Hardesty v. Kroger Co.

• Decision Date: 01 December 2020
• Docket Number: Case No. 1:16-cv-298
• Parties: HARDESTY, et al., Plaintiffs, v. THE KROGER CO., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

HARDESTY, et al., Plaintiffs, v. THE KROGER CO., et al., Defendants.

Case No. 1:16-cv-298

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION - CINCINNATI

December 1, 2020

Judge Matthew W. McFarland

ORDER DENYING IN PART AND GRANTING IN PART PARTIAL MOTION FOR SUMMARY JUDGMENT (Doc. 76)

This case is before the Court on Plaintiffs' partial motion for summary judgment (Doc. 76). Plaintiffs Joseph Hardesty, Madeline Hickey, Derek Chipman, and the 24 collective action members they represent (collectively, "Plaintiffs") seek summary judgment on two issues: (1) the liability of Defendants The Kroger Co., and Kroger G.O., LLC (jointly, "Kroger") under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (FLSA), and the Ohio Minimum Fair Wage Standards Act, R.C. 4111.01 et seq. (OMFWSA); and (2) the failure of Kroger's "good faith" affirmative defense to the FLSA's imposition of liquidated damages.

FACTS

Plaintiffs work or worked as recruiters at Kroger's Center of Recruiting Excellence (CoRE). Kroger developed CoRE as a recruiting operation to hire new employees for its grocery stores. As recruiters, Plaintiffs reviewed candidate applications, made phone calls to applicants (called "phone screens"), and scheduled applicants for in-store interviews. Each recruiter was a "part of a dedicated recruiting team providing [Kroger's] grocery retail stores with best-fit candidates for hourly store positions." (Doc. 50-6 at Page ID 1998.) CoRE's general manager, Buck Moffett, explained that the "best-fit criteria" included a candidate's availability, assessment results, ability to interact well with customers, and ability to meet the essential functions of the position they were interviewing for. (Doc. 46, Moffett Dep. at 52, Page ID 1769.)

Moffett made the decision to classify CoRE recruiters as exempt under the FLSA, meaning that they would not receive overtime pay for working more than 40 hours per week. (Id. at 31, 48-49, Page ID 1764, 1768.) He based that decision on the recruiters' ability to use their discretion to determine how to apply the best-fit criteria, to assess whether any given candidate would represent Kroger well, to evaluate candidates for other positions or other stores, to represent Kroger at recruiting events, and to recommend improvements to the recruiting process. (Id. at 63, Page ID 1772.) He discussed the matter with Kroger's human resources team. (Id. at 33, Page ID 1764.) But he did not consult any regulations or applicable law himself. (Id. at 46, Page ID 1768.)

Recruiters used different approaches when reviewing candidate applications. Some would call every new applicant. (Doc. 35, Hardesty Dep. at 85, Page ID 398.) Others would review the application a little more closely before calling, prioritizing applicants based on their availability or certifications. (Doc. 37, Hickey Dep, at 87, Page ID 514.) Still others would be even more selective, such that "it was often the case that [the recruiter] didn't need to contact all of the applicants who submitted applications andmet certain basic qualifications." (Doc. 62-6, Keenan Dec. ¶ 7, Page ID 3857.) For instance, Aiden Keenan "used the applicant's previous work experience, volunteer experience, assessment score, etc. to judge which applicants were the best, and I contacted them and not the others. I certainly didn't need anyone's input or approval to decide which qualified applicants to contact and which not to." (Id.) So the degree of review put into the applications before a phone screen varied from recruiter to recruiter.

Once they were on the phone with job candidates, the recruiters used a phone script to guide their discussions. (Doc. 40, Schiff Dep. at 126, Page ID 885.) The script changed periodically, based in part on feedback from recruiters who "felt we could enhance the questions further." (Id. at 128, Page ID 887.) It covered introductions, starting pay, and the candidate's interest in the position and availability. The recruiters were supposed to read the script word-for-word. But they were also expected to "own the experience," "say the script in a way that reflects [their] personality," and "sound conversational." (Doc. 50-15 at Page ID 2146.)

In addition to following the phone script, the recruiters had to ask three pre-written screening questions:

1. What is it about working at (Banner Name) that interests you the most?

2. As a (Position Title), what specific things would you do or say in order to provide friendly customer service to our customers?

3. Can you tell me about a work or academic related experience that you are most proud of?

(Id. at 2150.) The screening questions were "streamlined to make so they apply to allapplicants." (Id.) Recruiters were instructed to "listen to the candidate as if [they] are a customer in the store." (Id.) The corporate paperwork they received also made it clear that "Recruiters make the decision" as to whether the candidate was a "quality fit for the position." (Id.) And, if the recruiter declined an applicant, there was a script for that, too.

