Martin v. Kroger Co., Civ.A. H-98-2120.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Citation65 F.Supp.2d 516
Docket NumberNo. Civ.A. H-98-2120.,Civ.A. H-98-2120.
PartiesElaine MARTIN, Plaintiff, v. THE KROGER CO. and Charles Hembree, Defendants.
Decision Date15 September 1999

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65 F.Supp.2d 516
Elaine MARTIN, Plaintiff,
THE KROGER CO. and Charles Hembree, Defendants.
No. Civ.A. H-98-2120.
United States District Court, S.D. Texas.
September 15, 1999.

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Eddie M. Krenek, Katy, TX, Althea Michele Bailey, Law Office of Eddie M. Krenek, Katy, TX, for plaintiff.

A. Martin Wickliff, Jr., Wickliff and Hall, Houston, TX, Susanne L. Tetzlaff, Wickliff and Hall, Houston, TX, for defendants.


CRONE, United States Magistrate Judge.

Pending before the court is Defendants The Kroger Co. ("Kroger") and Charles Hembree's ("Hembree") Motion for Summary Judgment (# 18). Kroger and Hembree seek summary judgment on Plaintiff Elaine Martin's ("Martin") claims of racial and sexual discrimination and retaliation under the Texas Commission on Human Rights Act ("TCHRA") as well as tortious interference with existing and prospective business relations. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that summary judgment should be granted.

I. Background

Kroger is a retail grocery chain with a number of stores in the Houston, Texas, area. Martin, an African-American female, began her employment with Kroger in August 1992 in the company's management training program after answering an advertisement for an engineering position. Martin graduated from Prairie View A & M University in 1986 with an electrical engineering degree. In March 1993, Hembree, the manager of the Facility Engineering Department, offered her a position as a facility engineer.

Kroger's Engineering Department is responsible for the construction and remodeling of Kroger grocery stores, with facility engineers serving as the project managers on the various construction and remodeling projects. In this capacity, facility engineers are responsible for planning, organizing, and estimating costs of

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the project; interpreting specifications; soliciting bids from subcontractors; ordering equipment and scheduling its placement; acting as a liaison between Kroger and city officials; ensuring that all governmental codes and requirements are met in a timely fashion; and communicating regularly with the project team, including scheduling and presiding over weekly construction meetings. The project manager bears the responsibility for the organization, oversight, and management of all aspects of the construction project, without regard to whether a general contractor is also used.

In her affidavit, Martin describes how Hembree assisted her in securing a position in Kroger's Engineering Department:

I ... answered Kroger's classified ad for a Facility Engineer. I spoke with Charles Hembree several times about the job, and interviewed with a number of Kroger employees. Hembree informed me that I had not been selected to fill the vacancy, and that a person with better qualifications than me had been hired.

However, Hembree asked if I would be interested in training to become a store co-manager, which had no relation to the engineering department.... I needed work, in any capacity, and agreed to enter Kroger's store management training program in 1992, even though it was outside of my field and I had had no prior training, background or experience in such a position.

While I was in Kroger's store management training program, Hembree contacted me and asked if I was interested in transferring to Facility Engineering. The vacancy that Hembree contacted me about was the same job that I had applied for and had been rejected previously. T. Stevens Brown, the person that Hembree had described to me as `better qualified,' was removed from that position because he did not have an engineering degree. (T. Stevens Brown, and I went to the same college, and I know that he did not complete his degree program.)

Martin began working as a facility engineer on March 21, 1993. In his affidavit, Hembree explains his basis for offering her the position: "I was aware that [Martin] did not have much experience in project management or the retail industry; however, I felt Ms. Martin was capable of gaining the knowledge necessary to become an effective manager and engineer."

