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Strickler v. Hobby Lobby Stores, Inc.

United States District Court, S.D. Texas, Houston Division

March 30, 2018

PATRICK STRICKLER, Plaintiff,
v.
HOBBY LOBBY STORES, INC., Defendant.

          MEMORANDUM OPINION

         Pending before the court[1] is Defendant's Motion for Summary Judgment (Doc. 50). The court has considered the motion, Plaintiff's response, and the applicable law. For the reasons set forth below, the court GRANTS Defendant's motion.

         I. Case Background

         Plaintiff filed this action against his former employer, alleging that Defendant violated Title VII of the Civil Rights Act of 1964[2] (“Title VII”) by retaliating against Plaintiff for reporting a store manager's gender discrimination and sexual harassment of female employees.

         A. Factual Overview

         The documents and communications in this case, supplemented by Plaintiff's testimony, provide a solid overview of the dispute between Plaintiff and Defendant.[3]

         1. Documentary Evidence

         On December 22, 2014, Plaintiff began working as a co-manager for Defendant at Store #110.[4] The manager at the store was Glenn Lucadou (“Lucadou”), and the district manager (also “DM”) was Lynn Siecko (“Siecko”).[5] The regional vice president over Store #110 was Jeff Myers (“Myers”).[6]

         Defendant's Employee Handbook at the time included a section on attendance that stated the following attendance policy, in part:

Employees are expected to report to work on time as scheduled. Failure to do so constitutes a tardy[, ] which is defined as clocking in, reporting, and/or returning to work, past the scheduled time.
If an employee [(also “EE”)] is going to be tardy or absent from any scheduled work, he/she must speak directly with his/her supervisor (emailing and texting are not acceptable) before, or no later than thirty (30) minutes after, the beginning of his/her shift, and explain the reason for the tardy or absence. Failure of an employee to speak directly with his/her supervisor as required above will constitute a No-Call/No-Show absence. It is the employee's responsibility to ensure that proper notification is given. . . .
Tardies and/or excessive absences may result in disciplinary action, up to and including termination of employment and/or may have an adverse effect on evaluation and promotional considerations.[7]

         The Employee Handbook defined No-Call/No-Show as “fail[ing] to report to work as scheduled and fail[ing] to speak directly with his/her supervisor (emailing and texting are not acceptable) before, or no later than thirty (30) minutes after, the beginning of his/her shift.”[8] A No-Call/No-Show absence “constitute[d] grounds for disciplinary action, up to and including termination of employment.”[9]

         Defendant's Policy Against Inappropriate Conduct stated:

The Company prohibits inappropriate conduct. Inappropriate conduct means comments or actions that are inappropriate for the workplace, disrupt and/or interfere with work performance[] or negatively or stereotypically relate to an employee's race, color, religion, gender, pregnancy, national origin, age, disability, genetic information, Veteran's status, or any other status, condition or characteristic protected by law. Inappropriate conduct includes unlawful harassment and discrimination, as well as unlawful sexual harassment as defined below.

         Harassment and Discrimination

The Company is committed to maintaining a work environment free from unlawful harassment and discrimination as well as other inappropriate actions and comments that may not rise to the level of unlawful harassment or discrimination. The Company prohibits harassment and discrimination on the basis of race, color, religion, gender, pregnancy, national origin, age, disability, Veteran's status, or other status, conditions, or characteristics protected by law. The Company also prohibits inappropriate sexual conduct which is a form of inappropriate conduct and includes unwelcome sexual advances, requests for sexual favors, and other verbal, physical conduct of a sexual nature where:
1. Submission to such conduct is either an express or implied term or condition of an individual's employment;
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting that individual; or
3. Such conduct creates a hostile or offensive working environment.[10]

         The Employee Handbook outlined a process that a witnessing employee was required to report “inappropriate conduct, ” allowing the employee the make a report to his/her supervisor, any other appropriate member of management, or the human resources department.[11] The policy further stated:

