Gilbreath v. Brookshire Grocery Co., Case No. 6:17-CV-618-JDK

Decision Date21 August 2019
Docket NumberCase No. 6:17-CV-618-JDK
Citation400 F.Supp.3d 580
Parties Donald GILBREATH, Robert Steve Hicks, and Carey Stripling, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. BROOKSHIRE GROCERY COMPANY, Defendant.
CourtU.S. District Court — Eastern District of Texas

William S. Hommel, Jr., Hommel Law Firm, Tyler, TX, for Plaintiffs.

Eric J. Kolder, Stephen Miles Spitzer, Ramey & Flock, PC, Charles Duane Cowan, The Law Offices of C. D. Cowan, Tyler, TX, Clara B. Burns, El Paso, TX, for Defendant.



Plaintiffs are former employees of Defendant Brookshire Grocery Company ("Brookshire") who were terminated as part of a reduction in force ("RIF") in 2016. Plaintiffs claim they were terminated because of their age, in violation of the Age Discrimination in Employment Act of 1967 (ADEA). Brookshire moved for summary judgment. Docket Nos. 71–72. As explained below, the Court GRANTS Brookshire's summary judgment motions.


Brookshire is a large regional grocery chain headquartered in Tyler, Texas. Docket No. 79, Ex. G at 2–4. Before the RIF in 2016, Plaintiffs Donald Gilbreath, Robert Hicks, and Carey Stripling worked in Brookshire's Logistics Department. Docket No. 1 at ¶¶ 25, 32, 40; see Docket No. 71, Ex. 3. Plaintiffs Keith Bejcek, Hope Reagan, Denise Ramey, Chris Hall, Leslie Wright, Charity Owens, and Michael Smith worked in Brookshire's Category Management and Marketing Departments. See Docket No. 72, Ex. 1. Each Plaintiff was forty years or older at the time of the RIF, and many had worked for Brookshire for decades. Docket No. 1 at ¶¶ 18, 32, 39; Docket No. 77, Ex. H at 3.

The RIF arose out of concern about the "financial condition of the company." Docket No. 77, Ex. A at 48:11–14. In 2016, Brookshire began "discussions of a strategy" to address this concern. Id . One strategy involved reducing the overall cost of business, including an "effort to reduce labor costs." Id. at 50:13–16. In the past, Brookshire had lowered labor costs by using a process called "leveling," by which the company reduced employees' titles and compensation instead of laying them off. Id. at 68:1–13. This time, the company wanted other ideas.

In mid-2016, Brookshire hired Capgemini, an independent consulting firm, to help streamline operations and find "ways to be more efficient and reduce [the] cost of doing business." Docket No. 71, Ex. 2 at 19:1–5. Following several months of analysis of company operations, Capgemini presented numerous recommendations, some with "high potential for savings" and some with low potential. Id. at 71:11–17. One recommendation was a reduction in force, a "RIF." Docket No. 77, Ex. A at 55:15–25. Capgemini did not recommend that Brookshire lay off any particular employee, only that it eliminate unnecessary positions. Docket No. 71, Ex. 3 at 58:20–22.

Brookshire decided to "in-source" the implementation of Capgemini's recommendations. Docket No. 77, Ex. A at 57:13–20. The Executive Vice President ("EVP") of each department within the company was responsible for finding "the savings or decid[ing] what's best for the business." Docket No. 71, Ex. 2 at 71:11–17. Each EVP had the discretion whether to implement, modify, or reject Capgemini's recommendations. Id. at 71:13–18. Although Brookshire's Chief Executive Officer Brad Brookshire retained ultimate veto power over the EVPs' decisions, he did not exercise this power in the decisions about Plaintiffs. Docket No. 72, Ex. 1 at 42:20–24. None of the EVPs decided to use "leveling" to reduce labor costs. Docket No. 77, Ex. B at 68:7–13; id. , Ex. C at 50:20–25.

Trent Brookshire was the EVP of Logistics. Based on Capgemini's recommendations, he concluded that his department had "too much overhead and too many layers within the decision-making matrix of our organizational structure." Docket No. 71, Ex. 3 at 67:4–7. As a result, he laid off Plaintiffs Gilbreath, Hicks, and Stripling. Id. at 66:18–20. Trent Brookshire described the choice to lay off these three employees as "pretty simple" because "[w]e had inefficiency in our organizational hierarchy ... [and] my business cases were rather cut and dry and a bit more straightforward than, you know, the complexity around some of the others." Id . at 66:5–20. After reviewing Capgemini's recommendations, Trent Brookshire explained, "it became pretty obvious to me that we were overstaffed" and that laying off Gilbreath, Hicks, and Stripling would reduce costs and simplify the organizational structure. Id . at 66:19–67:7.

