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Johnson v. Associated Wholesale Grocers Inc.

United States District Court, E.D. Louisiana

April 11, 2019


         SECTION “F”



         Before the Court is the defendant's motion for summary judgment. For the reasons that follow, the motion is GRANTED, in part, and DENIED, in part.


          This employment discrimination lawsuit arises out of a warehouse worker's charge that he was required to work demanding hours in undesirable conditions because of his race and then fired in retaliation for voicing his concerns.

         Associated Wholesale Grocers, Inc. is a private, cooperative, grocery wholesaler that services independently owned supermarkets throughout the United States. AWG's warehouse located in Pearl River, Louisiana has various departments and positions related to its business of receiving and supplying a full range of goods to its member stores. The warehouse offers two daily shifts - the inbound/day shift and the outbound/night shift. Within those shifts, employees work in different departments, such as dry goods, grocery items, fresh meat, frozen goods, and perishables. Each day during the inbound shift, which occurs between approximately 3:00 a.m. and 11:00 a.m., the Pearl River facility receives products from vendors, and AWG employees store those products in the appropriate departments within the warehouse. During the outbound shift, which occurs between the hours of 2:30 p.m. and 10:30 p.m., AWG employees fill member orders by operating pallet jacks throughout the warehouse aisles to locate, select, and stack ordered items onto pallets.[1]

         To ensure that all customer orders are filled during each outbound shift, AWG calculates a “fair share” amount for the day, which represents the number of cases that each order selector must pull in order for AWG to reach its total production quota.[2]Pursuant to this system, it is critical for order selectors to pull and stack their cases so that orders can be loaded onto delivery trucks for timely departure. Therefore, during any given week, AWG expects each order selector to achieve a 225-case-per-hour level of productivity. Newly hired selectors, however, have a lower production expectation until they become more experienced.

         The inbound shift differs from the outbound shift in that members of the inbound shift do not fill customer orders. Accordingly, while the volume of work for the outbound shift varies each day, the timeline of the work during the inbound shift is more predictable and often requires less overtime. Typically, employees are hired into the outbound shift and then may transfer to the inbound shift through a shift-bidding process that is based upon seniority and disciplinary record.

         Christian Johnson is a 25-year-old African-American male who was employed by AWG on four separate occasions as an order selector in the grocery, or “dry, ” department of the Pearl River warehouse. Johnson first began working for AWG in March of 2014 until he resigned in June of 2015 for another job opportunity. He was then rehired in July of 2015 and February of 2016 before resigning in October of 2015 and April of 2016, respectively. Johnson was rehired for the final time in July of 2016 until his employment was terminated in February or March of 2017.[3]

         Throughout Johnson's employment with AWG, he believed that management treated white employees more favorably than black employees. For example, in July of 2016, Johnson asked Lloyd Faircloth, the warehouse manager, to assign him to the day shift, which featured better working conditions and more reasonable hours, but Faircloth refused. Because Johnson had observed that the day shift was populated by a larger percentage of white employees, he believed he was denied the position because of his race. Johnson also noticed that many injured white employees were offered light-duty positions, while he was refused light-duty work after sustaining an on-the-job groin injury in December of 2016.

         Johnson also believed that the departments in which order selectors were assigned to work depended on race. For example, he observed that whites heavily overrepresented the “cold side” of the warehouse in the dairy department, where it was easy to fill orders quickly because like items were stored closely together. Johnson frequently complained to his supervisors about this racial disparity; he explained that the “top ten” selectors on the cold side (who were predominantly white) could make their fair share more easily and leave earlier with a full day's pay than experienced selectors on the dry side (who were predominantly African American). In addition to job assignments, Johnson believed that the manner in which employees were disciplined depended on race.