The Company will promptly and thoroughly investigate all complaints of inappropriate conduct that appear to violate the Company's Policy Against Inappropriate Conduct. If management makes a determination that an employee has violated the Company's Policy Against Inappropriate Conduct, it will take reasonably necessary steps to ensure the inappropriate conduct does not occur again. The Company prohibits retaliation against any employee who reports inappropriate conduct.[12]

         About three months into Plaintiff's employment, Lucadou completed an employee journal entry reflecting that he spoke with Plaintiff “about the importance of zoning.”[13] According to the journal entry, Lucadou explained that, before leaving, Plaintiff should walk the entire store to ensure “the zone is correct.”[14] Lucadou provided details as to what was expected and showed Plaintiff areas that needed improvements.[15] In a second entry of the same date, Lucadou recorded that he also addressed company policy and procedures regarding “the weekly checkers test.”[16] Lucadou signed both entries on the line for “Supervisor Signature.”[17] On the opposite side of the paper, Lucadou wrote:

After discussing this with [Plaintiff, ] I asked him to initial the journal. He then stood up and said he was not signing anything[, ] then turned around and left. I called him back[, ] and he did not respond. I then called [Siecko] and informed him of the situation. He ask[ed] me to call [Plaintiff] to see if he was quit[t]ing[, ] and[, ] if so[, ] he needed to bring back the store keys. I called [Plaintiff, ] and he called back and said he would be here in the morning. [Siecko] told me to let [Plaintiff] know that the journal would go in his file.[18]

         On a raise evaluation conducted on March 22, 2015, Plaintiff received a rating at the low end of the “good” range, the third highest rating on the scale.[19]

         On May 21, 2015, Plaintiff submitted a vacation request for four days in June; Siecko approved the request on May 25, 2015.[20] On May 26, 2015, Siecko issued Plaintiff a written warning for violation of company policy, which stated:

Poor job performance & behavior that does not meet management expectations. . . .
Store not properly zoned, clearance wall not zoned in [illegible] area & seasonal flex sides not recovered, after closing shift on Friday May 22nd.
Failure to comply with policies in the future could lead to further disciplinary action and up to termination.[21]

         The warning stated that termination would be the consequence if an incident should occur again and noted that Plaintiff refused to sign the warning.[22] Siecko signed the form on the line provided for “Supervisor Signature.”[23]

         On July 2, 2015, Plaintiff telephoned human resources (also “HR”) and spoke with Kelly Dalrymple (“Dalrymple”), HR specialist.[24]Dalrymple's notes stated that Plaintiff reported that he felt harassed by Lucadou and Siecko.[25] The report further documented the following statements by Plaintiff:

• Lucadou “yelled at [Plaintiff] and called him ‘slow.'”

• Lucadou “wrote [Plaintiff] up for not walking the store one time when he was sick, in February or March.”

• Lucadou “will constantly lie right to your face.”

• Lucadou “often makes EE cry.”

• Plaintiff had heard that Lucadou and Siecko were “close friends” and that Lucadou was telling Siecko things about Plaintiff that were not “entirely true.”

• Siecko “sat [Plaintiff] down to discuss store conditions” and stated “that he thought [Plaintiff] was lazy.”

• Lucadou “speaks badly about [Plaintiff, ] the DM and associates.”

• Plaintiff was “recently” written up during which occasion Siecko “made a comment about how he hopes he finds another job soon.”

