638 F.3d 984 (8th Cir. 2011), 10-1665, Wierman v. Casey's General Stores

Docket Nº:10-1665.
Citation:638 F.3d 984
Opinion Judge:BENTON, Circuit Judge.
Party Name:Charity L. WIERMAN, Appellant, v. CASEY'S GENERAL STORES, et al., Appellees.
Attorney:Mark Alan Buchanan, argued, Kansas City, MO, for appellant. Jeffrey D. Hanslick, argued, Traci Elizabeth Martin, on the brief, Kansas City, MO, for appellee.
Judge Panel:Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.
Case Date:March 31, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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638 F.3d 984 (8th Cir. 2011)

Charity L. WIERMAN, Appellant,

v.

CASEY'S GENERAL STORES, et al., Appellees.

No. 10-1665.

United States Court of Appeals, Eighth Circuit.

March 31, 2011

Submitted: Dec. 14, 2010.

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Mark Alan Buchanan, argued, Kansas City, MO, for appellant.

Jeffrey D. Hanslick, argued, Traci Elizabeth Martin, on the brief, Kansas City, MO, for appellee.

Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Charity L. Wierman sued her former employer, Casey's Marketing Company and Casey's General Stores, Inc. (" Casey's" ). She asserts pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-2000e-17) and the Missouri Human Rights Act (Mo.Rev.Stat. § 213.055) (" MHRA" ). She also alleges retaliation in violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2615(a)(2) (" FMLA" ). Casey's moved for summary judgment on all claims, which the district court granted. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part, and reverses and remands in part.

I.

This court states the facts most favorably to Wierman. See Fercello v. County of Ramsey, 612 F.3d 1069, 1077 (8th Cir.2010). In March 2006, she began work with Casey's as a cashier at a convenience store in Missouri. A few months later, Casey's promoted her to store manager, and later transferred her to another store, which she managed until her termination on May 6, 2008.

As a store manager, Wierman reported to an area supervisor, who in turn reported to the district manager. Lisa J. Hercules was her supervisor until April 2008 (when Gregory Johnson became her supervisor). In December 2007, Hercules issued Wierman a corrective action statement for exceeding her allowable absences and for failing to provide timely notification of absences as required by Casey's policies. Wierman was suspended for five days without pay.

Wierman told Casey's in January 2008 that she was pregnant, with an August due date. Wierman called Casey's human resources department about her rights under the FMLA, but was told to call back closer to her due date. Over the next two months, she took some time off due to doctor's appointments, morning sickness, and pregnancy-related back pain— which Wierman made up by working Saturdays, her regular day off. Due to these absences, Hercules called Casey's HR department asking about FMLA coverage for Wierman, and was told that she was eligible for back-dated, intermittent leave under the FMLA.

In early April, Casey's HR department sent Wierman a letter with a summary of her FMLA rights, a Request for Leave form, and a Certification of Health Care Provider form (to be completed by her physician). The letter stated that it was HR's understanding that Wierman would be working limited hours due to her conditions/restrictions and that " beginning on March 6, 2008, any hours below the required 90 hours per pay period will be deducted from your 540 hours of available

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FMLA time." The letter told her to return the forms by April 25. Wierman's supervisor Greg Johnson was copied on the letter (and acknowledged in his deposition that he was aware Wierman was eligible for FMLA leave). Wierman failed to respond to the letter, so Casey's sent a follow-up letter on April 30. It advised her to complete the paperwork by May 14, or risk having absences (beyond accrued sick leave) counted as violations of Casey's attendance policy. Johnson was copied on this letter as well. Wierman never completed this paperwork before her termination.

In early April, Wierman told her area supervisor Johnson that she was pregnant, and would need time off for doctor's appointments. Wierman recalls that Johnson said " okay." Asked whether Johnson ever said anything to lead her to believe that her pregnancy was a problem for him, Wierman responded that he " said that I pretty much needed to do my job more, and that I needed to be at work as much as I possibly could."

