with company policy.” (Landry Decl., ¶ 10.) ⁵

Of course, Page was not the only Winn-Dixie employee with a measure of responsibility for Store # 578 as of December 2006. Among the relevant managerial personnel were the Store Manager, Brent Sellers, who oversaw day-to-day operations at Store # 578. (Sellers Decl., ¶¶ 1-2.) Sellers reported directly to Landry, the District Manager, who oversaw operations of all stores located in the 4-4 District, including Store # 578. (Landry Decl., ¶¶ 5-6.) On site, there was also a Co-Manager named Jeremy McPherson, who reported directly to Sellers and assisted him in overseeing daily operations at Store # 578. (McPherson Decl., ¶ 2.) And Store # 578 had an Assistant In-Store Coordinator (“AISC”), Markale Jackson, whose duties included performing safe counts and other cash-handling responsibilities. See Jackson, 2008 WL 5435576, at *1. Because this case is rooted in allegations of race discrimination, it bears noting that Landry, Sellers and McPherson are white, while Page and Jackson are African-American.

B. Winn-Dixie Cash-Handling Policies and Procedures.

Like other Winn-Dixie locations, Store # 578 has a store safe where money is secured. (Landry Decl., ¶ 7; Page Dep., at 103-05.) Among the items found in the safe at any given time are bundles of U.S. currency, sorted by denomination of the bills, with each bundle bound by a strap on which the aggregate value of the currency is written. (Landry Decl., ¶ 8.)

The parties agree that, during the relevant time frame, Winn-Dixie's cash-handling policies provided that certain money-counting procedures must be followed every morning at store opening, every evening at store closing, and whenever the safe key is transferred from morning ISC to evening ISC at shift change. (Doc. 48, at 2 ¶ 5; doc. 52, at 3.) These company procedures required that, on each specified occasion, the money in the safe must be counted, its contents recorded in writing, and the tallied amount reconciled with the store's office cash report. (Doc. 48, at 2 ¶ 5; doc. 52, at 3.) Thus, when the store opened each day, the morning ISC (who may be either the ISC or the AISC) counted the money in the safe, recorded the tally on a safe count sheet, and confirmed that the count was consistent with that reported for the previous day's store closing. (Page Dep., at 80, 108; Landry Decl., ¶ 11.) Then the manager on duty (who was present in the office when the morning ISC opened the safe and counted the money) also counted the money for verification purposes, and recorded that information on the safe count sheet. (Page Dep., at 108-09; Landry Decl., ¶ 11.) The money was then placed back in the safe, after which the safe was locked with a key. (Page Dep., at 110; Landry Decl., ¶ 12.) ⁶ The morning ISC retained that key until the conclusion of his or her shift. (Landry Decl., ¶ 12.) ⁷ At Store # 578, Page typically worked the morning shift as of December 2006, and performed these morning ISC functions, with Jeremy McPherson (the Co-Manager) often being the manager on duty who verified the safe count. (Page Dep., at 99, 102-03.) ⁸

The Winn-Dixie policy of paramount importance in this case involves the procedure for counting the safe's contents. It is undisputed that, as of December 2006, Winn-Dixie cash-handling policies required that each time the money in the safe was counted, all bundles of cash (with the exception of the bundles of $1 bills) must be broken open, recounted, and restrapped. (Landry Decl., ¶ 9; Landry Dep., at 62-63.) ⁹ This policy applied equally to the morning ISC who performed the initial count and to the manager on duty who verified that count. (Landry Dep., at 62-63.) It also applied to both ISCs who counted the safe at shift change.

With respect to these cash-handling policies, plaintiff relies heavily on four pages of written materials produced by Winn-Dixie in discovery, in the form of a two-page excerpt from a “Front End Reference Guide” (the “Front End Guide”) dated 1/13/06 and another two-page document entitled “Store Director How-To Guide Cash Office Roles, Responsibilities, and Processes” (the “How-To Guide”). (Doc. 48-1, at 11-14.) The Front End Guide stated that keeping the store safe secure “is the responsibility of the Store Director, Store Co-Manager, and ISC.” (Doc. 48-1, at 1.) The Front End Guide also recited the following features of safe counts, as discussed supra: (a) safe counts must be performed every time the store opens or closes, or when the safe key is transferred between employees at shift change; (b) double verification is required for safe counts; (c) the manager on duty must be present during safe counts at opening and closing; and (d) “[s]trapped money must be broken, counted, verified, dated, and initialed.” (Doc. 48-1, at 2.) The How-To Guide reinforced these points by providing that managers on duty are “accountable for verifying key cash office processes” such as “opening and closing safe counts.” (Doc. 48-1, at 3.) According to the How-To Guide, “the [Manager on Duty] is responsible for verifying all opening and closing safe counts.” (Doc. 48-1, at 4.) ¹⁰

C. The Cash Shortage and Ensuing Investigation.

The morning of December 20, 2006 began unremarkably at Store # 578. ¹¹ Page (the morning ISC) and McPherson (the manager on duty) reported for work as usual and performed a count of the store safe's contents at approximately 6:00 a.m., with Page conducting the initial count and McPherson verifying it. (Page Dep., at 118-19, 121; McPherson Decl., ¶ 6.) Both individuals filled out and signed a “Safe Count Sheet” documenting the cash on hand. (Page Dep., at 119 & Exh. 10; McPherson Decl., ¶ 6.) Per their routine practice, the safe was locked after the count was completed and Page held the only key in her possession for her entire shift. (Page Dep., at 121; McPherson Decl., ¶ 6.) At approximately 2:00 p.m., Jackson (the evening ISC) arrived for shift change. (Page Dep., at 121-23; McPherson Decl., ¶ 6.) Page and Jackson performed another safe count and filled out another Safe Count Sheet. (Page Dep., at 122-23 & Exh. 11.) Upon completing the count and locking the safe, Page gave the safe key to Jackson and left work for the day. (Page Dep., at 124.)

Later that afternoon, a problem was discovered. Jackson notified McPherson that he had broken open one of the bundles in the safe to make change for a cashier, only to discover that the bundle was missing $125. (McPherson Decl., ¶ 10.) McPherson and Jackson then checked the other bundles and...