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Blakely v. Big Lots Stores, Inc.

United States District Court, N.D. Indiana, Hammond Division

June 17, 2015

LORINE BLAKELY, LILLIAN M. BROWN, TIERNEY LOKEY, MABEL OWUSU, KIA THOMAS, LEOLA NANCY STONE, JULIA E. ROGERS, VERRETTA TERRY, ANGELA SALES-STEPHENS, ANGELA L. WALKER, MARLO WILLIAMS, MARY B. WILLIAMS, Plaintiffs,
v.
BIG LOTS STORES, INC., Defendant.

OPINION AND ORDER

JAMES T. MOODY, District Judge.

Defendant Big Lots Store, Inc. ("Big Lots" or "defendant") has moved for summary judgment on plaintiffs Lorine Blakely, Lillian Brown, Tierney Lokey, Mabel Owusu, Kia Thomas, Leola Nancy Stone, Julia Rogers, Verretta Terry, Angela L. Walker, Marlo Williams, and Mary B. Williams's ("plaintiffs") claims against it. (DE # 66.) Plaintiffs have filed a response to this motion (DE # 76), and defendant has filed a reply (DE # 80.) For the following reasons, defendant's motion is granted in part and denied in part.

I. Facts

In the summary that follows, the court refers only to undisputed facts, or, if there is a dispute, notes that it exists and relies on the version of the fact, or inference therefrom, that is most favorable to the plaintiffs. This summary provides an overview. Additional relevant undisputed facts will be referred to in the analysis that follows.

Big Lots is a national retailer that focuses on selling closeout and discounted merchandise. (DE # 67 at 7; DE # 1 at ΒΆ 15.) Each of the plaintiffs was previously employed by defendant at defendant's Merrillville, Indiana location ("the store"). (DE # 67 at 7; DE # 1 at 4-5.) Each of the plaintiffs is African American (DE # 67 at 7; DE # 1 at 4-5), and six of the plaintiffs - Lorine Blakely, Lillian Brown, Julia Rogers, Leola Nancy Stone, Verretta Terry, and Mary Williams - were over the age of 40 at the time in which their employment with defendant ended. (DE # 67 at 7; DE # 1 at 4-5.)

Eight of the plaintiffs were full-time employees during their employment with defendant. Plaintiffs Owusu and Stone were Associate Store Managers. (DE # 67 at 7; DE # 1 at 5.) Plaintiff Thomas worked as the store's Furniture Manager. (DE # 67 at 7; DE # 1 at 5.) Plaintiffs Brown, Rogers, and Mary Williams worked as Customer Service Specialists. (DE # 67 at 7; DE # 1 at 4-5.) Plaintiffs Blakely and Terry worked as cashiers. (DE # 67 at 7; DE # 1 at 4-5.) Plaintiffs Walker, Marlo Williams, and Lokey all worked as part-time sales associates at the store.[1] (DE # 67 at 8; DE # 1 at 4-5.)

On July 24, 2009, Big Lots held a store closing meeting at the store to inform its employees that the store would be closed. (DE # 67 at 8; DE # 68-11 at 9.) Several months earlier, defendant had decided to close the store because the store's landlord would not renegotiate its lease. (DE # 68-1 at 3.) Defendant, therefore, decided to open a new store in a higher-traffic area a few miles away in nearby Hobart, Indiana. (DE # 67 at 8; DE # 68-1.) The store ended up closing in September of 2009, and defendant opened its new Hobart store in October of 2009. (DE # 67 at 8-9; DE # 68-1 at 3.)

The store closing meeting, attendance at which was voluntary, was led by District Manager Thomas Cagle and Regional Human Resources Manager Josh Hammerschmidt. (DE # 67 at 9; DE # 1 at 2.) The meeting was not mandatory because defendant did not want the employees that did not come to the meeting to be disciplined. (DE # 67 at 9; DE # 1 at 2.) Six plaintiffs attended the store closing meeting (Lorine Blakely, Lillian Brown, Julia Rogers, Nancy Stone, Kia Thomas, and Marlo Williams) and five did not (Tierney Lokey, Mabel Owusu, Verretta Terry, Angela Walker, and Mary Williams). (DE # 67 at 9.)

