CLARK v. KRAFT FOODS, INC.
Filing
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MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JAN E. DUBOIS ON 10/28/2011. 10/28/2011 ENTERED AND COPIES E-MAILED. (ems)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DONALD C. CLARK,
Plaintiff,
vs.
KRAFT FOODS, INC.,
Defendant.
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CIVIL ACTION
NO. 10-4063
DuBOIS, J.
October 28, 2011
MEMORANDUM
I.
INTRODUCTION
Plaintiff Donald Clark alleges that his former employer, defendant Kraft Foods, Inc.,
discriminated against him because he is African American. Presently before the Court is
Defendant‟s Motion for Summary Judgment. For the following reasons, the Court denies the
motion.
II.
BACKGROUND1
Plaintiff, who is African American, became a Sales Representative for defendant in 2000.
(Def.‟s Statement Undisputed Material Facts ¶¶ 3, 10, 11.) Sales Representatives sell, order, and
distribute Kraft products to grocery stores and other retail customers within an assigned territory.
(Id. ¶ 13.) One of their duties is to rotate the Kraft products on sale in retail outlets so that they
do not expire or become “out of code.” (Id. ¶¶ 15-17.)
Sales Representatives report to District Managers. (Id. ¶ 9.) From 2003 to July 2008,
plaintiff reported to District Manager Joseph Shiller (“Shiller”), who is Caucasian; from July
2008 until his termination in August 2008, plaintiff reported to Ramon German. (Id. ¶ 12; Pl.‟s
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As required on a motion for summary judgment, the facts set forth in this Memorandum are
presented in the light most favorable to plaintiff, the non-moving party.
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Ans. Def.‟s Statement Undisputed Material Facts & Additional Material Facts (“Pl.‟s Ans.
Material Facts”) ¶ 12.)
Kraft employs Merchandisers to assist Sales Representatives in “keep[ing] shelves
stocked with saleable merchandise and rotat[ing] out of code items.” (Def.‟s Statement
Undisputed Material Facts ¶¶ 19-20.) Merchandisers report to Retail Merchandising
Supervisors; the Retail Merchandising Supervisor for plaintiff‟s territory was Robert Blinstrub
(“Blinstrub”). (Id. ¶¶ 21-22, Pl.‟s Ans. Material Facts ¶¶ 15, 20, 21.) The parties disagree as to
how Blinstrub allocated Merchandisers. According to defendant, Blinstrub assigned
Merchandisers to specific stores. (Def.‟s Statement Undisputed Material Facts ¶¶ 21-32.)
Plaintiff contends, however, that “[t]he general rule was that Blinstrub assigned Merchandisers to
Sales Representatives,” who could direct the Merchandisers‟ workload as they pleased, but
Blinstrub deviated from his usual practice and assigned Merchandisers in plaintiff‟s territory to
specific stores. (Pl.‟s Ans. Material Facts ¶¶ 21-32.) It is plaintiff‟s position that Blinstrub did
not interfere with the Merchandisers assigned to Caucasian Sales Representatives in this manner
and that the interference undermined plaintiff‟s ability to service his customers adequately.
(Pl.‟s Mem. L. Opp‟n Def.‟s Mot. Summ. J. (“Pl.‟s Am. Opp‟n”) 9.)
A.
Plaintiff’s Disciplinary History
Before he reported to Shiller, plaintiff “had no performance issues” and twice received
Kraft‟s “top sales award,” the Dynasty Cup. (Def.‟s Statement Undisputed Material Facts
¶ 109.) Between 2003 to 2008, defendant disciplined plaintiff on several occasions due to
customer complaints about plaintiff‟s poor communication and service. (Id. ¶¶ 33-84; Pl.‟s Ans.
Material Facts. ¶¶ 33-84.) These incidents generally involved those stores having either
inadequate stock of Kraft products or out-of-code items. (Def.‟s Statement Undisputed Material
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Facts ¶¶ 60, 64.) Plaintiff disputes what happened in some of these incidents or, in some cases,
whether defendant even disciplined him. He claims that in many cases customers were
complaining about issues “that were not under [plaintiff‟s] control, such as Merchandisers not
servicing stores at all or not completing work.” (Pl.‟s Ans. Material Facts ¶ 38.)