         On February 20, 2017, Johnson was written up for failing to meet his production quota.[4] Frustrated by the way he had been treated, Johnson sent a letter to Floyd Baker, AWG's Senior Manager of Human Resources, voicing his concerns. Johnson emailed the letter to Baker on February 21, 2017 at 11:59 a.m.; he complained as follows:

My name is Christian Johnson. I am formally known within AWG as badge number 66214. I have been under employment by this company for the vast majority of the last three years. During the stated time-frame I have endured a lot of trials and turmoil. In the following article I will explicate grievances as I paint an overall perspective of the warehouse.
At AWG, as a selector, loader, or forklift operator we all work under a Willie Lynch type style of management and control. Lloyd Faircloth is the man in the big house and his supervising staff is the SS. We all slave in the warehouse from start to finish and do not deserve to be barked at and threatened as we try to work. In essence the warehouse is the ghettos and we are the faces who are stripped of name and identified by barcode and badge number.
Last night I, as well as more than half of the dry side selectors, received a write up for missing production for previous week. I came to the office trying to ask questions and have a consultation as to why I was just getting off of final written just to be placed back on it and have my job threatened again. I approached Deon Moody and he ran into the comfort of the office just to evade my questions. I refused the write up and asked for an explanation but my request wasn't granted. I questioned Justin Boyet and was ignored and pushed aside.
The analytics, of the production based system, in which the company is ran is flawed. It is my understanding that it is a overall company policy not to tamper with the flow of the queued work. It is also in my understanding that new selectors receive quantity orders with lower goal times in order to pick up production, selectors are assigned special orders, multiple fairshares, and perishable has a top 10 in which these selectors pull exclusively meat and dairy trips.
Yesterday I received a write up for missing production placing me on a final written and I have been continously [sic] harassed by management as a scare tactic. The selectors, including myself, have been disregarded as human beings and are being controlled as chattle [sic]. The top[p]ed out selectors with years of experience are symbolically getting our foot chopped off and forced to run. Welcome to the planation called AWG.
Production can no longer be the basis in which we as selectors are valued. The playing field became uneven as soon as those orders became tampered with. This is common knowledge within the warehouse. I worked a Saturday shift where i ran a 390 with nothing but drink trips and pulled over 400 cases over “fairshare” because management knowingly assigned me orders.
I feel uncomfortably targeted in my own workplace and that makes me uncomfortable amongst my peers. I work everyday from start to finish, yesterday was the last straw. I have been unfairly singled out ever since I was forced to take 2 weeks off of work with no pay because i wasnt granted light duty per my doctor's request. I was instead laughed at, in my face, in the office because of my injuries, and left without a paycheck for 2 weeks.
I have witnessed how much the management staff disregards the employees first hand. The conditions are continuously getting worse and worse. I've had recent nights where i spent 2 hours after my job duties were done performing janitorial duties because the janitor hasn't been replaced after over a month. I watch in amazement as my supervisors create an unjustifiable paper trail to try to usher topped out selectors out of the door. I understand that 2 selectors can do my same job for less money regardless of experience. I understand that the fiscal quarter is coming to a close and management wants to secure bonuses by regularing [sic] payroll and various other areas.
I did not seek employment with this company to meet figures and quotas. I came to provide for and support my children and family. This motivation and stated goal seems impossible to me now as management continues to make conditions unbearable for the selectors. The company came from providing the laborers with free water, to charging a quarter, to charging 50 cents. Selectors are no longer given gloves because it was said it is not company protocol to do so.
I work from dry to cold several times a week and periodically during the same shift. I am provided with no gloves to protect myself or adequate clothing to stay warm and under good health. We become sick because of the environment that we are forced to be subjected to. Aisles outstretched longer with add ons and new additions, making it harder on selectors. Yet the production requirements stayed the same. Working under this company I feel as if I am being set up for failure and that stated failure is inevitable.
Ive seen peers disrespected and cursed in front of the entire crew by Lloyd Faircloth. We are shaken into submission by this companies [sic] representatives. Numbers are the only focus as working conditions continue to worsen. Grown men have been degraded and referred to as thieves stealing company time while being treated as slaves picking cases instead of cotton. I have never spent one night in jail but i feel institutionalized within the confinements of AWG.
We are in a period of time where bottles of human urine are being uncovered in aisles. Human feces is being found between slots. Selectors are thrown back and forth between hot and cold weakening our endurance and immune systems and expected to perform the same. Rodents are being seen leaving trails [o]f crumbs and wastes. Cats are being seen in aisles feasting on wastes. Trash is being stored on alpha 98 and the back of the warehouse for days on end left to stagnate. Equipment is literally catching on fire while in use jeopardizing lives and nothing is being done. All issue[s] are being ignored and selectors are taking brutal abuse and the bulk of the blame.
How can I meet these requirements when all selectors arent subjected to the same standards.
Top 10 on the cold side averages out to a total of over 30 dollars an hour[] in guaranteed money and are given better conditions in the warehouse. The playing field is uneven, and I speak for all of my peers to address the problems and subject them to change. AWG and its management has extended knowledge of all of these standards and conditions and have blatantly refused to address the issues. The harassment endured overtime in addition to the favoritism, d[i]scrimination and disrespect has made it virtually impossible for me to feel comforted in my workplace. I am at my wit's end. I am drained physically, mentally, and emotionally by the structure of this company and i feel targeted when all i try to do is show up and perform to the best of my ability everyday at work. Respect is deserved and demanded. I will thank you for your time once the stated complications have been addressed.

