Michael S. Powers

Michael S. Powers Associate

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Ninth Circuit Says That Cake Thief Will Have Her Day in Court

In early February, the Ninth Circuit Court of Appeals held that an employee terminated for stealing a stale cake from the bakery of WinCo, the Idaho Falls, Idaho grocery store where she worked would have her day in court.  Plaintiff-Appellant Katie Mayes worked for Defendant WinCo for twelve years, and for the last eight of those years she supervised the night shift freight crew.  In 2011 Mayes was fired for stealing a stale cake from the bakery and sharing it with her coworkers.  Her employer said that she later lied to its investigator, telling him that she had permission to take the cake.  WinCo deemed these actions to be gross misconduct under its personnel policies and terminated her.  After her termination she was denied COBRA benefits for her and her minor children.  She was also denied accrued vacation days.

Mayes sued WinCo, alleging that the cake theft and subsequent claims of dishonesty were pretext for illegal sex discrimination, alleging that her employer had actually wanted to put a man in charge of the freight crew.  She sued under Title VII of the Civil Rights Act of 1964, also bringing claims under COBRA and wage claims under both the Fair Labor Standards Act and the Idaho Wage Claim Act.  Defendant WinCo relied upon the facts of the theft and the resulting dishonesty as legitimate, non-discriminatory reasons for its action in terminating Mayes.  The district court agreed, granting WinCo summary judgment on all claims.  Mayes appealed, and the result of that appeal is an interesting look into how the federal courts analyze discrimination claims.

Mayes, a single mother of seven, had worked for WinCo since 1999.  She had been promoted to the supervisory position in 2006, and had served on the store’s safety committee.  Amongst the duties of the overnight freight crew was the task of shelving thousands of items each month on the first of the month.  Mayes testified that she had been told by her prior supervisor that she could take bakery items to share with her crew to both improve morale and to encourage them to stay past the normal end of their shifts if necessary.  She stated that she was supposed to record the items in a store use log.  This policy was also apparently endorsed by assistant store managers with whom Mayes had discussed the practice and who had also eaten cakes with Mayes and her crew.  Several employees testified that this was a common practice not only by Mayes but by other similarly situated employees and managers.  At some point the bakery instructed Mayes to take cakes only from the “stale cart” of older cakes.

Mayes testified that her troubles were related to the general manager, Dana Steen, who had replaced her previous supervisor.  Mayes said that Ms. Steen replaced her with a male employee as chair of the safety committee, and that when she asked why, she told her that “a male would be better in that position.”  She testified that Ms. Steen had complained about her inability to work off-schedule due to her childcare needs.  Mayes testified that she had criticized her for that shortly before she was terminated.  She also testified that she did not make similar comments to or complaints about a male who held her same position on the freight crew despite the fact that he often left early for reasons related to his children.   She also testified that Ms. Steen had said she did not like “a girl running the freight crew.”

In July of 2011, the bakery reported that someone had taken a fresh cake.  Ms. Steen reviewed store security video and discovered that a crew member of Mayes’ had taken the cake.  She testified that she also saw Mayes take a stale cake. The store’s loss prevention department took over and, after catching the crew member taking yet another fresh cake, interviewed the crew member and Mayes.  When confronted she stated that Mayes had given her permission.  Mayes stated that she had only given permission to take stale cakes, and that she had permission from the prior GM.  The prior GM denied having given that permission.  Loss prevention turned the matter over to the store’s human resources.  Both Mayes and the crew member were terminated that day.  Mayes was replaced by a male employee with one month of experience.  During Mayes unemployment hearing and depositions as a part of the lawsuit there was confusion as to who actually made the final decision to terminate Mayes.  Initially Ms. Steen had been identified, but later testified that she had not.  The question of who actually made that decision remains unanswered.

In considering WinCo’s motion for summary judgment the lower court applied the McDonnell Douglas burden-shifting analysis, under which Mayes first bore the burden of proving an initial, or prima facie, case of discrimination.  Having found that she had done so, it then turned to WinCo to see if the defendant could articulate a legitimate, non-discriminatory reason for its actions.  It cited theft and dishonesty regarding having been granted permission.  The burden then shifted one final time to Mayes to prove that the reason WinCo gave was pretextual, that is, a lie used to disguise its true discriminatory motive.  This is a higher burden and can be met either through circumstantial evidence or directly.  The district court found that Mayes had failed to produce evidence of discrimination and granted summary judgment for WinCo.

On appeal, the Ninth Circuit disagreed with the Court’s finding regarding pretext.  The Court’s opinion stated that pretext can be shown through direct evidence, including evidence of discriminatory statements.  Moreover, the Court found that the fact that Mayes was replaced with a less qualified male employee could also be evidence of pretext.  The Court found that in this case, there was ample direct evidence of discrimination to establish that a jury could find pretext.  In deciding this, the Court was not saying that WinCo had discriminated against Mayes or that its reasons were pretextual, but rather that the lower court had mistakenly granted summary judgment because there was a sufficient question, a material dispute of fact, as to whether the defendant’s reason was pretext for illegal discrimination.  Thus the Court found that the lower court had erred in granting summary judgment.  The COBRA claims and Wage claims are inherently dependent upon the discrimination claims, as the employer had relied upon its determination of gross misconduct to deny both COBRA benefits and accrued leave pay.  Therefore, the error as to the discrimination claim was an error as to the other claims as well.  The Court remanded the case to the district court for further consideration.  In light of the higher Court’s instruction, summary judgment would no longer be an option, meaning that the defendant can either try to settle the case, or else proceed to trial.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including litigation of discrimination claims, for almost sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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