United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendant Maryland Grocery
Store Company's (“Giant Eagle”) Motion for
Summary Judgment (ECF No. 34). This employment disability
discrimination and retaliation action arises from Giant
Eagle's termination of Plaintiff Dorothy Carr's
employment in the summer of 2014. The Motion is ripe for
disposition, and no hearing is necessary. See Local
Rule 105.6 (D.Md. 2018). For the reasons that follow, the
Court will grant Giant Eagle's Motion.
Grocery Store Company is a Pennsylvania-based retail grocery
chain that operates two supermarkets under the trade name
Giant Eagle in Frederick, Maryland. (Compl. ¶ 7). On
March 26, 2006, Giant Eagle hired Carr to work as a part-time
cashier at one of its Frederick, Maryland stores. (Carr Dep.
85:9-15, Jan. 29, 2018, ECF No. 34-2). Carr worked at that
store, in jobs of increasing responsibility, until June 24,
2014, when she was terminated. (Carr Dep. 157:12-22; Herndon
Dep. 182:19-184:11, Jan. 30, 2018, ECF No.
34-4). From 2006 to 2011, Giant Eagle promoted
Carr several times, including to full-time Front End
Coordinator and ultimately to Front End Assistant Team Leader
(“Assistant Team Leader”). (Carr Dep.
88:1-89:15). As Assistant Team Leader, Carr supervised
approximately forty employees and oversaw front-end
operations, which included scheduling, training, customer
service, maintenance of the store, and driving financial
performance. (Carr Dep. 98:5-102:6, 108:15-17; Carr Dep. Ex.
2, ECF No. 34-2 at 148-50 (“Carr Job
Description”); Hines Dep. 15:21-17:3, Jan. 31, 2018,
ECF No. 34-3).
Carr's employment with Giant Eagle, she took medical
leave three times: (1) from December 7, 2009 through March
14, 2010; (2) from April 17, 2011 through June 8, 2011; and
(3) from August 16, 2012 to November 26, 2012. (Carr Dep.
164:14-66:11). During the 2012 leave, she underwent testing
and surgery for what was ultimately diagnosed as leukemia.
(Compl. ¶ 12; Carr Dep. 169:18-170:1; Carr Dep. Ex. 9,
ECF 34-2 at 159 (“Attending Physician
Statement”)). Carr returned to Giant Eagle in November
2016 with no work restrictions, (Compl. ¶ 12; Carr Dep.
171:16-172:1, Ex. 10), after Carr told her doctors not to
impose any so she could return to Giant Eagle without issue,
(Compl. ¶ 12). As with her previous two leaves, Carr
returned to Giant Eagle in the same position, with the same
pay and benefits as when she left. (Carr Dep. 170:2-8).
days of her return in late 2012, Carr received criticism for
her job performance. Steve Hines, the Store Leader, requested
that she change the prices on certain groceries. (Carr Dep.
177:18). Carr sought the price gun from another employee,
Diane Gordon, and when Gordon said she would handle the task
herself, Carr went to lunch. (Carr Dep. 178-180:9). When Carr
returned from lunch, Hines rebuked her in front of customers
and fellow employees for not completing the task. (Carr Dep.
180:10-13; 181;12-17). This upset Carr, (Carr Dep.
180:5-182:14), and therefore, on November 30, 2012, she
called Giant Eagle's ethics hotline to complain about
Hines. (Carr Dep. 174, 195-96; Carr Dep. Ex. 11, ECF No. 34-2
at 161 (“Ethics Hotline Report”)). During the
call, Carr noted she had been away from work for three months
“due to being diagnosed with leukemia” and that
when she returned to work Hines “yelled at her in front
of customers and was rude to her” and that she was
“treated as if she was not wanted back.” (Ethics
Hotline Report). Giant Eagle Human Resources Manager,
Lorraine Herndon, received the complaint and investigated,
including speaking with Hines, at which point Hines
“knew he was wrong for confronting [Carr] on the sales
floor.” (Herndon Dep. 107:7-108:19).
email Carr said she sent to Hines in early 2014, Carr
requested fewer evening shifts because they were “hard
on me” but did not explicitly mention her health
condition or disability. (Carr Dep. 113:7-115:16). Carr said
this was the only “accommodation” request she
made. (Id. 120:5-8). Carr said she told Hines she
took her chemotherapy pills on Saturdays, which made her
dizzy and weak, but she did not request Saturdays off.
