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Hesse v. Dolgencorp of New York, Inc.

United States District Court, W.D. New York

March 31, 2014

KELLY J. HESSE, Plaintiff,


WILLIAM M. SKRETNY, Chief District Judge.


Plaintiff Kelly J. Hesse ("Plaintiff") commenced this action on May 18, 2010 alleging that Dolgencorp of New York, Inc., a/k/a Dollar General Corporation ("Dollar General" or "Defendant") discriminated against her based on her sex, pregnancy, and pregnancyrelated disability in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. §§ 290 et seq. (Docket No. 1.) Specifically, Plaintiff claims that Dollar General subjected her to a hostile work environment, demoted her, denied her light-duty work, and terminated her employment due to her pregnancy. (Compl. fflj 60-76.)

Defendant has filed a Motion for Summary Judgment (Docket No. 46) seeking dismissal of the Complaint on the following grounds: (1) Plaintiff cannot establish that she was subject to a hostile work environment due to her pregnancy; (2) Plaintiff's Title VII claim stemming from her demotion is time-barred; (3) Plaintiff cannot establish a prima facie case for her NYSHRL demotion claim; (4) Plaintiff cannot establish that Dollar General's explanation for demoting Plaintiff was pretextual; (5) Plaintiff cannot establish a prima facie case for her pregnancy discrimination claim stemming from Dollar General's denial of light-duty work and subsequent termination; and (6) Plaintiff cannot establish that Defendant's explanation for not offering her light-duty and terminating her employment is pretextual.[1] (Def. Mem. 2-25.)

For the following reasons, Defendant's motion is granted in part and denied in part.


A. Facts[2]

1. Business and Organization of Dollar General

Dollar General is a retailer of basic consumable goods, such as home cleaning supplies, health, beauty aides, food and snacks, pet food and supplies, housewares, lawn and garden tools, toys, and basic apparel. Defendant operates Dollar General stores in New York, which are organized into districts. During Plaintiff's employment, Plaintiff's stores, Nos. 9592 ("Fillmore Store") and 8393 ("Nunda Store") were located in District 451. During the course of her employment, Plaintiff also traveled to and worked at other stores within District 451. (Pl. Ex. A ("Hesse Aff."), U 24.)

Each Dollar General Store operates under the direction and supervision of a Store Manager. Dollar General stores are also staffed with "non-exempt" employees, including one or more Assistant Store Managers, a Lead Sales Associate or Lead Clerk, and several Sales Associates or Clerks. (Def. Ex. J ("Tilton Decl."), ¶ 4.) Plaintiff states that the Fillmore store had three Assistant Store Managers, including herself and a man named Brad Gayford, who was hired eight days after Plaintiff advised her District Manager that she was pregnant and eventually replaced Plaintiff after she took leave six weeks later. (Hesse Aff. ¶¶ 32, 35; Pl. Ex. E ("Beardsley Dep.") 67-71.)

The ability to frequently lift 40 pounds, and occasionally lift up to 55 pounds, is an essential function of all retail store positions. (Def. Ex. K ("Cherry Decl.") ¶19 & Ex. 5.) Plaintiff denies that this is an essential function, and states that Dollar General and/or District Manager Rhonda Tilton ("Tilton") would selectively determine when the lifting requirements applied. For example, Plaintiff claims that Tilton hired a woman named Anita Christensen, knowing that she could not lift 40 pounds without reasonable accommodations. (Pl. Ex. F; Beardsley Dep. 223-27.)

2. Plaintiff's Employment History

On April 13, 2005, Plaintiff was hired as a Clerk at the Nunda Store by Tilton, a Manager at the Fillmore Store. Approximately five months later, Plaintiff was promoted to Assistant Store Manager at the Nunda location. In January, 2006, Tilton promoted Plaintiff again to Store Manager. At that time, Tilton served as Distirct Manager for District 451 and was Plaintiff's direct supervisor. Tilton was aware that Plaintiff already had a child at the time she hired Plaintiff in April, 2005, and when she promoted Plaintiff in January, 2006.

Shortly after Plaintiff's promotion to Store Manager, she attended Dollar General's two-week Store Manager training session in Lockport, New York. There, she received training in Dollar General's policies and procedures prohibiting discrimination on the basis of sex, pregnancy, childbirth, and related medical conditions. As Store Manager, Plaintiff was responsible for adhering to and enforcing Dollar General's anti-discrimination policies.

