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Robson v. Shaws Supermarkets Inc.

United States District Court, D. Maine

September 6, 2019

MARK ROBSON, Plaintiff,



         Mark Robson alleges his employer, Shaw's Supermarkets, Inc., intentionally discriminated and retaliated against him by engaging in whistleblower and family-medical-leave retaliation (Counts I and IV) and age discrimination (Count II), and failing to accommodate a disability (Count III), in violation of federal and state law. Complaint (ECF No. 1-1). Defendant moves for summary judgment on all claims. Defendant's Motion for Summary Judgment (ECF No. 26).

         For the reasons discussed herein, Defendant's motion is granted in part and denied in part.


         The summary judgment facts are drawn from the parties' stipulations, if any, and from their statements of material facts submitted in accordance with Local Rule 56. The Court will adopt a statement of fact if it is admitted by the opposing party and is material to the dispute. If a statement is denied or qualified by the opposing party, or if an evidentiary objection is raised concerning the record evidence cited in support of a statement, the Court will review those portions of the summary judgment record cited by the parties, and will accept, for summary judgment purposes, the factual assertion that is most favorable to the party opposing the entry of summary judgment, provided that the record material cited in support of the assertion is of evidentiary quality and is capable of supporting the party's assertion, either directly or through reasonable inference. D. Me. Loc. R. 56; Boudreau v. Lussier, 901 F.3d 65, 69 (1st Cir. 2018).

         The plaintiff, Mark Robson, began his employment with Shaw's in September 1976 as a bag boy and stock boy. In May 1995, Shaw's promoted Robson to the position of Store Director, and Robson remained a store director through February 5, 2016, the date on which Robson took leave under the Family Medical Leave Act.

         In March 2013, Albertson's Companies, LLC, purchased Shaw's from Supervalue, Inc. The purchase came on the heels of a Shaw's reduction in force of approximately 700 employees in 2012. Robson, at the time, was 56 years of age. Under Albertson's ownership, Shaw's underwent a dramatic change in management style and store directors were instructed to be consistently dissatisfied with everything they saw, and informed that no matter how good they were, they could do better. Albertson's implemented the Grand Opening Look Daily Standard, or “GOLD” standard, which meant that all stores were expected to modify merchandising and the way the store looked to meet the quality standards that Albertson's, expected from every store, every day. The general idea was that a store should perpetually look the same as it did at its grand opening. Albertson's provided each Shaw's store with a weekly labor budget, and afforded store directors the leeway to spend the labor budget as they saw fit, provided they did not exceed the budget, but Albertson's did not give store directors a role in determining the appropriate labor budget. How well a store director utilized the labor budget was a performance factor that could be reviewed and rated by upper level management. Following Albertsons' purchase of Shaw's in March 2013, the number of hours worked by store directors increased noticeably given the expectation that stores obtain a higher standard expending fewer labor dollars. For Robson, these demands often required that he work through the night and on weekends and holidays to complete the eleventh-hour edicts from the new management. The expectations required him to repeatedly miss days off and to cancel planned vacations with his family.

         Sometime in or around April 2013, David Singleton, then District Manager in Maine, visited all the stores in the district, including Robson's store in Bangor, Maine, and provided each store director with a punch list of things to complete to improve the store and meet the GOLD standard. In June 2013, Singleton told Robson that he was doing a great job and was one of the two best that Singleton visited. In October 2013, following a meeting between Robson and his Assistant Store Director, Jeff Moulton, Moulton went on a leave of absence and did not return to work. Robson remained without an assistant until March 2014, because Singleton did not fill the position even though the store was one of the highest volume Shaw's stores in Maine, and during that period Robson worked as many as 39 consecutive days without taking a day off. When Robson raised a concern with the district labor manager, he was informed that Singleton chose not to find coverage for him. When he reported to the Regional Human Resources Manager (Ms. Gilson) that he considered the lack of support to be detrimental to his health, the HR manager did not offer any solution. When he brought the matter up with his future district manager (Michael Houser), the only response was that Robson had signed up for the job.