Defendant and plaintiffs give differing accounts as to what happened at the meeting. According to defendant, District Manager Cagle began the meeting by informing the attendees that the store was closing and that because of the business model defendant uses to set up a new store, defendant could not guarantee that any employee would get a full-time position at the new store. (DE # 67 at 9; DE # 68-7 at 4.) After speaking for a short time, Cagle handed the meeting over to HR Manager Hammerschmidt, who then led the rest of the meeting. (DE # 67 at 10; DE # 68-11 at 15.)

According to defendant, at the beginning of the store closing meeting, Hammerschmidt distributed copies of defendant's transfer request form, defendant's store closing pay policy, and defendant's frequently asked questions relating to store closings. (DE # 67 at 10; DE # 68-11 at 12.) These are the same documents that Hammerschmidt distributes at every store closing meeting he runs. (DE # 67 at 10; DE # 68-11 at 12.) Hammerschmidt also explained that any employee that was interested in transferring to the new store would have to fill out a transfer request form in order to be considered for a transfer. (DE # 67 at 11; DE # 68-11 at 14.) At the end of the store closing meeting, Hammerschmidt took questions and handed out his business card so employees could contact him if they had additional questions. (DE # 67 at 11; DE # 68-11 at 11.)

Plaintiffs, however, testified to completely different accounts of the store closing meeting (for those who attended) and the events that occurred after. The court will now look to each plaintiff's account of the transfer process, construing the facts most favorably to the plaintiffs.

A. Tierney Lokey

Lokey did not attend the store closing meeting. (DE # 68-14 at 7; Lokey Dep. at p. 53:2-10.) Lokey understood that to transfer to the new store, she was required to fill out the transfer request form and interview for a position at the new store. (DE # 68-14 at 8; Lokey Dep. at p. 60:5-23.) Lokey never reached out to anyone in a position of authority in defendant's hierarchy to find out more information about transferring to the other store. (DE # 68-14 at 9; Lokey Dep. at p. 65:1-15.) Lokey believed she was being pushed to accept the severance pay because it was a better option for the plaintiffs. (DE # 76-23 at 10, Lokey Dep. at p. 108:2-8.) Lokey felt "humiliated" because she was not given a guaranteed position at the new store. (DE # 68-14 at 3; Lokey Dep. at pp. 41:2-42:12.)

B. Mabel Owusu

Owusu did not attend the store closing meeting, (DE # 68-17 at 7; Owusu Dep. at p. 62:11-14), but she knew that she had to fill out a transfer request form in order to be eligible for a transfer to the new store. (DE # 68-17 at 6; Owusu Dep. at p. 61:3-19.) Owusu's fellow employees told her that the store was closing. (DE # 68-17 at 7; Owusu Dep. at p. 62:20-23.) After learning that the store was closing, Owusu called Hammerschmidt to ask him if he would hold another meeting explaining the store closing process. (DE # 68-17 at 8; Owusu Dep. at p. 67:12-14.) Hammerschmidt told Owusu that he was not going to hold another store closing meeting, and that if she wanted to transfer to the new store, Owusu would have to fill out a transfer request form. (DE # 68-17 at 8-9; Owusu Dep. at pp. 67:22-68:10.)

After speaking with Hammerschmidt, Owusu called corporate headquarters to find out additional information about the transfer process. (DE # 76-5 at 9; Owusu Dep. at p. 92:2-2.) Owusu talked to two individuals who did not understand the transfer process. (DE # 76-5 at 10; Owusu Dep. at p. 102:4-24.) After that, Owusu went to Hobart Store Manager Paul Sierra to ask him about the transfer, and Seirra told Owusu to "take your money and run." (DE # 76-5 at 12; Owusu Dep. at p. 104:2-6.)

