United States District Court, D. Maine
ORDER ON MOTION FOR SUMMARY JUDGMENT
Z. SINGAL UNITED STATES DISTRICT JUDGE.
the Court is Defendant Delhaize America Distribution,
LLC's Motion for Summary Judgment (ECF No. 41). Having
reviewed the record as well as the parties' legal
memoranda, the Court DENIES the Motion for the reasons
a party is entitled to summary judgment if, on the record
before the Court, it appears “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
“[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-248 (1986). An issue is “genuine”
if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
at 248. A “material fact” is one that has
“the potential to affect the outcome of the suit under
the applicable law.” Nereida-Gonzalez v.
Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993).
party moving for summary judgment must demonstrate an absence
of evidence to support the nonmoving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In determining whether this burden is met, the Court must
view the record in the light most favorable to the nonmoving
party and give that party the benefit of all reasonable
inferences in its favor. See Santoni v. Potter, 369
F.3d 594, 598 (1st Cir. 2004).
the moving party has made this preliminary showing, the
nonmoving party must “produce specific facts, in
suitable evidentiary form, to establish the presence of a
trialworthy issue.” Triangle Trading Co., Inc. v.
Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)
(quotation marks and internal ellipsis omitted); see
also Fed.R.Civ.P. 56(e). “Mere allegations, or
conjecture unsupported in the record, are
insufficient.” Barros-Villahermosa v. United
States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting
Rivera-Marcano v. Normeat Royal Dane Quality A/S,
998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v.
Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011)
(“A properly supported summary judgment motion cannot
be defeated by conclusory allegations, improbable inferences,
periphrastic circumlocutions, or rank speculation”).
“As to any essential factual element of its claim on
which the nonmovant would bear the burden of proof at trial,
its failure to come forward with sufficient evidence to
generate a trialworthy issue warrants summary judgment for
the moving party.” In re Ralar Distribs.,
Inc., 4 F.3d 62, 67 (1st Cir. 1993).
McLean began working as a supervisor for Delhaize America
Distribution, LLC (“Delhaize”) in February 2016.
In that role, McLean oversaw food product shipping and
receiving crews at one of Delhaize's distribution
centers. McLean reported to Dan Thyng, a manager, who, in
turn, reported to Bruce Southwick, the general manager of the
distribution center. Unlike McLean and his superiors, the
associates in McLean's crews were unionized.
Thyng, and Southwick managed many of the distribution
center's day-to-day operations but were not involved in
the approval process for associates' Family Medical Leave
Act (“FMLA”) leave requests. Instead, two
separate departments called the Associate Service Center and
Leave Administration Department (collectively, “the
ASC”) handled that process. Ordinarily, when the ASC
made changes to associates' authorized leave, it would
apprise Becky Shaw, the distribution center's office
coordinator, who would relay the new leave information to the
supervisors. Those supervisors had access to the
company's FMLA database, which they used to track their
associates' use of leave time.
December 13, 2016, the ASC approved a request for
intermittent FMLA leave made by one of McLean's
associates, BG. The approval permitted BG to take leave
two times per year for up to three days each time so that he
could provide medical care for his son. Neither the request
nor the approval mentioned BG's assigned schedule, which
remained 2:30 p.m. to 10:30 p.m. on Monday through Friday. On
December 19, 2016, BG submitted a schedule change request
form to McLean, which sought to amend BG's start time to
3:30 p.m. BG wrote “[p]roviding care for my son (FMLA
related)” as the reason for the request. (Dep. Ex. 3
(ECF No. 37-12), PageID # 650.) McLean accepted BG's
explanation without further investigation and approved the
change. As a supervisor, McLean had authority to modify
February 1, 2017, Southwick met with BG to discuss concerns
regarding BG's poor attendance record. Faced with the
possibility of termination, BG told Southwick about his
son's health and that he had already requested expanded
FMLA leave from the ASC. This new request, like BG's
first, sought intermittent leave as opposed to a reduced
schedule. Southwick ultimately chose not to punish BG and
instructed him to continue working through the FMLA process.
this meeting, either at the end of February or during the
first week of March 2017, McLean received a report of what he
considered to be an offensive ethnic slur from one of his
associates. The associate, who was of Mexican heritage, told
McLean that another supervisor, JB, referred to the associate
as “[m]y Mexican” or “[c]hico.” (MHRC
Charge (ECF No. 52-1), PageID # 1475.) The associate also
informed McLean that he wanted to avoid involving the union.
McLean relayed this information to Thyng who assured McLean
he would take care of it. Delhaize policy requires managers
who “receive complaints” of
“discrimination” to inform an “Associate
Relations representative.” (Dep. Ex. 9 (ECF No. 37-12),
PageID # 658.) Despite this, Thyng spoke with JB and did not
report the allegation to anyone else.
March 6, 2017, the ASC approved BG's new FMLA request and
granted him four days of intermittent leave per month. On the
same day that BG received this new approval, Thyng met with
McLean to discuss BG's continued schedule issues. The
exact origins of this meeting (the “March 6
meeting”) are unclear. What is clear is that at the
March 6 meeting, Thyng told McLean that BG was coming in late
and instructed McLean to make sure that BG arrived by the
3:30 start time. McLean met with BG later that day and
informed BG that he needed to be at work by 3:30. After this
meeting, BG prepared another schedule change request form
seeking an even later start time of 4:30 p.m. Upon submitting
it to McLean, BG stated he would be unable to make it to work
by 3:30 and that the change was necessary for his son's
medical care. McLean approved the change without further
investigation or consultation with Thyng.
March 7, 2017, Thyng learned about the new modified schedule.
That same day, Southwick met with Thyng and learned that
McLean “did not get [BG] back on the schedule that
[Thyng] and [McLean] talked about” and had granted BG a
4:30 start time. (Southwick Dep. I (ECF No. 37-2), PageID #
267.) Southwick claims he was “surprised” to hear
this and that he and Thyng agreed that McLean needed to
“put [BG] back on the schedule” that Thyng and
McLean had discussed. (Id. at PageID # 269.) On the
evening of March 7, after meeting with Southwick, Thyng told
McLean that BG's new modified schedule was disapproved
and instructed him to tell BG. McLean pushed back on the
disapproval by telling Thyng that BG was “entitled to
FMLA” and that the change would not hinder operations.
(MHRC Charge at PageID # 1476.)
March 8, 2017, McLean informed Geoff Morin, a Union
Representative, and Deborah Salamone, another supervisor,
that they needed to meet with BG during BG's shift. Later
that evening, McLean began speaking with Morin and BG in a
conference room while Salamone finished a conversation
elsewhere. McLean told BG that Thyng had disapproved the most
recent schedule change and that, from then on, BG needed to
be at work by 3:30. BG responded by telling McLean that he
would be late the next two nights. McLean was not scheduled
to work either night, but he knew that Salamone was. About
five minutes into the meeting (the “March 8
meeting”), McLean asked Salamone to join them in the
conference room. In McLean's recollection, he then showed
Salamone the schedule ...