         Dalrymple asked Plaintiff to send her a statement.[26]

         In the evening of July 2, 2015, Plaintiff emailed Dalrymple on the subject “Incidents at Hobby Lobby #110.”[27] The email stated:

When starting at store #110, my manager Glenn Lucadou seemed very nice and knowledgeable. 8 days passed when he approached me and told me I wasn't getting things done quickly enough. I wasn't sure what things he was talking about, as he never gave me specific things to do. I spent most of my time in seasonal with an assistant by the name of Tanrace Moshay [(“Moshay”)], trying to find out what we were supposed to be doing. [Moshay] wasn't very forthcoming with information. I asked him if I did anything wrong, and he told me he was tired of training all the Co-Managers that came through the store. He told me he trained the last 3[] and that [Lucadou] tends to sit in the office most of the time[;] three days later[, ] after being on the job for 12 days, [Lucadou] pulls me aside in the stockroom[] and asks me in a raised voice what my problem was. He asked why things were not moving faster[.] I was still unaware of what things he was talking about, as he had never worked with me on the floor. I told him that the only thing he had done was give me the seasonal book and tell me to work on it any[]way you think is best. He then states sarcastically[, ] “[A]re you slow? [M]aybe I need to move slower with you.” I told him that all I wanted was him to train me.
About three weeks go by. [Lucadou] became ill[;] I believe he had the flu. For two nights in a row[, ] I told him to go home and I would handle the store. This was on one day shift and one night shift. He took some days off and was out for about 5 days. I had become ill when he was out. I had the flu. The day before he returned[, ] I had high fever and was very ill. I didn't walk the store that night. The next day he saw me[, ] he became rude and sarcastic. He said my store doesn't look like this[] and asked if I had walked the store. I told him about my illness and he said why didn't I call him. I told him I didn't think it was right to call him in on his last day off. I have always gone into work when I was sick. Later, he called in all the department heads that were there[] to his office. He spoke with them one at a time, complaining to each of them. He then called me in and told me he had written me up because of the way the store looked. I was still slightly ill and couldn't believe he was doing this. I refused to sign the write up. He said OK, and it was past time for me to leave (5:10pm), so I said see you tomorrow, and left. While in my car I get a phone message. Upon arriving home[, ] I looked and saw it was [Lucadou]. He said[, ] “I spoke to [Siecko, ] and I need you to call me, [”] so I did. He asked me if I was coming in tomorrow, and I told him I already said I would see you tomorrow. I forgot he was off the next day. He showed up the next morning, on his day off. He calls me to the office around 11am, telling me we need to get along to run the store together. I started to become bothered by what I was seeing.
About 5/19/15, I was called to the manager[']s office again. [Lucadou] confronts me asking if I was looking for another job. He told me that other associates have been telling him that[] and that I was going on numerous interviews. He said it was bad for the morale of the store. I had talked one week earlier with [Moshay] about a job my father-in-law was telling me about. He was trying to get me to go to his old company. I didn't plan on leaving or go on interviews. I let him know that I was doing what the rumors were saying [sic].
Later, at the end of May, we had our stock test on a Saturday. I closed on the Friday before[] and was off for the weekend. The next Monday, my DM [Siecko] was in the store early. I was called to the office. [Siecko] was there for another write-up. As I found out, many (untrue) things were being relayed to him by [Lucadou]. [Siecko] started off saying [Lucadou] expressed some concerns about the store. He told me he was in the store on Saturday, and the store didn't look bad but didn't look as good as it should. He said a few items could have been hung in the seasonal aisles. He told me that [Lucadou] had told [Siecko] about some previous incidents. He said that he thought I might be lazy because of a question he asked me my first month on the job, but he was giving me the benefit