Brandon v. Rite Aid Corp., Inc.
| Decision Date | 05 January 2006 |
| Docket Number | No. 1:04-CV-5291OWW DLB.,1:04-CV-5291OWW DLB. |
| Citation | 408 F.Supp.2d 964 |
| Court | U.S. District Court — Eastern District of California |
| Parties | Deanna Lee BRANDON, Plaintiff, v. RITE AID CORPORATION, INC., et al., Defendants. |
Richard J. Papst, Law Offices of Richard Papst, Bakersfield, CA, for Plaintiff.
Jonathan Allan Klein, Kathryn Elizabeth Henderson, Joshua Mark Henderson, Kelly Herlihy and Klein, San Francisco, CA, for Defendants.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. 25).
This is a state-law sex discrimination lawsuit filed by Plaintiff Deanna Lee Brandon ("Plaintiff" or "Brandon") against her former employer Rite Aid Corporation ("Defendant" or "Rite Aid"). Before the court for decision is Rite Aid's motion for summary judgment, or, in the alternative, for summary adjudication of the sufficiency of Plaintiff's evidence concerning punitive damages. (Doc. 25, filed Oct. 13, 2005.) After oral argument on this motion, Plaintiff was invited to submit supplemental citations to the record. (Doc. 44, filed Nov. 14, 2005.) This supplemental filing, along with Defendant's response (Doc. 45, filed Nov. 15, 2005), have been fully considered.
Brandon filed suit against Rite Aid in the Superior Court for the County of Kern on December 24, 2003. On February 13, 2004, Rite Aid removed on the basis of diversity jurisdiction. (Doc. 1.) Brandon's first cause of action alleges "[d]iscipline, [d]emotion and [t]ermination in violation public policy." (Compl. at ¶¶ 8-14). The second cause of action alleges retaliation.
Defendant moved to dismiss the complaint. (Doc. 7, filed Feb. 20, 2004.) In a March 31, 2004 order, Plaintiff's first cause of action was construed "to only state the claim that she was subjected to sex discrimination." (Doc. 12 at 10.) (The district court rejected several other public policy grounds advanced by Plaintiff.) The district court also specifically found that Plaintiff "can claim wrongful discharge, but not wrongful discipline." (Id. at 6.) Plaintiff was afforded an opportunity to amend, (id. at 10), but did not do so. Plaintiff now appears to once again advance claims based upon wrongful discipline. These claims were dismissed and will not be considered.1
Defendant now moves for summary judgment on Plaintiff's remaining claims, or, in the alternative, for summary adjudication that Plaintiff has adduced no evidence to support her claim for punitive damages. (Doc. 25.) Plaintiff opposes, but filed her opposition one day late. (Doc. 39, filed Nov. 11, 2005). Defendant filed a reply, in which it argues, among other things, that Plaintiff's late-filed opposition should not be considered. (Doc. 40, filed Nov. 7, 2005.)
Plaintiff's counsel filed a declaration explaining that the opposition was late-filed due to a clerical error by his office staff. (Doc. 42, filed Nov. 7, 2005.) Plaintiff offered to postpone the hearing if the late-filing would prejudice Defendant. (Id.) Defendant did not express interest in postponing the hearing. Leave of court to late file is routinely granted under such circumstances. See, e.g., Udom v. Fonseca, 846 F.2d 1236, 1238 (9th Cir.1988) () There is no danger of delay or prejudice here. The opposition will be considered.
Plaintiff was employed by Rite Aid for approximately eight years prior to her suspension in September 2002 and eventual termination in December 2003. (Deft's Stmt. of Undisputed Facts, Doc. 26, ("UF") # 1 & # 10.) As of April 2002, Brandon was the manager of Rite Aid's "Marketplace" store in Bakersfield, California. (UF # 3.)
In April 2002, two supervisors from the Marketplace store, Susan Macias and Caroline Subia, contacted Rite Aid District Manager Ross Boesch to complain that Brandon was not showing up for her scheduled shifts. (UF # 4.2) Boesch spoke with Brandon about the complaints and learned that Brandon was working a second job one day a week. (UF # 6.) Brandon assured Boesch that her post office job would not interfere with her responsibilities as a Rite Aid manager. (UF # 7.) Boesch insisted that Brandon quit her post office job. (UF # 8.) Brandon did not quit her post office job and remained employed there at the time of her termination. (UF # 9.)
Rite aid has a "hands-off" loss prevention policy regarding shoplifters. Pursuant to this policy, a Rite Aid employee may not chase after a shoplifter in an effort to retrieve stolen merchandise. (UF # 10 & # 11.) Instead, Rite Aid employees are supposed to gather information about a suspected shoplifter, such as a license plate number. (UF # 23.)
