United States District Court, M.D. Pennsylvania
John E. Jones III Judge
pending before the Court is a motion for summary judgment
(the “Motion”) filed by Defendant Dolgencorp,
LLC, (“Defendant”) on February 22, 2018. (Doc.
20). Plaintiff John Loser (“Plaintiff”) filed a
brief in opposition on March 30, 2018. (Doc. 25). Defendant
filed a reply on April 13, 2018. (Doc. 27). The Motion is
therefore ripe for our review and, for the reasons that
follow, shall be granted.
was employed by the Defendant as a Warehouse Supervisor at
its Distribution Center in Bethel, Pennsylvania from June 24,
2013 to December 20, 2015. (Doc. 22, ¶ 1). Beginning in
November 2014, Plaintiff supervised the Cycling Department at
the Distribution Center. (Id. at ¶ 2).
Plaintiff reported to the Inbound/Outbound Manager, Lovell
Butler, who reported to the Operations Manager, Keith
Nicholson, who reported to the Distribution Center Director,
Steve Kujovsky. (Doc. 20, att. 2, pp. 55, 57, 58) (Doc. 20,
att. 3, pp. 9, 17).
Warehouse Supervisor, one of Plaintiff's responsibilities
was to track the attendance of hourly employees who reported
to him. (Doc. 22, ¶ 3). Plaintiff was expected to review
his subordinates' time records in the electronic
timekeeping system, Kronos, and identify employees who were
tardy. (Id. at ¶ 5). If an hourly employee is
more than thirty minutes late, the Warehouse Supervisor is
responsible for charging unpaid time off from the
employee's bank. (Id. at ¶ 6).
early December 2015, Warehouse Supervisor Chad Livering
reported to Nicholson his belief that Plaintiff was not
enforcing the attendance policy in the Cycling Department;
when Livering had supervised the Cycling Department in
Plaintiff's absence, he noted that an employee had not
been marked tardy on several prior occasions when the
employee had been late to work. (Id. at ¶¶
7-8). Nicholson then investigated by reviewing the time
records in Kronos for all employees in the Cycling Department
for approximately the past sixty days. (Id. at
¶ 9). After review, Nicholson believed there were
several instances where employees clocked in after the start
of the shift, but Plaintiff had not marked them as tardy.
(Id. at ¶ 10). Nicholson reviewed the Kronos
records for the time period between September 6 and November
27, 2015 and determined that several of Plaintiff's
employees who would not have been eligible to receive an
attendance bonus were receiving such bonus anyway because
Plaintiff had not marked them as late. (Doc. 20, att. 4,
¶ 16). After review, Nicholson also believed that there
were three employees who should have been terminated due to
excessive tardiness, but Plaintiff had not held them
accountable. (Id. at ¶ 19) (Doc. 20, att. 3, p.
and Butler met with Plaintiff on December 7, 2015 to discuss
Nicholson's belief that Plaintiff had not been enforcing
the attendance policy. (Doc. 22, ¶ 12). During this
meeting, Plaintiff explained that he was observing a
seven-minute grace period for tardy employees under his
supervision. (Id. at ¶ 12). Nicholson and
Butler both clarified for Plaintiff that there was no such
grace period allowed and that he was expected to mark an
employee late even if the employee had clocked in only one
minute after the start of their shift. (Id. at
¶ 13). Plaintiff expressed his understanding of these
expectations and agreed to enforce the attendance policy
going forward. (Id. at ¶ 14).
the December 7, 2015 meeting, Nicholson performed random
audits of other employees' time records in Kronos to
determine whether other Warehouse Supervisors were holding
employees accountable for tardiness. (Doc. 20, att. 3, pp.
52-54). Nicholson testified that he does not recall finding
any other tardiness issues with other Warehouse
Supervisors' employees. (Id. at p. 54).
Nicholson also testified that after the December 7, 2015
meeting, he asked various other managers and supervisors in
the building if they had any knowledge of the seven-minute
grace period that Plaintiff had referred to. (Id. at
pp. 73-74). The “consistent response” was that
there was no seven-minute grace period. (Id. at pp.
74, 34-37). Nicholson further found several instances where
Plaintiff had not marked an employee tardy or applied unpaid
time off when they were more than thirty minutes late to
work, undermining Plaintiff's assertion that his issue
with employee oversight was due to his false belief in a
seven-minute grace period. (Id. at pp. 50-54,
pulled a report from Kronos on December 16, 2015 which
revealed that Plaintiff did not mark one of his employees,
Kristin Rhoads, as tardy on December 7, 8, 10, and 15,
despite her being late for work and despite Plaintiff's
meeting with Butler and Nicholson. (Id. at p. 80).
On December 7, 2015, Rhoads was an hour and a half late to
work, but Plaintiff did not mark her as tardy.
(Id.). Plaintiff testified that he recalled Rhoads
being late on only one occasion after the December 7, 2015
meeting and that he had indeed marked her late, but he also
testified that he has no reason to dispute the records from
Kronos. (Doc. 20, att. 2, p. 101).
December 16, 2015, Nicholson sent an email to Brad Wallace,
the senior human resources manager. (Doc. 20, att. 3,
Exhibits, p. 49) (Doc. 20, att. 3, p. 47). In the email,
Nicholson explains that he and Lovell had sat down with
Plaintiff to explain the tardiness issues, but that Plaintiff
has continued to allow Rhoads to clock in late without
marking her as tardy. (Doc. 20, att. 3, Exhibits, p. 49). In
the email, Nicholson states, “[t]his false recording of
tardiness could pollute the credibility of our perfect
attendance program as folks will get paid that shouldn't
the bonus [sic]. Also, this is an integrity issue as he
stated the ‘7 minute ignorance' claim and we
audited and found that he infact [sic] was not logging
tardiness beyond 7 minutes.” (Id.). The next
day, Nicholson sent another email to Wallace, copying
Kujovsky. (Doc. 20, att. 3, Exhibits, p. 47). Therein,
Nicholson indicates that the cost audit for Plaintiff's
failure to record tardiness or to dock unpaid time off was
$1, 280, and that three employees should have been terminated
for tardiness if they had been properly marked as late.
(Id.). Kujovsky forwarded the email to Steve
McCormick, the vice president in charge of the Distribution
Center at the time. (Id.) (Doc. 20, att. 3, p. 81).
next day, on December 18, 2015, Kujovsky emailed McCormick
again stating, “[a]fter conversation between Brad and
Mark,  recommendation is termination, integrity
issue. I support. We just tried to call you to get your
approval.” (Doc. 20, att. 3, Exhibits, p. 46).
There is more to his record than this incident, correct?
Let's make sure there are no other supervisors not
enforcing the tardiness policy. If we have not overlooked
consistent deviations by other supervisors I am good with the
decision. I am also good if this is the final straw on a
larger performance picture. The combination is compelling
even if we didn't have him on a “final”.
(Doc. 20, att. 3, Exhibits, p. 45). Kujovsky forwarded
McCormick's response to Nicholson. (Id.).
Brad spot checked 5 other individuals that were granted the
attendance bonus and none of ...