United States District Court, D. Vermont
CHERYL A. SMITH, Plaintiff,
SHAW'S SUPERMARKETS, INC., Defendant.
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (DOC. 32)
Christina Reiss, District Judge
Cheryl A. Smith ("Plaintiff) brings this action against
Defendant Shaw's Supermarkets, Inc.
("Defendant") alleging a single cause of action for
breach of contract. On June 30, 2015, Plaintiff was
terminated from her position as Director of the Shaw's
Supermarket, Inc. retail store located in Fair Haven, Vermont
following an altercation with a customer in which she touched
the customer without his consent. Plaintiff asserts that her
termination violated Defendant's progressive discipline
policy which she claims gave rise to an implied contract of
before the court is a motion for summary judgment filed by
Defendant on October 1, 2018. (Doc 32.) On October 22, 2018,
Plaintiff opposed the motion. A hearing was held on December
18, 2018, at which time the court took the matter under
advisement. On January 3, 2019, Plaintiff filed a revised
response to Defendant's statement of undisputed material
facts without seeking Defendant's consent or leave from
the court to do so. On January 8, 2019, Defendant replied to
Plaintiffs revised statement of undisputed facts, requesting
that the court disregard the additional facts submitted
therein. Plaintiff is represented by James G.
Levins, III, Esq. Defendant is represented by Martha Van Oot,
The Undisputed Facts.
is one of the oldest continuously operated supermarket chains
in the United States. It has approximately 150 stores in
Maine, New Hampshire, Vermont, Massachusetts, and Rhode
Island, and it employs approximately 19, 000 people.
Plaintiff was hired by Defendant in March 2001 when Defendant
purchased Grand Union, the company which had employed
Plaintiff since her graduation from high school in 1979. In
late 2007, Plaintiff was promoted to the position of
Assistant Store Manager at Defendant's store in
Manchester, Vermont. She worked there until November, 2013,
when she was promoted to Store Director at Defendant's
store in Fair Haven, Vermont. During Plaintiffs tenure at the
store in Fair Haven, her direct supervisor was District
Manager Bridget O'Reilly.
April 2015, Plaintiff took a two-week vacation during which
her co-worker Dan Cotter covered her shifts. On Saturday, May
9, 2015, Mr. Cotter emailed Plaintiff, informing her that a
Shaw's employee, Leslie Jay Bowen, had a conflict with
his supervisor, Andrea Sweeney, about taking time off from
work. Plaintiff replied to the email on the same day asking
whether Mr. Bowen had reported for his scheduled shift on
Friday, May 8, 2015. Plaintiff returned to work on Monday,
May 11, 2015. She was informed that Ms. Sweeney had an
argument with Mr. Bowen on Monday, May 4, 2015, and that on
May 6, 2015, Ms. Sweeney told Mr. Bowen that he would need to
find his own coverage in order to take time off. Plaintiff
concluded that Mr. Bowen had voluntarily quit based on the
fact that he did not show up for work after the discussion
with Ms. Sweeney.
8, 2015, at approximately 3:30 p.m., Mr. Bowen approached the
customer service desk at Defendant's store in Fair Haven
and asked to speak with Plaintiff. Plaintiff and Mr. Bowen
proceeded to an aisle where Mr. Bowen asked Plaintiff why she
had not called him. Plaintiff explained that she did not feel
she needed to call him as she had "termed [him] as a no
call/no show." (Doc. 32-12 at 30.) Mr. Bowen asked
Plaintiff whether Ms. Sweeney was correct when she told him
that he needed to find coverage in order to take time off to
visit a sick family member. Plaintiff told him that she
believed that he had simply made a "casual request for
the weekend off and had not requested leave to care for his
partner. Id. at 31. When Plaintiff said,
"Listen Jay," Mr. Bowen became agitated and said
"[y]ou're antigay, aren't you?"
Id. After Mr. Bowen repeated the accusation loudly,
Plaintiff stated "[w]e can't continue having this
discussion; we need to bring this outside." Id.
Plaintiff did not call the police or store security.
began walking toward the exit and Mr. Bowen followed closely
behind her, pointing his finger at her and continuing to yell
loudly that she was anti-gay. Mr. Bowen told Plaintiff that
he did not want to go outside with her. When Plaintiff and
Mr. Bowen were approximately ten to fifteen feet from the
exit, Plaintiff stopped, turned around, raised her hand,
placed two fingers on Mr. Bowen's chin, and said in a
stern voice: "Jay, this needs to stop; you need to calm
down." Id. at 33. Plaintiff then turned around
and walked outside. Mr. Bowen followed behind her and yelled
"I don't like the fact that you touched me[.]"
Id. at 34. Plaintiff knew that she had made a
mistake as soon as Mr. Bowen complained that she had touched
him. Once outside, she turned to him and apologized, stating,
"I was trying to calm you down; you're becoming
extremely hostile." Id.
knew she needed to report the incident so she went to her
office and attempted to contact Sandra Gilson who works in
Shaw's Human Resources Department. When she was unable to
reach Ms. Gilson, she contacted Ms. O'Reilly. Ms.
O'Reilly asked Plaintiff, "were the police called
and was anybody touched?" Id. at 35. Plaintiff
responded "no" to both inquiries. Id. Ms.
O'Reilly then told Plaintiff to report the incident to
Kim Buschenfeldt in Human Resources and Tim O'Connor in
Loss Prevention Control and obtain statements from witnesses.
