United States District Court, D. South Carolina, Spartanburg Division
REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge.
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.
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).
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).
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).
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).
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).
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 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
(1) Observe (or otherwise be made aware of) the exceptional
(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
(4) If behavior goes uncorrected, take the necessary job
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
(Doc. 18-2, pl. dep. 206-09; doc. 18-2 at 87-89, pl. dep.,
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”) 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 ...