Defendant‟s five-step disciplinary process is: (1) verbal coaching, (2) a written
performance warning, (3) a corrective action memorandum, (4) a final warning, and (5)
termination. (Def.‟s Statement Undisputed Material Facts ¶ 34.) Disciplinary actions lapse
when an employee has worked for a period of time – usually a year – without any further
problems. (McTaggart Depo., Pl.‟s Am. Opp‟n Ex. 4, 17-18.) Defendant used the five-step
process when customers complained about plaintiff but never went past the third step –
corrective action memorandum – until February 2008. (Def.‟s Statement Undisputed Material
Facts ¶¶ 33-75.) Defendant rated plaintiff‟s performance during this period as follows: 2002-03,
good; 2003-04, exceeds expectations; 2004-05, more is expected; 2005-06, good; and 2006-07,
more is expected. (Pl.‟s Ans. Material Facts ¶¶ 162-66.)
B.
Events Leading to Plaintiff’s Termination
Defendant alleges that, after a customer complained about plaintiff in February 2008,
Shiller spoke to Senior Human Resources Manager Gary Schmidt (“Schmidt”) and Regional
Retail Director Daniel McTaggart (“McTaggart”). (Def.‟s Statement Undisputed Material Facts
¶¶ 76, 78, 80.)2 Schmidt advised Schiller that “based on [plaintiff‟s] discipline history, the next
appropriate discipline step was a Final Warning,” step four in the five-step process. (Id. ¶ 82.)
Shiller then issued a Final Warning to plaintiff. (Id. ¶ 83.) Plaintiff claims that the customer
The races of Blinstrub, Schmidt and McTaggart are not in the record, but the parties‟ briefs and
the demographic data defendant reported to the Equal Employment Office imply that all three are
Caucasian. (EEO Reports, Pl.‟s Am. Opp‟n Ex. 8.) Ramon German‟s race is unclear.
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never complained and that “Shiller fabricated at least part of the factual basis” for the discipline.
(Pl.‟s Am. Opp‟n 11 (citing Decl. Vern Quarles,3 Pl.‟s Opp‟n Ex. 24).)
In August 2008, defendant realigned its markets and changed the stores for which
plaintiff was responsible. (Def.‟s Statement Undisputed Material Facts ¶¶ 85-86.) Defendant
audited its stores as part of the realignment and found several problems in one store, including
out-of-code products and improperly displayed items. (Id. ¶¶ 88-91.) Defendant attributed these
problems to plaintiff and terminated him. (Id. ¶¶ 92-95.) Plaintiff, however, avers that he was
no longer responsible for that location and that the newly assigned Sales Representative, Manuel
Baez, caused the problems by failing to visit the store for two to three weeks. (Id. ¶ 85.)
According to plaintiff, when he took over stores from a Caucasian representative in the 2005
realignment, an audit revealed out-of-code product, but Shiller “characterized the outdated
product as „clean up‟” and did not discipline the Caucasian representative. (Id.)
C.
Plaintiff’s Allegations of a Discriminatory Environment
Plaintiff contends that defendant‟s Horsham, Pennsylvania, office is a racially
discriminatory environment. (Pl.‟s Am. Opp‟n 8-13.)
1.
Anecdotal Evidence
Plaintiff argues that several incidents involving himself and other African American
employees in the Horsham office show racial animus. These incidents include: (1) Shiller
referring to plaintiff as “D.C.,” which plaintiff interpreted either as a reference to historically
black Washington, D.C., or as an abbreviation for “dumb cock” (Def.‟s Statement Undisputed
Material Facts ¶¶ 103-08); (2) Blinstrub refusing to shake his hand at a meeting (id. ¶¶ 121-26);
(3) McTaggart and Shiller implicitly condoning the display of an image of a “Keebler Elf
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The Quarles declaration is unsigned and undated. Defendant has not moved to strike it from
consideration. Because the Court concludes that summary judgment for defendant is
inappropriate, these defects in the declaration are immaterial at this stage.