During Plaintiff's tenure as Store Manager, she struggled to keep her store's overall conditions up to Dollar General's standards. Tilton repeatedly raised concerns about Plaintiff's performance with her. Those concerns included that Plaintiff was not holding her employees accountable for their performance, not properly delegating work tasks, failure to ensure that the store was properly recovered, cleaned, and overall store conditions kept up to par. Tilton verbally counseled Plaintiff regarding these issues prior to August, 2006. (Def. Ex. A ("Hesse Dep.") 54-57.) Plaintiff specifically denies that she testified that Tilton had "verbally counseled" her regarding these issues before August, 2006, but admits that Tilton did "discuss" them with her on multiple occassions. (Id.) Verbal counseling, according to Plaintiff, is the first level of formal counseling prior to termination and requires documentation on the Progressive Counseling Record form with dates, times, and main points of the conversation. (Hesse Aff. ¶¶ 16-17; Pl. Ex. M.)

On August 8, 2006, Tilton visited Plaintiff's store and observed ongoing conditions that caused her to issue a written counseling (second level of Progressive Discipline) to Plaintiff. Tilton wrote up Plaintiff for the following infractions: failing to properly train, teach, and hold employees accountable; and unacceptable store conditions, including the store being dirty, not properly recovered, and not merchandised according to the planner.

Tilton met with Plaintiff on August 8, 2006, to inform her of the unacceptable conditions and let her know that she was going to issue Plaintiff a written counseling. The written counseling was prepared on August 11, 2006, and issued to Plaintiff on August 25, 2006. Plaintiff was advised by Tilton that she would be issued a final counseling if she failed to correct the issues identified in the written counseling. (Hesse Dep. 49-50, 57 & Ex. 8). Plaintiff states that Tilton immediately issued the written counseling (second level) without completing the verbal counseling (first level) of the Progressive Discipline Policy, and never advised Plaintiff that she was going to issue the written counseling. (Hesse Aff. ¶¶16-17, Pl. Ex. G ("Tilton Dep.") 328; Pl. Exs. M, N, O.)

On or about August 25, 2006, Tilton returned to Plaintiff's store and reviewed with Plaintiff the issues documented in the written counseling. According to Defendant, the problems outlined therein were not addressed and had not improved at the time of her visit. When Plaintiff received this progressive counseling, she understood that her position of Store Manager was in jeopardy and if she did not improve the conditions of her store she would not be able to continue with Dollar General in that capacity. (Hesse Dep. 50, 54, 57.) Plaintiff disagrees that the problems Tilton previously brought up were not addressed. She states that while certain issues had not been resolved, the merchandising had been improved and that she was holding her employees more accountable. (Hesse Aff. U 20.) Plaintiff further states that the Nunda Store was in poor condition when she became Store Manager, and that despite its problems, Plaintiff's store was still meeting sales goals. ( Id., ¶¶ 20-21.) She notes that her Annual Performance Review for the year 2006 was rated as "meets expectations" for store cleanliness by Tilton. (Pl. Ex. P.)

Plaintiff alleges that in late August, 2006, after Tilton began counseling her regarding her performance problems, Tilton asked her if she was planning to have any more children, and Plaintiff responded that she was. This conversation was part of a group discussion among four women. (Hesse Dep. 83.) Plaintiff felt that the question was inappropriate, unusual, and made her feel uncomfortable. (Hesse Aff. ¶ 15.) Tilton never said anything negative or derogatory about Plaintiff's desire to have more children in the future, and Plaintiff was not pregnant at the time this conversation took place. Further, Plaintiff did not report the conversation to Dollar General's Employee Response Center or to anyone else at Dollar General. However, she states she felt intimated and afraid to report the matter. (Hesse Aff. ¶ 15.)

The conditions of Plaintiff's store did not improve, and TIlton placed Plaintiff on final counseling (third level of Progressive Discipline) as a result. On October 18, 2006, Tilton informed her supervisor, Brian Obrist ("Obrist") that Plaintiff's store failed an audit. Following the results of the audit, Tilton met with Plaintiff and all of the employees at the Nunda Store to discuss recovery and improvement of store conditions. Tilton also sent Plaintiff for additional training with another experienced Store Manager. (Hesse Dep. 64; Def. Ex. D ("Tilton Dep.") 375-6 & Ex. 68.) Plaintiff states that Tilton considered her a "hard worker" with "excellent" customer service skills, and that Tilton did not know that Plaintiff was not adequately trained before being "plunked in" as a Store Manager at Nunda. (Pl. Exs. V & O.)