of the doubt. We were doing inventory prep at another store, and I had been going up and down ladders for most of the day. [Siecko] asked me how I was doing, and I told him I was good, just a little tired from going up and down the ladders. I would think this was normal for anyone. [Siecko] then states that associates say when [Lucadou] leaves, I put my blue tooth in my ear and walk around. He said he has never seen this so he didn't know. I can tell you [Lucadou] has never seen this[] because I don't do it. But just another rumor [Lucadou] call [sic] [Siecko] about. Next he tells me he thinks [I]'m very unprofessional for never answering my phone[] when [Lucadou] calls. This is when [I]'m off work. The prior week [Moshay] told me that [Lucadou] had tried to get in touch with me and told him he said he could never get in touch with me. Concerned, I went immediately to see [Lucadou]. I asked if he tried to get in touch with me yesterday. He told me yes[] and that he could never get in touch with me. I told him that my phone goes into my room on the charger when I get home. And[, ] if he needed me[, ] to call my home phone, and gave him the number. What is interesting is that my phone will show if someone tries to call me[, ] and I had never seen his number or name on it. I tried to respond to [Siecko], but he just put his hand out for me to be quiet and listen. Next, [Siecko] starts talking about me looking for a job. Another rumor that [Lucadou] told him. It was like children telling on each other. In my 35 years of retail, I had never seen something like this. Finally at the end I spoke to [Siecko]. I told him I am a hard worker and always have been. I told him that [Lucadou] had never worked side by side with me on the floor. He stated that he didn't care, as long as [Lucadou] got things done. He then says that [Lucadou] has promoted 3 Co-Manager[s] from this store. [Siecko] asks me to sign the write-up, and I refused. He tells me this is just another example of how you don't take responsibility for you[r] actions. And then his final words to me were “I hope you find a new job soon!”
There have been many times [Lucadou] has done things to divide the store. Just last week he called me in seasonal and asked m[e] how thing were going[.] I told him “good and we are getting it done[.”] I left seasonal and came back a few minutes later. [Moshay] comes up to me and says “so we[']re moving slow[, ] and we are behind[.”] I asked[, ] what? He told me that Claudine said [Lucadou] just told her that and to come help us. He is always saying another associate said this or that about things. While moving counters with other Co-Managers in our store, one collapses in the middle and some glass breaks. [Lucadou] gets upset and asked me what happened. I told him it collapsed. He tells me that Bob (from Tomball) said we were being careless and moving to[o] fast. I asked Bob if [Lucadou] had talked to him, and he said no. You can't tell if he is ever[] telling you the truth or not. I have seen [Lucadou] take many of our female associates into the office and shut the door. Only to see them come out later crying [sic]. I'm asked who is closing all the time, and[, ] when they hear [Lucadou], they sigh. After our last [Myers] visit, [Lucadou] called for a meeting in the break room. He tells everyone the store visit was great, but the floral [department] was a mess. I don't think him calling out our floral [department] head in front of everyone was appropriate. I have heard numerous stories [from] many associates[] but will not mention them. If someone would talk privately to the associates, they might speak up. Most are afraid for the[ir] jobs. Kathleen McDonald told me [Lucadou] was asking her questions about me. Asking what I was doing at night. This is not right.
[Lucadou] also wants his Co-Managers in at 7:30am. And when it comes to leaving on time, you can ony do that if the projects are completed. It doesn't matter to him what corporate says their hours should be.
I have been very depressed for the last two months about all that has been going on. I am requesting to move to a different location. I am positive that I don't have a fair chance of moving up in this district. I have heard that [Lucadou] and [Siecko] are close, and[, ] after all this, I believe it. If you could help me move to another district and store[, ] I will be thankful. Store #127 or Store #387 would be my choices.[28]

