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Giglio v. Buonnadonna Shop Rite

September 25, 2009

PAUL GIGLIO, PLAINTIFF,
v.
BUONNADONNA SHOP RITE, LLC AND UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 342, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM AND ORDER

Pending before the Court are motions for summary judgment filed by both Defendants, Buonnadonna ShopRite, LLC ("ShopRite") and United Food and Commercial Workers Union Local 342 ("Union"). For the reasons that follow, the Court GRANTS summary judgment for both Defendants.

BACKGROUND*fn1

Plaintiff, Paul Giglio ("Giglio") served as Deli Appetizing Head at the ShopRite store in Bay Shore since some time in the 1990s. (Pl.'s R. 56.1 Counter-Stmt. ("Pl.'s Stmt.") ¶ 1.) In January 2004, Buonnadonna ShopRite, LLC, assumed ownership over the ShopRite stores located in Bay Shore and Babylon, New York. (ShopRite's R. 56.1 Stmt. ("ShopRite Stmt.") ¶ 2.) Susan Buonnadonna ("Susan") is the owner of ShopRite, and Melissa Buonnadonna ("Melissa") is Susan's daughter. Melissa has served in various managerial capacities for ShopRite, including Assistant Store Manager and Store Manager. (ShopRite Stmt. ¶¶ 3-4.) After the change in ownership, Giglio retained his position. While employed at ShopRite, Giglio was a member of the Union.

Sometime after assuming control of the Bay Shore store, Susan had several meetings with the Department Managers and warned them not to sell outdated product. She also advised the Department Heads that they would be terminated if they were found to have intentionally sold outdated product. (ShopRite Stmt. ¶ 8.) Giglio states that he was present during at least one of these meetings, but states that Susan did not warn the managers that they would be terminated for selling outdated products. Neverthless, Giglio admits that he was told at some point not to sell outdated products, (Pl.'s Stmt. ¶ 8.), and admits in his deposition testimony that it would be improper to instruct employees to alter "Sell By" dates on products in order to extend their shelf-life and then to sell outdated product. (Giglio dep. 163-64). In fact, Nick Cerillo, a Meat Manager at the Bay Shore ShopRite store, was terminated for directing one of his meat cutters to sell outdated product. The Union did not seek to arbitrate Mr. Cerillo's termination. (ShopRite Stmt. ¶ 71.)

According to current ShopRite policy, and policy in place since prior to 2006, rotisserie chickens prepared for sale in the Deli must be sold on the day they are made or else they must be discarded. (Id. ¶ 11; Pl.'s Stmt. ¶ 12.) At some point prior to 2006, Susan had observed a Deli worker re-heating chickens from the prior day to be placed on the floor for sale. When Susan confronted the employee, the employee advised her that Giglio had directed the employee to re-heat the chickens. Giglio denies instructing any employees to reheat chickens, and denies that Susan had a conversation with him regarding the prohibition of selling outdated food at that time.

On the evening of February 28, 2006, Susan received a phone call from a customer complaining that she purchased deli meat that smelled bad and did not last long after purchase. (ShopRite Stmt. ¶ 14.) After receiving the call from the customer, Susan immediately went to the Deli department to investigate the situation, looked at the "Sell By" dates on the various lunch meats for sale in the case, and found that many were expired and others had their "Sell By" dates tampered with. (Id. ¶¶ 15-16.) Susan enlisted the help of Luis Munoz ("Munoz"), from store Security, and the Deli clerks who were working at the time to pull the outdated product out of the case. Munoz and the Deli clerks compiled a list of the outdated products that were removed from the case. (Id. ¶¶ 19-20.) On March 1, 2006,*fn2 Melissa continuing the investigation interviewed all of the clerks who worked in the Deli under Giglio including Lilly Ann Beckel, Kevin Gutierrez, Kevin Higgins, Anthony Massa, Catherine Roettinger, and Diego Manzano. (Id. ¶ 22.) Written statements were obtained from all of the Deli clerks and some other employees who had information relevant to the investigation, and all of the Deli clerks provided statements indicating that they had seen Plaintiff change or scrub off "Sell By" dates on product and/or that he had directed them to alter or scrub off "Sell By" dates and sell outdated product. (Id. ¶¶ 23-24.) Some of the employees also stated that Giglio had directed them to reheat chickens and put them out for sale after they had passed their "Sell By" dates. Finally, and perhaps the most disgusting detail, some Deli clerks also stated that Plaintiff had directed them to wash and clean outdated lunch meat so that it looked and smelled proper for sale. The employees indicated that they followed Giglio's directions in altering the "Sell By" dates because they feared that he would reduce their hours or cause them to lose their jobs if they did not comply. (Union R. 56.1 Stmt. ("Union Stmt.") ¶¶ 26-27.)*fn3 Subsequently, a ShopRite employee removed the outdated food from the Deli, weighed it, and photographed it. All in all, three shopping carts full of outdated product were taken out of the Deli, with an approximate value of $3,000.00. (Id. ¶ 30.) Plaintiff disputes the amount and value of the products removed, but offers no evidence to the contrary.