In December of 2006, Plaintiff's store still was not meeting Dollar General standards, and as a result Tilton demoted Plaintiff to Assistant Store Manager at the Fillmore Store. Plaintiff accepted the demotion and testified that, although she was not happy about the transfer, she expressed to Tilton that the Fillmore Store was closer to her home and that was a positive. Plaintiff began working as an Assistant Store Manager at the Fillmore Store on December 9, 2006, reporting to Manager Heather Beardsley ("Beardsley"). Plaintiff's performance as Assistant Manager was very good.

Plaintiff was replaced by Patrick Harrison ("Harrison"), a male Store Manager who received a "standard" performance evaluation and was subject to Progressive Counseling for substandard performance after being transferred. (Pl. Ex. HH.)

3. Plaintiff's Participation in the "Alpha Project"

The Alpha Project was a project created by Dollar General to identify and liquidate aged merchandise and to assist in the process of closing certain unproductive stores. In January, 2007, Tilton invited Plaintiff to participate in the Alpha Project. Plaintiff felt that Tilton's invitation indicated that Tilton believed that Plaintiff was a good merchandiser and a hard worker. For the duration of the project, Plaintiff and other Alpha team members traveled to various stores throughout the area to assist with merchandising, which included scanning, stocking, and restocking merchandise.

The Alpha Project lasted through September, 2007. During this time, Plaintiff traveled with the Alpha team to various locations within the district. At the project's conclusion, Plaintiff returned to her Assistant Store Manager position at the Fillmore Store, although Tilton still occasionally asked Plaintiff to assist her at other locations. According to Defendants, Tilton did so because she thought Plaintiff was a good employee and enjoyed working outside of her store. (Beardsley Dep. 215; Hesse Dep. 110; Tilton Dep. 312.) Plaintiff denies that this was the case, and states that Tilton knew she was pregnant at the time she was asked to travel throughout the region from store to store. (Hesse Aff. ¶ 34.)

4. Pregnancy and Lifting Restriction

Plaintiff learned that she was pregnant on or about September 19, 2007, and notified Tilton shortly thereafter. For approximately two months, Plaintiff continued to perform the essential functions of her job as Assistant Store Manager and also performed occasional special projects with Tilton. Plaintiff states that only eight days after she informed Tilton that she was pregnant, Tilton hired Brad Gayford ("Gayford") as an additional Assistant Manager for the Fillmore Store. No application exists in any Dollar General record indicating that Gayford applied for the Assistant Manager position, although Dollar General required an application for employment. (Tilton Dep. 185-86.)

Plaintiff's doctors characterized her pregnancy as high-risk due to complications that Plaintiff had experienced during her first pregnancy, and Plaintiff informed Tilton of the same. Plaintiff alleges that Tilton suggested to Plaintiff to get a note from her doctor and take leave from employment. (Hesse Dep. 154-55.) Plaintiff also states that Tilton told her the following during a work trip:

I was making it hard for [Tilton] not to fire me because other people had told her that I was bad mouthing my Store Manager, Heather Beardsley.... She also told me that I got paid too much for what I did.... Ms. Tilton told me that her options were to fire me or see if my doctor would pull me out of work until I had my baby. After I would deliver my baby, she said she would try to transfer me out of the Fillmore store when I came back to work. [She] also told me that I should not return to work... [and] that I should use my one week vacation time, and then try to obtain a leave under the Family Medical Leave Act and disability.

( Id., ¶ 35.)

In November, during a routine doctor's appointment, Plaintiff's physician placed her on a 20 pound lifting restriction. Plaintiff communicated her work restriction to Tilton, and Tllton forwarded the restriction to the leave department at Dollar General. Plaintiff states that she was instructed to request leave under the Family Medical Leave Act ("FMLA"), and that no attempt was made to accommodate her restrictions, unlike other, non-pregnant Dollar General employees. (Hesse Aff. ¶¶ 42, 49, 51.)