         On the following Monday, Dalrymple replied to Plaintiff's email, stating that she would “forward it to the appropriate member of management” for review.[29] Plaintiff sent another email on July 10, 2015, which supplemented his prior email with the following:

While working this past Friday, I checked in on the Frame Shop. Jennifer Herring was working this morning. She told me she was upset because Glenn Lucadou denied her vacation[] because it was right after another frame shop employee[']s vacation. She had to cancel reservations. Then she told me that [Lucadou] was always belittling her. She felt like her job was being threatened. Then she told me that [Lucadou] had grabbed her head and shook it saying[, ] “[H]ello, is there anything in there[.”] She said she was livid and was about to defend herself. That is why I am reporting this to you. A lot of employees in our store have felt threatened by [Lucadou]. I am speaking up for them, as they are afraid to.[30]

         On July 13, 2015, Dalrymple spoke with Myers, who stated that Plaintiff was on personal leave for a medical issue.[31] Myers also stated that he was planning to begin interviewing employees at Plaintiff's store later that week.[32] Myers conducted an investigation into Plaintiff's complaints.[33] An Involved Parties Worksheet that was completed as part of Myers' investigation identified Lucadou and Plaintiff each as “Accused.”[34] In addition to interviewing Lucadou and Plaintiff, Myers spoke with thirteen employees, eleven of whom were women.[35]

         On July 24, 2015, Myers sent Dalrymple an email relaying the results of the investigation.[36] The email stated:

I conducted an investigation of the complaint from [Plaintiff] . . . . I interviewed EEs at the store on July 14 and July 17. I interviewed [Plaintiff] and also [Lucadou] on July 21. That same day they each were issued a written warning . . . .
The investigation revealed that some of [Plaintiff's] complaint has merit, and some does not. There were things that came up that also had to be addressed with [Plaintiff].
[Lucadou] is too rough and aggressive at times with the EEs. 7 of the 13 EEs interviewed said they have seen or have been personally brought to tears by the way he has spoken to them; this is addressed in his written warning.
However, not 1 EE agrees that they've ever felt threatened by [Lucadou]. Most EEs say they do have respect for him and recognize he has high standards. Many also say that there is very good teamwork amongst the EEs due to [Lucadou's] leadership. No one has heard him yell except for one time in the stockroom regarding moving a fan that was running. Regarding “things to divide the store[, ”] one EE (Sandra, [bookkeeper]) recalls him asking her about saying something that she had never said and felt maybe he was trying to stir the pot; another Kathleen (needleart) said he has asked her how what [sic] the [co-manager] or [assistants] do when he's not there. Regarding Jennifer H (framing) being denied vacation and canceling reservations, she said that happened[, ] but it was not a big issue. She did say that [Lucadou] one time touched her head and asked if anything was in there; I cautioned [Lucadou] never to touch EEs. The issue of sarcasm and rudeness was reported during most of the interviews; this is included in his written warning. Only 2 EEs said that [Lucadou] has called out someone by name in a meeting. 5 EEs said he talks about issues but doesn't name names.
When I interviewed [Plaintiff][, ] I had my [assistant] Nina Flores go to the store as a witness on July 21. I first listened to him recount his concerns. During that time[, ] I showed him the written warning that [Siecko] had issued on May 26, 2015, since he said he never actually read it. I clarified that the topic of using a bluetooth and asking about a job search were not what the warning was about. I let him know that[, ] in researching the part of his complaint about EEs sighing when they find out [Lucadou] is closing, that EEs said [Lucadou] is very structured and involved in the recovery after closing and insists it is finished properly; but about [Plaintiff] they said he is disengaged and does not check their work. I told [Plaintiff] that this validates [Siecko's] written warning about poor recovery. I told [Plaintiff] that some of the concerns that he reported were going to be addressed with [Lucadou] and thanked him for bringing it to someone's attention. But I also covered things that came up about [Plaintiff]: slow or no response to calls especially when [Lucadou] is gone; telling EEs not to call him because he's stressed out; being a buddy [versus] a boss toward EEs; hiding out in the EE lounge. In the written warning I gave him[, ] I listed how he criticizes [Lucadou] to hourly EEs and also the reports of [Plaintiff] using profanity.

. . . .

When [Siecko] and I talk[, ] a decision will be made at that time as to transferring [Plaintiff] or not. I did not find any reason that [Plaintiff] cannot succeed in [Siecko's] area just as well as another. [Plaintiff] and [Lucadou] do seem to have a tension built up though; for that reason[, ] we will consider a move for [Plaintiff].[37]

         After the investigation, Myers counseled Lucadou and Plaintiff.[38] Lucadou's coaching session focused on his pushing employees to tears when correcting them, his late posting of the schedule, and his being rude and sarcastic at times.[39]

         On Plaintiff's Manager Coaching/Counseling Acknowledgment Form, Myers noted the contents of his discussion with Plaintiff, as follows:

