United States District Court, D. Delaware
ERICA P. SMITH, Plaintiff,
WALGREEN CO., Defendant
For Erica P. Smith, Plaintiff: William D. Fletcher, Jr., LEAD ATTORNEY, Noel E. Primos, Schmittinger & Rodriguez, P.A., Dover, DE.
For Walgreen Co., an Illinois corporation, Defendant: Gregory Brian Williams, LEAD ATTORNEY, Carl Douglas Neff, Fox Rothschild LLP, Wilmington, DE.
Kate S. Arduini, PRO HAC VICE.
Richard R. Harris, PRO HAC VICE.
Christopher J. Burke, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Erica P. Smith (" Smith" or " Plaintiff" ) filed this action against defendant Walgreen Co. (" Walgreens" or " Defendant" ), alleging employment discrimination based on race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 2000e, et seq. (" Title VII" ) and 42 U.S.C. § 1981 (" Section 1981" ). Presently pending before the Court is Defendant's Motion for Summary Judgment (" Motion" ). (D.I. 38) For the reasons set forth below, the Court DENIES the Motion.
A. Factual Background
Plaintiff is a resident of the State of Delaware and former employee of Defendant. (D.I. 1 at ¶ ¶ 1, 10) Defendant is an Illinois corporation with a business location at 1001 Forrest Avenue, Dover, Delaware (the " Dover location" ). ( Id. at ¶ ¶ 2, 11)
Plaintiff was employed by Defendant from July 31, 2008 until her termination on May 31, 2011. (D.I. 38 at 1; D.I. 41 at 2;
D.I. 42 at P2)  Plaintiff began her employment with Defendant as a Pharmacy Technician at Defendant's La Plata, Maryland location. (D.I. 41 at 2; D.I. 42 at P2) In late 2008, after obtaining certification, Plaintiff was promoted to the position of Senior Certified Pharmacy Technician, and subsequently began working at Defendant's Dover location, where she worked until she was terminated. (D.I. 1 at ¶ ¶ 10-11; D.I. 41 at 2; D.I. 42 at P2) Plaintiff is African-American, and at all relevant times was the only African-American certified pharmacy technician at the Dover location. (D.I. 1 at ¶ 9; D.I. 41 at 2; D.I. 42 at P30) The store manager of the Dover location was Eric Brauch. (D.I. 1 at ¶ 14; D.I. 41 at 2)
According to Plaintiff, the pharmacy employees of the Dover location regularly joked around, and it was not uncommon for them to make playful physical contact with one another. (D.I. 41 at 2; D.I. 42 at P4-P5) On May 12, 2011, an incident occurred between Plaintiff and another Pharmacy Technician, Sharon Meer, who is Caucasian, that allegedly underlies Defendant's decision to terminate Plaintiff (the " May 12 incident" ). (D.I. 42 at P56-P58) The parties dispute the nature of this incident. For her part, Plaintiff alleges that in the course of joking around with Meer, Plaintiff leaned towards Meer and, while making a growling " ahh" noise, put her mouth on Meer's shirtsleeve and pretended to bite her. (D.I. 41 at 2-3; D.I. 42 at P5-P6, P48) Plaintiff adamantly denies actually biting Meer. (D.I. 41 at 2-3; D.I. 42 at P3-P7, P10, P48) Plaintiff asserts that in response to Plaintiff's contact with Meer's shirtsleeve, Meer laughed and playfully pushed Plaintiff's shoulder while continuing to work--even making further eye contact with Plaintiff and laughing seconds after the incident. (D.I. 41 at 3; D.I. 42 at P6, P83) Surveillance video of the May 12 incident also depicts other employees working nearby to Plaintiff and Meer at the time; Plaintiff asserts that these employees can be seen smiling immediately after the incident. (D.I. 41 at 3; D.I. 42 at P6, P83) In his deposition testimony, Store Manager Brauch acknowledged that, after reviewing the video, he " notice[d] [employees] smiling on the video" after the incident. (D.I. 42 at P25) 
