Mastellone v. Publix Super Mkts., Inc.

• Decision Date: 05 April 2016
• Docket Number: No.: 3:14-CV-433-TAV-HBG,: 3:14-CV-433-TAV-HBG
• Citation: 179 F.Supp.3d 784
• Parties: Edward Mastellone, Plaintiff, v. Publix Super Markets, Inc., Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

179 F.Supp.3d 784

Edward Mastellone, Plaintiff,

v.Publix Super Markets, Inc., Defendant.

No.: 3:14-CV-433-TAV-HBG

United States District Court, E.D. Tennessee.

Filed April 5, 2016

Jonathan William Doolan, Richard Everett Collins, Collins & Doolan, PLLC, Knoxville, TN, for Plaintiff.

J. Christopher Anderson, Tara L. Presnell, Shana G. Fonnesbeck, Littler Mendelson, P.C., Nashville, TN, for Defendant.

MEMORANDUM OPINION

Thomas A. Varlan, CHIEF UNITED STATES DISTRICT JUDGE

This civil action is before the Court on defendant's Motion for Summary Judgment [Doc. 34]. Plaintiff responded in opposition [Doc. 44] and defendant replied [Doc. 45]. For the reasons set forth below, defendant's motion for summary judgment will be granted in part and denied in part.

I. Background

Plaintiff began working for defendant in 1986 in Florida, where he held various meat department positions before being promoted to a meat manager in 2001 [Doc. 34-1 pp. 7, 14–16]. A meat manager is responsible for the operations, performance results, and customer satisfaction in the store's meat department [Id. at 27; Doc. 39-1]. Defendant expects its meat managers to reinforce high standards for product freshness, sanitation, security, and safety guidelines [Doc. 39-1].

Defendant maintains a Meat Reference and Procedures Guide (the “Guide”) that details comprehensive safety standards for handling meat and has rules regarding product rotation and maintaining product quality [Doc. 34-1 p. 28; Doc. 39-2]. The Guide establishes rules for removal and disposal of out-of-date products from the shelves [Doc. 39-2]. Plaintiff knew that defendant prohibited the extension of sell-by dates [Doc. 34-1 p. 19]. Plaintiff further understood that if he did not follow the Guide, he could be disciplined or even terminated [Id. at 28].

Defendant also maintains an employee handbook that contains a provision entitled Publix's Rules of Unacceptable Conduct (the “Rules”) [Doc. 39-3]. The Rules provide that, while defendant believes in coaching and counseling its employees, defendant may terminate employees without coaching, counseling, or warning [Id. ]. Specific instances of prohibited conduct that may warrant immediate termination include dishonesty, falsifying company records, violation of safety practices, and failure to comply with rules that have been established by individual stores or departments [Id. ].

While acting as a meat manager in Florida in April 2004, plaintiff received an Associate Counseling Statement (“ACS”) for failing to follow proper meat department practices, including improperly extending the sell-by dates of ground meat product [Doc. 34-1 pp. 18, 62]. Less than a month later, plaintiff received another ACS for multiple management deficiencies, including extending the date on out-of-date ground meat product [Id. at 19–21, 63]. The ACS states that “any circumstances regarding to dating, inventory control or associate morale or poor job performance will result in immediate termination” [Id. at 63].

In the summer of 2012, plaintiff transferred defendant to the meat manager position at a new store opening in Knoxville—store #1416 [Id. at 17]. As part of his relocation from Florida to Tennessee, plaintiff signed a Relocation Package Repayment Agreement (“Relocation Agreement”) [Id. at 22; Doc. 39]. The Relocation Agreement stated that plaintiff would be provided a relocation package, but if he separated from the company within twenty-four months after the relocation, he would be obligated to repay a portion of the relocation package based upon a graduated repayment scale described in the Relocation Agreement [Doc. 39].

Following the grand opening of store #1416, plaintiff reported to Store Manager Giuseppe “Joe” Prestigiacomo and Assistant Store Manager Christopher Huss [Doc. 34-1 p. 23]. Prestigiacomo reported to District Manager Keith Phillips for the majority of plaintiff's employment, until Roger Hinckley took over Phillips's position in September 2013 [Doc. 34-2 p. 15]. Eli Sparks was the Assistant Meat Manager in plaintiff's department for the majority of plaintiff's employment [Doc. 34-1 p. 26].

About a month after the grand opening of store #1416, on September 4, 2012, Prestigiacomo sent an email to Phillips describing a meeting he had with plaintiff about specific improvements needed in the meat department [Doc. 34-2 pp. 27, 41–42]. In the email, Prestigiacomo stated that “if [plaintiff] came to Knoxville because of the weather, to find a place to retire, to be closer to family, or because he enjoys the scenery, that he is here for the wrong reasons” [Id. at 41–42].

