Kpou v. Supervalu, Inc.
| Decision Date | 24 August 2021 |
| Docket Number | Case No. 19-cv-1032 (JNE/HB) |
| Citation | 556 F.Supp.3d 940 |
| Parties | Meapeh KPOU and Nyaquoi Nyayolo, Plaintiffs, v. SUPERVALU, INC., Defendant. |
| Court | U.S. District Court — District of Minnesota |
David E. Schlesinger, Laura Farley, Nichols Kaster PLLP, Minneapolis, MN, for Plaintiffs.
Joseph G. Schmitt, Veena A. Iyer, Jason Hungerford, Nilan Johnson Lewis PA, Minneapolis, MN, for Defendant.
Plaintiffs Meapeh Kpou and Nyaquoi Nyayolo are Black, immigrant employees at Defendant Supervalu, Inc.’s ("Supervalu") distribution center in Hopkins, Minnesota. Plaintiffs allege discrimination and retaliation on account of their race and national origin in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the Minnesota Human Rights Act ("MHRA"). Plaintiffs base their claims on Supervalu's hostile work environment, perpetuated by Plaintiffs’ coworkers. Plaintiffs also allege that Supervalu negligently retained and supervised several of their coworkers in violation of Minnesota common law.
This matter is before the Court on Supervalu's Motion for Summary Judgment. ECF No. 69. Plaintiffs oppose the motion.1 For the reasons stated below, Supervalu's motion is granted in part and denied in part.
The Court views the record in favor of Plaintiffs, the nonmoving parties.
Kpou and Nyayolo both work at Supervalu's distribution center in Hopkins, Minnesota. The distribution center consists of four buildings that span about a mile end to end. The general manager and the director of warehouse operations oversee the distribution center. Each of the four buildings has a warehouse operations manager responsible for the activities and employees in that building. Each shift has a superintendent responsible for the activities and employees on that shift. There are also dozens of warehouse supervisors. Four people make up the human resources ("HR") team.
The workforce at the distribution center consists of roughly 950 employees. Employees are separated into three shifts. Roughly 300 employees and twenty-five supervisors are on site at a given time.
About 800 of the 950 employees belong to a union. A collective bargaining agreement ("CBA") governs the relationship between Supervalu and its union employees.2 Under the CBA, senior employees can "bump" less senior employees from their specific work assignment.
The CBA also governs employee discipline. Supervalu can discipline union employees only upon just cause as specified by the CBA. When disciplining employees, Supervalu cannot consider warning notices issued over eleven months earlier. After being disciplined, employees may appeal Supervalu's decision through a four-step grievance process culminating in arbitration. The union represents employees during this process.
i. Policies
Supervalu has several policies prohibiting discrimination and harassment and promoting Courtesy, Dignity, and Respect ("CDR"). The Equal Employment Opportunity Harassment and Discrimination Policy prohibits discrimination and harassment. The Workplace Rules and Regulations, which are negotiated as part of the CBA, prohibit use of racially derogatory gestures or statements while on the premises and make such use a possibly terminable offense. The Threats and Violence Free Workplace policy aims to ensure a safe work environment. Finally, Supervalu's Code of Conduct reinforces these policies.
ii. Trainings
During employee orientation, trainers highlight and explain Supervalu's various policies, though the union is responsible for informing employees of the Workplace Rules and Regulations. Trainers spend about five minutes covering the anti-discrimination policies. New employees also watch a CDR video, which emphasizes Supervalu's harassment and discrimination policies. An onsite kiosk allows employees to access the policies at any time after their orientation.
As to post-orientation training, there is evidence that management receives at least some sort of refresher training. For example, the record contains a PowerPoint from July 2016 entitled "Investigation Protocol." The PowerPoint provides a high-level view of investigation responsibilities and includes further details on issues like internal theft over $100,000 or wrongdoing by senior leaders. HR personnel also attend monthly calls with Supervalu's legal team.
In early 2016, Supervalu's supervisors and managers received training on recognizing and reporting discrimination and harassment complaints. There was also a "Respectful Workplace" training for employees in mid-2016, which is discussed further below. Supervalu attempted to have some sort of training in 2020 as well but was unable to complete the training due to the COVID-19 pandemic.
iii. Investigation Procedures
Supervalu allows employees to report policy violations, including incidents of retaliation, by contacting a supervisor, reporting their complaints to HR, or calling an associate hotline. Still, many complaints go unreported for fear of retaliation. A 2016 cultural survey indicated that Supervalu should work to ensure employees could report incidents without fear of retaliation.