Neal Leonhardt was the EVP of Sales and Marketing, which includes Category Management and Merchandising. Docket No. 72, Ex. 1 at 13:3–20. Leonhardt consulted the Capgemini recommendations and concluded that the positions held by Plaintiffs Bejcek, Reagan, Ramey, Hall, Wright, Owens, and Smith were inefficient or redundant. See id . at 27:22-28:8. For example, Leonhardt laid off Plaintiffs Ramey, Hall, and Smith because Brookshire already had a third-party vendor performing their function, which involved retail merchandising execution. Id. at 27:1–12; id. at 29:14–22; id. at 52:20–53:3. Similarly, Leonhardt laid off Plaintiff Owens because Brookshire hired a third party to perform her function, which "very much reduced" the need for Owens's position. Id. at 47:2–21. Leonhardt laid off Plaintiff Bejcek because the company was already using third-party vendors with more resources, and thus Bejcek's job was "no longer needed." Id. at 49:4–50:15. Leonhardt laid off Plaintiff Wright because another employee was also performing that function, meaning her position was also "no longer needed." Id. at 51:5–11. Finally, Leonhardt laid off Plaintiff Reagan because the company was using an outside firm for her job and thus, Leonhardt concluded that Reagan's job was not producing "much value." Id. at 56:18–25–57:1. Leonhardt stated that age was not a factor for any of these layoffs. Id. at 46:17–19, 50:16–18, 51:12–14, 57:2–3, 57:11–13.

All told, eighty-eight employees were laid off in the 2016 RIF. Docket No. 77, Ex. H at 7. Approximately 81% of those eighty-eight employees were over forty years old. Id . Brookshire's EVP of Human Resources at the time, Sheri Satterwhite, later agreed that this statistic was "concerning," but also stated that she could not recall ever notifying the CEO, any high-level officer, or any EVP about the number. Id. , Ex. D at 22:12–24:5, 29:5–21. Brookshire CEO Brad Brookshire also could not remember discussing the 81% statistic with Satterwhite. Id. , Ex. E at 13:3–5. Satterwhite believed the RIF was a "good faith effort" to comply with age discrimination laws. Id. , Ex. D at 27:12–16.

Part of the RIF included a downsizing of Brookshire's Bakery Department. See id. , Ex. I. In connection with that downsizing, Brookshire's Human Resources Department created a document entitled "Bakery Manufacturing Reduction in Force HR Plans." Id. The document states:

If the company offers a severance agreement to obtain a waiver of discrimination claims, the partners have 45 days to review it. The partner has seven days to revoke the agreement even after signing it. The laid-off partners must be told the job titles and ages of all laid off, so the partners can be better informed when deciding whether to sign the severance agreement and waive their age discrimination claims.

Id. In separation agreements provided to laid-off employees, Brookshire attempted to obtain a waiver but did not provide any laid-off employee with a list of the job titles and ages of all other laid-off employees. Id. , Ex. B at 84:11–86:24.

Following the RIF, Plaintiffs Gilbreath, Hicks, and Stripling timely filed charges with the Equal Employment Opportunity Commission (EEOC), alleging that Brookshire discriminated against them because of their age. See id. , Ex. K. The EEOC apparently took no action, and on September 21, 2017, Plaintiffs received a Notification of Right to Sue. Docket No. 1 at ¶ 5.

In October 2017, Plaintiffs filed this lawsuit as a collective action and alleged that Brookshire violated the ADEA in implementing the RIF. Docket No. 1 at ¶¶ 44–49. Plaintiffs Bejcek, Reagan, Ramey, Hall, Wright, Owens, and Smith filed consents to be party Plaintiffs and opted into the case. See Docket Nos. 21, 34, 52. The Court granted conditional certification of the collective action on September 18, 2018. See Docket No. 48.

Following sixteen months of discovery, including the depositions of at least one Plaintiff and six Brookshire officers and employees, Brookshire moved for summary judgment. Brookshire filed two motions: one motion against the original PlaintiffsDonald Gilbreath, Robert Hicks, and Carey Stripling—and the second against the Opt-In PlaintiffsKeith Bejcek, Hope Reagan, Denise Ramey, Chris Hall, Leslie Wright, Charity Owens, and Michael Smith. See Docket Nos. 71–72. The Court held oral argument on both motions on July 2, 2019.


Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Ragas v. Tenn. Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir. 1998). A fact is material only if will affect the outcome of the case. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine only if the evidence could lead a reasonable jury to find for the nonmoving party. See id. In determining whether a genuine issue of material fact exists, the Court views all inferences drawn from the factual record in the light most favorable to the nonmoving party, here the Plaintiffs. Id. ; Matsushita Elec. Indus. Co. v. Zenith Radio Corp. ,...

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