White v. Dixie, 070918 FED11, 17-11123

Docket Nº:17-11123
Opinion Judge:PER CURIAM
Party Name:THOMAS CHRISTOPHER WHITE, Plaintiff-Appellant, v. WINN DIXIE, Defendant, WINN DIXIE MONTGOMERY LLC, Defendant-Appellee.
Judge Panel:Before ROSENBAUM, HULL, and JULIE CARNES, Circuit Judges.
Case Date:July 09, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit



WINN DIXIE, Defendant,


No. 17-11123

United States Court of Appeals, Eleventh Circuit

July 9, 2018


Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:14-cv-01702-RDP

Before ROSENBAUM, HULL, and JULIE CARNES, Circuit Judges.


Thomas White, proceeding pro se, appeals the district court's grant of summary judgment to his former employer, Winn Dixie Montgomery LLC ("Winn Dixie"), on his complaint alleging claims of race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a); race discrimination and retaliation in violation of 42 U.S.C. § 1981; interference and retaliation in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615; and failure to pay overtime in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a). After careful review, we affirm.

I. Factual Background

White is an African-American man who began working for the Winn Dixie supermarket chain in April 2009. Originally hired as a grocery manager, he was promoted one year later to the position of center store manager. He remained in that position until April 2013, when he became a service-area manager, the position he held until his termination in January 2014. Center store manager and service area manager were both salaried positions with no overtime pay.

White worked at three different stores during his employment with Winn Dixie: Store 595, Store 405, and Store 461. As a center store manager, he began at Store 595, where he reported to Store Director Monica Sledge. Sledge completed White's 2010 annual performance review on June 25, 2010. Although Sledge noted that White was new in the position and "on target" or "above target" in many areas, she also noted that White needed improvement in various areas, including shrink, freshness, greeting and thanking customers, and offering assistance. Sledge commented that White "need[ed] to work with his associates to get everybody improving customer service" and he "need[ed] to help in customer and general liability to improve the safety of the building." In the overall summary, Sledge noted that White was new in his position.

In a declaration prepared for this case, Sledge stated that she observed several deficiencies in White's performance as center store manager at Store 595. According to Sledge, White "failed to manage, train, and properly supervise his staff," he had poor time-management skills, he would frequently leave the back store room in disarray, and he often failed to check for out-of-date products.

In July 2010, White was transferred to Store 405, where he reported to Store Director Derrick Bell. Bell completed White's annual performance review in November 2010. Bell wrote that White was "on target" and gave him mostly complimentary reviews. Bell noted, however, that White must hold the department managers who reported to him accountable for store conditions and daily tasks. Specifically, according to Bell, there were problems in the grocery department and White needed to "do a better job of coaching and holding the [assistant] grocery managers accountable for their performance."

In late 2012, Jason Hardy became the district director responsible for managing Stores 595, 405, and 461, among others. The directors of each store reported to Hardy. Britt Pietruszewski managed human-resources functions at these same stores.

According to Pietruszewski, in early 2013 he and Hardy discussed poor store conditions at Store 405, which they attributed to store managers, including White, failing to consistently coach staff and hold staff accountable for performance. Seeking a fresh start at Store 405, Winn Dixie transferred White back to Store 595.

At Store 595, White again reported to Sledge, and he eventually became a service-area manager. In that role, White's duties included staffing, scheduling, and supervising employees in the service area of the store. Sometimes White also served as manager on duty ("MOD"). When serving as MOD, White was responsible for the entire store; ten to twelve employees reported to him, and he was responsible for ensuring that all departments were closed, end caps (displays at the end of an aisle) were straightened, and the store was locked.

In June 2013, Hardy called a meeting of the managers to discuss issues concerning unloading trucks in a timely manner. Sledge and White both advised Hardy that the problem was the lack of good dependable help, and White said that he was working 15-hour days to get the work done. After the meeting, according to White, Sledge told him that he had "a target on [his] back" and that he "need[ed] to take [himself] on down to the EEOC." White did not explain why Sledge advised him to go to the EEOC, however.

In her declaration, Sledge stated that, after White's transfer back to Store 595, she observed the same performance issues she had previously noticed, and she discussed these issues with Hardy and Pietruszewski. Sledge also told Hardy and Pietruszewski that the back store room was sometimes in disarray because of White's disorganization while setting up and removing display ads. Sledge agreed with Pietruszewski's recommendation that White be placed on a performance improvement plan ("PIP"), but she did not finish preparing the PIP before she was transferred to another store.

Keith Durham replaced Sledge as the director of Store 595 in early July 2013. A few weeks later, White received notice that he was being transferred to Store 461. On July 22, 2013, White's last day at Store 595, Durham issued him a written warning stating that he had neglected certain duties while serving as MOD the night before, including customer and employee safe-store conditions, cleaning the store and floors, and clearing the parking lot of carts. According to one of White's affidavits, Durham apologized to him for the warning and said he was told "to have some documentation on [White] before [he] left."

White started at Store 461 in late July or early August of 2013. There, he reported to Store Director Raymond (Glenn) Leimbach. Leimbach and White had previously worked together for two weeks at another grocery store, Bruno's. White had filed a charge of race discrimination and retaliation against Bruno's with the Equal Employment Opportunity Commission ("EEOC"). In that charge, White alleged that he was retaliated against after he complained to Leimbach that a female employee and another manager had an improper relationship.

White explained to Hardy before the transfer that he was worried Leimbach would be biased against him because of the prior EEOC charge. Hardy told him not to worry. It appears that Hardy then spoke with Leimbach about these matters.

Meanwhile, Winn Dixie also transferred Shane Miller, a white male, to Store 461 to serve as assistant store director. Winn Dixie produced evidence that all other managers than the store director reported to Miller, including White, but White denies that he was supervised by Miller. For purposes of our review, we accept White's version of the facts on this matter, see Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (en banc) ("[W]e accept the nonmovant's version of the events when reviewing a decision on summary judgment."), though it is undisputed that Miller was a higher-level manager than White.

Pietruszewski advised Leimbach that both White and Miller had performance deficiencies and that PIPs had been proposed for both of them.

Leimbach observed their performance over the next few weeks before issuing PIPs. In a declaration, Leimbach testified that he observed the following deficiencies in White's performance: he "failed to complete ads on time; failed to ensure proper policing of items of removal of out-dated items; failed to supervise his staff and ensure that staff provided excellent customer service; and failed to properly hire and schedule associates to maintain the proper ratio of part-time to full-time employees." As for Miller, Leimbach observed that he "had difficulty effectively leading subordinates, complying with store processes, scheduling employees, and merchandising products."

Leimbach issued a PIP to Miller on August 31, 2013, and a PIP to White on September 2, 2013. White's PIP indicated that he needed to improve pricing issues. It further stated that he needed to work on customer service and dress-code issues for all team members, as well as issues with the ratio of part-time to fulltime employees.

According to Leimbach, Miller's performance improved, but White's performance declined. Regarding White's...

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