United States District Court, S.D. Indiana, Terre Haute Division
ORDER GRANTING DEFENDANT'S SUMMARY JUDGMENT MOTION
JANE MAGNUS-STINSON, District Judge.
Presently pending before the Court is Defendant Staples The Office Superstore East, Inc.'s ("Staples") Motion for Summary Judgment. [Filing No. 44.] Plaintiff Leola Sarver alleges that Staples, her former employer, discriminated against her and ultimately discharged her because she is African American. For the following reasons, the Court grants Staples' motion and enters summary judgment in its favor.
STANDARD OF REVIEW
A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).
On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, " Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).
The following facts are primarily undisputed, except as noted. Where there is a genuine dispute, all reasonable inferences are made in favor of Ms. Sarver, the non-movant.
A. Ms. Sarver's Employment with Staples
On May 5, 2006, Ms. Sarver, an African-American female, was hired as a Production Associate at Staples' Distribution Center (the "DC") in Terre Haute, Indiana. [Filing No. 46-4 at 34.] In June 2007, Ms. Sarver was promoted to the position of Hourly Trainer. [Filing No. 46-1 at 4; [Filing No. 46-4 at 34.] She worked the night shift, for which she earned a base hourly wage plus a night-shift differential of forty cents per hour. [Filing No. 46-1 at 15-16.] Ms. Sarver's responsibilities included getting to know new hires, giving them a tour of the DC, introducing them to other employees, explaining emergency procedures, and taking them to their work stations. [Filing No. 46-1 at 8-9.] Ms. Sarver reported directly to Star Groza, who was the Lead Trainer. [Filing No. 46-1 at 11.]
When she was not training, Ms. Sarver assisted in production and inventory control. [Filing No. 46-1 at 7-8; [Filing No. 46-4 at 20-21.] Office workers who were not directly related to production at the DC were subject to a flex schedule. [Filing No. 46-4 at 7-8.] Those workers did not have a set start or end time; they just had to meet their hours. [Filing No. 46-4 at 7.] Shipping Clerks, Receiving Clerks, and Trainers were not on a flex schedule. [Filing No. 46-4 at 7-8.] The parties do not dispute that Ms. Sarver did not have a flex schedule.
On October 31, 2010, Ms. Groza was transferred to a different position at the DC, [Filing No. 46-1 at 11], and the Lead Trainer position was eliminated, [Filing No. 46-4 at 41]. Cassie Hoggatt, the Human Resources Supervisor, became Ms. Sarver's supervisor. [Filing No. 46-1 at 11; [Filing No. 46-4 at 10.] Ms. Sarver, the only remaining Hourly Trainer, was transferred to the day shift. [Filing No. 46-1 at 10-11.] Ms. Sarver stopped receiving the forty cents per hour night-shift pay differential after she was transferred to the day shift. [Filing No. 46-1 at 15-16.]
In March 2011, Staples posted an opening for an Hourly Trainer on the night shift. [Filing No. 54-3 at 16.] In April 2011, Staples hired Charlene Potter Ferris for that position. [Filing No. 46-6 at 2.] Ms. Ferris received the forty cents per hour night-shift pay differential. [Filing No. 46-6 at 2.] There is no evidence that Ms. Sarver applied for the night-shift position.
Ms. Sarver remained as an Hourly Trainer on the day shift until she was terminated on October 17, 2011, for violating Staples' call-in policy, as detailed further below. [Filing No. 46-1 at 6; [Filing No. 46-4 at 38.]
B. Staples' Call-In Policies
Staples published two versions of its call-in policy during Ms. Sarver's employment. The first version was effective from 2005 until June 2, 2011 (the "2005 Call-In Policy"). [Filing No. 46-3 at 23.] It provided as follows:
Associates must leave a message on the voice mail system "call in channel" when reporting an absence. The individual associate and not another person must make the call, unless an emergency situation makes this impossible. No other method of leaving a message is acceptable. This call should be made as soon as possible but no later than thirty (30) minutes before the start of their shift.
Associates who fail to report to work and/or call in thirty (30) minutes after the start of their shift will be subject to the following disciplinary action for each day a no call is received: (each scheduled day represents an offense)
1st offense in a 12 month period - Written Warning
2nd offense in a 12 month period - Final Written Warning
3rd offense in a 12 month period - Termination
[Filing No. 46-3 at 23.]
The second version of the call-in policy became effective June 3, 2011 (the "2011 Call-In Policy"). [Filing No. 46-4 ...