         In November or December 2013, Singleton and Shaw's District Labor Manager, Michael Rapa, encouraged store directors to voluntarily increase their store labor budgets by donating their personal paid time off to the store. Many store directors, including Robson, did so, though there were others who refused to donate their paid time off. From the end of November 2013 to January 2014, Robson donated between sixty and eighty hours to his store's labor budget, though in December 2013 Robson reported to Sandra Gilson, Shaw's Regional Human Resources Manager, that he considered the practice unethical. Evidently, Robson was not the only store manager to voice a concern. Ms. Gilson then relayed the matter to Brian Fitzsimmons, Director of Labor Relations and Employment Law. Mr. Fitzsimmons advised Gilson that there was no policy against it, but the practice should not be encouraged. Gilson followed up with Robson in mid-December 2013 and informed him that because it is the store director's time, the individual can decide whether to donate it or not. In January 2014, Robson again complained about the matter and asked Gilson to raise the matter once more. Gilson said she would, but when Robson called her a week or two later, she advised him not to bring the matter up again. After January 2014, Robson made no further donation of his paid time off.

         In January 2014, District Manager Singleton did not return from vacation. Patrick Doak, then a “Center Store Specialist, ” filled in as an acting district manager until March 2014, when Michael Houser took over as the district manager for Maine. In this timeframe, Robson received a text from Doak asking him why there were so few cars in his store's parking lot. This is one example of communications from management, in the off hours, concerning matters that Robson had little or no control over, but to which he felt obligated to respond. Doak and Houser visited Robson's store within the first few weeks of Houser's tenure as district manager. During the visit, Houser stated that Robson's store was not the “shit show” Doak told him it was. Robson was familiar with Doak's criticism of his store and felt Doak's concerns were petty.

         In 2014, Robson experienced one or more holidays in which management would schedule a visit to his store during the holiday, then cancel the visit at the last minute. Meanwhile, Robson would have canceled holiday plans to be present for the store visit. Houser also announced to store directors that taking more than two weeks of vacation in one year was excessive. Robson earned seven weeks of paid time off annually.

         In April 2014, Houser informed store directors that it was against policy to donate paid time off toward the labor budget. Additionally, Houser would confront Robson about his labor and CSI scores in calls, texts, and emails. (In group emails, Houser was critical of other store directors, as well.) In November 2014, Robson told Houser that Doak was in his store, daily, taking pictures to embarrass and ridicule him. Houser acknowledged that Doak wanted to run the Bangor store.

         In June 2014, Robson received his annual review for the period from February 2013 through February 2014. Mr. Doak conducted the review of Robson (and other store directors) because Stapleton was no longer with the company and Houser had not been a supervisor in that period. Mr. Doak stated that he considered it a tough assignment to review the “old Shaw's guys” he previously worked with. Doak gave Robson an average/standard review, and Robson expressed dissatisfaction. Doak stated, “Mark, it's not a big deal. You're going to retire soon anyway.” Robson had not told anyone he intended to retire soon. Robson told Doak that he was burning bridges, needed to be more flexible, and should not let Albertson's make him a monster. The comments upset Doak to the point of tears. Later, Robson spoke with Gilson about the matter and she agreed with him that it was improper for Doak to conduct the review without Houser's participation, given that Doak was once more a grocery specialist rather than a store director.[1]

         In September 2014, Doak delivered to Robson a collection of Robson's past mileage reimbursement requests, extending back to April 30, 2014, and he informed Robson that his requests would not be honored. This was a deviation from store policy.

         At a store directors meeting in October 2014, Robson asked if store directors would have any input into future budgets for their stores, to which Mr. Houser responded, “No.” After the meeting, Mr. Houser asked why Robson was the only store director asking questions and whether he was asking on behalf of others. He informed Robson that store directors with questions should come to him directly, not channel their inquiries through Robson.

         In November 2014, Mr. Robson contacted Ms. Gilson and informed her that Mr. Houser's wife, who worked for a Shaw's vendor and was not an employee, was requesting and receiving mileage reimbursement from several stores, including his store. Robson had spoken to other store directors and they corroborated that she was receiving mileage reimbursement at their stores, as well. Robson understood that such requests were against company policy and he suspected wrongdoing. Robson told Ms. Gilson that he felt he would need whistleblower protection for reporting what he believed was a violation of company policy.

         Gilson spoke with Mr. Fitzsimmons about the issue and he advised her that Mrs. Houser, as a vendor, should not be receiving mileage reimbursement through the stores but instead should be going through proper channels. Robson followed up with Gilson approximately a week later and she informed him that she had addressed the issue “one on one” (rather than through a loss prevention report) and Mrs. Houser would no longer be receiving mileage reimbursement. When Robson expressed concern about retaliation, stating, “Now, how do I get whistleblower protection?” Gilson explained that Mr. Houser was not informed who brought the matter to her attention.

         “Not long after” he reported Mrs. Houser's mileage reimbursements, Mrs. Houser started to appear in Robson's store, often after District Manager Houser had presented him with a list of concerns. Robson attests that Doak's wife would also monitor his store and that Houser would contact Robson with questions and action items based on her and Mrs. Houser's observations. At some point, Houser instructed Robson not to advise other store directors if they called him for direction, and to instead direct them to Houser.