Plaintiff states that during his employment, Prestigiacomo referred to plaintiff as “Mr. Mastellone,” but referred to other management employees by their first or last names [Doc. 34-1 p. 52]. According to plaintiff, Prestigiacomo and Huss frequently asked plaintiff about his retirement plans and this happened particularly when there were stock evaluations and after they gave plaintiff counseling statements [Id. at 23–24, 55]. Huss would commonly remark on plaintiff's age by making comments such as “old school,” “over the hill,” and “you can't teach an old dog new tricks.” [Id. at 29].

Over the next year, plaintiff received multiple ACSs from Prestigiacomo and Huss for various issues, including failure to properly manage new inventory, failure to follow documented procedures for perishable food donations, failure to follow store policies regarding employee scheduling, failure to properly address profanity and inappropriate conversations in the meat department, and failure to ensure that the meat department met defendant's standards regarding inventory control, organization, sanitation, and product presentation [Doc. 34-1 pp. 69–70, 75–78]. Prestigiacomo also gave ACSs to other employees at the store including the grocery manager, the customer service manager, the deli manager, and the assistant meat manager [Doc. 34-2 pp. 19–20].

According to defendant's policy, meat products must be pulled from display cases the evening before the sell-by date, so that no out-of-date products are on display when customers arrive the next morning [Docs. 34-1 pp. 31–33; 39-2]. Out-of-date products are scanned out for inventory control and then disposed of in a receptacle called a fat and bone container, also called “bone barrel” or “bone can” [Doc. 34-1 pp. 32–33]. The back area of the meat department contains a walk-in cooler where meat products are kept prior to being displayed for purchase [Id. at 31]. Out-of-date products that have been pulled from the display cases are also stored in the cooler on a separate rack, prior to being scanned for inventory control and disposed of in the fat and bone container [Id. ].

In August 2013, District Manager Phillips transferred Archie Cook, who was born on May 29, 1981, into the Assistant Manager position [Doc. 34-4 p. 5]. When Cook was transferred to Knoxville, he was a finalist, and on the approved list of those who could become a meat manager [Id. at 19]. At that time, other department managers thought that Cook must have been promised plaintiff's meat manager position [Doc. 34-1 pp. 52–53].

Cook was transferred to store #1416 when plaintiff was on vacation [Id. at 53]. Upon returning from vacation, plaintiff's desk had been cleared out [Id. at 52–53]. When plaintiff met Cook and asked about his aspirations, Cook replied that he wanted to be promoted to a meat manager and asked plaintiff “When are you retiring?” [Id. at 56].

Upon his return from vacation, plaintiff went to grind sirloin shortly after Cook had inventoried the cooler and found that the only box of sirloin available was already out of date [Id. at 53–54]. Plaintiff contends that leaving out-of-date meat available is the “modus operandi” in the meat department for taking a meat manager's job away [Id. at 54].

Later, before closing the meat department on the evening of September 6, 2013, a meat cutter named Harry Glover removed two semi-boneless lamb legs from the meat case that would be out-of-date the next day [Doc. 34-2 pp. 30, 43]. The following morning, Cook noticed the two out-of-date semi-boneless lamb legs on the cooler rack where out-of-date meat was stored [Doc. 34-4 pp. 9–10, 25]. When Cook left work that day, the two semi-boneless lamb legs were still on the out-of-date rack in the cooler [Id. at 25].

Plaintiff worked the closing shift that day, along with Isaac Bond, a meat cutter [Doc. 34-1 p. 43]. According to plaintiff, he was working alone during Bond's meal break when a customer came to the counter and asked plaintiff for a boneless leg of lamb [Id. ]. Plaintiff then went into the meat cooler, found a boneless leg of lamb, which he cut up and sold to the customer [Id. ]. Plaintiff contends that the lamb he sold the customer was boneless—not semi-boneless—and that he cut the lamb up by hand with a knife [Id. ]. He states that he did not check the date on the boneless-leg lamb prior to selling it because he took it from an area in the cooler where fresh meat was stored [Id. at 44]. Plaintiff contends that at the end of his shift, he noticed the two out-of-date semi-boneless lamb legs in the cooler [Id. at 43]. He scanned the two legs as out-of-date, but put them back on the out-of-date rack rather than in the fat and bone container [Id. at 45].

The next morning, Bond and Cook worked the first shift [Doc. 34-4 p. 6]. Bond told Cook that when he came back from his meal break the previous night, the saw was dirty with lamb leg and he had to clean it [Id. at 7–8; Doc. 34-2]. Cook did not believe there had been any fresh lamb leg in stock on September 7, and suspected that plaintiff may have cut and sold the out-of-date semi-boneless lamb legs in the cooler [Doc. 34-4 pp. 7–8]. Cook reported his suspicion to Prestigiacomo [Doc. 34-2 p. 29].

Prestigiacomo investigated the incident [Id. at 37]. Prestigiacomo and Huss searched the fat and bone containers and compacter, but could not find the two...