Johnson v. Whole Foods Mkt. Grp.

• Decision Date: 23 February 2023
• Docket Number: 2:21-cv-00089-NT
• Parties: GREGORY JOHNSON, Plaintiff, v. WHOLE FOODS MARKET GROUP, INC., Defendant.
• Court: U.S. District Court — District of Maine

GREGORY JOHNSON, Plaintiff, v. WHOLE FOODS MARKET GROUP, INC., Defendant.

No. 2:21-cv-00089-NT

United States District Court, D. Maine

February 23, 2023

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Nancy Torresen United States District Judge

Before me is the Defendant's Motion for Summary Judgment (“ Def.'s MSJ ”) (ECF No. 37). For the reasons stated below, the motion is GRANTED IN PART and DENIED IN PART.

FACTUAL BACKGROUND^[1]

This case involves a dispute over the treatment and firing of the Plaintiff, Gregory Johnson, who worked as a Supervisor at Defendant Whole Foods Market Group, Inc.'s (“Whole Foods”) store in Portland, Maine. Pl.'s Resp. to Def.'s Reqs. to Strike (“SMF”) ¶¶ 6 111 (ECF No. 46). There are a few Whole Foods employees that played a role. Within the Portland store, Scott Johnson held the highest position as the only Store Team Leader. SMF ¶ 91; Dep. Tr. of Christina Oertel Dec. 15, 2021 (“Oertel Dep.”) 27:17-28:11 (ECF No. 35-70). Beneath Scott Johnson were other Team Leaders like Sean Danis, the Store Support Team Leader. Oertel Dep. 29:2530:10; Dep. Tr of Sean Danis Dec. 15, 2021 (“Danis Dep.”) 13:7-13:13 (ECF No. 3571). Beneath the Team Leaders were the Associate Team Leaders: Amber Woodley Jeff Kudile, Jason Shaw, and Emma Sobocinski. Danis Dep. 13:23-14:1; Oertel Dep. 27:5-27:14; Danis Dep. 32:24-33:1; Dep. Tr. of Amber Woodley Mar. 24, 2022, at 11:17-11:20 (ECF No. 35-79); SMF ¶¶ 44, 101, 134, 136. Below the Associate Team Leaders were Supervisors, Trainers, and Cashiers. Oertel Dep. 26:4-27:1. Michael Konek and Jerry Syrek were Supervisors. SMF ¶¶ 99, 137.

Team Member Services, a regional team at Whole Foods, also became involved in the dispute. The highest staff person involved was Danielle Tenczar, the Senior Team Leader for Team Member Services. See Oertel Dep. 47:7-47:10. Tenczar supervised Laura Stone, a Team Member Services Team Leader. Oertel Dep. 46:2447:6. Stone was also designated as Whole Foods's Rule 30(b)(6) witness. Dep. Tr. of Laura Stone Feb. 6, 2022 (“30(b)(6) Dep.”) 21:4-21:11 (ECF No. 35-72). Stone supervised Team Member Services Generalist Christina Oertel. SMF ¶¶ 25, 134; Oertel Dep. 46:24-47:6. In addition to the Team Member Services group, Whole Foods worked with a third-party administrator, Sedgwick Claims Management Services, Inc. (“Sedgwick”), on reasonable accommodation requests. SMF ¶ 26; Letter, dated 11/4/19 (“Sedgwick Letter”) 1 (ECF No. 35-24).

Whole Foods hired Johnson as a cashier on April 6, 2019. SMF ¶ 6. During his interview with Store Support Team Leader Sean Danis, Johnson disclosed that a gap in his resume was due to his disability, though he did not elaborate on what that meant. Dep. Tr. of Gregory Johnson Dec. 17, 2021 (“Johnson Dep.”) 18:2-19:6 (ECF No. 35-1).

On June 3, Whole Foods promoted Johnson to Store Support (Customer Service/Cashier) Supervisor at Danis's recommendation. SMF ¶ 13. Around this time, Johnson began to repeatedly violate Whole Foods's attendance policies on callouts and late arrivals. SMF ¶ 22. Johnson attributed these attendance infractions to sleep medications that he was taking for post-traumatic stress disorder (“PTSD”). SMF ¶ 22. On August 20, he received a written warning for the violations. SMF ¶ 23.

After receiving the warning, Johnson requested a medical leave of absence. SMF ¶ 24. He had previously undergone clinical treatment for PTSD, anxiety, depression, and obsessive-compulsive disorder, and he reported experiencing severe PTSD flare-ups. SMF ¶¶ 116, 118. With the help of Team Member Services Generalist Christina Oertel, Johnson obtained an emergency leave of absence from Whole Foods and Sedgwick for August 30, 2019, to September 19, 2019. SMF ¶¶ 25-26.

To return from leave, Johnson had to submit a certification form. Letter, dated 9/20/19 (ECF No. 35-35). On September 16, Johnson's therapist, Darylann Leonard, completed the form, stating that Johnson needed the leave due to a PTSD flare-up and that Johnson's “condition shouldn't impact job performance as long as accommodations are made for absences.” SMF ¶¶ 28, 35; Certificate for Serious Health Condition (ECF No. 35-15). Johnson's flare-up occurred because of his involvement in a criminal case against his uncle, whom Johnson alleged had sexually molested him as a child. SMF ¶¶ 29-30.

