Wessling v. Kroger Co.

• Decision Date: 28 September 1982
• Docket Number: Civ. A. No. 81-60104.
• Parties: Patricia WESSLING, Plaintiff, v. The KROGER COMPANY, Amalgamated Meat Cutters Local 539, and Joseph Waddell, Defendants.
• Court: U.S. District Court — Western District of Michigan

554 F. Supp. 548

Patricia WESSLING, Plaintiff, v. The KROGER COMPANY, Amalgamated Meat Cutters Local 539, and Joseph Waddell, Defendants.

Civ. A. No. 81-60104.

United States District Court, E.D. Michigan, S.D.

September 28, 1982.

Andrew Muth, Egnor, Hamilton & Muth, Ypsilanti, Mich., for plaintiff.

Thomas L. Fleury, Keller, Thoma, Schwarze & Schwarze, Detroit, Mich., for defendant.

FINDINGS AND MEMORANDUM

JOINER, District Judge.

FINDINGS

This is a difficult case largely because of the extraordinarily harsh punishment meted out to the plaintiff by the defendant.

Patricia Wessling is a married woman who began employment with the Kroger Company at their Livonia Meat Packing Plant on September 24, 1973. At the time of her termination on December 27, 1979, she was classified as a wrapper-packer and paid under pay rate designated as "utility". She was employed in the Pork Room at the Meat Packing Plant and like all other employees in the Pork Room, was trained to and did in fact work each of the jobs and stations in the Pork Room on a regular rotating basis.

Mr. and Mrs. Wessling have one daughter, Julie. Mrs. Wessling is a member of the Catholic faith and her husband is not. Julie is raised in the Catholic Church.

Prior to December, 1979, Mrs. Wessling had been a teacher in the CCD (Confraternity of Christian Development) program at her parish, St. Joseph's in Ypsilanti, Michigan. The CCD program is a program of catechism classes for students in elementary school. The classes meet once each week during the calendar school year. At the time of this incident they met on Saturday morning.

In October of 1979, the CCD teachers began to coordinate and make arrangements for a special Christmas Mass and play to be put on by their children. At that time various of the teachers volunteered, according to their abilities and times to take care of certain portions of the program. She volunteered to receive the children who were to arrive at approximately 4:30 p.m. to 5:00 p.m. to get into their costumes and practice their lines for one last time in order to perform it at the 6:00 p.m. Mass. In addition, she was to set up the Church for the play and make arrangements to set up and decorate the hall adjoining the Church.

The plaintiff's participation in helping was voluntary and did not constitute an obligation of her faith. She could have rescheduled the time she was to be at the church to accommodate her work schedule. She also could have had her "helper" in the CCD program attend the rehearsal in her absence. Arrangements could have been made for another CCD instructor or her husband to fill in for her until she finished her work shift at the Meat Plant.

Plaintiff felt that it was her duty to assist her child's, and other children's education. This sense of duty was important to her and it is important to all mothers who work at developing a close relationship with their children in a moral and religious environment.

For the purpose of assuring her attendance at the Church, she spoke with her foreman, Joseph Waddell sometime before Christmas and informed him of her need to be off on this date. He told her to sign up for a personal day and she saved one of her allotted days for this purpose. She signed the appropriate book to have that day off but when the schedule was posted the week prior to Christmas she found that her name had been omitted from the list of those people granted the day off.

She was scheduled to work in the Pork Room on December 24, 1979 from 6:30 a.m. to 3:00 p.m. The Kroger Meat Plant shop rules allowed only seven employees to take a personal day on any given day and the order was determined by seniority of the employees. She did not have high enough seniority to receive a personal day for December 24, 1979. She was thirteenth in order of seniority for the nineteen people who applied for a personal day.

She again spoke with her foreman, Joseph Waddell, and asked him how she could arrange to have the day off. She spoke with both her foreman and her supervisor and requested on December 21, 1979 that she be allowed to leave early at 9:00 a.m. on December 24, 1979 in order to set up and prepare for a Christmas play that her daughter was in at her church. She wanted to leave the Meat Plant at 9:00 a.m. when she was not scheduled to be at the church until 12:00 p.m.

On December 21, 1979 Mr. Waddell told her that because of the numerous requests of employees to leave early on December 24, 1979, he could not allow any employees to leave early on December 24, 1979. He suggested that she check with Danny Walsh, Fabrication Supervisor, when she was not satisfied with this answer.

Mr. Waddell called Mr. Walsh in the presence of Mrs. Wessling and spoke with him. At that time she then spoke with Mr. Walsh and informed him that she wanted to be at the Church in the morning to help prepare for the children's Christmas presentation. He told her the schedule for that day was light and that all employees would probably be able to leave prior to the expiration of the eight hour shift. He also told her that he thought the meat order could be completed by at least 1:00 p.m. on December 24, 1979 and the entire Pork Room would be allowed to leave at that time. He also told her that he would tell Mr. Waddell to do everything he could to let her leave early as soon as the meat order was completed.

On December 24, she reported to work at 6:30 a.m.. She initiated and signed a leave-early sheet which was posted in the Pork Room office. At the time of her first break, being 8:45 a.m. she went to the lunch room, changed her clothes, punched out and left.

Due to the light production quota, all other employees in the Pork Room were released at 2:00 p.m., approximately one hour before the shift would normally have ended. There was no disruption to the work in the Pork Room by plaintiff's absence and the Kroger Company incurred no additional costs. The employees became very upset, however, at not being permitted to go home as Mrs. Wessling had done.

Plaintiff was not given permission at any time by Mr. Waddell or Mr. Walsh to leave before the other Pork Room employees on December 24, 1979. At no time on December 24, 1979 did she receive permission from any management person to leave at 9:00 a.m. Plaintiff was specifically told by another Pork Room employee, Madeline (Bunny) Campbell that she could not leave early as Joseph Waddel told her that no one was given permission to leave early. Plaintiff chose to ignore Ms. Campbell's warning, and having been thus informed that she did not have permission to leave, walked off the job at 8:59 a.m. on December 24, 1979.

There is some evidence that at the time she left, plaintiff thought she had permission to leave the Kroger premises or that if leaving was not permitted, discipline would be a part of the progressive discipline system with a penalty substantially less than dismissal. When she returned, however, on December 27, 1979, she was informed she was suspended, which suspension was later converted to a discharge.

She was terminated from her employment for walking off the job without permission. When she left at 8:59 a.m., the Pork Room operated with less efficiency. Kroger management has to continually insure an adequate work force at the Meat Plant to make certain that the retail stores are supplied and that the meat does not perish or age. In order to maintain an adequate work force, certain rules regarding "personal days" and vacation time were established by management, and any violation of said rules resulted in a risk that an adequate work force would not be present. On December 24, 1979 the maximum number of employees allowed to take vacation days and personal days were...