Cross v. Foods Inc.

• Citation: 881 F.Supp.2d 1012
• Decision Date: 05 July 2012
• Docket Number: No. 4:10–cv–00424–JEG.,4:10–cv–00424–JEG.
• Parties: Danny L. CROSS, Plaintiff, v. FOODS INC. d/b/a Dahl's and Dahl's Food Markets, Defendants.
• Court: U.S. District Court — Southern District of Iowa

881 F.Supp.2d 1012

Danny L. CROSS, Plaintiff,

v.FOODS INC. d/b/a Dahl's and Dahl's Food Markets, Defendants.

No. 4:10–cv–00424–JEG.

United States District Court,

S.D. Iowa,

Central Division.

July 5, 2012.

Eric M. Updegraff, Stoltze & Updegraff PC, Des Moines, IA, for Plaintiff.

Ann–Marie Holden Kendell, Brant Michael Leonard, Dickinson MacKaman Tyler & Hagen PC, Des Moines, IA, for Defendant.

ORDER

JAMES E. GRITZNER, Chief Judge.

Now before the Court is a Motion for Summary Judgment brought by Defendants Foods Inc., d/b/a Dahl's, and Dahl's Food Markets (collectively, Dahl's) ¹. Plaintiff Danny L. Cross (Cross) resists. The parties have not requested a hearing, and the Court finds that none is required. Accordingly, the matter is fully submitted and ready for disposition.

I. PROCEDURAL AND FACTUAL HISTORY²

Cross began working for Dahl's as a part-time employee in July of 1970. After being with the company for six months, Cross was transitioned to a full-time position. Through the course of his employment with Dahl's, Cross was an at-will employee, a fact explicitly stated in Dahl's handbook and known by Cross. Cross remained an employee of Dahl's, working in five different stores and locations and in numerous different capacities, until his employment was terminated on February 16, 2007.

Dahl's handbook contains a “Code of Conduct” that instructs employees “not [to] conduct personal business on Company time or with Company equipment or resources.” Dahl's Employee Handbook, Def.'s App. 48, ECF No. 21–3. The handbook also has a section entitled “Termination” which states as follows:

It is the policy of Dahl's that any conduct which, in its view, interferes with or adversely affects employment or the Company may result in disciplinary action, up to and including dismissal. Examples of conduct for which employment may be terminated include, but are not limited to, unsatisfactory performance, unacceptable or unexcused tardiness or absenteeism, violation of the “Code of Conduct” or any Dahl's policy, dishonesty, insubordination, or any reason not prohibited by law. Dahl's reserves the right to terminate employment immediately if it believes circumstances warrant.

Id. at 47.

At the end of January 2007, Dahl's switched Cross from dairy manager to a position in the bottle redemption center, which did not result in a change in pay or benefits. Two weeks prior to his discharge, Cross was disciplined by Mark Pearson (Pearson), a supervisor for Dahl's, who issued Cross a written warning for allegedly dropping a mop onto a customer's foot and then failing to apologize for the incident. After receiving the warning, Cross denied in writing that the event happened. That same day, Cross was again disciplined by written warning following a customer's complaint that Cross had thrown trash like he was having a fit, had failed to reset a bottle machine, and had walked away from the customer laughing. When confronted with these allegations, Cross denied that the events had occurred as portrayed and claimed that if he had been laughing, it was not at the customer. Dahl's asserts that it was in light of these two violations and Cross' redemption of a minimum of forty cans while on company time that Cross' employment was terminated. While Cross does not deny that he would collect cans abandoned in the parking lot of Dahl's and redeem them while working, Cross avers that Pearson was aware of this practice, had never objected to it, and never formally disciplined him for that conduct.

At the time of his discharge, Cross was 57 years old and at the top of the pay scale for his position, a scale which is based upon an employee's experience and years of service. During the last year of his employment, Cross felt that he was being hollered at by his employer and other workers and was addressed by his co-workers, including Pearson, in a belligerent tone of voice.

