Johnson v. Kroger Co, 021903 FED6, 01-3432

Docket Nº:01-3432
Party Name:Johnson v. Kroger Co
Case Date:February 19, 2003
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Johnson v. Kroger Co





Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0056P (6th Cir.)

File Name: 03a0056p.06




Stanley Johnson,



The Kroger Company,


No. 01-3432

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 98-01173--George C. Smith, District Judge.

Argued: August 7, 2002

Decided and Filed: February 19, 2003

Before: MOORE and GILMAN, Circuit Judges; ROSEN, District Judge.(*)



ARGUED: Emily J. Lewis, LAW OFFICES OF EMILY LEWIS, Dublin, Ohio, for Appellant. Bradd N. Siegel, PORTER, WRIGHT, MORRIS & ARTHUR, Columbus, Ohio, for Appellee. ON BRIEF: Emily J. Lewis, LAW OFFICES OF EMILY LEWIS, Dublin, Ohio, for Appellant. Bradd N. Siegel, PORTER, WRIGHT, MORRIS & ARTHUR, Columbus, Ohio, for Appellee.

GILMAN, J., delivered the opinion of the court, in which MOORE, J., joined. ROSEN, D. J. (pp. 18-34), delivered a separate dissenting opinion.




RONALD LEE GILMAN, Circuit Judge. Stanley Johnson, an African-American male, brought suit against his former employer, The Kroger Company, alleging that Kroger discharged him on the basis of his race. The district court granted Kroger's motion for summary judgment, concluding that Johnson had failed to establish that the legitimate, nondiscriminatory reason given by Kroger for terminating Johnson's employment was a pretext designed to mask racial discrimination. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.


    A. Factual background

    Johnson began working for Kroger in 1986, when he entered the company's management-training program. After completing the program and working at two other Kroger stores in Ohio, Johnson was assigned to work as one of two comanagers at Kroger's Portsmouth, Ohio store in 1989. He worked at the Portsmouth store through January of 1995.

    At the time of Johnson's transfer to the Portsmouth store, the manager was Don Allison and the senior comanager was Denis Kirkbridge. Allison's first evaluation of Johnson in 1990 rated him between "marginal" and "satisfactory." The following year, Johnson received a "satisfactory" rating, a recognition that his performance was improving. Allison also recommended that Johnson be given a pay raise in 1991.

    Randy Roberts replaced Allison as the manager of the Portsmouth store in December of 1991. In addition, Paul Gaines replaced Kirkbridge as the senior comanager sometime in late 1991 or early 1992. Because Roberts had not supervised Johnson for most of 1991, Joe Martin, the manager of Kroger's Zone 6, completed Johnson's performance evaluation in February of 1992. (Kroger divides its stores into geographical "zones.") Martin gave Johnson a "marginal" rating. According to Johnson, this rating reflected the fact that he was falsely accused of making "1-900" pay telephone calls to live-sex phone numbers from the manager's office at the Portsmouth store. Johnson, who was the only African-American employee at the store, avers that Martin made this accusation at the beginning of Johnson's performance-evaluation meeting.

    Roberts gave Johnson a "satisfactory" rating for both 1992 and 1993, noting that Johnson's performance was progressing. Senior Comanager Gaines, on the other hand, testified in his deposition that Johnson was an excellent comanager who had superior skills in customer and employee relations and was qualified to become a store manager. No performance evaluation was prepared for Johnson in 1994 because of personnel changes in Zone 6. But Roberts testified in his deposition that Johnson's work was satisfactory and improving in 1994.

    In January of 1995, Johnson was transferred to Kroger's Wheelersburg, Ohio store. Wheelersburg is only 12 miles from Portsmouth, but the number of African-Americans living in the two localities differs markedly. In particular, Wheelersburg had only 8 African-American residents in 1990, whereas 1,172 African-Americans lived in Portsmouth. Johnson expressed misgivings about moving to the Wheelersburg store because he had heard that the town had a reputation for racial intolerance, but he ultimately agreed to the transfer.