In contrast to Plaintiff's testimony, Defendant produced an unsworn statement from Meer regarding the incident. (D.I. 38, ex. B) In it, Meer asserts that Plaintiff " came around the left side, bent over and with [her] mouth bit [Meer] through [her] shirt sleeve on [her] left arm." ( Id. ) Meer's statement continues that in response, Meer laughed uneasily, and then went down an aisle to get a drug product while remarking that she hoped that Smith had received a tetanus shot because Meer could not get one. ( Id. ) 
Among the other employees working in the pharmacy at the time of the incident was Norah Rennewanz, a Senior Pharmacy Technician, who is Caucasian. (D.I. 41 at 3; D.I. 42 at P4) In his deposition, Brauch testified that he agreed that, from the video footage, it did not appear that Rennewanz could have seen Plaintiff's mouth making contact with Meer based on her location at the time of the incident. (D.I. 42 at P28) Meer's unsworn statement, however, indicates that she and Rennewanz discussed the incident on May 12, and concluded " that it needed to be reported" ; Meer states that she asked Rennewanz " to wait [until] tomorrow so [that Meer could] decide how [she] wanted to deal with this." (D.I. 38, ex. B)
Yet on either the same day, or the next day, May 13, 2011, Rennewanz reported the incident to Brauch, telling him that Plaintiff bit Meer. (D.I. 41 at 3; D.I. 42 at P21-P22, P44) Following that report, on May 13, Brauch approached Meer and discussed the incident with her; during that conversation, Meer reported that Smith had bitten her. (D.I. 38, ex. B; D.I. 42 at P19-P22) 
A few days later, on May 18, 2011, Brauch questioned Plaintiff about the contact, which he described as a bite. (D.I. 42 at P6, P19-P20) Brauch asserts that Plaintiff admitted to biting Meer while joking around with her; Plaintiff disputes this and claims that she strongly denied to Brauch that she bit Meer. ( Id. at P6, P20) Brauch told Plaintiff that he would question Meer about the incident, and would likely follow up with Plaintiff thereafter. ( Id. at P6-P7)
Following this conversation with Brauch, Plaintiff apologized to Meer, to the extent Plaintiff had offended Meer or made her uncomfortable. (D.I. 38, ex. B; D.I. 42 at P10-P11) Plaintiff claims that Meer replied that it was " no problem[,]" stated that " people are nosy," and stated that she (Meer) had not affirmatively reported the incident to Brauch. (D.I. 42 at P10-P11) According to Meer's statement, Plaintiff went on to joke with Meer about feeling hungry, and told Meer " not to worry because [Meer] tasted like chicken," (D.I. 38, ex. B), which Plaintiff denies (D.I. 42 at P8, P48). Later that day, Brauch notified Plaintiff that Meer was offended by the May 12 incident, and that Plaintiff was suspended. ( Id. at P7)
Defendant thereafter launched an investigation regarding the May 12 incident. (D.I. 38 at 4) On May 27, 2011, Marvin
Boyer, Defendant's loss prevention manager, interviewed Plaintiff about the incident. (D.I. 41 at 4; D.I. 42 at P8, P58) Boyer's role in such investigations is " simply fact finding" --he does not make recommendations regarding discipline, and did not do so in regard to Smith. (D.I. 42 at P46) During her conversation with Boyer, Plaintiff reported that the pharmacy employees would regularly engage in horseplay. (D.I. 41 at 4; D.I. 42 at P9) Plaintiff also advised Boyer that, about two months prior, Rennewanz had made racially derogatory remarks to Plaintiff on several occasions, comments that Plaintiff had not previously reported to her supervisors. (D.I. 38 at 4; D.I. 41 at 4; D.I. 42 at P9-P10, P51, P58) Plaintiff told Boyer that the remarks had offended her, but that she had only recently thought to report them. (D.I. 42 at P51) Specifically, Plaintiff said that on one occasion after Plaintiff had mentioned that she wanted some chicken, Rennewanz replied, " Oh, that's typical black people. All they want is fried chicken and watermelon." (D.I. 41 at 4; D.I. 42 at P9, P40-41) Additionally, Plaintiff reported that Rennewanz called Plaintiff " Aunt Jemima" on multiple occasions. (D.I. 41 at 4; D.I. 42 at P9, P40-41, P51) Boyer told Plaintiff that he would look into the matter. (D.I. 42 at P10)