Throughout her employment with Kroger, Martin's performance as a facility engineer was problematic. Her first employee performance appraisal, dated June 10, 1994, reflects below-average ratings in several categories. One such category is "Leadership," which addresses how the employee leads "individuals or groups to accomplish a task or accept an idea; ability to help a group or an individual arrive at a solution or goal." Martin's below-average rating of "Developmental" is followed by comments stating, "Elaine has a rather forceful, directive style. This has served her effectively without causing hostility in most cases. There is room in her leadership style to develop a more participative [sic] approach. She should understand the tasks of subordinates more thoroughly." The "Personal Impact" category assesses the employee's "[a]bility to create a good impression on others by commanding attention, respect, and showing confidence." The comments following Martin's "Developmental" rating read, "Elaine is able to gain impact but usually has to do it through force of will. She must gain the reputation of knowing what to do, how to do it, and when. By being knowledgeable in these areas, the respect will follow." Finally, the "Problem Analysis" category measures the employee's "[a]bility to identify, evaluate, and assimilate factors essential to analyzing a problem for a solution." Martin's "Developmental" rating is followed by comments stating, "Elaine often fails to properly analyze a problem because she does not link all sources of information together. She should ask more questions such as `who, what, when, where, and how.' By listening to these answers, then assimilate the data to see if it makes

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sense." Hembree's affidavit offers additional insight into his June 1994 assessment of her performance:

At that time, I considered Ms. Martin to be still relatively new to the department and to have issues which were developmental in nature. In other words, I felt that Ms. Martin's lack of knowledge and experience in the retail construction field hindered her from performing at a higher level. I apprised Ms. Martin of certain deficiencies and the need for education in business administration and construction technology. I suggested Ms. Martin enroll in a seminar on interpreting blueprints which she took in July 1994.

Hembree contends that he "remained optimistic that [Martin] could overcome the knowledge deficit she had."

When Martin was evaluated one year later, on June 13, 1995, she received more "Developmental" ratings, including below-average ratings in "Leadership," "Personal Impact," and "Problem Analysis." The comments following the "Leadership" category state, "Elaine has improved in this area. Her style is still rather forceful and direct. She recently completed `Models for Management' seminar. This should help her in the future to develop a more participative [sic] style." Under the "Personal Impact" category, the comments read, "Elaine displays a limited effect on the direction or the decision making of others. She is not sought after for input other than as needed to accomplish [the] task at hand. She does have some impact because of a dominant type behavior but does not command attention through confidence." Finally, the comments following the "Problem Analysis" category state, "Elaine sometimes fails to see the relevance of different factors in properly analyzing a situation. She must continue to probe more deeply when developing a plan. Ask more open ended questions. Discuss solutions to verify understanding."

A typed statement prepared by Hembree, signed by both Hembree and Martin, is attached to the evaluation, stating:

During Elaine's early development in this department, her knowledge of supermarketing, and construction was very limited. These issues were discussed during the last performance evaluation. She has worked hard to try to learn these details and has made some progress. Elaine must continue to develop these skills.

I believe that Elaine can become an effective manager in this department; however, she has developed an impression in many managers that she lacks the knowledge and skills necessary to adequately manage a substantial remodel project. Although her project results are of good quality, she does not get the credit that she perhaps is due. Store managers felt that they had to do more project administration than necessary in order to complete their projects. Phone calls, equipment follow-ups, scheduling of merchandisers and other communication issues are mentioned as hindrances to effective job performance. There is some concern that Elaine does not place enough priority on the importance of being available or of maintaining contact with each project. Unfortunately, these impressions precede her into her next project assignment and as a result store management may look for faults that might be overlooked in someone without this reputation.

* * * * * *

I continue to enjoy working with Elaine. I am somewhat disappointed that even though there have been improvements in several areas, I continue to receive comments about her communications, her responsiveness to stores, and her ability to control a project. Last year, many of these comments could have been overlooked due to the fact that Elaine was new to Kroger and as yet had not fully learned all the facets of her job. However, Elaine has spent six months in the co-manager training program and then another two years in Facility Engineering. These comments should be disappearing

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by now. The fact that they have persisted...

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