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Colon v. Publix Super Markets Inc.

United States District Court, D. South Carolina, Spartanburg Division

September 25, 2018

Ricardo Colon, Plaintiff,
Publix Super Markets, Inc., Defendant.


          Kevin F. McDonald United States Magistrate Judge.

         This matter is before the court on the defendant's motion for summary judgment (doc. 18). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.


         On August 17, 2017, the defendant removed this case to federal court from the Spartanburg County Court of Common Pleas (doc. 1). On March 12, 2017, the plaintiff filed an amended complaint. In his amended complaint, the plaintiff alleges causes of action for breach of contract and race and national origin discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended (doc. 15 at 2-4). The defendant filed a motion for summary judgment on May 7, 2018 (doc. 18), and the plaintiff filed his response in opposition to the motion on June 11, 2018 (doc. 26). The defendant filed a reply on June 18, 2018 (doc. 28), and the plaintiff filed a sur-reply on June 25, 2018 (doc. 31). The case was referred to the undersigned on July 12, 2018 (doc. 33). A hearing on the motion was held before the undersigned on August 23, 2018 (doc. 39).


         Plaintiff's Employment

         The defendant is a private retail grocery company with stores across the southeastern United States. The plaintiff has worked for the defendant for 31 years (doc. 18-2, pl. dep. 11-12). The plaintiff is Hispanic (doc. 15 at 4), and his national origin is Puerto Rican (doc. 18-2, pl. dep. 10-11).

         The store manager is the highest ranking associate (the defendant refers to its employees as associates) in the defendant's stores and oversees all store operations. There is only one store manager per store, and store managers are expected to act and perform at a higher level than other managers in the store. All managers in the store, including the assistant store manager, department managers, and assistant managers, are also held to a higher standard than non-manager associates (doc. 18-2, pl. dep. 12-13, 16-17). Store managers report directly to district managers who oversee operations of a group of stores in their district. District managers report to regional directors who oversee operations for all stores in their region. Mark Pittman was the regional director for the region that included the plaintiff's store (doc. 18-3, Pittman dep. 5).

         The plaintiff applied for promotion from assistant store manager to store manager in 2010. Associates must have the recommendation of their district manager to be eligible for promotion. The plaintiff does not know the reason that he was not selected for promotion in 2010, but he does know that his district manager at the time, Rich DiRocco, did not recommend him for promotion (doc. 18-2, pl. dep. 86, 89, 91-92). DiRocco testified that he did not recommend the plaintiff for promotion in 2010 because the plaintiff needed to address performance issues to be ready for the store manager job, including: being more detail oriented in his store inspections; knowing his business better; better driving results in the store; ensuring consistent performance; and communicating at multiple levels of leadership. From 2010 to 2013, the plaintiff showed “great improvement” in these areas after the defendant intentionally, but unbeknownst to the plaintiff, gave him three separate management projects to challenge him and help him prove his leadership abilities (doc. 18-4, DiRocco dep.11-12, 22-24).

         On March 24, 2011, the plaintiff filed an internal complaint alleging that DiRocco discriminated against him because of his race by not promoting him to store manager in 2010. The defendant's human resources department investigated the plaintiff's complaint and informed him that there was no evidence to support the allegation (doc. 18-2, pl. dep. 81, 101-02). Regional Director Pittman was not a part of the investigation and played no role in deciding whether it had merit (doc. 18-3, Pittman dep. 5, 7). The plaintiff claims that Pittman attended a meeting with him at the conclusion of the investigation to “close out” the investigation. The plaintiff testified that in this meeting Pittman asked him why he did not come to Pittman with his complaint and that Pittman told him to “continue doing what you are doing.” The plaintiff thinks Pittman and/or DiRocco told him that he would be treated fairly, he would not be retaliated against, to be more outgoing and involved, and that they would promote him when they felt the time was right. In that meeting, Pittman did not say anything that the plaintiff felt was discriminatory. He had no reason to believe that Pittman would discriminate against him based on his race or national origin from the conversation. The plaintiff never heard Pittman make any comments indicating he had animus towards Hispanics or his national origin (doc. 18-2, pl. dep. 81-85, 101-06).

         On February 9, 2013, the plaintiff was promoted to store manager. DiRocco recommended the plaintiff for promotion, and Pittman approved the recommendation (doc. 18-2, pl. dep. 93-94; doc. 18-4, DiRocco dep. 22). The first store the plaintiff managed was Store No. 632 in Taylors, South Carolina. His district manager was Kris Jonczyk (doc. 18-2, pl. dep. 211).

         Defendant's Policies

         The defendant's Managers' Reference Library (“MRL”) is a set of guidelines almost exclusively for use by managers to help them address any number of situations (doc. 18-5, Laird decl. ¶ 2). The Progressive Discipline and Documentation chapter (“PDD”) of the MRL provides guidelines regarding decisions of discipline and documentation (doc. 18-2 at 94, pl. dep., ex. 9). It states that “Publix promotes a philosophy of progressive discipline” (id. 97). It goes on to say that “[progressive discipline] is not a rigid system to be used in dealing with unacceptable behavior” and that “in cases of serious misconduct or other unusual circumstance, discharge for a first offense may be appropriate without prior counseling, ” and that “a manager should always use the degree of discipline appropriate to the situation . . .” (id.) (emphasis in original). The PDD provides the following four steps involved with progressive discipline:

(1) Observe (or otherwise be made aware of) the exceptional behavior.
(2) Coach the associate. This normally includes pointing out the business consequences[, ] which help the associate understand why the expected behavior or performance is important to Publix.
(3) Counsel the associate on the observed behavior. This normally includes pointing out the possible consequences to the associate if the performance or behavior does not meet expectations.
(4) If behavior goes uncorrected, take the necessary job action.


         The defendant periodically distributed updates to the MRL along with an “Employment At-Will Acknowledgment” for managers or anyone else using the MRL to read and sign (doc. 18-2, pl. dep. 200; doc. 18-2 at 87-89, pl. dep., ex. 7). With the updates, the defendant distributed the Employment At-Will Acknowledgment to the plaintiff, and he would print it and provide it to all associates (id.). The plaintiff reviewed the updates and signed the Employment At-Will Acknowledgment (id.; doc. 18-2, pl. dep. 201-02). The plaintiff read, understood, and signed the MRL Employment At-Will Acknowledgment provision that stated in underlined and all capital letters:

• That the MRL does not create a contract of employment.
• That the plaintiff's employment was at-will.
• That the plaintiff was not guaranteed employment for any specific period of time.
• That the plaintiff's at-will employment status could not be changed by anything in the MRL.
• That the at-will employment relationship could only be altered by a document signed by the President of Publix with the express intent of altering the plaintiff's at-will status.

(Doc. 18-2, pl. dep. 206-09; doc. 18-2 at 87-89, pl. dep., ex. 7).

         Shortly after the plaintiff was promoted to store manager, his new district manager, Jonczyk, emailed him a document titled “Store #632 Store Policies and Guidelines” (“store specific policies”)[1] on February 23, 2013 (doc. 18-2, pl. dep. 211; doc. 18-2 at 91-92, pl. dep., ex. 8). Jonczyk also gave the plaintiff a ...

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