C. Veretta Terry

Terry did not attend the store closing meeting. (DE # 68-35 at 7; Terry Dep. at p. 57:3-16.) Terry learned about the store closing and her transfer options from her fellow employees. (DE # 68-35 at 8; Terry Dep. at p. 61:3-11.) Terry knew that she had to fill out a transfer request form, but did not because she felt that defendant did not want her to transfer to the new store. (DE # 68-35 at 8; Terry Dep. at p. 61:17-20.) Terry thought that defendant did not want her to transfer to the new store because defendant could not tell its employees which store they would be transferring to and because defendant could not guarantee that employees would have the same pay and the same job at a new store. (DE # 68-35 at 8; Terry Dep. at p. 61:22-24.)

Terry did ask manager Jim Villegas about transferring, and he told Terry that he did not know how that process worked. (DE # 68-35 at 10; Terry Dep. at p. 64:6-14.) Terry also called someone at defendant's corporate office to inquire about the transfer process. (DE # 68-35 at 11; Terry Dep. at p. 66:4-14.) The person Terry spoke with at corporate did not know how the transfer process worked. (DE # 68-35 at 12; Terry Dep. at p. 71:13-29.)

D. Angela Walker

Walker did not attend the store closing meeting. (DE # 68-41 at 7; Walker Dep. at p. 123:17-20.) Walker never asked Hammerschmidt or manager Jim Villegas about what happened at the meeting. (DE # 68-41 at 8-9; Walker Dep. at pp. 128:17-129:4.) After finding out the store was going to be closing, Walker asked Villegas what she had to do to transfer to the new store, and Villegas told her she needed to fill out a transfer request form. (DE # 68-41 at 12; Walker Dep. at p. 132:6-15.) Walker also asked Villegas for a transfer request form, and he said that he would get back to her with one, but he became busy and never gave Walker a transfer form. (DE # 68-41 at 12-13; Walker Dep. at p. 132:16-133:24.) Walker never made any other attempts to secure a transfer request form. (DE # 68-41 at 14; Walker Dep. at p. 134:1-11.)

Walker eventually asked Villegas again about the transfer slip, and he told her she had missed the deadline to transfer. (DE # 76-9 at 4; Walker Dep. at p. 134:11-17.)

E. Mary Williams

Mary Williams did not attend the store closing meeting. (DE # 68-45 at 3; Williams Dep. at p. 20:9-11.) Williams learned from her fellow employees that the store would be closing. (DE # 68-45 at 4; Williams Dep. at p. 27:11-24.) Williams never asked anybody at the store what she needed to do to transfer to the new store and never asked anyone for a transfer request form. (DE # 68-45 at 5-6; Williams Dep. at pp. 33:20-34:5; DE # 68-45 at 7-8; Williams Dep. at pp. 35:18-36:3.) Williams never saw any transfer request forms. (DE # 68-45 at 6; Williams Dep. at p. 34:6-9.) Williams made no attempt to transfer to the new store because she was not guaranteed to have the same job or the same pay at the new store. (DE # 68-45 at 9-10; Williams Dep. at pp. 37:17-38:4.)

F. Lillian Brown

Lillian Brown attended the store closing meeting. (DE # 68-6 at 7; Brown Dep. at p. 106:17-18.) At the meeting, Hammerschmidt explained that all employees could apply for transfers to the new store, but that there was no guarantee that each employee would get the same position that they previously held. (DE # 68-6 at 8-9; Brown Dep. at pp. 118:16-119:17.) Hammerschmidt also explained that employees who applied for transfers might get jobs at stores other than the new store in Hobart but that were still within a 30-mile radius of the store. (DE # 68-6 at 8-9; Brown Dep. at pp. 118:16-119:17.) Additionally, Hammerschmidt told the employees at the meeting that full-time positions were not guaranteed at the new store, and that if the employees accepted a new position at a different store, they would no longer be entitled to severance pay. (DE # 68-6 at 8-9; Brown Dep. at pp. 118:16-119:17.) Hammerschmidt also told the meeting attendees that he was just there to give them the news, not to answer questions. (DE # 76-10 at 2; Brown Dep. at p. 144:22-24.)

