United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Friday managed a Perfumania store in a Michigan City, Indiana
mall. She had previously suffered nerve damage in a car
accident, which somewhat limited her use of her hands and
caused them to be atrophied, though that condition did not
prevent her from doing her job. Ms. Friday alleges that
during an inventory count in January 2016, her boss first
noticed her hands' appearance and remarked that they
“are disgusting.” Several months later, he fired
Ms. Friday, citing an excessive “shrink rate, ”
or loss of inventory. Ms. Friday contends that this
explanation was inaccurate and pretextual, and that the real
reason was her boss' disapproval of the condition and
appearance of her hands. In this suit, Ms. Friday claims that
she was fired because of her disability and because she did
not conform to her boss' expectations for how a woman
should appear. Perfumania moves for summary judgment. For the
reasons below, the Court denies the motion as to those
claims, as Ms. Friday has offered evidence from which a
reasonable jury could infer discrimination in those respects.
Magnifique Parfumes and Cosmetics, Inc. operates retail
stores under the name Perfumania. The stores sell perfumes
and colognes, along with some other related items. Michelle
Friday began working for Perfumania as an assistant store
manager in 2011, and worked at a store in the Lighthouse Mall
in Michigan City, Indiana. She was promoted to store manager
in September 2013. Some years earlier, Ms. Friday had been in
a car accident in which she suffered nerve damage. As a
result, she had limited mobility in her wrists, she
experienced atrophy in her hands, and her fingers did not all
function correctly; Ms. Friday testified that between her two
hands, she has five fingers that work well. This condition
caused Ms. Friday to do some tasks differently, such as when
she would spray a perfume bottle to provide a sample, but
both parties agree that the condition did not prevent her
from doing her job. Throughout Ms. Friday's employment,
her store was supervised by Doug England, a district manager
who oversaw about 20 stores.
the metrics by which Perfumania measures the performance of
its stores is their “shrink rate, ” which tracks
the amount of product lost or stolen from the store.
Perfumania measures the shrink rate by dividing the amount of
missing inventory by the stores' total sales. The overall
company goal is a shrink rate of 0.25% or less. If a store
has a shrink rate of 0.10% or less, the store manager
receives a bonus. If the store has a shrink rate of over
0.35%, it can be placed in the “target store program,
” during which inventory is counted more frequently and
employees are required to take action to improve the shrink
rate. Employees' commissions can also be reduced when the
store is on target status.
measure the shrink rate, each store conducts a full inventory
count around January of each year. During those counts, the
employees use handheld scanners and scan the barcode of every
product in the store, shelf by shelf. To verify all products
were scanned, employees also count and manually input the
number of products on each shelf, which have to match the
number of products scanned from that shelf. Certain products
also have to be scanned twice, by two different employees.
Throughout the year, stores also conduct “cycle counts,
” during which the corporate office would send a list
of products, which the stores then count manually. Those
counts were conducted about once a month, as a spot-check,
but the official shrink rate numbers were based on the annual
inventories, which included all of the products in the store.
store at which Ms. Friday worked had a history of poor shrink
rate numbers. The store had been on target status for several
years before 2012, and the store manager who preceded Ms.
Friday had received a written warning for having high shrink
rates. The shrink rate for 2012 (based on an inventory taken
in early 2013) was 0.30%, and cycle counts conducted in early
2013 came in well over 1%. Ms. Friday took over as store
manager later in that year, and the total shrink rate for
2013 came in at 0.33%, a slight increase over the previous
year. That was still below the number that would place the
store on target status, but the store was placed on target
status “for monitoring purposes only, ” meaning
the employees' commissions were not reduced.
2014, a mid-year inventory count was conducted at Ms.
Friday's store. The shrink rate came back as 0.7%. It
came to light, though, that some products that had been moved
off the sales floor and placed in a box in the back room had
been omitted from the count. Thus, another inventory was
conducted in October 2014 to account for those products. The
store was placed on target status in the interim, but the
employees' commissions were not cut, and the store was
removed from target status after the new count. The year-end
shrink rate for 2014 came in at 0.35%, again slightly higher
than the previous year. Monthly cycle counts conducted
throughout 2015 were good, though, with shrink rates
generally below 0.1% and some reflecting no losses at all.
year-end inventory count for 2015 was conducted in January
2016. Ms. Friday and three other employees were present to
conduct the count, and Mr. England also came to assist. Ms.
Friday testified that Mr. England began looking at her
“very strangely” while she was moving product
around, as if he was looking at something gross. He asked Ms.
Friday what was wrong with her, and she responded that she
had been in a car accident and had a little nerve damage. Mr.
England responded by saying that her hands “are
disgusting.” Ms. Friday was offended and humiliated,
but composed herself to finish the inventory.
Friday believes that this was the first time Mr. England
noticed her condition. He had never mentioned or asked her
about her condition, which she usually tried to conceal. His
questioning and reaction during their conversation during the
inventory also led her to believe he had not noticed her
hands before. But from that point forward, Ms. Friday
perceived that Mr. England treated her different than before.
He would not answer her emails promptly or communicate with
her, even as to day-to-day tasks that she needed to do her
job. And whereas Mr. England used to greet her with a hug
when he would visit the store, he did not do so after. Ms.
Friday also testified that Mr. England looked at her
differently, as if she was an inferior person.
March 2016, the results came back for the 2015 inventory, and
Ms. Friday's store had a shrink rate of 0.496%, a
substantial increase over the previous year. After Mr.
England sent her a list of each of the products reported
missing from her store, Ms. Friday sent him an email raising
multiple concerns with the accuracy of the results. She
noted, for example, that some of the products reported
missing were products that did not scan properly during the
inventory count, for which they used substitute bar codes to
scan. She also noted that other products that were reported
missing had been sent back because they were shipped with
improper bar codes, and that for various other items, the
numbers reported missing were implausible. Mr. England never
responded to Ms. Friday's email, though, or to the
follow-up emails or calls in which she tried to raise the
inaccuracies. Instead, Mr. England told Perfumania's
human resources representative that he wished to fire Ms.
Friday for the poor shrink rate. After drafting a corrective
action form and receiving approval, Mr. England met with Ms.
Friday on May 3, 2016, and informed her that she was being
fired for her store's poor shrink rate.
filing a charge of discrimination with the Equal Employment
Opportunity Commission, Ms. Friday filed this suit. Discovery
has closed and Perfumania moved for summary judgment, and
that motion is fully briefed.
STANDARD OF REVIEW
must grant summary judgment if the movant shows that there
“is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A “material” fact is one
identified by the substantive law as affecting the outcome of
the suit. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A “genuine issue” exists with
respect to any material fact when “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id. Where a factual record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no genuine issue for
trial, and summary judgment should be granted. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). In determining whether a genuine issue of
material fact exists, courts must construe all facts in the
light most favorable to the non-moving party and draw all
reasonable and justifiable inferences in that party's
favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th
Cir. 2008); King v. Preferred Tech. Grp., 166 F.3d
887, 890 (7th Cir. 1999). However, the non-moving party