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Smith v. Shaw's Supermarkets, Inc.

United States District Court, D. Vermont

April 1, 2019

CHERYL A. SMITH, Plaintiff,


          Christina Reiss, District Judge

         Plaintiff 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 employment.

         Pending 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.[1] Plaintiff is represented by James G. Levins, III, Esq. Defendant is represented by Martha Van Oot, Esq.

         I. The Undisputed Facts.

         Defendant 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.

         In late 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.

         On June 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.

         Plaintiff 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.

         Plaintiff 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.)

         On June 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.

         Mr. 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.

         Director 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.

         Defendant's 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 Company's option.
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.


         A 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.

         The section of the Handbook entitled "Corrective Action" states:

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 rules.
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).

         Under 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 ...

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