Gray v. Winco Foods, LLC

• Docket Number: CIVIL NO. 4:20-CV-791-SDJ
• Decision Date: 19 July 2023
• Citation: 683 F.Supp.3d 571
• Parties: Bryan GRAY v. WINCO FOODS, LLC, et al.
• Court: U.S. District Court — Eastern District of Texas

683 F.Supp.3d 571

Bryan GRAY v. WINCO FOODS, LLC, et al.

CIVIL NO. 4:20-CV-791-SDJ

United States District Court, E.D. Texas, Sherman Division

Signed July 19, 2023

Robert Edward Goodman, Jr., Kilgore and Kilgore, PLLC, Dallas, TX, for Bryan Gray.

Esteban Shardonofsky, Rachel M. Hoffer, Seyfarth Shaw, LLP, Houston, TX, for Winco Foods, LLC, et al.

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SEAN D. JORDAN, UNITED STATES DISTRICT JUDGE

Came on for consideration the Report and Recommendation of the United States Magistrate Judge ("Report"), this matter having been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.The Magistrate Judge entered her Report, (Dkt. #64), recommending that the Court grant DefendantsWinCo Foods, LLC; Carly Leibengood; and Bryan Miller's Motion for Summary Judgment, (Dkt. #35), and dismiss PlaintiffBryan Gray's claims.Gray filed objections to the Report, (Dkt. #65), and filed the transcript from the hearing on the summary-judgment motion, (Dkt. #82).Defendants also filed an objection.(Dkt. #67).¹Additionally, Defendants responded to Gray's objections.(Dkt. #72, #79).

The Court has conducted a de novo review of the objections and the portions of the Report to which Gray specifically objects.Having done so, the Court concludes that the findings and conclusions of the Magistrate Judge are correct and that the objections are without merit as to the ultimate recommendation of the Magistrate Judge.The Court hereby adopts the findings and conclusions of the Magistrate Judge as the findings and conclusions of the Court.

I.BACKGROUND

The Report sets forth the facts underlying this case in painstaking detail, so the Court will only briefly recap them here.Gray worked for WinCo for approximately seventeen years.At the time of his termination, he was a store manager at Store 126 in North Richland Hills, Texas.In that role, Gray was responsible for ensuring that store employees complied with WinCo policies, including the Family and Medical Leave Act("FMLA") Policy, Reasonable Workplace Accommodations Policy, and COVID-19 Emergency Paid Leave Benefit Policy.

With respect to the FMLA Policy, Gray's role was limited to ensuring that employees knew of the policy and whom to contact if they needed FMLA leave and relaying information from human resources.A third party, FMLASource, handled FMLA leave requests.As to the Workplace Accommodations Policy, Gray was responsible for engaging in the interactive process to identify potential accommodations for employees with disabilities.The policy allowed managers to provide an accommodation without a doctor's note for up to two weeks.Finally, the COVID-19 Leave Policy allowed eligible employees to take a paid leave of absence for up to two weeks.

In September 2018, Gray received a written warning because he failed to consistently enforce attendance-related policies and procedures.

At the onset of the COVID-19 pandemic, Gray met with his department managers to reassure them that they could take leave if they did not feel safe at work and to invite them to meet with him one-on-one if needed.Following this meeting, Gray had a one-on-one meeting with Shelby Glass, produce department manager, about her concerns with working during the pandemic.Gray later learned that multiple produce department employees, including Glass, wanted to take leave despite safety precautions that had been implemented.Gray contacted Matt Bryant, produce supervisor, for help.

DefendantBryan Miller, district manager, called Gray to discuss the situation.Gray felt that Miller was abrasive on this call and did not want employees to take leave.Gray then contacted Jim Reilly, vice president of human resources, to express his concerns regarding the call with Miller.Reilly understood Gray's concerns and encouraged Gray to take leave himself if he felt it was necessary.After this conversation, Miller was more supportive of Gray.Neither the FMLA nor the Americans With Disabilities Act("ADA") came up during Gray's conversations with Miller and Reilly.

A few months after these phone calls, WinCo decided to reopen the bulk foods sections in its stores, which had been closed due to the pandemic.Miller instructed store managers, including Gray, to reopen the bulk barrels in their stores by no later than July 1, 2020.On that date, Miller visited Gray's store and saw that the bulk foods department remained closed.Gray claimed it was closed because the store was understaffed.Miller asked Gray to immediately reopen the bulk foods department, and the department reopened the next day.Miller emailed DefendantCarly Leibengood, regional human resources specialist, the next week to express his concerns regarding Gray's non-compliance.

