Single mom fired by female GM after taking stale cake for her crew has gender bias claim revived

By Joy Waltemath

By Kathleen Kapusta, J.D.

Reviving the Title VII gender discrimination claim of an employee fired for taking a stale cake from the store bakery to share with her night shift freight crew, the Ninth Circuit found ample direct evidence of discriminatory animus in her general manager’s alleged comments that a “man would be better” leading a safety committee and that she did not like “a girl” running the freight crew, and her alleged criticism of the employee—but not her male counterpart—for leaving work early to care of her children. Summary judgment against her COBRA and federal and state law wage claims was also reversed (Mayes v. WinCo Holdings, Inc., February 3, 2017, Christen, M.).

Promoted to a Person in Charge (PIC) seven years after she began working for the grocery store, the single mother of seven children supervised the night shift freight crew and began serving in a leadership role on the store’s safety committee. She claimed that when she first became a PIC, the store’s general manager gave her permission to take cakes from the store bakery to motivate the crew to stay past the end of their shifts to finish shelving merchandize and to boost morale.

The stale ones. Several years later, the bakery told the employee and another PIC to take cakes from the “stales” cart because they could no longer be sold. Around that same time, the then-GM purportedly replaced the employee as chair of the safety committee with a male employee, telling her “a male would be better in that position.” When the employee complained to an assistant store manager, he allegedly told her to “stay away” from the GM because she did not like that “a girl” was running the freight crew.

Hundred year ban. Upon learning that someone had taken a fresh cake from the bakery, the GM reviewed store surveillance video, which revealed that a male worker had taken it. It also showed the employee taking a cake from the stale cart. A loss prevention investigator was called in and both employees were ultimately fired. Terminated for theft and dishonesty, the employee was also banned from the store for 100 years. Everyone denied knowing who made the termination decision.

Because theft and dishonesty was considered “gross misconduct,” the employee was not allowed to elect COBRA coverage for herself and her children, and the employer also refused to pay her any accumulated vacation pay. The employee filed suit under Title VII, state law, COBRA, and the FLSA. The district court, finding no evidence of pretext, granted summary judgment to the store on all claims.

Gender discrimination. Disagreeing with the court below, the appeals court found the employee offered multiple examples of direct evidence implicating gender discrimination. Specifically, the GM’s remarks that “a man would be better” and that she didn’t like “a girl” running the freight crew, along with her criticism of the employee for leaving work early to take care of her children, while allowing her male counterpart to do the same, directly concerned the employee and decisional process for retaining and promoting workers. While the employer contended that the comments were not direct evidence because the GM did not fire the employee, the court found the record on this was murky at best and that there was evidence the GM was at the very least involved in the decision.

Independent investigation? And while the employer argued that there was insufficient evidence to show the GM affected its independent investigation into the employee’s conduct, disputing when she learned that the investigation would lead to the employee, the court pointed out that the GM admitted she contacted loss prevention only after viewing surveillance footage of the employee taking stale cake. The employer’s argument that it had a good faith belief the employee lied about having permission to take the cake, which insulated the termination decision from any discriminatory motive the GM might have had, also failed because no one at the store admitted to making the termination decision and it was impossible to know who believed what at the time she was fired.

Nor did the fact that the GM was also woman preclude a finding of discriminatory animus, said the court, pointing out that nearly 20 years ago, the Supreme Court, in Oncale v. Sundowner Offshore Servs., Inc., held in no uncertain terms, “If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination ‘because of . . . sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.”

Indirect evidence. The employee’s claim was also bolstered by indirect evidence, said the court, observing that multiple employees testified it was a common, accepted practice—rather than an offense punished by termination—for PICs to take cakes to the break room. In addition, the employee presented evidence that she was replaced with a man who had worked for the company for only about three weeks, who had no supervisory experience at the company, and who could only work during limited hours. In contrast, the employee received no negative performance reviews over the course of 12 years with the company, earned promotions, and held a supervisory position for approximately five years.

And while the employer argued that replacing the employee with a man was not evidence of pretext because the GM played no role in hiring him, there was evidence the GM participated in the interview process and had the “final say” on the hiring decision. Thus, said the court, in viewing the circumstantial evidence in conjunction with the powerful direct evidence of the GM’s discriminatory comments, it was error to dismiss the employee’s discrimination claims.

COBRA and wage claims. While an employee terminated for gross misconduct is not entitled to the benefit of COBRA, if the employee was fired for discriminatory reasons, she may be entitled to COBRA benefits, the court observed, finding that the court below erred in granting summary judgment against her COBRA claim.

As to the employer’s argument that the collective bargaining agreement, which provided that “[v]acation earned but not taken will not be paid to employees terminated for gross misconduct,” precluded the employee’s federal and state wage claims, the court again pointed out that because she presented sufficient evidence to create a fact dispute regarding why she was fired, she might be entitled to payment for accrued vacation time, and this claim should not have been dismissed at summary judgment.

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