Gossett v. Deli

• Docket Number: 8:23CV189
• Decision Date: 26 November 2024
• Citation: Gossett v. Deli, 8:23CV189 (D. Neb. Nov 26, 2024)
• Parties: FELICIA GOSSETT, Plaintiff, v. JASON'S DELI, Defendant.
• Court: U.S. District Court — District of Nebraska

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FELICIA GOSSETT, Plaintiff, v. JASON'S DELI, Defendant.

No. 8:23CV189

United States District Court, D. Nebraska

November 26, 2024

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, SENIOR UNITED STATES DISTRICT JUDGE

Before the Court is Defendant's Motion for Summary Judgment. Filing No. 44. Plaintiff, Felicia Gossett (“Gossett”) was terminated from her position as a manager by Defendant, Jason's Deli (“Jason's Deli”). At the time of her termination, Gossett was pregnant. Gossett sued under Title VII and the Nebraska Fair Employment Practice Act (“NFEPA”) alleging: (1) Jason's Deli's took adverse action against her because of her pregnancy, (2) Jason's Deli failed to accommodate her pregnancy, and (3) Jason's Deli retaliated against her for discussing employee wages. Filing No. 1.

The Court concludes Gossett's claims fail as a matter of law. Therefore, Jason's Deli's motion for summary judgment is granted.

BACKGROUND

Jason's Deli is a national chain of sandwich shops and operates several stores in Omaha, Nebraska. Gossett worked at the L Street location of Jason's Deli as a Level 7 Manager from September 2021 until her termination on July 1, 2022. Filing No. 46-1 at 5, Gossett Dep. 25:3-5. In that role, Gossett supervised deli employees, managed workflow, ordered supplies, and supported deli employees at the counter. Id. at 6, Gossett Dep. 33:5-36:15. During her time with Jason's Deli, Gossett's managers were Spencer Bath and Michael Wallin. Id. at 4, Gossett Dep 23:20-25; Id. at 6, Gossett Dep. 35:6-9. Prior to her pregnancy, Jason's Deli never disciplined Gossett for violating employee policies or noted issues with her performance. Id. at 18, Gossett Dep. 100:9-22.

A. Gossett's Pregnancy and Accommodations

On March 6, 2022, Gossett informed Bath that she was pregnant. Gossett testified that Bath told her congratulations. Filing No. 46-1 at 11, Gossett Dep. 54:20-44:5. Gossett also informed Jason's Deli's human resources department about her pregnancy. Id., Gossett Dep. 55:17-21.

In connection with her pregnancy, Gossett requested several accommodations from Bath. Specifically, she requested: (1) the ability to use a chair when her feet were swollen, (2) five to ten-minute breaks every two hours, (3) an exemption from tasks involving heavy lifting, and (4) not having to work longer than ten hours at a time. Filing No. 46-1 at 11, Gossett Dep. 56:7-18. The first request was made formally to human resources, and the others were requested informally from Bath. Id. at 11-12, Gossett Dep. 56:19-59:24. Gossett recalled receiving verbal approval from Bath for all accommodations except for the ten-hour limit on shifts. Id. Gossett did not recall whether Bath approved a ten-hour limit on shifts. Id. at 12, Gossett Dep. 58:14-24. Later, Gossett submitted a doctor's note to Wallin and human resources, recommending she be provided with the opportunity to sit, lifting restriction, and breaks. Filing No. 46-4. Wallin testified he had no issue with Gossett's accommodations. Filing No. 46-3 at 7, Wallin Dep. 39:2140:8.

This issue came to a head during a shift in spring 2020. The exact date of the incident is unclear from the existing record, but correspondence after the fact indicates that it occurred the week of May 2, 2022. See Filing No. 55-5 at 20. Gossett was the manger on duty and because the follow up manager called out sick, Bath told Gossett to cover the rest of the shift. Id. Gossett told Bath she was “sick, and in pain. I cannot do a 12 % hour shift.” Id. at 9. Bath responded that “there are no other options” and gave her the next day off. Id. Gossett took the following day off. Filing No. 46-1 at 17, Gossett Dep. 81:9-13.

B. Wallin Takes Over as Gossett's Supervisor

In mid-May 2022 Wallin replaced Bath as Gossett's direct supervisor. Filing No. 55-5 at 5 (indicating Wallin would be starting “next week” on May 6, 2022). After taking over the L Street store, Wallin took over several tasks that had previously been handled by Gossett and her co-manager. Specifically, based on concerns regarding overstaffing and over purchasing, Wallin took over setting schedules for employees and ordering supplies. Filing No. 47-2 at 1 ¶¶ 8-9.

C. Gossett is Disciplined and Terminated

Between May 2022 and her termination, Gossett had several issues that required meeting with Wallin, some of which resulted in disciplinary action.