At the meeting, Hammerschmidt told employees that if they wanted to transfer they needed to go into the store's office and fill out a transfer form. (DE # 68-6 at 10; Brown Dep. at p. 122:7-21.) Although she initially began filling out a transfer request form, Brown did not submit the form because she was confused and did not think the transfer process was fair. (DE # 68-6 at 11-12; Brown Dep. at p. 124:12-125:11.) When Brown was told that there was no guarantee that she would get her same position at the new store, she said "forget, it[, ]" and did not submit the form. (DE # 68-13 at 10; Brown Dep. at p. 126:14-23; DE # 68-6 at 15-16; Brown Dep. at p. 128:23-12:5.)

G. Leola Nancy Stone

Stone attended the store closing meeting. (DE # 68-32 at 9; Stone Dep. at p. 101:11-12.) Stone testified that there were no documents handed out at the meeting, but she received a transfer request form after the meeting from Acting Store Manager Jim Villegas. (DE # 68-32 at 9; Stone Dep. at p. 101:11-18.) Stone later went on to testify that she understood her transfer options:

Q: So if you applied for a full-time transfer but you were only able to get a part-time transfer and you accepted that position, then you would lose out on your severance pay?
A: That's correct.
* * *
Q: What if you applied for a full-time transfer, were offered a part-time transfer, but turned that down? What did you understand would happen?
A: I would get the severance package and my unemployment.
Q: So you knew that if you applied for a full-time position but there wasn't one available, you could still get your severance and unemployment, correct?
A: Yes.

(DE # 68-32 at 13; Stone Dep. at p. 127:5-21.) Stone's understanding of her options was correct. ( See DE # 67 at 13-14.)

Stone actually filled out a transfer form requesting a transfer to the new store, and gave it to store manager Jim Villegas. (DE # 68-32 at 3-4; Stone Dep. at p. 31:22-32:10.) She submitted it to Villegas after a conversation in which Stone told Villegas that she wanted to transfer to the new store, and Villegas responded that Stone transferring to the new store was impossible. (DE # 68-32 at 4; Stone Dep. at p. 32:1-23.) After that, Stone contacted Hammerschmidt about the status of her transfer application. (DE # 68-USDC 32 at 6; Stone Dep. at p. 55:6-7.) She left Hammerschmidt a message but Hammerschmidt never called Stone back. (DE # 68-32 at 6; Stone Dep. at p. 55:6-7.)

After failing to find anything out about the status of her transfer application from Hammerschmidt, Stone once again approached Villegas about her transfer, but he "just blew [her] off." (DE # 68-32 at 6; Stone Dep. at p. 55:8-10.) Stone eventually talked with Assistant Store Manager Linda Gaboian about her transfer. (DE # 68-32 at 6; Stone Dep. at p. 55:11-22.) Gaboian told Stone that she did not know the status of Stone's transfer request. (DE # 76-6 at 4; Stone Dep. at p. 53:7-10.) At that point, Stone told Gaboian that she was withdrawing her transfer request because she was frustrated about not knowing where she stood with regard to the transfer. (DE # 76-6 at 5; Stone Dep. at p. 55:11-19.) Stone was also frustrated by the fact that Gaboian already knew she was going to be moved to the new store, but Gaboian could not give Stone any information on Stone's transfer. (DE # 76-6 at 4; Stone Dep. at p. 53:7-19.) Stone also did not think it was fair that it was possible that she would be moved to another store and lose her current position. (DE # 68-32 at 7; Stone Dep. at p. 57:11-16.) Finally, Stone testified that she would not have accepted a part-time position at another store if one had been offered to her. (DE # 68-32 at 17; Stone Dep. at p. 171:8-14.)