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hanging by a noose from a tree,” which plaintiff interpreted as a reference to the lynching of
African Americans (Pl.‟s Ans. Material Facts ¶¶ 134, 158); and (4) McTaggart making racially
tinged comments to another African American Sales Representative, Allen Harris,4 such as
repeatedly calling him “Manute Bol”5 and telling a Caucasian employee that “Big Al will show
you how to dance” (id. ¶¶ 129-31). Defendant claims that these events did not occur or that they
had race-neutral explanations. (Def.‟s Statement Undisputed Material Facts ¶¶ 106-07, 126;
Kraft‟s Resp. Pl.‟s Add‟l Material Facts (“Def.‟s Add‟l Material Facts”), Def.‟s Reply Ex. C,
¶¶ 129-31, 134, 158.)
2.
Pattern of Discrimination
Plaintiff alleges that his superiors discriminated systematically against African American
employees. To support this claim, plaintiff avers that: (1) the Horsham office employed
disproportionately few African American managers (Pl.‟s Ans. Material Facts ¶ 127); (2)
defendant promoted unqualified Caucasians instead of qualified African Americans (id. ¶¶ 128,
140, 153); (3) “a disproportionate number of the Black male Sales Representatives . . . have been
either terminated, severely disciplined, or constructively discharged,” including a
disproportionately large number of those who reported to Shiller (id. ¶ 133); (4) defendant did
not make African American employees aware of promotion or training opportunities (id. ¶¶ 137139, 151-52);6 (5) Caucasian Sales Representatives received alternatives to termination during
the disciplinary process in instances where African American Sales Representatives were fired
4
Harris filed a complaint against defendant, involving allegations of racial discrimination, that is
currently pending before this Court. (See Harris v. Kraft Foods Global Inc., No. 11-cv-5618.)
5
Bol was a professional basketball player from Sudan. Patrick McGeehan, Manute Bol, N.B.A.
Player and Activist, Dies at 47, N.Y. Times, June 19, 2010, at B8.
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Plaintiff includes a declaration from Richard Gardenhire, another African American Sales
Representative who has filed suit against Kraft. (See Gardenhire v. Kraft Foods Global, Inc.,
No. 11-cv-5620.)
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(id. ¶¶ 141-43); and (6) the disciplinary process perpetuated racial disparities due to
management‟s undue deference to supervisor decisions (id. ¶¶ 145-50). Defendant contests the
facts underlying plaintiff‟s allegations and contends that the patterns have race-neutral
explanations. (Def.‟s Add‟l Material Facts ¶¶ 127-28, 133, 140-43, 145-50, 153.)
III.
STANDARD OF REVIEW
In considering a motion for summary judgment, “the court is required to examine the
evidence of record in the light most favorable to the party opposing summary judgment, and
resolve all reasonable inferences in that party‟s favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d
Cir. 2007). The party opposing the motion, however, cannot “rely merely upon bare assertions,
conclusory allegations or suspicions” to support its claim. Fireman‟s Ins. Co. v. DuFresne, 676
F.2d 965, 969 (3d Cir. 1982). After examining the evidence of record, a court should grant
summary judgment if “the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).
A factual dispute is material when it “might affect the outcome of the suit under the
governing law” and genuine when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
IV.
DISCUSSION
Defendant asserts that it is entitled to summary judgment on the sole count of the
complaint, racial discrimination under 42 U.S.C. § 1981, because plaintiff cannot show that he
performed his Sales Representative duties satisfactorily, that the circumstances of his discharge
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permit an inference of unlawful discrimination, or that defendant‟s stated reason for terminating
him was pretextual. The Court rejects these arguments.
Claims against private actors brought under § 1981 are analyzed under the same
framework as Title VII discrimination claims. See Fullard v. Argus Research Labs., Inc., No. 00509, 2001 WL 632932, at *1 (E.D. Pa. June 6, 2001) (“The legal standard for a section 1981 case
is identical to the standard in a Title VII case.”) (citing Lewis v. Univ. of Pittsburgh, 725 F.2d
910, 915 n.5 (3d Cir.1983); Bullock v. Children‟s Hosp. of Phila., 71 F. Supp. 2d 482, 485 (E.D.
Pa. 1999)). The Supreme Court established the framework for evaluating summary judgment
motions in Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The
Supreme Court further explained the framework in Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 252 (1981):
First, the plaintiff has the burden of proving by the preponderance
of the evidence a prima facie case of discrimination. Second, if the
plaintiff succeeds in proving the prima facie case, the burden shifts
to the defendant “to articulate some legitimate, non-discriminatory
reason for the employee‟s rejection.” . . . Third, should the
defendant carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.
