468 F.3d 1243 (10th Cir. 2006), 05-1378, Young v. Dillon Companies, Inc.

Docket Nº:05-1378.
Citation:468 F.3d 1243
Party Name:Everett YOUNG, Plaintiff-Appellant, v. DILLON COMPANIES, INC., a/k/a King Soopers, Inc., Defendant-Appellee.
Case Date:November 09, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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468 F.3d 1243 (10th Cir. 2006)

Everett YOUNG, Plaintiff-Appellant,


DILLON COMPANIES, INC., a/k/a King Soopers, Inc., Defendant-Appellee.

No. 05-1378.

United States Court of Appeals, Tenth Circuit.

November 9, 2006

Appeal from the United States District Court for the District of Colorado, D.C. No. 04-CV-0590-ZLW-MJW.

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Andrew T. Brake, (Lee T. Judd on the briefs) Andrew T. Brake, P.C., Englewood, Colorado, for Plaintiff-Appellant.

William A. Wright, Sherman & Howard L.L.C., Denver, Colorado (Raymond M. Deeny, Sherman & Howard L.L.C., Colorado Springs, Colorado, with him on the brief), for Defendant-Appellee.

Before LUCERO, O'BRIEN, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Everett Young seeks damages from his former employer, Dillon Companies, Inc. ("Dillon"), alleging that his discharge violated Title VII, was inconsistent with the parties' implied contract terms, and ran afoul of the doctrine of promissory estoppel. Finding that Mr. Young failed to identify a triable issue, the district court granted summary judgment for Dillon on all counts. Our review confirms that, on the limited record developed by plaintiff during discovery, entry of summary judgment was appropriate.


From August 2001 through January 2003, Mr. Young worked as a retail investigator in various of Dillon's King Soopers grocery stores in Colorado. At the time Mr. Young accepted the job with Dillon, he received (and signed for) a personnel manual. Pertinently for our immediate purposes, the manual provided that "[a]ll time card, time clock, or time and attendance entries must be accurately completed and reflect the true hours worked," and that "[r]ecording time on your time card, time clocks, or time and attendance for work not performed will be considered in violation of this policy, leading to disciplinary actions up to and including termination." See appellant's App. at 123, 124. Upon taking the job, Mr. Young also received training during the course of which, he asserts, he was instructed that "just sleeping on the job [would lead to] immediate termination." See id. at 91 [275:23-276:4].

On January 14, 2003, after nearly a year and a half of service as an investigator policing those who would steal from Dillon's grocery stores, Dillon fired Mr. Young on the putative ground that he had engaged in "theft of time," or seeking pay for hours not actually worked. According to Dillon, security cameras revealed that, on January 11, 2003, Mr. Young left more than two hours before his shift ended; failed to punch out when he departed; and then, in Dillon's so-called "transfer log" where employees record their working hours every week, misrepresented that he

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had stayed until the end of his shift. For his part, Mr. Young claims that he worked a full shift, innocently neglected to punch out at the end of his shift, and returned to work later that night to punch out. Mr. Young also asserts that he recorded the true time of his departure in the transfer log and that, in any event, he was not sleeping on the job and therefore could not be properly subjected to immediate termination.

As of January 11, Mr. Young was already under investigation by Dillon because of a store manager's allegation that Mr. Young abused telephone privileges during work hours. As part of that investigation, Jon Lesley, Mr. Young's supervisor, began to review store security video recordings reflecting Mr. Young's on-the-job conduct. Viewing a recording from King Soopers Store Number 6 in Colorado Springs, where Mr. Young was assigned to work on January 11, 2003, from 2 p.m. to 10:30 p.m., Mr. Lesley observed that at 8:00 p.m., Mr. Young put on his coat, collected his briefcase, and left the "camera room" where, as part of his job, he was watching security video feeds from various locations around the store. The store's video recordings show that Mr. Young proceeded to leave the store and head into the parking lot. Video from the camera room further confirms that Mr. Young did not return there before the end of his shift at 10:30 p.m.

After viewing the video, Mr. Lesley consulted Mr. Young's time keeping records. Mr. Young was required to "punch out" at the close of every shift using an electronic time card system. See appellant's App. at 55, 104 [70:13-16]. In addition, at the end of each work week, Mr. Young was supposed to leave the store where he was working that day fifteen minutes before the end of his shift, travel to his home store, and record the hours he worked that week in the transfer log. See id. at 55, 74 [191:3-13]. Upon review, Mr. Lesley found that, though January 11 represented the end of his work week, Mr. Young did not fill out his transfer log at the close of his shift as directed. Instead, video from Mr. Young's home store showed that he appeared there at 5 a.m. the following day, January 12, to complete his transfer log. In the log itself, Mr. Young represented that he had worked until 10:30 p.m. the previous evening.