(Id. 318:3-19). Carr kept complaining to Herndon and
Herndon's supervisor, Kelly Green about Hines.
(Id. at 306:19-311:8).
27, 2013, Hines made a request to Giant Eagle's Human
Resources Department, specifically Herndon, to place Carr on
a Performance Improvement Plan (the “PIP”).
(Hines Dep. 84:22-86:7; Hines Dep. Ex. 52, ECF No. 34-3 at
91-92 (“PIP”)). The PIP request noted a pair of
customer complaints about Carr in the previous three months.
(PIP). The Human Resources Department approved the request,
and on July 23, 2013, Hines presented the PIP to Carr. (Carr
Dep. 204:20-206:2). The PIP identified three areas of
improvement-customer focus, financial metrics, and
follow-through-and set out expectations and required actions
for each. (PIP). The top of the PIP said, “Follow-up
meetings should occur every [thirty] days to discuss
met with Carr three times over the next year to assess and
discuss her progress on the PIP. (Carr Dep. 217:3-9). During
the first meeting on September 27, 2013, Hines noted that
Carr had been holding regular team meetings as directed but
had not completed the “Skills for Success”
activities for improving her customer. (Id.
217:15-219-7). On February 1, 2014, Hines and Carr met again.
Carr noted increased efficiency in use of grocery bags,
(Id. 222:9-22), and Hines offered further
suggestions for improvement, (Id. at 223:1-8). Hines
told Carr to record all results. (Id. 224:1-6). On
May 12, 2014, Hines and Carr met for a third time about the
PIP, this time with Herndon present. (Id. 227:3-6).
On May 31, 2014, Hines requested that Carr's PIP be
extended by thirty days. (Hines Dep. 113:19-114:7).
8, 2014, Assistant Store Manager Ryan walked into the front
manager's office and saw Carr completing a cashier safety
training course. (Carr Dep. 139:14-140:5). After Carr said
she was completing the course for a cashier, Ryan told her,
“You know you shouldn't be doing that.”
(Id. 140:8-9). On June 10, 2014, Hines visited
Carr's office and saw Carr sitting with another employee.
(Id. 140:13-18). Carr said she was assisting the
employee in completing his food safety course. (Id.
June 10, 2014, Carr spoke on the phone with one of Giant
Eagle's owners, Jeremy Shapira, for more than an hour.
(Id. 245:15-246:2). Carr had written other managers
but received no response, so she forwarded her email to
Shapira and two other members of his family. (Id.
244:17-245:18). Shapira offered to speak with her the next
day on the phone, and they did. (Carr. Dep. 246:1-2;
id. Ex. 18, ECF 34-2 at 180 [“Carr-Shapira
Emails”]). Asked during her deposition what she
discussed with Shapira, Carr said, “The treatment of
Steve, from Steve on me, and how I felt with me being sick
Steve wanted me to quit. He was harassing me, how it was an
everyday thing. . . . I talked about everything with
[Shapira] that day.” (Id. at 247:7-12;
see Carr-Shapira Emails).
12, 2014, Ryan and Hines met to discuss the issue of Carr
completing training for other employees. (Hines Dep.
123:15-21; Herndon Dep. Ex. 40 [“Hines Report”]).
Hines investigated, wrote a report, and referred the matter
to Giant Eagle's Human Resources and Loss Prevention
departments, recommending Carr's termination. (Hines Dep.
