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Loser v. Dolgencorp, LLC

United States District Court, M.D. Pennsylvania

April 18, 2018

JOHN LOSER, Plaintiff,


          Hon. John E. Jones III Judge

         Presently 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.

         I. BACKGROUND

         Plaintiff 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).

         As a 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).

         In 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. 30).

         Nicholson 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).

         Following 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, 75-76).

         Nicholson 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).

         On 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).

         The next day, on December 18, 2015, Kujovsky emailed McCormick again stating, “[a]fter conversation between Brad and Mark, [1] recommendation is termination, integrity issue. I support. We just tried to call you to get your approval.” (Doc. 20, att. 3, Exhibits, p. 46). McCormick responded:

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.). Nicholson responded:
Brad spot checked 5 other individuals that were granted the attendance bonus and none of ...

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