On September 10, 2002, while Brandon and Caroline Subia were off duty and at home, Susan Macias, a shift supervisor, called Caroline Subia, a supervisor, to inform Subia that another employee named Ian had placed bottles of alcohol from the store outside the back door, presumably to be picked up later. (UF # 12 & 13.) Subia called Brandon at home to inform her of Ian's conduct. (UF # 12.) Brandon went to the store with her husband to observe the back of the store. (UF # 14.) Subia also drove to the store with her husband to do the same. (UF # 15.) Subia and Brandon got out of their cars and observed the liquor bottles in the dumpster. (UF # 16.) Approximately 15 minutes later, a truck drove around to the back of the store, Ian got out of it, picked up the bottles from the dumpster, and got back in the truck. (UF # 17.) Brandon yelled at Ian, "give me the alcohol." (UF #18.) Ian did not respond. Instead, he got back into his truck and drove off. (UF #19.) Subia departed the area to follow Ian. Brandon followed the two cars. (UF # 20.) Ian eventually pulled over. (UF # 20.)
The next day, Brandon sent an internal Rite Aid e-mail message to Rite Aid management, summarizing the events and her actions from the night before. (UF # 21.) Brandon also spoke with Chuck Vega, Rite Aid's Loss Prevention Manager, about the incident. (UF # 22.) Before the incident with Ian, Brandon had never followed a customer or employee suspected of shoplifting out of the store. (UF # 24.) Brandon admitted that Subia violated the Rite Aid policy by following Ian out of the parking lot in her car. (UF # 25.) After an investigation, Rite Aid determined that Brandon also violated Rite Aid policy regarding shoplifters and had exercised very poor judgment in following Ian. (UF # 26.3) Rite Aid concluded that Brandon's conduct had put her own safety and the safety of the public and her employees in jeopardy. (UF # 27.)
The following individuals were involved in a discussion concerning the appropriate discipline for Brandon following this incident: Rite Aid's Regional Vice President, Kevin Houston; Ross Boesch; Human Resources Manager, Daniel Pina; and Rite Aid's Loss Prevention Manager, Chuck Vega. (UF # 29.) Boesch, Vega, and Pina recommended to Houston that Brandon be terminated. (UF # 30.) Instead, Houston decided to suspend Brandon. (UF # 31.) Although Houston believed Brandon exercised poor judgment, he believed that Brandon was looking out for the company's assets. (UF # 32.) Subia was also suspended.
Houston and Boesch also felt that Brandon had become too close to the employees at the Marketplace store and that this interfered with her judgment. (UF # 36.4) As a result, Brandon was transferred to a different store on Allen Road in Bakersfield. (UF # 35.)
In late October 2002, after Brandon was transferred to the Allen Road store, the Marketplace store began to prepare for an inventory. (UF # 37.) Boesch, who was on site at the time, observed Susan Macias inventorying empty boxes. (UF # 38.) The boxes were empty, because the enclosed merchandise had been "stolen or pilfered." (UF # 39.) Macias was using "Rite Aid Form 30 procedures" to inventory the boxes.
Form 30s are documents created at the cash register when items are discounted below the regular selling price. (UF # 40.) Such discounts are appropriately used to accounts for "employee discounts, rain checks, price modifications when a sale price fails to ring up, and in-store use of merchandise." (UF # 41). Rite Aid policy provides that the Form 30 procedure is not supposed to be used to account for empty boxes or other "pilfered" merchandise. (UF # 42.) Instead, empty boxes and pilfered merchandise should be rung up as "shrink" or "loss" via a different procedure. By using the Form 30 procedure, the merchandise is rung up at $0.00, which has the effect of not reporting lost merchandise as "shrink." "Rite Aid considers a true shrink calculation to be an important figure, as shrink may negatively affect the store manager's bonus." (UF # 44.) "Rite Aid considers intentional manipulation of a store's shrink figure to be fraudulent." (UF # 45.)
The then-current manager of the Marketplace store denied instructing employees to use Form 30 procedures for "shrink." (UF # 48.) Macias said that Brandon had instructed her to use Form 30 procedures in this manner. (UF # 50.) Brandon denied doing this. Instead, Brandon asserts that she caught Macias misusing the Form 30 procedures in the past and had reminded her of the correct procedure. (UF # 51 & # 52.) Rite Aid concluded that Brandon had failed to adequately supervise Macias by failing to confirm compliance with company policy. (UF # 53.) Houston decided to suspend Brandon again for failure to properly supervise. (UF # 54.) Macias received a written warning. (UF # 55.)
It is undisputed that in December 2002, because of the busy holiday season, Rite Aid required its store managers to work six days a...
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