H. Marlo Williams

Marlo Williams attended the store closing meeting. (DE # 68-43 at 16; Williams Dep. at p. 75:3-4.) At the meeting, Williams tried to pay as much attention as she could, but admitted that she was not "really like paying attention." (DE # 68-43 at 16; Williams Dep. at p. 75:18-24.) Williams never saw any transfer request forms at the store. (DE # 76-18 at 2; Williams Dep. at p. 31:20-22.) (DE # 68-43 at 4; Williams Dep. at p. 32:3-13.) Although Williams knew that she could get a transfer request form from the office, she never attempted to get a transfer request form because she "figured they didn't want to give us one." (DE # 68-43 at 4; Williams Dep. at p. 32:3-13.) Williams, however, testified that she had "no idea" what that assumption was based on. (DE # 68-43 at 4; Williams Dep. at p. 32:3-14-15.) Williams did not understand the transfer process (DE # 76-18 at 2; Williams Dep. at p. 31:12-22), and did not follow up with anyone to get a better understanding of the process because she felt that Hammerschmidt did not care about her. (DE # 68-43 at 4; Williams Dep. at p. 32:3-13.) Additionally, Williams testified that the managers were acting like they did not want the plaintiffs to go to the new store. (DE # 76-18 at 3; Williams Dep. at p. 77:20-78:14.)

I. Lorine Blakely

Blakely was at the store closing meeting. (DE # 68-3 at 5; Blakely Dep. at p. 98:16-18.) Blakely received the transfer request form at the store closing meeting, but did not receive the store closing pay policy or the store closing FAQ document. (DE # 68-3 at 8; Blakely Dep. at p. 111:14-24.) After the meeting, Blakely followed up with Hammerschmidt regarding transferring to the new store, and Hammerschmidt told her to fill out a transfer request form if she wanted to go to the new store. (DE # 68-3 at 9; Blakely Dep. at p. 113:1-24.)

At some point, Blakely asked Acting Store Manager Jim Villegas about the possibility of transferring, and Villegas just laughed in response to her inquiry. (DE # 76-8 at 2; Blakely Dep. at p. 103:7-9.) After the store closing had been made public, a customer asked Blakely, who was working the cash register at the time, whether she would be moving to the new store. (DE # 76-8 at 2; Blakely Dep. at p. 103:10-19.) Before Blakely had an opportunity to respond, Assistant Store Manager Linda Gaboian responded that Blakely would not be transferring to the new store. (DE # 76-8 at 2; Blakely Dep. at p. 103:7-9.)

Blakely did not submit a transfer request form. (DE # 68-3 at 9; Blakely Dep. at p. 113:1-24.) Blakely decided against submitting a transfer request form because she did not believe it was worth it to submit the transfer form when there was no guarantee of employment:

Because I asked him[2] why was we putting in a transfer. He said we need to put in a transfer to go to the other store.
I said, "Well, what's the purpose? We are in the system for 20 years almost. What is the purpose?" That's the day I think we talked - he kind of explained off the top of our head that if we take the transfer and we can go anywhere, but it doesn't mean that we would get hours, full-time positions. Nothing was guaranteed. We'll be out there taking a risk. So it wouldn't - it didn't pay for us to even put in a transfer.

(DE # 68-3 at 6; Blakely Dep. at p. 102:3-14 [all sic]; see also DE # 68-3 at 24; Blakely Dep. at p. 189:10-11 ("I did not sign [the transfer request form] because they did not guarantee me anything.").

J. Julia Rogers

Rogers attended the store closing meeting. (DE # 68-19 at 10; Rogers Dep. at p. 99:18-24.) Rogers was told at the meeting that if she submitted a transfer request form and was offered a part-time position at another store but declined the offer, she would not get her severance pay. (DE # 68-19 at 11-13; Rogers Dep. at p. 102:21-104:16.) Rogers knew that she had to submit a transfer request form if she wanted to transfer to the new store (DE # 68-19 at 16; Rogers Dep. at p. 128:13-15.) Rogers decided not to submit a transfer form, however, because she did not want to ...


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