In early May 2022, Gossett disclosed employee wage information to Chris Daniel, a delivery driver for Jason's Deli. Filing No. 46-1 at 20, Gossett Dep. 111:12-112:15. As a manager, Gossett had access to the wage information of each of her subordinates. Id.at 18, Gossett Dep. 97:11-13. Lower-level employees, including Daniel, do not have access to information about the wages of their coworkers. Id. at 20, Gossett Dep. 110:24111:1. Daniel raised concerns about his pay with Gossett, who confirmed the rate of pay for several of Daniel's coworkers and indicated which coworkers were due for a raise. Id., Gossett Dep. 112:11-15. One of these employees learned that Gossett had disclosed wage information to Daniel and complained to human resources because “it really bothers me that she shares this information, and it scares me what else she might share.” Filing No. 47-4 at 1. Wallin met with Gossett who denied sharing wage information. Filing No. 47-5 at 1. In response, Wallin said, “[A]s a member of management, it is expected that you do not share any pay, behavioral or personal employee information with other employees.” Id.

In June 2022, Gossett was disciplined for attendance related issues. Specifically, Wallin issued a Disciplinary Action Report (“DAR”) because Gossett took “multiple unscheduled days off in the last couple of weeks; 5/28, 6/11, 6/14, and 6/15.” Filing No. 47-6. Gossett requested the May 28th absence by text on May 27, 2022. Filing No. 557 at 1. Specifically, she wrote, “[m]y body is in a lot of pain. I pushed myself too hard this week. I'm popping Tylenol as much as I'm allowed to and it's barely taking the edge off. I'm not going to be able to work tomorrow like this.” Id. At her deposition, Gossett testified the pain referenced in the May 27th text was caused by pregnancy-related illness. Filing No. 46-1 at 23, Gossett Dep. 122:20-22. Gossett missed work on June 10th,^[1] 14th, and 15th because of car trouble. Id. at 2-6.

The incident that ultimately led to Gossett's termination occurred on June 23, 2022. Filing No. 47-10; Filing No. 47-8. On that day, Gossett was the manager in charge during the morning shift, which included the lunch rush. Filing No. 47-8. Gossett spent much of the lunch rush in the office rather than working the counter. Filing No. 46-3 at 8, Wallin Dep. 47:21-25. The parties differ in their explanation of what happened during this time. Jason's Deli claims Gossett worked on personal matters. Filing No. 47-8. Gossett claims she spent the time documenting an injury that had occurred on the job and reviewing policies associated with pregnancy leave. Filing No. 46-1 at 24-25, Gossett Dep. 128:7-129:14. Gossett's internet history, retrieved during Wallin's investigation into the matter and produced in litigation, shows that Gossett spent time paying personal bills in the morning. Filing No. 55-8 at 2. During the lunch rush, it shows her reviewing Jason's Deli's policies for taking pregnancy leave, the schedule for the deli, and Gossett's MyChart account, an online portal used by patients to access their medical records. Id. at 3-8.

After the shift, multiple employees complained to Wallin that Gossett had spent the lunch rush working on personal matters. Filing No. 46-3 at 8, Wallin Dep. 48:12-20. Wallin pulled Gossett's internet history from the day in question and saw she had been on the computer throughout the morning and early afternoon of June 23rd. Id. at 9, Wallin Dep. 52:3-9. Wallin issued a DAR on June 29th because “it was reported that during lunch rush and a good part of your shift you spent a lot of time in the office working on personal tasks instead of focusing on the store.” Filing No. 47-8. In response, Gossett sent via text message “I would just like to clarify that is being put on the record that I was written up for taking my 15-minute break covered by my accommodations. I timed the break. And it was over 2 hours from my previous 10-minute break. I timed all of it yesterday.” Filing No. 47-9 at 1. There appears to be (and Gossett argues there is) a miscommunication in the text messages. Specifically, Gossett makes several comments about things she did the previous day (June 29th) when the DAR was issued, even though the DAR was issued based on actions taken on June 23rd. Compare Filing No. 47-9 (text messages referencing “yesterday”) with Filing No. 47-8 (DAR issued on June 29th referencing events on 6/23/2022). Based on the texts and Gossett's internet history, Wallin believed Gossett had lied about her activities on June 23rd. Filing No. 55-1 at 18, Wallin Dep. 63:5-11. Gossett was terminated on July 1,2022, for “[n]umerous issues as previously documented; ultimately, lying during the scope of an investigation.” Filing No. 47-10. Gossett was terminated in person and when she asked Wallin why she was being fired he said that she “lied” but did not provide any other reasoning. Filing No. 46-6 at 5.

After exhausting her administrative remedies, Gossett filed this lawsuit on May 5, 2023. Filing No. 1. Jason's Deli moved for summary judgment and Gossett opposed. Filing No. 44; Filing No. 53.

LEGAL STANDARD

Summary judgment is appropriate when, viewing the facts and inferences in the light most favorable to the nonmoving party, the “materials in the record, including depositions, documents, electronically stored information affidavits or declarations,...