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Geib v. Performance Food Group, Inc.

United States District Court, D. Maryland

August 8, 2016

JASON GEIB, Plaintiff,
v.
PERFORMANCE FOOD GROUP, INC., Defendant.

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge.

         THIS MATTER is before the Court on Defendant’s, Performance Food Group, Inc. (“PFG”), Motion for Summary Judgment (ECF No. 28) and Plaintiff’s, Jason Geib, Motion to Strike Certain Paragraphs of PFG’s Affidavits (ECF No. 39). The Motions are ripe for disposition. Having reviewed the Motions and supporting documents, the Court finds no hearing necessary pursuant to Local Rule 105.6 (D.Md. 2016). For the reasons outlined below, the Court will deny PFG’s Motion for Summary Judgment and grant Geib’s Motion to Strike in part and deny it in part.

         I. BACKGROUND[1]

         PFG is a foodservice distributor that delivers products to restaurants, schools, and other institutions. PFG employed Geib as warehouse manager at its Carroll County facility (“CCF”) in New Windsor, Maryland from September 25, 2006 to March 19, 2007. Geib was hired to improve warehouse operations, particularly during the night-shift, which had declined substantially since spring of 2006 due to understaffing and an increase in the volume of produce. As warehouse manager, Geib was responsible for supervising, hiring, and training warehouse staff.

         At the time Geib was hired, he reported directly to Carl Bredberg, Vice President of Operations at CCF, until Bredberg’s departure in January 2007. Dave Russ, Regional Vice President of Operations, supervised CCF until Jeffrey Wismans, selected to be Bredberg’s replacement, began working on February 4, 2007. As Geib’s interim supervisor, Russ sent Geib several emails from January 11, 2007 to February 10, 2007, informing him of his failure to complete timely reports, properly train and supervise warehouse staff, meet productivity expectations, communicate effectively, and conduct observations of associates to ensure they followed best practices within the warehouse.[2]

         During Geib’s tenure, he hired several female employees. On November 9, 2006, Julie Lawrence received an offer to work for PFG as a food selector. In November 2006, Russ and Dan Pekscamp, Corporate Senior Vice President of Operations, told Geib to remove female employees from the warehouse. Geib, however, trained Lawrence and came to believe that she would be a good candidate for a supervisory position. In January 2007, Geib spoke to Russ about Julie Lawrence being a potential candidate for a supervisor position. Russ responded that Pekscamp would not approve of Lawrence becoming a supervisor because Pekscamp did not want women in the warehouse. Also in January 2007, Pekscamp told a night shift manager to fire a female employee and stated that Geib needed to stop hiring women.

         On February 7, 2006, Wismans emailed Steve Stacharowski, Vice President of Human Resources for PFG, stating he wanted to post a position for a night-shift selection trainer/supervisor. The position was posted on a recruitment website on February 13, 2007, and the last date to apply was February 21, 2007. It is disputed when Geib told Lawrence about the position and asked her to apply. Lawrence faxed her resume and letter of interest regarding the position to Geib on February 28, 2007.

         In late February 2007, Geib noticed who he believed to be external applicants being interviewed for the supervisory position. Geib went to Stacharowski’s office to follow-up on Lawrence’s application. PFG’s policy required associates to have at least six months of service, or obtain the approval of the president or a general manager of PFG, before they could apply for a supervisor position. Because Lawrence had not worked for PFG for the requisite six months, Geib asked Stacharowski to exempt her from the requirement. When Stacharowski would not exempt Lawrence from the requirement, Geib complained that Lawrence was not being considered because she is a woman. Geib also complained to Russ about Lawrence’s application not being considered because she is a woman. Both Russ and Stacharowski dispute that these conversations ever took place. (Stacharowski Decl. ¶¶ 32-33, ECF No. 34; Russ Decl. ¶¶ 30-32, ECF No. 33).