Id. (quoting McDonnell Douglas, 411 U.S. at 802) (citations omitted). Notwithstanding this
burden-shifting framework, plaintiff always bears the ultimate burden of persuading the trier of
fact that defendant intentionally discriminated against plaintiff. Sarullo v. U.S. Postal Serv., 352
F.3d 789, 799 n.10 (3d Cir. 2003); see also Burdine, 450 U.S. at 253.
To establish a prima facie discrimination case, a plaintiff must show that (1) he is a
member of a protected class, (2) he satisfactorily performed the duties required by his position,
(3) he suffered an adverse employment action, and (4) “under circumstances that raise an
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inference of discriminatory action,” the employer treated other employees more favorably.
Albright v. City of Philadelphia, 399 F. Supp. 2d 575, 587 (E.D. Pa. 2005) (quoting Sarullo, 352
F.3d at 797). “Common circumstances giving rise to an inference of unlawful discrimination
include the hiring of someone not in the protected class as a replacement or the more favorable
treatment of similarly situated colleagues outside of the relevant class.” Bullock v. Children‟s
Hosp. of Phila., 71 F. Supp. 2d 482, 487 (E.D. Pa. 1999).
A.
Prima Facie Case
Defendant concedes the protected class and adverse employment action elements of the
prima facie case but contends that the other two elements – satisfactory performance of job
duties and circumstances raising an inference of discriminatory action – are not met. (Def.‟s
Mot. Summ. J. 9.) The Court will address each of defendant‟s arguments in turn.
1.
Satisfactory Performance
Defendant argues that the record shows that plaintiff “failed to perform at the level
required for Sales Representatives” with regard to communication and ordering, delivering, and
rotating product. (Id. at 11.) The Court disagrees. First, even if plaintiff‟s performance did not
meet some of defendant‟s criteria, plaintiff claims that defendants effectively set him up to fail
by not providing him with merchandising assistance and that they did so because of his race.
(Pl.‟s Am. Opp‟n 9.) Second, plaintiff‟s performance evaluations support defendant‟s argument
only to the extent that they show negative ratings on metrics like “code issues, lack of
communication, and unacceptable store conditions.” (See 2005-2006 Evaluation, Pl.‟s Am.
Opp‟n Ex. 22, at 4; see also Annual Evaluations, Pl.‟s Am. Opp‟n Exs. 19-23; Kraft Disciplinary
Records, Def. Mot Summ. J., Ex. G.) However, plaintiff often received high marks for meeting
sales objectives, (see id.), and before coming under Shiller‟s supervision, plaintiff received sales
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awards (Def.‟s Statement Undisputed Material Facts ¶ 109.). In addition, one of plaintiff‟s
allegations of discrimination – that Caucasian Sales Representatives received more
merchandising assistance because Blinstrub did not control their Merchandisers‟ activities –
could account for the performance evaluation deficiencies.
The parties dispute the veracity of one of the complaints that led to plaintiff receiving
Final Warning status, (Pl.‟s Am. Opp‟n 11), and whether the August 2008 incident that led to
plaintiff‟s termination was truly his fault (Pl.‟s Ans. Material Facts ¶ 85.) Bearing in mind that
discrimination “is often simply masked in more subtle forms” and that it has “become easier to
coat various forms of discrimination with the appearance of propriety,” plaintiff has satisfied his
burden to show that he satisfactorily performed his duties. See Aman v. Cort Furniture Rental
Corp., 85 F.3d 1074, 1082 (3d Cir. 1996).
2.