123:21-124:9, 126:21-127:4; Hines Report).
days later, Herndon and Morgan Black, from the Loss
Prevention Department, met with Carr, who admitted to
completing the training for at least two employees. (Carr
Dep. 143:11-144:6). Carr said she knew her actions were
wrong. (Id. at 147:11-13). But she said other
managers-not Hines or Ryan, though-helped their employees
complete the training. (Id. at 147:17-148:21).
completing the investigation, Herndon and Black discussed the
case with Herndon's supervisor, Green, (Herndon Dep.
181:6-181:17), who in turn brought the matter to Karen
Priore, Director of Human Resources. (Herndon Dep.
182:19-183:5). During a phone call, Carr admitted to Priore
that she was wrong to complete other employees'
assessments. (Carr. Dep. 150:5 -17). On June 24, 2014, Carr
was terminated. (Id. 157:16-22; id. Ex. 6,
ECF No. 34-2 at 155 [“Carr Termination Letter”]).
August 28, 2014, Carr and representatives of Giant Eagle
participated in a hearing before the Unemployment Appeals
Division seeking a determination of her unemployment
benefits. (Pl.'s Opp'n, Ex. C, ECF No.
January 26, 2017, Carr sued Giant Eagle. (ECF No. 1). In her
three-Count Complaint, Carr alleges that: Giant Eagle
regarded her as disabled and discriminated against her on
that basis, in violation of the Americans with Disabilities
Act as amended (“ADAAA”), 42 U.S.C. §§
12112 et seq. (2018) (Count I); Giant Eagle
discriminated against her on the basis of her actual
disability, in violation of the ADAAA (Count II); and Giant
Eagle retaliated against her in violation of the ADAAA (Count
III). (Compl. at 9- 14). Carr seeks declaratory and
injunctive relief, in addition to compensatory and punitive
damages, and her attorney's fees and costs. (Id.
March 1, 2018, Giant Eagle filed its Motion for Summary
Judgment. (ECF No. 34). On March 15, 2018, Carr filed an
Opposition. (ECF No. 35). On April 5, 2018, Giant Eagle filed
a Reply. (ECF No. 39).
Standard of Review
reviewing a motion for summary judgment, the Court views the
facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party's favor. Ricci
v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144,
158-59 (1970)). Summary judgment is proper when the movant
demonstrates, through “particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
. . . admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A).
Significantly, a party must be able to present the materials
it cites in “a form that would be admissible in
evidence, ” Fed.R.Civ.P. 56(c)(2), and supporting
affidavits and declarations “must be made on personal
knowledge” and “set out facts that would be
admissible in evidence, ” Fed.R.Civ.P. 56(c)(4).
motion for summary judgment is properly made and supported,
the burden shifts to the nonmovant to identify evidence
showing there is genuine dispute of material fact. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986). The nonmovant cannot create a
genuine dispute of material fact “through mere
speculation or the building of one inference upon
another.” Othentec Ltd. v. Phelan, 526 F.3d
135, 141 (4th Cir. 2008) (quoting Beale v. Hardy,
769 F.2d 213, 214 (4th Cir. 1985)).
“material fact” is one that might affect the
outcome of a party's case. Anderson, 477 U.S. at
248; see also JKC Holding Co. v. Wash. Sports Ventures,
Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir.
2001)). Whether a fact is considered to be
“material” is determined by the substantive law,
and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248; accord
Hooven-Lewis, 249 F.3d at 265. A “genuine”
dispute concerning a “material” fact arises when
the evidence is sufficient to allow a reasonable jury to
return a verdict in the nonmoving party's favor.
Anderson, 477 U.S. at 248. If the nonmovant has
failed to make a sufficient showing on an essential element
of her case where she has the burden of proof, “there
can be ‘no genuine [dispute] as to any material
fact,' since a complete failure of proof concerning an
essential element of the nonmoving party's case
necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23