    Both Portsmouth and Wheelersburg are within Zone 6, but the Wheelersburg location has only one comanager. Johnson was therefore the sole assistant to the store's manager. He worked under the supervision of Dan Newman, the manager of the Wheelersburg store. Before Johnson began working at the Wheelersburg location, Newman spoke with Roberts about Johnson's abilities. According to Newman, Roberts told him that Johnson lacked initiative, was useless as a comanager, and was the worst comanager Roberts had ever supervised.

    Johnson believes that both Newman and Roberts harbored racially discriminatory views. With respect to Roberts, Johnson avers that he once overheard Roberts calling African-American men "black boys." Similarly, when Newman learned that Johnson was going to be transferred to the Wheelersburg store, Newman told Portsmouth Senior Comanager Gaines that assigning an African-American male as the comanager of the Wheelersburg store would hurt its business because African-Americans did not shop there.

    The deposition testimony of several employees who worked at the Wheelersburg store suggests that the store was not a model of racial tolerance. For example, the store's head produce clerk testified that, shortly before Johnson's arrival, Newman told the employees to be careful about the jokes that they told. Several of the store's department heads also recalled hearing employees make racial slurs. Newman also held a meeting with the store's department heads just before Johnson's arrival. Several of those attending the meeting testified in their depositions that Newman told them that Johnson was not very intelligent and that they would need to assist him. (Newman denies making any such disparaging remarks, but because we are reviewing the grant of Kroger's motion for summary judgment, all contested facts must be resolved in Johnson's favor.)

    Johnson and Newman had a dysfunctional relationship from the start. According to Johnson, Newman did not introduce him to the department heads, criticized him in public, and blamed Johnson when the store ran out of products, even though another employee, a department head who was Newman's cousin, was primarily responsible for ordering merchandise. Several employees testified that Newman had never treated Caucasian comanagers in a similar manner. These employees also said that Newman did not mentor and train Johnson in the same way that he had assisted Caucasian comanagers, but instead ignored him.

    Nancy Noyes became Kroger's Zone 6 manager in the fall of 1995. She replaced Ed McCauley, who testified in his deposition that the Wheelersburg store's sales had improved in the months since Johnson became the comanager, and that Johnson was trying hard to do a good job. Noyes visited the Wheelersburg store in November of 1995. During that inspection, she noted that (1) the quality of the bananas was poor and the meat cases contained dark meat, but the prices had not been reduced for either of these items, (2) Johnson was unfamiliar with Kroger's markdown policy, (3) Johnson had ordered an excessive quantity of potato chips, apparently due to a misunderstanding of Kroger's cost-billing accounting method, and (4) the dairy department was unkempt. Johnson acknowledged that these problems existed, but contends that other employees were responsible for the deficiencies and that Noyes had higher standards than those to which he was accustomed.

    According to Noyes, Newman wanted to intervene because of his concern that the poor conditions would reflect badly upon him. But Noyes encouraged Newman to refrain from taking any action so that Johnson would have the opportunity to develop his own solutions. Noyes's next visit to the store in December of 1995 resulted in her finding many of the same problems. Johnson avers that Noyes treated him unprofessionally and disrespectfully, using a hateful tone of voice that she did not use when speaking to Caucasian employees.

    Newman, working in conjunction with Noyes, prepared a performance evaluation for Johnson in January of 1996. Johnson was rated as "marginal." The evaluation identifies some of the same problems that Roberts and Allison had noted when they had evaluated Johnson's performance at the Portsmouth store: a failure to motivate or ensure results from department heads, lack of initiative and follow-through, and an insufficient knowledge of store operations.

    Noyes discussed Johnson's evaluation with him in February of 1996. Following her conversation, she concluded that the comanager position was not a good match for Johnson and encouraged him to consider other jobs with Kroger. Noyes told Johnson that although he was good with customers, he did not have "an analytical mind." Several employees who worked with Johnson disagreed with Noyes's opinion that Johnson was not suited to be a comanager. Both Gaines and Kirkbridge, for example, thought that Johnson was extremely capable. These comanagers testified in their depositions that they had both trained Johnson on paperwork duties and that Johnson learned as quickly as the other comanagers with whom they had worked. Gaines also emphasized Johnson's superior customer-relations skills. Numerous department heads at the Wheelersburg store...

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