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Wyss v. Petsmart Inc.

United States District Court, N.D. Indiana, Fort Wayne Division

November 26, 2018

KARLA WYSS, Plaintiff,
v.
PETSMART, INC., Defendant.

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         This matter is before the Court on Defendant PetSmart, Inc.'s, Motion for Summary Judgment [ECF No. 30], in which the Defendant seeks judgment as a matter of law on Plaintiff Karla Wyss's claim that the Defendant terminated her employment in violation of the Age Discrimination in Employment Act (ADEA). Based on the Plaintiff's Complaint allegations and deposition statements, the Defendant did not believe that the Plaintiff was pursuing a retaliation claim under the ADEA. In response to the Defendant's Motion, the Plaintiff asserts that genuine issues of material fact preclude the entry of summary judgment on both age discrimination and retaliation claims, and that her retaliation claim was in the Charge of Discrimination attached to the Complaint. The Defendant filed a Reply brief, and the Plaintiff has sought permission to file a Sur-Response. The Court has considered all the briefs, including the proposed Sur-Response [ECF No. 43-1], and accompanying evidentiary submissions under the requisite standards, and finds, for reasons set forth below, that the Defendant is entitled to judgment as a matter of law.

         STATEMENT OF FACTS

         Karla Wyss began her employment with PetSmart in August 2009 when she was fifty-six years old. The Plaintiff was hired to be a Pet Trainer I in the PetSmart location referred to as Store 1841. In January 2010, the Defendant promoted the Plaintiff to Pet Trainer II, and, again, six months later to Pet Trainer III. On October 1, 2012, the Plaintiff received her final promotion to Area Pet Trainer.

         The Plaintiff generally had positive performance reviews, particularly as it related to her contact with customers and promoting sales for training classes. Her performance ratings in the areas related to team and interpersonal skills were not as strong. For example, the Plaintiff's lowest rating-“2-Borderline”-for her August 23, 2011, review was in response to whether she “[r]espectfully supports and communicates with associates and managers” and [i]mproves performance in response to feedback and coaching.” (ECF No. 32-1 at 25-26.) The rating was, presumably, impacted by a coaching she had received four months earlier related to her ability to work as a team with a new trainer. A month later, she received a formal coaching on the issue. The Action Plan for the formal coaching documented the Plaintiff's ongoing treatment of the store's new trainer, and the Plaintiff's improper attempts to have the other employee fired or moved to another store based on the Plaintiff's concerns about her own commissions and her personal dislike of the other employee. The management team concluded that the Plaintiff “was not acting with dignity and respect for her follow coworkers and management staff, ” and that “[t]hese actions could have [led] to creating a hostile work environment.” (ECF No. 32-1 at 28.) The Plaintiff was expected to review the Defendant's “Dignity in the Workplace Policy” and to understand how to address future concerns with an associate.

         The Dignity in the Workplace Policy's stated intention is to ensure that the Defendant's work environment is “free from discrimination, harassment, and retaliation” and extends “further than the law requires.” (ECF No. 32-1 at 11.) Thus, associates are “expected to conduct themselves in a professional, respectful manner when interacting with coworkers” and others they have contact with during their employment. (Id.) The Policy warns that “associates whose conduct falls short of illegal discrimination, harassment, or retaliation may nonetheless be counseled or terminated for violating this policy if their conduct fails to live up to our standards or professionalism, courtesy, and common decency.” (Id.)

         The same Dignity in the Workplace Policy was cited as the basis for terminating the Plaintiff's employment in November 2014. In January 2014, a PetSmart cashier filed a written complaint with the Defendant regarding the Plaintiff's treatment of her. The employee recounted numerous statements that the Plaintiff made to her, and complained that she “had never done anything to [the Plaintiff] to deserve being talked to like this and treated like I'm dirt.” (ECF No. 32-1 at 35.) The complaint was placed in the Plaintiff's personnel file. In September 2014, store manager Sherri Bencze documented three employees' reports that the Plaintiff had been speaking negatively about another associate, Michael Reef. According to the reports, the Plaintiff told the employees that Reef did not fit in at the store, and that he was driving customers away. Bencze and operations manager Chuck Vannatta met with the Plaintiff to ask her about the reports that she was talking about Reef to team members and leaders in the store. She did not deny making the statements about Reef.