Supervalu generally investigates policy violations by interviewing the parties involved, questioning witnesses, and reviewing any available surveillance video footage. Supervalu paints the process as flexible and situation based. Plaintiffs assert the process is inconsistent. The 2016 cultural survey indicated that Supervalu should work to ensure the company responded quickly and consistently to misconduct.
At the time of the incidents at issue here, Supervalu had no collection of complaints and no documented procedure for conducting investigations. Though management was frequently tasked with taking statements and interviewing witnesses, managers received no formal training on investigations or interviews. The HR manager at the time, Sue Sturnieks, eventually put together an Investigation Checklist, but it is unclear when this occurred and what it entailed.
Kpou has been an employee at the distribution center since 2002, Nyayolo since 2015. Both Kpou and Nyayolo still work at the distribution center. Their work generally includes loading and receiving, though their specific assignments depend on the work available and their comparative seniority that day.
Kpou and Nyayolo are both of West African descent. Kpou was born in Liberia and came to the United States in 1993. Nyayolo was also born in Liberia and came to the United States in 1999. Though Kpou and Nyayolo are bringing the instant action together, their core allegations are distinct.
Plaintiffs list seventeen discrete incidents that Kpou encountered as a Supervalu employee, in addition to general, ongoing harassment. The Court discusses the incidents in the order Plaintiffs list them, though the timing of specific incidents is at points unclear.
On September 22, 2015, an argument broke out between a group of white employees and a group of Black, immigrant employees in the distribution center's breakroom. The group of white employees believed the Black employees were being too loud. White employee Jason Bialucha went over and told the Black employees to quiet down. A heated discussion ensued, culminating in white employee Larry Schmitz throwing a glass hot sauce bottle at the group of Black employees. The bottle barely missed the Black employees, hit the wall behind them, and shattered. Schmitz threw the bottle because " ‘something had to be done to stand up’ for his rights." Def.’s Ex. O, ECF No. 72-2 at 35.3
According to Supervalu, Schmitz threw the bottle "to instigate or provoke violence between two distinct ethnic groups that were arguing." Id. at 36. No one immediately reported Schmitz's actions.
As the employees returned to work, Bialucha spoke with Kpou, who had not been in the breakroom (Incident 1-"Bialucha's post-breakroom comments") . According to Kpou, "Bialucha was mad at [him] and told [him] that ‘[his] Africans’ needed to stop and that [he] needed to ‘get them under control,’ or words to that effect." Kpou Decl. ¶ 3(c), ECF No. 86. After Kpou tried to explain he had not been in the breakroom, Bialucha said "it's not f*****g right," and told Kpou "you guys" need to stop. Pls.’ Ex. 4, ECF No. 79-3 at 3; Kpou Decl. ¶ 3(d), ECF No. 86.4 According to Bialucha, Kpou told him that the Black employees had a right to be loud and Bialucha should take his break outside if he did not like it.
Bialucha and Schmitz, who was present or nearby for Bialucha's conversation with Kpou, continued to speak angrily about their rights. The three men then went to work on the warehouse floor. Kpou was on a pallet jack that weighed about 4,000 pounds. Schmitz was on a large, forklift-like machine that weighed about 9,000 pounds. Soon after the men began working, Schmitz drove his machine into Kpou's machine while yelling "I have rights too" (Incident 2-"Schmitz forklift incident") . Def.’s Ex. L, ECF No. 72-2 at 19. Schmitz hit and dragged Kpou's machine, slamming Kpou into a rack while he continued to yell about his rights.
Kpou reported the incident to a supervisor and Supervalu began investigating. Kpou requested that Black employee Jerry Walker act as his union representative during the investigation. That day, Kpou submitted a statement and Supervalu interviewed Schmitz. After interviewing Schmitz, Supervalu escorted him out of the distribution center and suspended him. Supervalu then questioned other possible witnesses.
Eight days later, Supervalu terminated Schmitz. Schmitz filed a grievance against his termination, which Supervalu defended. The grievance culminated in arbitration, where the termination was upheld. Schmitz committed suicide roughly a year later.
White employees at the distribution center openly shamed Kpou for reporting...
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