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Donald C. Clark v. Kraft Foods

October 28, 2011


The opinion of the court was delivered by: DuBOIS, J.



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.


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 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 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.)*fn2 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 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,*fn3 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 ...

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