Johnson visited the Casey's store that Wierman managed on April 1, 11, 15, 18, 25, and 30. Johnson described these visits as " uneventful." Wierman said she felt " unwelcome" and " very uncomfortable" when Johnson visited, describing him as unfriendly. Sometime in mid-April, Wierman asked Johnson if she could have her assistant managers conduct the daily cigarette counts (by Casey's policy, managers were to conduct daily audits of the cigarette packs in a case behind the register). Because some packs were in an elevated case, Wierman had to climb a stool to count them. While her doctor had not restricted her from climbing, she was afraid of falling when four months pregnant with her first child, and told Johnson so. She wanted an assistant manager to count the packs in the elevated case while she counted the lower ones. Johnson refused her request, saying it was her job to do the audits. Wierman, however, had her assistant managers climb the stool to count the high-up cigarettes.

Wierman was admittedly tardy or absent on several occasions in late April and early May. On April 29, after working her regular nine-hour shift, Wierman called Johnson from home to notify him that the store's cook would not be at work because of a death in his family. Per Casey's policy, Johnson told her to find a replacement, or to cover it herself. Wierman agreed to cover the shift, but asked if she could first eat dinner and rest her feet for a couple of hours. Johnson refused, telling her to report to the store immediately. Wierman, however, ate and rested her feet, then proceeded to work a double shift as directed. Johnson testified that Wierman should have not have taken a break to rest her feet and eat, but instead should have worked the entire 16-hour double shift. After working the double shift, Wierman asked Johnson if she could take off work the next day due to fatigue, and that she had found another employee to cover her shift. Johnson refused her request. The next morning, before her shift began, Wierman left Johnson a voicemail message that she would be unable to work her shift because of fatigue and that another employee would cover it.

Johnson visited the store that day (April 30) to review video from the security surveillance cameras— timing that Wierman finds suspicious, though Casey's area supervisors periodically review security video. Reviewing the video from the previous week, Johnson discovered that Wierman was late to work on April 21, 25, and 28. Wierman admits being tardy then, and failing to notify Johnson that she would be late, but notes that her tardiness was due to morning sickness or pregnancy-related back pain (Wierman lived 20 miles from

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the store and twice that week pulled over en route to be sick). Wierman also left early on May 2 with a pregnancy-related migraine headache after arranging coverage by an assistant manager. Johnson later testified that regardless whether absences were pregnancy-related or how many days of sick leave she had accrued, Wierman did not provide timely notice of her absences or tardiness on these dates.

Johnson's review of the security video on April 30 also revealed that Wierman was taking food and drink from Casey's without paying. By Casey's policy, " [a]ll merchandise purchased by an employee must be paid for before consumption, use, or removal from the store." While working, Casey's employees are allowed free fountain drinks and can purchase Casey's prepared foods at a discount. Employees must pay full price for pre-packaged items sold in the store. Casey's requires all items to be rung up on the register— even if they are free. Casey's also requires that the employee print two receipts of each transaction (whether free, discounted, or full price): one that she signs and places in a shift-audit envelope, and another kept by the employee for her records. While Casey's reserves the right to ask for a receipt from employees, its policy also provides: " An employee who fails to properly pay for products as required by this policy, or who fails to properly handle his or her receipts, will be subject to immediate disciplinary action up to and including termination."

According to Casey's, the security video for April 21 shows Wierman consuming a fountain drink, a bottle of soda from a cooler, and a Hostess snack without first ringing them up or paying for them. Wierman submitted a declaration that she paid for the bottled soda and the Hostess snack at some point before the end of her shift, which was her practice. Although the fountain drink she consumed was free under Casey's policy, Wierman does not allege that she rang these items up on the cash register, prepared two receipts, and paid for the bottled soda and Hostess snack before consumption, as required by Casey's policy.

Casey's asserts that the April 29 video shows Wierman consuming a fountain drink, eating fresh donuts from a donut case, and eating a breakfast pizza— all without ringing them up. Wierman counters that the video does not show whether they were stale or fresh, and it was her practice to pay for prepared items at the first available opportunity or at the end of her shift. She testified that, though it was against Casey's policy, it was common practice to eat stale items without paying for them and that prior area supervisors allowed it. Wierman does not allege that she complied with Casey's policy by paying for the items before consumption, or ringing them up on the cash register before consumption (even for free items). Johnson's review of the shift-audit envelopes for April 21 and 29...

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