In March 2020, Gray handled an accommodation request from store employee Jennifer Kincaid.As part of the process, Leibengood reminded Gray to review the protocol for an interactive process ("IP") meeting and told Gray he could accommodate Kincaid for up to two weeks without a doctor's note.Kincaid ultimately reported Gray's handling of her request to human resources because, according to her, Gray delayed holding an IP meeting with her despite several requests.

The next month, store employee Deandra Scott asked Gray if she could get shorter hours or sit down for part of the day due to back pain.Gray told Scott that she needed a doctor's note.Kincaid saw the interaction and reminded Gray that he could accommodate Scott for up to two weeks without a doctor's note.Kincaid reported the interaction between Gray and Scott to human resources.According to Gray, Kincaid and Scott falsely claimed that he failed to have an IP meeting with Scott or to accommodate her.

After these reports by Kincaid, Leibengood began an investigation.Leibengood found no documentation reflecting Scott's accommodation request.Leibengood asked Gray to hold an IP meeting with Scott, and Scott later received an accommodation.In Leibengood's report of the investigation, she noted that Gray admitted to knowing that Scott had requested an accommodation, that Gray did not complete the IP meeting in a timely manner, and that Gray admitted to knowing that he could temporarily accommodate an employee without a doctor's note.

Leibengood shared the results of her investigation with Miller and recommended that Gray be terminated.Miller raised the failure to reopen the bulk foods department as an additional reason for terminating Gray.According to Miller, he made the decision to terminate Gray on July 10, 2020, but Miller was leaving for vacation the next day.Miller was also aware that Gray was leaving for vacation the day after Miller returned from vacation.Miller planned to terminate Gray the day that Gray returned from vacation, July 27, 2020.On July 24, 2020, Leibengood and Miller exchanged emails regarding Gray's termination.One email included a draft termination letter.

The day before Gray's planned termination, Gray sent a text message to Miller informing Miller that Gray's wife had a fever and was going to get tested for COVID-19.Gray quarantined and did not come into work.The next week, Gray told Miller he also got tested because he had lost his sense of taste and smell.Eight days after that, Gray told Miller he tested positive for COVID-19.Gray returned to work on August 18, 2020.That day, Gray was terminated.The termination letter stated that Gray was being terminated for failing to reopen the bulk foods department by the deadline and inconsistencies in the execution of the interactive process meetings required for accommodation requests.A few days after his termination, Gray submitted an FMLA leave request for the time period from July 27, 2020, to August 17, 2020.Gray filed suit against WinCo, Miller, and Leibengood, bringing claims under the ADA, Texas Labor Code, and FMLA.Defendants moved for summary judgment on all of Gray's claims.

II.LEGAL STANDARD

A district court reviews the findings and conclusions of a magistrate judge de novo only if a party objects within fourteen days after being served with the report and recommendation.28 U.S.C. § 636(b)(1)(C).To challenge a magistrate judge's report, a party must specifically identify those findings to which he objects.Seeid."Frivolous, conclusive or general objections need not be considered by the district court."Nettles v. Wainwright, 677 F.2d 404, 410 n.8(5th Cir.1982)(en banc), overruled on other grounds byDouglass v. United Servs. Auto. Ass'n, 79 F.3d 1415(5th Cir.1996)(en banc)."And objections that simply rehash or mirror the underlying claims addressed in the report are not sufficient to entitle the party to de novo review."Thompson v. Pruett, No. 4:21-CV-371, 2022 WL 989461, at *1(E.D. Tex.Mar. 31, 2022);see alsoNickelson v. Warden, No. 1:11-CV-334, 2012 WL 700827, at *4(S.D. OhioMar. 1, 2012)("[O]bjections to magistrate judges' reports and recommendations are not meant to be simply a vehicle to rehash arguments set forth in the petition.");United States v. Morales-Castro, 947 F.Supp.2d 166, 171(D.P.R.2013)("Even though timely objections to a report and recommendation entitle the objecting party to de novo review of the findings, the district court should be spared the chore of traversing ground already plowed by the Magistrate."(quotation omitted)).

III.DISCUSSION

In her Report, the Magistrate Judge concluded that (1) Gray failed to make a prima facie showing of retaliation under the ADA or the Texas Labor Code because Gray did not engage in protected activity and because there was no causal connection between any protected activity and his termination; (2) Gray's ADA interference claim fails because Gray did not exercise rights under the ADA or aid or encourage others in exercising rights under the ADA; and (3) Gray's FMLA claims fail because WinCo did not deny Gray any benefits to which he was entitled under the FMLA, Gray did not...