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McLean v. Delhaize America Distribution, LLC

United States District Court, D. Maine

August 27, 2019

James McLean, Plaintiff,
Delhaize America Distribution, LLC, Defendant.



         Before 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 explained below.


         Generally, 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).

         The 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).

         Once 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).


         James 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.

         McLean, 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.

         On December 13, 2016, the ASC approved a request for intermittent FMLA leave made by one of McLean's associates, BG.[1] 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 associate schedules.

         On 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.

         After 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.

         On 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.[2] 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.

         On 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.)

         On 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 ...

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