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Day v. Sears

United States District Court, Third Circuit

January 15, 2014

RODNEY DAY and KEITH BOWLES, Plaintiffs,
v.
SEARS, Defendant.

MEMORANDUM OF LAW RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

MICHAEL M. BAYLSON, District Judge.

I. Introduction

Plaintiffs Rodney Day and Keith Bowles, black males, were terminated from their employment as sales associates at the Sears department store located in Whitehall, Pennsylvania on August 7, 2009. Plaintiffs filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC") on November 6, 2009, claiming that they were terminated from their employment because of their race. Plaintiffs then brought a race discrimination action against Defendant under Title VII, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. § 951 et seq., in the Court of Common Pleas of Lehigh County, Pennsylvania on July 9, 2012. Defendant removed that action to federal court pursuant to this Court's federal question jurisdiction. 28 U.S.C. § 1441.

Defendant filed its Answer to Plaintiffs' complaint on November 16, 2012. DE 2. On July 15, 2013, Defendant moved for summary judgment. DE 15. Plaintiffs responded in opposition to Defendant's Motion on August 15, 2013. DE 17. And Defendant replied to Plaintiffs' opposition on August 22, 2013. DE 18. The Court held oral argument on Defendant's Motion on November 26, 2013.

II. Undisputed Facts

When selling a large item at Defendant's store, the size of the merchandise requires that it be delivered directly to the customer's home. Defendant has programmed its registers to automatically apply a delivery fee whenever these larger items are rung up at the store's cash register. DE 15-1 ¶ 13. Defendant equips each cash register with a function that enables a sales associate to "link" two different large merchandise transactions made by one customer. DE 15-1 ¶ 18. "Linking" two transactions waives one of the delivery fees associated with the two purchases. DE 15-1 ¶ 18. For example, if a customer buys both a washing machine and a dryer (each an item that would carry a delivery fee if purchased individually), a sales associate could waive one delivery fee so that the customer would only be charged for one delivery. DE 15-1 ¶ 19. Associates can also waive a delivery fee by getting manager approval.[1]

Plaintiff Day began working for Defendant in February 1994. DE 15-1 ¶ 3. Plaintiff Bowles began working for Defendant sometime in 2000. DE 15-1 ¶ 8. Colin Hersch was the Loss Prevention Manager for Defendant from November 2006 to April 2010. On July 1, 2009, Hersch received an email from his superiors alerting him to potential abuses of the "linking" procedures. The e-mail indicated that:

Associates have the ability to ring multiple delivery transactions and only charge the customer one delivery fee. This is accomplished by "linking" the free delivery sales check with the sales check that contains the delivery fee. We expose ourselves to potential loss on this issue as many associates are aware that any 12 digit number can be entered as the "Linking" sales check. After tracing some of the "Linking" sales checks many cases were noted where they ended up being completely false numbers, traced back to "No Sales" or other non-selling activity, or were sales to other customers not related to any delivery.

DE 15-2 at 161.

This sparked an investigation into the reasons behind the individual fee waivers granted by Plaintiffs. DE 15-1 ¶ 25. Hersch analyzed each associate's linked transactions. DE 15-1 ¶ 25. Based on this investigation, he identified Plaintiffs as the employees that most frequently issued delivery fees waivers. DE 15-1 ¶ 26. Hersch also discovered that Plaintiffs were linking sales checks where (1) delivery was not required; (2) previous purchases were made by different customers; (3) previous purchases were being delivered to a different address; and (4) the previous sales check represented a no sale transaction.[2] DE 15-2 at 158.

On July 24, 2009, Plaintiffs were interviewed by management about issuing fee waivers. During these interviews, they did not dispute that they "linked" transactions. Plaintiff Day stated that he was empowered to remove the delivery fee on a case-by-case basis and did not need manager approval to grant the delivery fee waivers. DE 15-1 ¶ 35. Plaintiff Day also stated that he linked sales transactions that did not exist in order to give free delivery and linked transactions from one customer to transactions of other, unrelated customers. DE 15-1 ¶¶ 36, 37. In Plaintiff Bowles's interview, he stated that he linked sales checks by filling in random numbers at the end of a transaction to waive a delivery fee and did not get manager's approval to do so. DE 15-1 ¶¶ 39, 40. Plaintiffs also stated that they were given manager approval cards, which enabled them to waive delivery fees.[3]

After consulting with its human resources department, Defendant terminated Plaintiffs. Their manager informed them that they were being terminated because of the integrity issue raised by the manner in which they gave fee waivers. DE 15-2 ¶ 52.

III. Disputed Facts

The central factual dispute turns on the authority granted to Plaintiffs and how they were instructed to use that authority. Plaintiffs assert that they had manager approval cards and that these cards enabled them to waive delivery fees. Defendant does not contest that Plaintiffs were issued cards, but does contest the scope of the power ...


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