After Susan and Melissa's investigation, Karl Lavin ("Lavin"), a Loss Prevention investigator from Wakefern, was also called in to investigate the situation. (Id. ¶ 32.) Lavin spoke with all of the Deli employees who worked with Plaintiff and prepared a report based on his investigation. Lavin's report corroborated the information that had been obtained during the Store's internal investigation. (Id. ¶ 33.) When Giglio returned from vacation in early March 2006, Susan, Melissa, and Dennis Robinson, Shop Steward, called him into a meeting and advised him that he was being suspended pending investigation into the allegations regarding the sale of outdated product. (Id. ¶ 35.)

John Pierman ("Pierman") was the Local 342 Business Agent assigned to ShopRite in March 2006. On March 14, 2006, a meeting was held between Susan, Melissa, Pierman, and Giglio; Susan informed Plaintiff that the investigation into the matter was completed, and that Giglio was terminated for intentionally selling outdated product. Susan also advised Pierman and Giglio that management had obtained written statements from several employees stating that they had witnessed Giglio changing "Sell By" dates on product or they had been directed by him to do so and sell outdated product; but, Susan did not reveal the names of any of the employees who had provided statements during that meeting. She later informed Pierman of the names so that he could conduct his own investigation into the matter. (Id. ¶¶ 38-39.)

On March 15, 2006, pursuant to its obligations under the Collective Bargaining Agreement ("CBA") with the Union, ShopRite sent a letter to the Union confirming its decision to terminate Plaintiff. (Id. ¶ 41.) On or about March 21, 2006, the Union submitted a letter to ShopRite preserving its right to grieve Giglio's termination through the contractual grievance procedure. (Id. ¶ 42.) Shortly thereafter, Pierman conducted his own investigation into the allegations against Giglio. As part of his investigation, Pierman spoke with Catherine Roettinger, Kenyata Stewart, Diego Manzano, Tony Massa, Bernadette Lee, and Lilly Ann Beckel. All of the employees that were previously interviewed confirmed the stories that they told to Susan and Melissa. The other interviewee similarly confirmed the information, or at a minimum, provided no information to refute the stories of the previously-interviewed employees. All interviewees were also Union members. (ShopRite Stmt. ¶¶ 45-47.) After finding no inconsistencies in the information provided to him by ShopRite, Pierman informed Giglio that the statements he obtained were "word for word" what the employees had told management. (Id. ¶ 48.) Plaintiff argued that Pierman's investigation was flawed because he failed to interview additional employees. He also maintained that all of the interviewed employees were lying to frame him, but provided no evidence or witnesses. (Union Stmt. ¶ 48.)

On or about March 21, 2006, Pierman filed a grievance with ShopRite to preserve Plaintiff's rights under the CBA. (Id. ¶ 56.) Prior to making a final decision regarding whether to pursue the grievance through to arbitration, however, Pierman offered Giglio the opportunity to discuss his termination with members of the Union's Executive Board. On March 27, 2006, Giglio, Pierman, and several members of the Executive Board met at the Union offices. The meeting lasted between 1 - 1.5 hours. Pierman had provided the members of the Executive Board with copies of his investigation file prior to the meeting. (Id. ¶ 64.)

At the meeting, Pierman stated that the Board needed to decide whether to pursue Plaintiff's grievance over his termination to arbitration. (Id. ¶ 64.) Members of the Executive Board asked Plaintiff about the accusations against him. Giglio responded that he had been set up, but provided no evidence. (Id. ¶¶ 65-70.) Plaintiff stated that other Union employees could corroborate his claims, but when sought out by Pierman, those employees either did not support Plaintiff's story or stated that they did not want to be involved. (Id. ¶ 70.) Also during the meeting, Pierman advised the members of the Board and Giglio that he had spoken with several Union members who worked with Plaintiff, and they had all confirmed their prior statements to ShopRite, implicating Giglio.

Following the meeting with the Executive Board, on March 28, 2006, Pierman sent Plaintiff a letter advising him that the Union was not going to proceed to arbitration on his grievance challenging his termination. The letter also advised Giglio that if he had any additional information he felt might be relevant to the situation, he should contact Pierman and the Union would review it. (Id. ¶¶ 71-72.) Giglio never contacted Pierman or the Union to provide any additional information regarding his termination after receiving the March 28 letter.

Plaintiff has no recollection of ever meeting the Executive Board members prior to the meeting, and he is not aware of any bias held against him by the members of the Executive Board with whom he met, but he asserts that the Union, in general, is biased against him, citing no admissible evidence for this suspicion. (Id. ¶ 74; Pl.'s 56.1 Counter Stmt. to Union Stmt ¶ 74.) However, the Union represented Giglio in the 1990s regarding pay issues. (ShopRite Stmt. ¶ 72.) After Plaintiff began working for ShopRite, the Union filed an additional grievance on his behalf involving his pay rate after ...


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