         On November 20, 2014, Houser sent an email to his team in which he complained that eight stores were over their labor budgets and that he wanted responses, felt they had just disregarded his instructions, and were being insubordinate. On November 26, 2014, Houser sent an email to his team of store directors praising them for a great day of sales, with sales up by over 16% for the day. In the email, after noting that 18-19 stores were “positive, ” he commented, “Not sure what happened to Mark?” Robson says that beginning in early 2015 he would receive calls from Houser four or five times a week and was told he was dragging down the district.

         In anticipation of store visits scheduled for June 17, 2015, Robson called and asked to be the first store visited, due to a personal appointment, but neither Mr. Houser nor Mr. Doak responded to Robson's request that day and he, therefore, cancelled his personal appointment. Ultimately, nobody showed up that day to conduct the review and nobody responded to his request. Robson's store was inspected the next day, instead. On the day of the store visit, Robson and Houser did not meet during the initial store review, and when Robson called Houser later that day, Houser suggested Robson had not made time for him, which was not a fair characterization, and then proceeded to badger Robson and told him they would meet in person later that day. When Houser returned to Robson's store, Houser expressed some additional, unspecified unpleasantness. Houser then turned to Robson and said, “Why are you still here?” Robson responded that he was working until 5:00. Houser stepped forward and said, “No, why are you still here?” He criticized Robson's contributions to the store and to the district. Robson said he had no intention of leaving, but if Houser thought Robson could no longer contribute as a store director, he should terminate him. Robson said, “Until that happens, I will continue to give you 150% of my effort.” Houser responded by saying that Robson's “time had come and gone” and that “no one looked up to [Robson] anymore.” Houser concluded by telling Robson, “If you share this with anyone I will deny it.”

         On July 6, 2015, Robson was transferred from the Bangor store to the Ellsworth store. However, his transfer was one of several resulting from another store director's retirement (i.e., four other store directors also changed stores and Doak obtained his first position as store director, in Dover-Foxcroft). Robson also received the option to transfer to Dover-Foxcroft, but he chose Ellsworth. Shaw's historically rotates its store directors every three to five years and Robson had been at the Bangor store for almost five years. Within days of his transfer to the Ellsworth store, Houser was criticizing Robson concerning the store's stock.

         On August 21, 2015, while away from the store on paid time off for a daughter's medical procedure, Robson received a call from his assistant store director who reported that Houser was in the store. Houser called Robson later that day and complained about the condition of the store and said he would have called Robson in but for the daughter's procedure.

         In September, 2015, Houser faulted Robson for costing the district $2000 in labor expenses, after Houser had recently completed grocery department inventories at two other stores at the request of management. On September 15, 2015, Robson received a performance appraisal from Mr. Houser with an overall score of 3.333 out of 4.

         In October 2015, Mr. Houser and Mr. Martel toured the Ellsworth store, after which Houser met with Robson in the store's office. Houser yelled at Robson regarding an issue with the assistant store director that allegedly occurred during the prior week when Robson was on vacation. Houser complained about the cleanliness of the store and the two-week vacation Robson had just taken. At his deposition, when describing the incident, Robson testified that Houser “would not let an opportunity to badger, harass or torment any store director slip through his fingers” and “[i]f there was going to be a conversation with any store director, it was going to turn negative very, very quickly.” Robson Dep. 191 - 92 (ECF No. 27-1). Robson now objects to his testimony, asserting that he can only speak from his personal experience. Robson later called Houser to voice the opinion that Houser lacked the professionalism one would expect of a district manager.

         On October 13 and 14, 2015, Houser sent emails to Robson and other store directors complaining that they had exceeded their labor budgets and that Robson and one other director were also “both running down in sales” that week. He asked, “Was I not clear or did you just decide to ignore me? Either case will not be tolerated.” In November, 2015, Robson sent his assistant store director and four department managers to help prepare the Bangor store for a scheduled visit, as his Ellsworth location was not scheduled for a visit. Houser texted Robson to say that he could expect his own visit that evening, at 5:00 p.m., but then texted at 5:45 p.m. to state that the visit would not occur.

         In January, 2016, Robson emailed Houser to request paid time off during Easter and Houser indicated he believed that Easter, like other holidays, was “blocked out.” Robson had, the previous year, asked for vacation time after Easter, recognizing that holiday vacation time was discouraged for store directors. Robson revised his 2016 request for another ...

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