Following the termination of his employment, Cross submitted an Intake Questionnaire to the Equal Employment Opportunity Commission (EEOC), which the EEOC received on December 13, 2007, in which Cross alleged that Dahl's “wanted to terminate me due to my age and manufactured a way to terminate me.” Intake Questionnaire, Def.'s App. 6, ECF No. 21–3. The EEOC sent a Notice of Charge of Discrimination to Dahl's on February 4, 2008, stating that an “unperfected charge was received on December 13, 2007. A Perfected charge will follow.” Notice of Charge of Discrimination, Pl.'s App. 43, ECF No. 25–4. On March 26, 2008, the EEOC received a Charge of Discrimination from Cross that was dated March 24, 2008. The Charge of Discrimination was not notarized, an error which Cross remedied in his second filing dated April 10, 2008, which the EEOC received on September 8, 2008. On June 15, 2010, the EEOC issued Cross a Notice of Right to Sue. Cross timely filed his Complaint with this Court on September 10, 2010. On March 16, 2012, Dahl's filed its Motion for Summary Judgment, which Cross has resisted.

II. DISCUSSIONA. Summary Judgment Standard

Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party must support its contention by pointing to “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” to demonstrate that no genuine issue of material fact exists. Rule 56(c)(1)(A). The evidence must be “viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Fed.R.Civ.P. 56(c)).

The initial burden falls on the movant to “inform[ ] the district court of the basis for its motion and identify[ ] those portions of the record which show a lack of a genuine issue.” Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992). However, “[i]n order to create an issue for trial the nonmoving party must produce sufficient evidence to support a verdict in [his] favor based on more than speculation, conjecture, or fantasy.” Duluth, Winnipeg, and Pac. Ry. Co. v. City of Orr, 529 F.3d 794, 797 (8th Cir.2008) (internal quotation marks and citation omitted). “A party cannot defeat a summary judgment motion by asserting ‘the mere existence of some alleged factual dispute between the parties'; the party must assert that there is a ‘ genuine issue of material fact.’ ” Quinn v. St. Louis Cnty., 653 F.3d 745, 751 (8th Cir.2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The fact must be material so that it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The grant of summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” In re Baycol Prods. Litig., 596 F.3d 884, 888–89 (8th Cir.2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “In sum, the evidence must be ‘such that a reasonable jury could return a verdict for the nonmoving party.’ ” Reed v. City of St. Charles, Mo., 561 F.3d 788, 791 (8th Cir.2009) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

B. Timeliness of the EEOC Filing

Dahl's first contends that it is entitled summary judgment due to Cross' failure to timely file his Charge of Discrimination with the EEOC. Under the Age Discrimination in Employment Act (ADEA), a claimant is “required to bring a charge of discrimination within 300 days of the alleged discriminatory act.” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 520 (8th Cir.2011); see 29 U.S.C. §§ 626(d)(1)(B), 633(b).³ On February 16, 2007, Cross' employment was terminated. Cross' initial Charge of Discrimination was received by the EEOC on March 26, 2008, over thirteen months after the alleged discriminatory act occurred. The EEOC did not receive a properly notarized Charge of Discrimination until September 8, 2008; therefore, Dahl's argues that Cross' filing should be dismissed as untimely. Cross contends that the initial filing of his Intake Questionnaire on December 13, 2007, exactly 300 days after the alleged discriminatory act occurred, constituted a charge.

Both parties rely on Federal Express Corp. v. Holowecki, 552 U.S. 389, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008), to support their respective arguments. In Holowecki, the Supreme Court considered what constitutes a “charge” as used in the ADEA regulations, which does not define the term. Id. at 398–99, 128 S.Ct. 1147. The Court held that a document submitted to the EEOC constitutes a charge if it contains “the information required by the regulations” and can “be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.” Id. at 402, 128 S.Ct. 1147. “[T]he filing must be examined from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery and remedial processes....” Id. The Court acknowledged that “under this permissive standard a wide range of documents might be classified as charges,” but found this result consistent with the purpose of the ADEA and the principle that pro se litigants, which are more common than not in the administrative context, “are held to a lesser pleading standard than other parties.” Id. Applying this standard, the Court found that the pro se plaintiff's Intake Questionnaire and accompanying six-page affidavit, which asked the EEOC to “[p]lease...