Terpstra v. Shoprite Supermarket, Inc.

KIMBERLY S. TERPSTRA, Plaintiff, v. SHOPRITE SUPERMARKET, INC., Defendant.

No. 17-CV-6840 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

July 25, 2019

OPINION & ORDER

Appearances:

Michael Howard Sussman, Esq.

Sussman & Watkins

Goshen, NY

Counsel for Plaintiff

Jennifer Ann Rygiel-Boyd, Esq.

Michael Nacchio, Esq.

Ogletree, Deakins, Nash, Smoak & Steward, P.C.

New York, NY and Morristown, NJ

Counsel for Defendant

KENNETH M. KARAS, District Judge:

Kimberly S. Terpstra ("Plaintiff") brings this Action against Shoprite Supermarket, Inc. ("ShopRite" or "Defendant"), for unlawful discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. (See generally Compl. (Dkt. No. 1).)

Before the Court is Defendant's Motion for Summary Judgment (the "Motion"). (See Not. of Mot. (Dkt. No. 25).) For the following reasons, the Motion is granted.

I. Background

A. Factual Background

The following facts are taken from Defendant's statement pursuant to Local Civil Rule 56.1, and Plaintiff's response. (See Def.'s Statement of Material Facts Pursuant to Local Rule 56.1 ("Def.'s 56.1") (Dkt. No. 27); Pl.'s Resp. to Def.'s 56.1 ("Pl.'s 56.1 Resp.") (Dkt. No. 34).) The facts as described below are not in dispute unless indicated.

Defendant owns and operates several ShopRite supermarkets in New York and New Jersey, including a store in Monticello, New York (the "Monticello Store"). (Def.'s 56.1 ¶ 4.) Plaintiff began working at the Monticello Store as an Overnight Cashier on June 25, 2009. (Id. ¶ 5.) Her supervisor was Richard Harms ("Harms"), who held the title of Night Crew Chief at the Monticello Store. (Id. ¶¶ 6-7.) At some point during Plaintiff's employment, Harms was terminated because of his involvement in the theft of electronics from the Monticello Store. (Id. ¶¶ 8-9.) Plaintiff successfully applied to replace Harms as Night Crew Chief, and was promoted to that position in Fall 2011. (Id. ¶ 10.) John Bartley ("Bartley") held the position of Assistant Night Crew Chief, and Joseph Kelly ("Kelly") "was a subordinate Associate" who worked as a part-time Night Crew Clerk. (Id. ¶¶ 11-13.) John Berger ("Berger"), who was originally hired by ShopRite in 1987, and worked at numerous stores throughout the Hudson Valley region, became Store Director at the Monticello Store in 2014, assisted by Assistant Store Manager Anthony "AJ" Faber ("Faber"). (Id. ¶¶ 14-15.)

1. Discriminatory Remarks by Berger

Plaintiff asserts, primarily citing her own Declaration in support, that Berger "exhibited hostility toward female employees, especially [Plaintiff]." (Pl.'s 56.1 Resp. 25-35 ("Pl.'sCounter.") ¶ 16.)¹ First, Plaintiff points to an occasion in which Berger yelled at Plaintiff "unjustifiably" in front of other employees and customers, and states that she "never observed Berger unjustifiably yell at male employees in the same manner." (Pl.'s Counter. ¶¶ 16-19; Decl. of Kimberly Terpstra ("Terpstra Decl.") ¶ 7 (Dkt. No. 36).) Next, Plaintiff asserts that during her shift on April 14, 2015, Berger brought Plaintiff into an office in the back of the store where there were no security cameras and yelled at her for failing to "count[] empty cardboard boxes from each aisle" when she was "packing out" aisles at the end of her shift. (Pl.'s Counter ¶¶ 20-26.) Plaintiff states that Berger "yelled" at her that she "was insubordinate," and he "insisted that [she] step down as crew chief." (Id. ¶ 27; Terpstra Decl. ¶ 9.) Plaintiff then said she would contact her union representative, and Berger "slid his chair in front of the door to block her from leaving." (Pl.'s Counter. ¶¶ 30-31.) After threatening to contact the union again, Berger moved. (Id.) Plaintiff later received a write up from assistant store manager, Ken Garvey ("Garvey"), for "failing to report piece counts for that evening." (Id. ¶ 32.) Plaintiff states that the write up "was unjustified" because she "had never been instructed to count cardboard boxes," but rather "was responsible for providing the morning manager with piece count reports indicating how much product each employee packed out overnight, which [she] did routinely." (Id. ¶¶ 34-35.) Plaintiff asserts that when she was not at work, Bartley or Thomas Parlapiano ("Parlapiano"), another male employee, would fill in as acting Night Crew Chief, and that there "is no evidence of any discipline imposed by Berger against any of [her] male assistant crew chiefs for failing to count cardboard boxes when acting as crew chief." (Id. ¶ 39.)