         Christian Johnson

         Floyd Baker responded to Johnson's email within fifteen minutes; he requested a phone number at which he could reach Johnson and explained that he was in a class but would call as soon as he could. Baker also forwarded Johnson's email to Bo Stuart, AWG's Director of Operations; he instructed Stuart to call him and not to share the email with anyone at that time. Nonetheless, when Johnson arrived for his shift that afternoon, he noticed that Lloyd Faircloth, Justin Boyet, Shadi Krishan, and Bo Stuart each had a copy of the letter in their hands and were looking at him in a strange way. Faircloth then escorted Johnson to Bo Stuart's office, where Johnson was seated across from Stuart while five managers stood around him.[5] Clenching his fists and avoiding eye contact, Bo Stuart questioned Johnson about the contents of the letter. Stuart appeared most troubled by the allegations concerning differential treatment based on race and specifically challenged Johnson's description of the warehouse as a “plantation.” Although Johnson felt cornered and increasingly threatened as the meeting progressed, he attempted to explain that opportunities in the areas of work production, discipline, and availability of light duty were dependent upon race. After thirty minutes of questioning, Johnson was told to return to work and not to speak to anyone.

         Later that afternoon, Johnson was approached by Floyd Baker, Bo Stuart, and Lloyd Faircloth for a second meeting. This trio also challenged Johnson's allegations about the race dependent way in which work assignments were distributed. Johnson explained that he was feeling threatened, and he asked to be excused. On Johnson's way out, Baker asked if he was interested in meeting individually to discuss the email, and the pair agreed to meet in Baker's office the next day at 10:30 a.m.

         When Johnson arrived at Baker's office the following morning at 10:40 a.m., Baker was not there. After waiting for twenty minutes, Johnson went home to change clothes in preparation for his 2:00 p.m. shift. At 11:42 a.m., Baker emailed Johnson to apologize that they had missed each other; he also said that he was about to leave the country for a vacation and asked whether Johnson was available to meet when he returned on Tuesday, February 28.[6] After not receiving a response from Johnson by the next afternoon, Thursday, February 23, Baker sent another email to remind Johnson that he would be on vacation until Tuesday, February 28. Baker also told Johnson to take off of work until he returned when they would have a chance to speak in person. He asked Johnson to stop by his office on February 28 at 2:00 p.m. and advised that that he would let the warehouse know that Johnson would be off until his return.

