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Carr v. Maryland Grocery Store Co.

United States District Court, D. Maryland

March 29, 2019

DOROTHY CARR, Plaintiff,



         THIS 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.

         I. BACKGROUND[1]

         Maryland 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).[2] 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).

         During 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).

         Within 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).

         In an 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).

         On May 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 progress.” (Id.).

         Hines 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).

         On June 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. 140:20-21).

         Also on 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).

         On June 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).

         A few 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).

         Upon 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”]).

         On 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. 35-3).[3]

         On 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. at 14-15).

         On 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).


         A. Standard of Review

         In 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).

         Once a 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)).

         A “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 (1986).

         B. ...

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