Mr. O'Connor instructed Plaintiff to call the police if
Mr. Bowen returned and to complete an online loss prevention
form, which she did. Plaintiff did not tell Mr. O'Connor
or Ms. Buschenfeldt that she had touched Mr. Bowen. Plaintiff
stated that it was only after her husband informed her that
businesses often have policies regarding physical contact
that she realized that her act of touching Mr. Bowen on the
chin might be "more than what [she] perceiv[ed] it
as." (Doc. 32-12 at 43.)
10, 2015, Mr. Bowen called Ms. Gilson and reported that
Plaintiff had put her hand up to his face and put her thumb
under his chin to close his mouth. Mr. Bowen described
Plaintiffs touch as an "assault." (Doc. 44-9 at
26.) Ms. Gilson requested that Mr. O'Connor review the
footage from security cameras on the day of the incident. Mr.
O'Connor opined that the video depicted Plaintiff raising
her hand towards Mr. Bowen's face and touching him
briefly on the chin.
O'Connor and Ms. Gilson interviewed Plaintiff on June 19,
2015. In the interview, Plaintiff admitted that she touched
Mr. Bowen and that she did not previously disclose this fact.
Plaintiff was asked to provide a written statement regarding
the incident and she complied with this request. Mr.
O'Connor completed his investigation of the incident on
June 25, 2015 after interviewing and obtaining statements
from other employees. Mr. O'Connor did not interview Mr.
Bowen or Ms. Sweeney.
of Labor Relations and Employment Law Brian Fitzsimmons made
the decision to terminate Plaintiff. The sole ground for
Plaintiffs termination was her touching of a customer without
his consent. Mr. Fitzsimmons concluded that it was
inappropriate and unprofessional for Plaintiff to touch Mr.
Bowen, and that if Mr. Bowen had refused to leave the store,
the appropriate response would have been to call the police.
Plaintiff was informed of her termination on June 30, 2015. A
letter addressed to Plaintiff and signed by Ms. O'Reilly
stated that Plaintiffs employment was being terminated
because her reaction in dealing with Mr. Bowen was
"unprofessional and inappropriate" and she had
"violated the Standards of Conduct of Shaw's
Supermarkets." Id. at 2.
Team Member Handbook (the "Handbook") is a
forty-seven page document that "contains many of
[Defendant's] policies and procedures and explains how
[Defendant] operate[s.]" (Doc. 32-10 at 5.) The Handbook
contains a provision entitled "At-Will Employment"
which states as follows:
Team Members are employed on an at-will basis, except as
provided by written agreement as described below.
"At-will employment" means that either the Team
Member or the Company may end the employment relationship at
any time, either at the Team Member's option or at the
This Handbook is not a contract of employment or a guarantee
of continued employment. This is not an agreement for
employment for any specified period of time and no
representative of the Company may enter into any or make any
agreement, implied or expressed, for employment other than on
an at-will basis.
Only the Chief Executive Officer of the Company has the
authority to make an employment agreement for anything other
than employment at-will and then only in writing and signed
by or duly authorized by the Chief Executive Officer.
section of the Handbook entitled "Standards of
Conduct" provides that employees are expected to conduct
themselves in a "safe and ethical manner at all times
whether dealing with coworkers, customers, suppliers, or the
public in general." Id. at 19-20. Employees are
further instructed to "[m]aintain a high level of
professionalism" and "[t]reat fellow Team Members
and Shaw's/Star Market customers with courtesy, dignity,
and respect at all times." Id. at 20.
section of the Handbook entitled "Corrective
Shaw's/Star Market recruits and hires Team Members who
are qualified for available positions within the Company. As
a Shaw's/Star Market Team Member, you are expected to
develop and maintain good work habits and acceptable job
performance and to comply with all Company policies and
Occasionally, it may be necessary for Shaw's/Star Market
to take corrective action that it considers reasonable under
the circumstances and at times, to release Team Members from
employment. Shaw's/Star Market attempts to resolve
workplace issues, including performance concerns, in a fair
and timely manner.
Corrective Action is intended to constructively correct
behavior that is not meeting Shaw's/Star Market
performance expectations. Generally, Shaw's/Star Market
will counsel Team Members about ways performance that does
not meet expectations can be changed to better contribute to
the team. Team Members may receive a notification if
performance is unsatisfactory and if so will be informed of
specific changes needed to bring performance to acceptable
levels on a consistent, going-forward basis.
Shaw's/Star Market generally follows a progressive
corrective action process that may include verbal and written
warnings, suspension and/or separation of employment.
Notwithstanding this general practice, there may be some
performance issues and policy violations that are so severe
that immediate corrective action including termination may be
necessary at Shaw's/Star Market sole discretion. In
Shaw's/Star Market sole discretion, it may skip some or
all of the steps in the progressive corrective action process
(see Reasons for Immediate Termination From Employment
below). Shaw's/Star Market reserves the right to
determine the appropriateness and level of counseling, or
corrective action in each situation, including whether
immediate termination of employment is warranted.
These corrective action procedures do not alter the
at-will employment relationship.
Id. at 25 (emphasis in original).
the heading "Reasons for Immediate Termination from
Employment[, ]" the Handbook states: "[w]hile,
except as otherwise provided, all Team Members at
Shaw's/Star Market are employed at will, which means that
either the Company or the Team Member can end their
employment at any time, there are certain types of conduct
that may warrant immediate discharge from ...