It’s not every day that you hear about a case that literally hinges on whether a cake was stolen. But that was the issue at the center of a recent case before the U.S. Court of Appeals for the 9th Circuit. The court had to decide whether a grocery store had a legitimate, nondiscriminatory reason for terminating a supervisor (i.e., taking a cake without authorization) or if that reason was pretext for discrimination. It’s a good case study for supervisor training.
During training for supervisors, this case can illustrate the importance of basing personnel decisions on nondiscriminatory reasons and consistently communicating and enforcing policies and procedures.
During her 12-year tenure with WinCo, a grocery store in Idaho, “Hannah” never received a negative performance review. She was promoted to Person in Charge (PIC) in 2006 and appointed chair of the store’s safety committee. Hannah is a single mother of seven children.
As a PIC, Hannah supervised employees on the night-shift freight crew. The crew’s job sometimes required long hours. The general manager at the time gave Hannah permission to take cakes from the store bakery to boost the crew’s morale and motivate them to work late. As required by company policy, she recorded the cakes in the in-store use log.
Hannah discussed the policy with two assistant managers, and they sometimes ate the cakes with the crew in the break room. Taking cakes from the bakery and bringing them to the break room was seen as a common, accepted practice by PICs and management.
The bakery department informed Hannah and the male freight crew PIC in January 2011 that, going forward, they should take cakes only from the “stales” cart. Hannah notified her crew about the policy and discussed it with the assistant managers.
In early 2011, Hannah started experiencing difficulties with “Jillian,” who had been general manager since 2007. Jillian appointed a male employee to replace Hannah as safety committee chair, saying “a male would be better in that position.” Around the same time, Jillian criticized Hannah for not being able to work late or come in on her days off. Although the male PIC sometimes left early to care for his children, Jillian only made comments about Hannah leaving early to pick up her children.
Jillian learned on July 7, 2011, that someone had taken a fresh cake and eaten it in the break room. She reviewed store surveillance video and identified a male freight crew member as the culprit. After seeing video of Hannah taking a cake from the stales cart on another day, Jillian turned the investigation over to the loss prevention department. The investigator observed the male employee take another fresh cake on July 8, 2011, and both he and Hannah were terminated.
Hannah was told that she was fired for theft and dishonesty. She was replaced by a man who had been on the freight crew for only 1 month and who had no supervisory experience at WinCo. Although Jillian acknowledged being involved in the termination decision, no one seemed to know who had made the final decision.
Alleging that she had been fired so that a man could be put in charge of the freight crew, Hannah sued her former employer. She filed claims under Title VII of the Civil Rights Act of 1964 for gender discrimination, the Consolidated Omnibus Budget Reconciliation Act (COBRA) because the company denied her and her minor children COBRA benefits, and wage claims under the Fair Labor Standards Act and Idaho state law because the company refused to pay her accumulated vacation pay. The district court ruled in favor of WinCo. Hannah appealed to the 9th Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
What the Court Said
The appeals court reversed. Although WinCo gave legitimate, nondiscriminatory reasons for terminating Hannah, the court said she presented sufficient evidence that those reasons were pretextual.
Specifically, the court said she provided both direct and indirect evidence of discrimination. Direct evidence included Jillian’s alleged view that a man should lead the safety committee and her criticism of Hannah—but not the male PIC—for leaving work early to care for children. Although it was unclear who made the final termination decision, Jillian acknowledged that she was involved in it. “Even if a supervisor does not participate in the ultimate termination decision, a ‘supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified,’” the court explained, citing another case.
As for indirect evidence, the court noted that it was a common, accepted practice at the store for PICs to take cakes to the break room. Hannah “could not have stolen a cake that she had permission to take.”
Mayes v. WinCo Holdings, Inc. (No. 14-35396) (U.S. Court of Appeals, 9th Cir., 2/3/17)
Make sure company policies and procedures are clearly and consistently communicated to supervisors and managers—in and out of training. Training also should address how to make and document termination decisions.