On May 31, 2011, Plaintiff was terminated, purportedly for violating Defendant's Policy Against Workplace Violence. (D.I. 41 at 5; D.I. 42 at P58) That policy states that prohibited violence " may be in the form of . . . physical conduct" and defines inappropriate behavior as, inter alia, " [t]hreatening, intimidating, coercing, or harassing conduct of a verbal, nonverbal, or physical nature." (D.I. 42 at P55) Brauch testified that following the investigation into the May 12 incident, someone from employee relations recommended that Plaintiff's employment be terminated. ( Id. at P16) The final decision to terminate Plaintiff, however, rested " solely" with Brauch. ( Id. ) He explained that he based this decision on his belief that " biting is a violent act," and the incident was a " severe enough" violation of the Policy to warrant termination. (D.I. 41 at 5; D.I. 42 at P23-P25) Despite Plaintiff's explanation to him that the incident was " in fun," Brauch did not " deem it to be horseplay." (D.I. 42 at P25, P27-28) Of the approximately thirty Walgreens employees that Brauch terminated, Plaintiff was the only one terminated for violating Defendant's Policy Against Workplace Violence. ( Id. at P13-14) Defendant eventually filled Plaintiff's position by hiring Keely Weber, who is Caucasian. (D.I. 41 at 6; D.I. 42 at P17-18)
On June 3, 2011, Boyer also interviewed Rennewanz, who admitted to making racially charged comments to Plaintiff but claimed that she had been " just kidding around with" Plaintiff. (D.I. 42 at P51; accord D.I. 38 at 4; D.I. 42 at P40-P41, P52) Rennewanz's written statement noted that it was not uncommon for her and Plaintiff to joke around with each other, and sometimes their jokes involved race. (D.I. 42 at P52) At some point thereafter, in early June, Brauch issued Rennewanz a written warning for violation of Defendant's Policy Against Harassment and Discrimination. ( Id. at P27, P49-P51) The Policy Against Harassment and Discrimination defines inappropriate harassing behavior as, inter alia, " discriminatory comments, epithets, slurs, insults . . . or jokes about personal or physical traits or of a personal or physical nature." ( Id. at P53)
Brauch testified that Walgreens has a zero tolerance policy against racial discrimination, ( id. at P26-P27), and its Policy Against Workplace Violence specifically states that " there is a zero tolerance policy with respect to workplace violence[,]" ( id. at P55). However, neither Defendant's Policy Against Harassment and Discrimination
nor its Policy Against Workplace Violence automatically require termination with every violation. ( Id. at P45, P53, P55) Rather, the polices both state that violators may be " subject to serious disciplinary action up to and including termination of employment." ( Id. at P53, P55)
Defendant has put forward evidence that in the past five years, " six Delaware Walgreens employees, not including Smith, were terminated for violations of the Company's Policy Against Workplace Violence." (D.I. 38 at 4; see also D.I. 45 at 2 (" All of the other six individuals who were terminated worked in Delaware, as did Smith." )) Three of those employees were Caucasian, one was Hispanic, and two were African-American. (D.I. 38 at 4) Additionally, one African-American who was the subject of a complaint under the Policy remains employed by Defendant. ( Id. )
While Defendant's brief did not attach as exhibits the relevant incident reports regarding these seven employees, Plaintiff's brief did so. (D.I. 42 at P59-P82) According to those reports, it appears that three of the employees were actually employed at locations in Maryland, not Delaware. ( See id. at P59, P73, P79; Tr. at 26)  None of the incidents occurred in the Dover location, ( see id. at P59-82), and ...