Plaintiff also asserts that while other morning managers would consult with her when they arrived to "see how everything went during the night," Berger "typically avoided her," and would seek out her male assistant crew chief to ask "how the night went." (Id. ¶¶ 40-43.) She also asserts that Berger required her to work on weekends, "essentially forcing [her] to work overtime." (Id. ¶ 45.)

Plaintiff asserts that her treatment "mirrored [Berger's] treatment of other female employees." (Id. ¶ 47.) In his deposition, Bartley indicated that he heard Berger comment "about the role of women in the store . . . [p]lenty of times," including saying that "there w[ere] certain jobs they weren't allowed to do," such as "doing stock" and "supervisor positions." (Pl.'s Decl. Ex. 3 ("Pl.'s Bartley Dep."), at 7-8.) Bartley went on to say that he did not hear Berger "say these things," but that "you could tell by what he was doing," such as "taking the women who were in charge and . . . in stock and [giving] them a choice to either move to a different area, like cashier, or to do something else." (Id. at 8.) Bartley testified that he "did hear [Berger] say once" that stocking products was "a man's job." (Id. 8-9 ("[W]e, like, get a lot of applications for girls, and he was, like, [w]ell, stocking ain't really for girls. And that's exactly what he said.").) Another employee, Bartley's sister Patricia Bartley ("Patricia"), similarly testified that she believes Berger "does not like women," and that this was a motivating factor when he moved her and her sister, who was also employed at the Monticello Store, to cashier positions against their wishes. (Pl.'s Decl. Ex. 4 ("Patricia Dep."), at 49-50 ("I feel he does not like women. That's how I felt when he [made me a cashier]. He did the same thing to my sister. . . . [H]e forced her off the floor and pushed her up front and made her become a cashier.").) Employee Kayla Brundage ("Brundage") estimated that approximately 80% of the Monticello Store's cashiers were women, and that most employees "didn't want to be cashiers" and wereoften sent to work as cashiers after they "got in trouble" in other departments. (Pl.'s Decl. Ex. 5 ("Brundage Dep."), at 25-27.)² Brundage testified that she did not personally witness Berger mistreat female employees, but that "the general opinion of the store" was that he "didn't like females," and that he did not allow them to work "on the floor packing out," although they had roles "behind counters," "in offices," and "as cashiers." (Id. at 32.)

2. Plaintiff's Termination

When Plaintiff was first hired on June 8, 2009, she received and signed ShopRite's Associate Handbook, which included the "Associate Purchase Policy" (the "Policy"). (Def.'s 56.1 ¶¶ 18, 25-27.) The Policy stated that all associate purchases at ShopRite must be made "at regular retail [prices], except those items that have been reduced for quick sale and are available to all customers." (Id. ¶ 19; see also Def.'s Decl. in Supp. of Mot. for Summ. J. ("Def.'s Decl.") Ex. G ("Associate Purchase Policy"), at 2 (Dkt. No. 28).)³ The Policy also provided that "[u]nder no circumstances will it be permissible to select, purchase, or remove anything from a shelf for consumption or use after the last register has closed down for that night," and that merchandise could not "be set aside for purchasing at a later time." (Associate Purchase Policy 4.) Additionally, the Policy stated that "[f]ailure to pay for any merchandise as outlined here will result in termination," (id. at 3), and that any "[f]ailure to follow these procedures could be interpreted as deceptive or dishonest activity and will result in immediate suspension and[,] depending upon the degree of violation, termination of employment," (id. at 4). The Policy alsogenerally bars employees from "misus[ing], steal[ing][,] or consum[ing]" company property or merchandise, and from committing any federal, state, or local crime; failure to comply with this prohibition "will result in immediate termination." (Id. at 5.) Finally, the Policy states that "[d]eception practiced with . . . discounting orders and falsification of any records are also considered theft," and "will result in immediate termination." (Id. at 6.)⁴

With respect to meat sold at the Monticello Store, only the Meat Department Manager or the store management team were permitted to discount the price of meat. (Def.'s 56.1 ¶ 21.)⁵ On February 2, 2016, Meat Department Manager Chad Snyder ("Snyder") discovered that six packages of ground beef had been marked down in price by 50%, and that the username and password of "CGO Coordinator" Ed Pearsall ("Pearsall") were used to enter the discount. (Id. ¶ 32.) Snyder informed Faber, who "found the markdown suspicious" because Pearsall had not worked overnight, and because "only the Meat Department Manager, an Assistant Store Manager, or the Store Director are permitted to reduce . . . the price of meat." (Id. ¶ 33.) Faber initiated an investigation, and on February 3, 2016, Loss Prevention Manager Marc Hamilton ("Hamilton") and Store Detective Matt Conroy ("Conroy") began reviewing video footage of the night in question to determine who discounted the packages of ground beef. (Id. ¶¶ 34-36.) The video footage showed that on February 1, 2016 at 11:19 p.m., Plaintiff and Bartley were standing in front of the ground beef section in the meat case discussing something. (Id. ¶ 39.) From 1:12...