Some recruiters stuck closely to the script with little to no deviation. Kelly Rutledge, for her part, never asked probing questions beyond the three on the script. She "had the understanding that [she] was to ask the three questions in the script." (Doc. 41, Rutledge Dep. at 67, Page ID 1057.) Amanda Gayhart complained that she was "simply asked to recite a script like a robot and if the person had a pulse, [she] was asked to move them forward to the interview process." (Doc. 78-7, Page ID 4547.)

But for other recruiters, the script did not dictate every aspect of their interaction with the applicants. For instance, Erica Brown "could and did tweak the way [she] conducted the interview." (Doc. 62-5, Brown Dec. ¶ 5, Page ID 3852.) She would adjust her questions "to better suit the candidate." (Id.) Another recruiter, Courtney Strosnider, followed the script closely when she first started out, but as she became more comfortable, she "moved away from the script and instead went with the flow of the conversation." (Doc. 62-7, Strosnider Dec. ¶ 4, Page ID 3861.) She stated that "[e]very interview was different, and Kroger gave me the discretion to conduct telephone interviews how I saw fit." (Id.) And, as recruiter Katelyn Davis pointed out, "[i]t was up to the recruiter to assess the [applicant's] answer; there was no answer key." (Doc. 62-4, Davis Dec. ¶ 8, Page ID 3848.) So she would ask "probing follow-up questions (that did not appear on any script) when [she] determined it would be necessary or helpful inassessing a candidate." (Id.)

When deciding whether to schedule an interview with the store, recruiters varied as to what sort of candidate passed muster. Some had low standards. One recruiter felt that a candidate was a best-fit "[p]retty much if the candidate wouldn't cuss during the phone interview." (Doc. 61, Taske Dep. at 34, Page ID 3762.) Another would simply ask the applicant's name and whether they could go to the store at a specific time. If the answer was yes, "you set up the interview." (Doc. 45, Ward Dep. at 38, Page ID 1745.)

Other recruiters required more. Corbin Hom looked for indicators of good customer service. Enthusiasm and detailed "customer-oriented answers" went a long way for him; one-word answers, and other simple answers like being on time, did not. (Doc. 39, Hom Dep. at 24-25, Page ID 724.) He made the decision of whether an answer was good enough for an in-store interview, without anyone else's review. (Id. at 26, Page ID 725.) Shawn Scott favored customer service too. Since they were finding applicants for customer service positions, Scott "wanted to assess whether the person would be able to provide friendly customer service." (Id.) Although Kroger provided the scripted questions, Scott testified that "it was completely up to me to assess the candidate's answers to my questions and whether the candidate did well enough to be scheduled for an in-store interview." (Doc. 62-5, Scott Dec. ¶ 6, Page ID 3839.) And, for Eric Shrider, the phone screen was make-it-or-break-it for job candidates. He "regularly decline[d] candidates whose applications (and assessment scores) were stronger than other candidates [he] passed along, based on the quality of the phone screen I had with them. [Shrider] sent people to the store with zeroes on their assessments, and [he] also declinedpeople with great assessments." (Doc. 62-3, Shrider Dec. ¶ 11, Page ID 3844-45.)

The record also contains evidence that some recruiters maintained contact with the stores. The stores gave them feedback on candidates the recruiters had sent. Davis testified that these communications helped recruiters "better understand a store's specific needs when necessary, and to calibrate and customize [the recruiters'] approach as needed." (Doc. 62-4, Davis Dec. ¶ 9, Page ID 3849.) "[T]he frequency and nature of these communications varied by division and by recruiter, but it was an important aspect of the job." (Id.)

ANALYSIS

Summary judgment is appropriate if, after examining the record and drawing all inferences in a light most favorable to the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Lutz v. Huntington Bancshares, Inc., 815 F.3d 988, 992 (6th Cir. 2016). Plaintiffs seek summary judgment on two issues: (1) Kroger's liability under the FLSA and the OMFWSA and (2) the applicability of Kroger's "good faith" affirmative defense.

I. Kroger's liability under the FLSA and OMFWSA

The first issue pertains to Kroger's liability under the FLSA and the OMFWSA. The OMFWSA operates "in the manner and methods" of the FLSA. R.C. 4111.03(A). Since the Ohio law parallels the FLSA, courts routinely analyze both claims together under the FLSA framework. Hurt v. Commerce Energy, Inc., 973 F.3d 509, No. 18-4058, 2020 WL 5105145, at *4 (6th Cir. Aug. 31, 2020). The Court will...