On September 18, 2019, the day before he returned to work after his leave of absence, Johnson sent an email to Oertel with the subject line: “RE: Leave documents,” asking Oertel to forward his leave documents to Sedgwick. E-mail, dated 9/19/19, at 1 (ECF No. 35-34). Johnson made a request for intermittent leave at this time.^[2] SMF ¶ 37.

On September 23, 2019, shortly after Johnson returned to work from his leave of absence, Store Support Associate Team Leader Amber Woodley completed a 90-day performance evaluation. SMF ¶ 36. She noted that Johnson “need[ed] to keep an eye on his attendance. He is currently on a written [warning].”^[3] SMF ¶ 36; Performance Review, dated 9/23/19, at 2 (ECF No. 35-36).

Johnson's attendance issues continued. On September 25, Woodley emailed Oertel seeking authority to put Johnson on a Final Warning for “cross[ing] an attendance threshold” the day before. SMF ¶ 120. Johnson had told Woodley that his attendance issue was related to his intermittent leave accommodation. SMF ¶ 120. Oertel responded that Johnson was “in process on an [Americans with Disabilities Act Amendments Act (“ADAAA”)] accommodation for intermittent absence” and that Woodley should not move forward with discipline until Johnson's paperwork was reviewed. SMF ¶ 120; E-mail, dated 9/25/19, at 1 (ECF No. 35-37). Oertel testified that Whole Foods conditionally granted accommodations during the pendency of the approval process, and that Johnson's intermittent leave accommodation was conditionally approved at some point before October 28. Oertel Dep. 35:16-36:8; 62:22-62:24.

Also around this time, Johnson reported to Oertel about ongoing hostility from his superiors since returning from medical leave. SMF ¶ 121. Oertel summarized their discussion in a September 27, 2019, email to Store Team Leader Scott Johnson, Associate Team Leader Jeff Kudile, and Team Member Services Team Leader Laura Stone. E-mail, dated 9/30/19, at 2 (ECF No. 35-39). Oertel wrote that Johnson reported being upset by a comment that Woodley had said to him on the sales floor within earshot of others, that “you just HAVE to stop being late.” E-mail, dated 9/30/19, at 2. Johnson was also upset that Danis used the words, “if the accommodations are validated” when Johnson complained to Danis about Woodley's comment. E-mail, dated 9/30/19, at 2. Johnson expressed further concerns about being scheduled to “clopen”^[4] and take inventory, which required working until 2:00 am and which would interfere with his medication schedule and his ability to get adequate sleep. SMF ¶ 121; E-mail, dated 9/30/19, at 3.

On October 3, 2019, Johnson submitted a reasonable accommodation request form. SMF ¶ 37; Medical Accommodation Request Form (“Request Form”) (ECF No. 35-16). The form stated that Johnson had the specific limitations of requiring “schedule accommodation for appointments and symptom flare-ups on an intermittant [sic] basis.” Request Form. To address these needs, Johnson required “[i]ntermittant [sic] leave as needed.” Request Form. Whole Foods initiated its interactive disability accommodation process and interviewed Johnson on October 9.^[5]SMF ¶ 40. During the initial interview, Johnson also asked Oertel for an accommodation of twelve hours between shifts due to his sleeping medications.^[6] SMF ¶ 42.

On October 11, Johnson's psychotherapist Darylann Leonard completed an Accommodation Substantiation Form for Johnson. SMF ¶ 57. She stated that he needed twelve hours between shifts, no more than six days worked in a row, and schedule accommodations for flare-ups and therapy sessions. SMF ¶ 57; Accommodation Substantiation Form 2 (ECF No. 35-18); Dep. Tr. of Darylann Leonard Mar. 10, 2022, at 117:21-119:13 (ECF No. 35-73). Leonard indicated that these accommodations were needed because Johnson's PTSD substantially limited him in the major life activities of communicating, concentrating, interacting with others, sleeping, and thinking, and in the operation of his brain and digestive system.

Accommodation Substantiation Form 2-3. Leonard estimated that the impairment was likely to last for one year, so the accommodations were suggested for September 18, 2019, to September 18, 2020. Accommodation Substantiation Form 1-2.

On October 21, 2019, Johnson left his keys for the change till (which was located at the customer service desk) on a checkout belt when he went on break. SMF ¶¶ 70-71. Danis found the keys that day and reported the incident two days later, on October 23. SMF ¶ 73; Investigation Notes 1 (ECF No. 35-21); E-mail, dated 10/23/19 (“Oct. 23 Emails”) 2 (ECF No 35-49). In response to Danis's report, Stone asked whether there was any precedent for disciplining employees who lost or misplaced keys. Oct. 23 Emails 2. Associate Store Team Leader Emma Sobocinski responded: “Yes, we have put team members on a written warning for leaving or losing keys. It doesn't happen frequently but I have validated that in the past they have been written up.”^[7] Oct. 23 Emails 1. Oertel noted in an email that she had never seen a write up for misplacing keys. E-mail with attached G. Johnson Timecard, dated 10/24/19 (“Oct. 24 Email #1”), at 1 (ECF No. 35-51). Woodley testified that misplacing keys is a “very severe” infraction that is grounds for either automatic separation or a final written warning. SMF ¶ 72. Stone stated that the level of offense would depend on how long the keys were misplaced, whether...