Mr. Lesley also consulted an administrative assistant at Mr. Young's home store, Tina Hammer, about Mr. Young's electronic time card entries for January 11. Ms. Hammer apparently reported that the electronic time card system did not return any departure time for Mr. Young in the 10:30 p.m. "time slot." See id. at 104-05 [72:21-73:6]. Mr. Lesley apparently took this to mean that Mr. Young did not punch out at all on the evening of January 11.1

Based on the facts he had before him – the video from Store 6, a review of Mr. Young's transfer log, video from his home store, and his consultation with Ms. Hammer about the electronic time card records – Mr. Lesley concluded that Mr. Young had left work early on January 11. Because store video feeds are "copied over" routinely, Mr. Lesley proceeded to transfer for preservation onto a video tape

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what he considered to be the relevant video reflecting Mr. Young's conduct.2 Then, on January 14, 2003, Mr. Lesley met with Mr. Young to discuss his findings. Mr. Young denied leaving early. When told that video showed him leaving at 8 p.m., Mr. Young replied that this "was impossible." See id. at 75 [193:14-19]. Mr. Young asserted that he punched out on the electronic time card system at the end of his shift, "which would have been 10:30." See id. at 74 [192:22-23].

Mr. Lesley was unpersuaded and reported his belief that Mr. Young had left work early to his supervisor, Jerry Riblett, King Soopers' Director of Security. It is undisputed that Mr. Lesley further supplied Mr. Riblett with a faithful account of Mr. Young's version of the events of the evening in question. Mr. Riblett, in turn, reviewed the materials provided by Mr. Lesley, including the recorded video and transfer log; concurred with Mr. Lesley's findings; and proceeded to discuss the matter with Stephanie Bouknight, King Soopers' Manager of Labor and Employee Relations. Together, Mr. Riblett and Ms. Bouknight decided to terminate Mr. Young. Mr. Riblett conveyed the decision to Mr. Lesley who, in turn, informed Mr. Young of his termination.

This lawsuit followed. In his complaint, Mr. Young, an African American, alleged that he was fired because of his race and that Dillon either breached its contract with him or acted in a manner that contravenes the doctrine of promissory estoppel. During the course of discovery, Mr. Young received, among other things, electronic time card records reflecting that, while he did not punch out at his appointed departure time of 10:30 p.m. as Ms. Hammer reported to Mr. Lesley, he did in fact punch out later, at 11:58 p.m. At his deposition, Mr. Young testified that he realized that he had forgotten to punch out after he arrived home and returned to the store to do so. See appellant's App. at 82 [230:23-231:7]. He also testified that, between 8 and 10:30 p.m., he walked inside and outside of the store checking on the security of, among other things, certain gas tanks stored behind the building. See id. at 75 [195:4-11], 82 [232:18-25]. Mr. Young, however, apparently did not share either of these points with Mr. Lesley prior to his termination, but instead told Mr. Lesley merely that he didn't "recall exactly what time" he had punched out and that he "punched out at whatever time my shift was to end, which would have been 10:30." Id. at 74 [192:21-23]; see also id. at 75 [195:25-196:3] ("[A]ll I could tell [Mr. Lesley] was whatever time I punched out is when I left at the end of my shift. We weren't talking about propane tanks or going to cars or nothing else of that nature.").

After a hearing on defendant's motion for summary judgment, the district court issued an oral ruling for defendant on all of Mr. Young's claims against Dillon. With respect to plaintiff's discrimination claim under Title VII, 42 U.S.C. § 2000e, et seq., the district court held that:

[T]he law is that the employer's reasons do not have to be correct, they have to be honestly believed and acted on in good faith. And in this case, we have a video showing [Mr. Young] putting on his coat and leaving the place where he was supposed to be at 8 o'clock. We have no indication, even though the video continues, that he came back to that

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room. And all of this explanation about checking propane and walking around the store was not adequately explained to King Soopers initially when they asked him about leaving late.... [T]here is more than adequate proffered testimony and reasons that defendant honestly believed that he left early, lied about where he was, and if they did honestly believe, that is sufficient.

See appellant's App. at 274-75. With respect to Mr. Young's breach of contract claim, the district court held that neither the employee manual nor the alleged statements during training constituted an enforceable contract. Id....

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