5. Requirements and Duties of Assistant Store Manager

Plaintiff's assigned job duties as an Assistant Manager included: assisting with unloading merchandise delivered by trucks and assisting with efficient staging, stocking, and storing of merchandise. The physical requirement of the position also included, inter alia, frequent walking and standing, bending, stooping, and kneeling to run the check out station, and proper lifting of up to 40 pounds while occasionally lifting up to 55 pounds.

Plaintiff states that Store Managers had the discretion to schedule employees to perform certain tasks, and that this discretion permitted employees who may be suffering from short-term disability not to perform one or more of these tasks. (Hesse Aff. U 7, Beardsley Dep. 163-64; Tilton Dep. 110-11, 113-14.)

6. Dollar General Stores

Dollar General sells a wide variety of consumer products, including "core" products that are expected to always been available for purchase in a Dollar General Store. Core products were often delivered in bulk or in cases, and could be packaged in cartons or cases weighing over 20 pounds. Such core products include pasta sauce, 12-packs of toilet tissue, canned beans and fruit, powdered sugar, ketchup, spaghetti, soup, and maple syrup. During November, 2007 through March, 2008, trucks made deliveries weighing 14, 584 pounds to the Fillmore Store, equaling over seven tons of merchandise. This merchandise moved from the back stockroom where it was delivered to the sales floor by the physical work of store employees.

Working within the store's labor hours, employees must unload merchandise coming in weekly truck deliveries by getting the merchandise from the back stockroom to the sales floor, and placed upon the shelves (stocking). Store employees must also continuously replenish merchandise after it is sold (re-stocking).

These merchandising tasks are ongoing, and pursuant to the directions of the Store Manager, all employees in the store are expected to participate in the stocking and restocking of the store. Thus, every employee, including Assistant Managers, must be able to perform the various physical tasks, including lifting, in order to effectively operate the store within the labor budget.

The Fillmore Store was budgeted for two Assistant Managers; Sandra Gilman worked as an Assistant Manager along with Plaintiff, although Plaintiff was often out on assignment with the Alpha team or working on other projects.

On or about September 1, 2007, Sandra Gilman was promoted to Store Manager and transferred to the Nunda Store. On or about September 28, 2007, Tilton hired Gayford as an Assistant Manager for the Fillmore Store. According to Tilton, she had been recruiting Gayford for several months prior to hiring him, and Tilton thought he would be a good candidate for a future Store Manager position. (Tilton Decl. ¶ 14; Tilton Dep. 181, 186, 208.) Plaintiff states that for a period of time after Gayford was hired on September 28, Sandra Gilman, Plaintiff, and Gayford were all assigned as Assistant Managers to the Fillmore Store. (Beardsley Dep. 275-76.) Plaintiff further avers that Gayford was hired only eight days after she told Tilton of her pregnancy, and, while Tilton claims to have been recruiting Gayford for several months prior to hiring him, no application for employment exists for Gayford in Dollar General's records. (Pl. Ex. GG.)

7. Plaintiff's Leave

Due to Plaintiff's physician's order that she not lift anything in excess of 20 pounds, Dollar General provided her with 12 weeks of FMLA leave, from approximately November 24, 2007 through January 30, 2008. (Hesse Dep. 166; Def. Ex. A, Ex. 13.) Plaintiff states, however, that she could have performed her essential job functions with reasonable accommodations. (Hesse Aff. ¶ 43; Pl. Ex. T.)

On or about January 25, 2008, Plaintiff called Dollar General's leave department to inquire about whether she would be able to return to work after the expiration of her FMLA leave. (Hesse Dep. 171.) Upon telling the representative of the leave department that she wanted to return to work, she was advised that if she had work restrictions she would be unable to return and would be terminated at the end of February because her leave had expired. (Id. 171-72.) Because Plaintiff was unhappy with the leave department's recitation of Dollar General's leave policies, she was referred to the Dollar General Employee Response Center ("ERC"). The ERC told Plaintiff that Obrist, Dollar General's Regional Manager, would contact her to discuss the situation. (Id. 171-173.)

Obrist called Plaintiff on or about January 29, 2008, to discuss with Plaintiff her inquiry about returning to work. At this time, Plaintiff relayed to Obrist that she was still restricted from lifting more than 20 pounds and that she wanted to be able to return to work with such restriction. Obrist reiterated Dollar General's policy to Plaintiff and informed her that she would be unable to return to work under the current lifting restriction. (Def Ex. B ("Obrist Dep.") 261.) ...

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