         Bencze's report details others statement that the Plaintiff made during their conversation. In her Affidavit, filed in response to the Motion for Summary Judgment, the Plaintiff disputes the portion of Bencze's report that indicates that the Plaintiff referred to Reef as “retarded, ” and said she was going to call him “special needs.” (Pl.'s Aff. ¶ 9, ECF No. 36-1.) It is not disputed, on the record before this Court, that the Plaintiff claimed Reef was going to drive customers away because he was “over the top, ” she did not like working with him, and he rubbed her the wrong way. (ECF No. 32-1 at 40; Pl.'s Aff. ¶ 9.) The Plaintiff also complained that she believed the store was hiring “young kids” and was phasing out “old people.” (ECF No. 32-1 at 40; Pl.'s Aff. ¶ 9.) Bencze wrote that the Plaintiff expressed her disagreement with “the direction of the company in wanting team members with tattoos and gages [sic] in their ears.” (ECF No. 32-1 at 40.) Bencze then reminded the Plaintiff of the Dignity in the Workplace Policy, and that there was not to be any discrimination on the basis of age, race, appearance, or sexual orientation. Bencze and Vannatta reminded the Plaintiff of the need to work as a team despite differences in personality. According to the report, the Plaintiff expressed doubt as to whether she would be able to work with Reef, and she was reminded that it would not be possible for the Plaintiff, who was a full-time employee, not to be scheduled with Reef.

         Then, on October 7, 2014, management again met with the Plaintiff to discuss her treatment of Reef, as Reef had reported that he felt harassed by the Plaintiff. During the conversation, the Plaintiff admitted to having problems with Reef, and not wanting to work with him. She stated that she assumed he was gay, but that her dislike of him had nothing to do with that. Management again reviewed the Dignity in the Workplace Policy with the Plaintiff. The Plaintiff again requested not to be required to work with Reef, and different options were discussed, including whether the Plaintiff could remain the Area Pet Trainer if she reduced her hours below full time.

         On October 9, 2014, Vannatta documented a conversation he had with the Plaintiff in his office at her request. During the discussion, the Plaintiff voiced her concern about what she believed was “childish, immature and unprofessional behavior” of her coworkers. (Pl.'s Aff. ¶ 11.) This included their assumption that the Plaintiff was fighting with another co-worker when, in actuality, they were only talking loudly to be heard over the noise of kennel area dryers. The Plaintiff also expressed her concern over management's acceptance of employees displaying tattoos and piercings, and unprofessional behavior, including gossiping and cliques. (Id.; ECF No. 32-1 at 47.) According to Vannatta, when he asked the Plaintiff if there was anything management could do to help her,

She simply replied “Get rid of Michael (Reef), or at the very least, do not schedule me (Karla) with him. She also asked if there was something she could do to help out her own situation and I replied “please lay off of Michael, he has done nothing to you, and he does not deserve to be treated the way you treat him.” She told me she has no intentions of treating him any different, and then just smiled and laughed. At this point, the conversation ended.

(ECF No. 32-1 at 47.) Vannatta ended the report with the following observation:

I found it curious that in the same conversation in which she voiced concern over associates bringing their personal lives to work, she changed the topic and started focusing the direction of the conversation over her dislike for Michael Reef. She wants others to not smile and laugh and connect with Pet Parents, and does not want personal lives brought to the store, but yet she cannot get over her own unfounded, personal dislike for Michael. This is very counterproductive, and it is continuing to make Michael and the staff extremely uncomfortable.

(Id.) The Plaintiff addressed Vannatta's report in her Affidavit:

During the October 9, 2014 meeting with Vannatta, we also talked about whether arrangements could be made so I did not have to work with Michael Reef. I never told Vannatta though that I had or intended in the future to mistreat Reef if I continued to work with him. I also never told Vannatta that I did not want any of ...

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