Inference of Discrimination
Defendant contends that plaintiff has failed to establish a prima facie case because he has
not shown circumstances raising an inference of discrimination. Defendant identifies a
Caucasian Sales Representative that it terminated for “performance issues similar to
[plaintiff‟s].” (Def. Mot. Summ. J. 12.) Plaintiff disputes that the situation was comparable,
(Pl.‟s Ans. Material Facts ¶ 96), and avers that defendant did not discipline a different Caucasian
Sales Representative for an offense similar to the one that led to plaintiff‟s termination (Def.‟s
Statement Undisputed Material Facts ¶ 85). In addition, the anecdotal evidence plaintiff
proffered, particularly Regional Director McTaggart‟s comments regarding Allen Harris, (see
Harris Decl., Pl.‟s Am. Opp‟n Ex. 10), supports plaintiff‟s contention that his supervisors
harbored racial animus. Lastly, viewing the evidence in the light most favorable to plaintiff, the
alleged pattern of discriminatory treatment toward and nonpromotion of African American Sales
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Representatives in defendant‟s Horsham office supports an inference that plaintiff‟s termination
was the product of racial discrimination. Thus, plaintiff has met the fourth element of the prima
facie case.
B.
Legitimate Nondiscriminatory Reason for Termination
Defendant avers that plaintiff‟s record of poor communication and customer service
justified the decision to terminate his employment. (Def.‟s Mot. Summ. J. 10.) This satisfies
defendant‟s “relatively light” burden to “introduc[e] evidence which, taken as true, would permit
the conclusion that there was a nondiscriminatory reason for the unfavorable employment
decision.” See Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006) (citing Fuentes v.
Perskie, 32 F.3d 759 (3d Cir. 1994)).
C.
Legitimate Reason as a Pretext for Discrimination
To show pretext, plaintiff must present “some evidence . . . from which a factfinder could
reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that
an invidious discriminatory reason was more likely than not a motivating or determinative cause
of the employer's action.” Fuentes, 32 F.3d at 764; see also St. Mary‟s Honor Ctr. v. Hicks, 509
U.S. 502, 515 (1993). “Put another way, to avoid summary judgment, the plaintiff‟s evidence
rebutting the employer‟s proffered legitimate reasons must allow a fact-finder reasonably to infer
that each of the employer's proffered non-discriminatory reasons was either a post hoc
fabrication or otherwise did not actually motivate the employment action . . . .” Doe v.
C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008). Because “the prima facie case
and pretext inquiries often overlap,” the Court may consider the same evidence at both stages of
the McDonnell-Douglas analysis. Id.
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A genuine issue of material fact remains as to whether defendant‟s proffered reason for
terminating plaintiff was pretextual. Plaintiff disputes at least some of the incidents defendant
cites as evidence of plaintiff‟s poor performance; he has challenged whether the complaint that
led to his “Final Warning” was ever made; and he has produced some evidence that the incident
causing his termination was not his fault and that Shiller handled a similar situation involving a
Caucasian Sales Representative without disciplinary action. (Decl. Donald Clark, Pl.‟s Am.
Opp‟n Ex. 1, ¶¶ 28-29.) Although plaintiff admits that some of his stores sporadically
complained about poor communication or product issues, (Pl.‟s Ans. Material Facts ¶¶ 33-84), a
reasonable jury could credit plaintiff‟s contentions that those deficiencies arose from
management‟s racially discriminatory interference with his Merchandiser scheduling (e.g., Pl.‟s
Ans. Material Facts ¶¶ 21-32). Such an inference is bolstered by the evidence of racial
discrimination in defendant‟s Horsham, Pennsylvania, office, which buttresses the theory that
plaintiff‟s supervisors set him up to fail in the Sales Representative position by micromanaging
his Merchandising schedule and not providing opportunities for advancement.
“To avoid summary judgment, the plaintiff must point to some evidence from which a
factfinder could reasonably conclude that the plaintiff satisfied the criterion that the
decisionmakers disapproving of him relied upon (e.g., by showing that others no more qualified
than he under that criterion were not treated adversely), or that the decisionmakers did not
actually rely upon that criterion.” Fuentes, 32 F.3d at 767; see also Lowe v. Phila. Newspapers,
Inc., 594 F. Supp. 123, 128 (E.D. Pa. 1984) (denying summary judgment when “a jury could
infer intentional discrimination[,] although the events could also be explained in a nondiscriminatory way”). Plaintiff has carried that burden. Accordingly, summary judgment for
defendants is inappropriate.
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V.
CONCLUSION
A genuine issue of material fact remains as to whether defendant intentionally
discriminated against plaintiff because of plaintiff‟s race. Defendant‟s motion for summary
judgment is thus denied. An appropriate Order follows.
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