         Meanwhile, on the morning of Wednesday, February 22 or Thursday, February 23, Johnson's badge was deactivated, which precluded him from entering the warehouse.[7] Each day thereafter, he reported to the AWG gate in an attempt to resume working, despite consistently being denied entry. Although it is undisputed that Johnson and Baker met on the afternoon of February 28, 2017, AWG and Johnson present different accounts of what transpired during and after that meeting.

         According to AWG's account, which is presented in the form of Floyd Baker's sworn declarations, [8] Baker and Johnson discussed each complaint contained in Johnson's email. Baker explained that Johnson's position was still available if he wished to return but that AWG expected him to maintain good attendance and meet his production requirements. Because Johnson did not provide a clear answer as to whether he wanted to continue his employment, Baker gave Johnson his cell phone number, and they agreed that Johnson would go home and contemplate his future with AWG. About an hour after the meeting, Johnson emailed Baker to inquire about the status of his job.[9] Baker responded that evening, explaining that Johnson had not been terminated but also had not yet directly answered whether he wanted to continue to work at AWG.[10]

         Baker also declares, under penalty of perjury, that after not receiving any response from Johnson on March 1, 2017, or any day thereafter, about whether or not Johnson wanted to return to work, he decided to terminate Johnson with an effective date of March 2, 2017 because AWG typically terminated employees after not hearing from them within 48 hours. Baker further states that, as noted in Johnson's termination slip, attendance and productivity were also factors in the termination decision. According to AWG's employment records, Johnson was disciplined on various occasions in 2016 and 2017 for his failure to follow AWG's attendance policies, and he received a final written warning on February 20, 2017 for failing to meet the production expectation of 225 cases per hour by only pulling 178 cases per hour.[11]

         Mr. Johnson presents his account of the February 28, 2017 meeting and its aftermath in his own sworn declaration. Johnson declares that he unmistakably indicated during the meeting that he wanted and needed his job back. He further declares, under penalty of perjury, that he sent two emails to Mr. Baker on the afternoon of March 1. At 4:43 p.m., Johnson wrote: “I wouldnt report to you for a meeting that lasted for an hour and 20 minutes without intentions of returning to work (Common Sense plays a factor here).” And at 4:46 p.m., Johnson added: “Nothing was established during the meeting that we had yesterday. I came in with hope of being granted an explanation of the current status of my job . .. .” Johnson also states in his sworn declaration that his absences were medically excused and that he had only been disciplined once for missing his production quota. Relatedly, Johnson declares that, prior to complaining to HR, he had received several raises and was often commended by his supervisors for the speed and skill with which he worked.

         Following the submission of Johnson's sworn declaration, which references a March 1, 2017 email, AWG submitted a second declaration of Floyd Baker, dated April 9, 2019. In his second sworn statement, Baker declares that he “inadvertently failed to produce all [of his] emails relating to Mr. Johnson and apologize[s] for failing to do so.” He further declares that he “now recall[s] that he received emails from Mr. Johnson after February 28, 2017” and “need[s] to clarify that, after February 28, 2017, Mr. Johnson did not contact [him] by phone as he was instructed to do so.” Finally, Baker declares that he terminated Mr. Johnson after Johnson did not return his phone calls because he “did not consider [Johnson's] emails as an appropriate response in light of [the] repeated instructions that [Baker] wanted to speak with him about his commitment to work at AWG.”

         Throughout the spring and summer of 2017, Johnson continued to email Baker, inquiring as to his employment status and asking to return to work. It is undisputed that Baker declined to respond to these emails, at the direction of Pat Reeves, AWG's Senior Vice President and Chief Human Resources Officer. On December 12, 2017, more than nine months after he was locked out of the AWG facility, Johnson filed a charge of race discrimination and retaliation with the EEOC. He alleged that he was threatened to be written up on February 20, 2017 due to inadequate production (although the work was unfairly distributed), confronted by ...

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