         Due to the lack of performance improvements within the warehouse, Russ sent an email to J. Michael Mattingly, President of PFG, on February 26, 2007 stating he would make recommendations regarding changes in the warehouse management structure. At an unspecified time, Mattingly subsequently learned that the recommendation was to replace Geib. (Mattingly Decl. ¶ 26, ECF No. 32).

         On March 3, 2007, Geib emailed Wismans and Stacharowski, stating that his wife was injured in a car accident and he needed to travel to Oklahoma to take care of his children. On March 5, 2007, Wismans sent an email to Stacharowski about Geib’s lack of commitment to his job and their need to start a confidential search for an experienced warehouse manager to replace Geib. At some point between March 5 and March 16, 2007, Gardner told Geib that his position was posted online. On March 14, 2007, Geib emailed Stacharowski and Wismans stating that he was hoping to return to work around March 26, 2007. In response to Geib’s email, on March 14, 2007, Stacharowski requested that Geib contact him or Wismans prior to making plans to return because there were “some things [they needed] to discuss.” (ECF No. 31-21). Stacharowski states they needed to discuss the decision he, Mattingly, and Wismans made to terminate Geib’s employment. (Stacharowski Decl. ¶ 24, ECF No. 34).

         On March 16, 2007, Geib called Stacharowski to discuss PFG posting his position online and whether PFG would offer him financial assistance if he were terminated. On March 18, 2007, Geib sent Stacharowski an email with “PFG Separation” in the subject line in an attempt to negotiate a severance package. In the email, Geib also stated “[s]ince entering into PFG-CCF, [he saw] and tried to administer systems and processes through racial and sexual discrimination of employment practices from associates to management and management to associates.” (ECF No. 38-15). On March 19, 2007, Stacharowski emailed Geib terminating his employment and stating “the decision to terminate [his] employment was not made until [that day].” (ECF No. 31-23).

         On July 16, 2007, Geib filed a formal Charge of Discrimination with the Maryland Commission on Human Relations and the United States Equal Employment Opportunity Commission (“EEOC”), alleging race- and sex-based discrimination and retaliation. (ECF No. 38-17). On June 20, 2013, Geib received a Notice of Right to Sue from the EEOC. (ECF No. 1-2). On September 13, 2013, Geib initiated this action alleging retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e et seq. (2012). (ECF No. 1). PFG filed an Answer on November 8, 2013. (ECF No. 3). On April, 6, 2015, PFG filed a Motion for Summary Judgment. (ECF No. 28). On May 7, 2015, Geib filed an Opposition to the Motion (ECF No. 38) and Motion to Strike Certain Paragraphs [of] Defendant’s Affidavits (ECF No. 39). On May 22, 2016, PFG filed an Opposition to the Motion to Strike (ECF No. 40). On June 16, 2015, PFG subsequently filed a Reply to Geib’s Opposition. (ECF No. 43).

         II. DISCUSSION

         A. Motion to Strike

         Geib requests that the Court strike certain statements made in the Declarations PFG uses to support its Motion for Summary Judgment pursuant to the sham affidavit doctrine. Under the sham affidavit doctrine, “a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.” Ervin v. JP Morgan Chase Bank NA, No. GLR- 13-2080, 2014 WL 4052895, at *2 (D.Md. Aug. 13, 2014) (quoting Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)). “Application of the sham affidavit rule at the summary judgment stage ‘must be carefully limited to situations involving flat contradictions of material fact.’” Id. (quoting Zimmerman v. Novartis Pharm. Corp., 287 F.R.D. 357, 362 (D.Md. 2012)).

         1. Russ’s Declaration

         Geib argues paragraphs 28 through 32 of Russ’s Declaration contradict his prior deposition testimony. In the Declaration, Russ states he never had a conversation with Geib about Lawrence being promoted or interested in or interviewed for the trainer/night supervisor position. He also states he only spoke to Geib about Lawrence being a capable employee in January 2007. During his deposition, however, Russ states he had a conversation with Geib, in which Geib stated Lawrence “had aptitude for a potential position as a supervisor.” The Court, therefore, finds Russ’s statement in paragraph 32 ...


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