In the course of an investigation conducted at [Store #] 110 on 7-14-15 & 7-17-15[, ] it was found/reported by a number of hourly EE's of this store:
• [Plaintiff] has complained about his boss [Lucadou] to store EE's on numerous occasions.
• [Plaintiff] has used profanity on the job.[40]

         The form stated that Plaintiff must do the following to improve:

• If there is a concern [with] boss[, ] then tell someone above you. At all times show support for the boss in front of your subordinates.
• Refrain 100% from any profanity at Hobby Lobby[.][41]

Meyers marked the box that stated any “[f]urther action up to and including termination of employment” would be the consequence of Plaintiff's failure to improve.[42] Myers signed the form on the line for “Supervisor Signature, ” and Plaintiff marked the box indicating agreement with the coaching/counseling and signed the form.[43]

         Myers and Siecko decided to transfer Plaintiff to another store within Siecko's district.[44] Siecko spoke with Plaintiff on August 4, 2015, to relay the the results of the investigation and to inform him of the decision to transfer him to another store.[45]

         Siecko's notes from that meeting stated, in part:

I told him I was made aware that he felt he could not work with [Lucadou] because he was harsh and to[o] demanding. . . .
I also covered with [Plaintiff] that the request by [Lucadou] to come to work at 7:30 was not unreasonable. I explained that I considered it good professionalism to be at work before our employees come in at [8:00]. And as ne[ce]ssary some times [sic] this position could require you to stay past 5 pm when needed.
I asked [Plaintiff] how he felt about this[, ] and he said nothing[.] Just shook his head. I asked him[, “]You don't seem to be satisfied?[”] He said he was ok just worried about something not work related. I ask[ed] him if there was anything he [sic] like to discuss he could do so [sic]. He shook his head no and grinned.
I also covered with [Plaintiff] 3 days he was late to work during the week of July 18-24 and July 29-Aug 1[.]
I told him he was not being disciplined for these times but going forward I would have to address any t[ar]dy issues with him.[46]

         On September 3, 2015, Siecko counseled Plaintiff for failing to notify Siecko when Plaintiff was absent from work on September 2, 2015.[47] Siecko noted on the form that “All Co[-] Managers are to notify district manager by phone call if there is a change in schedule, late to work, leaving early or abs[]ences.”[48] Siecko marked the box indicating that failure to improve would result in “[f]urther action up to and including termination of employment” and additionally handwrote, “Any further violation of policy will result in termination.”[49] Plaintiff marked boxes for both “agreement” and “disagreement” and explained his disagreement as follows:

After leaving work, being seriously ill, and mak[ing] it home, I texted [Siecko] and was in bed until the next day. I had a major drug interaction[] and was very ill. I did fail to call [Siecko], but I was able to text him. I agree with the phone policy of not calling him.[50]

         Plaintiff signed the form as employee, and Siecko signed it as supervisor.[51]

         On September 8, 2015, Siecko terminated Plaintiff.[52] The Manager Coaching/Counseling Acknowledgment Form indicated that the termination was based on Plaintiff's violation of company policy and stated: “In subordination, refused to comply with supervisor[']s instructions. [Plaintiff] failed to submit request for a vacation day off for Friday[, ] Sept. 04, 2015. This vacation day off was not approved.”[53] Siecko listed three previous occasions on which Plaintiff received coaching or a warning: (1) on May 26, 2015, for poor job performance; (2) on July 21, 2015, for violation of company policy; and (3) on September 3, 2015, for failure to notify DM of absence.[54] Plaintiff refused to sign the form.[55] The notice of personnel change listed “Insubordination” as the reason for termination.[56]

         Debbie Cain (“Cain”), manager of Store #91, served as a witness and memorialized in a signed statement Plaintiff's answer to Siecko's query to Plaintiff why he had not submitted a request for the vacation day.[57] Cain wrote that Plaintiff said he had forgotten to do so.[58]

         On the morning of September 9, 2015, Plaintiff emailed Dalrymple, stating:

After the incident at store #110, I asked to be moved out of [Siecko's] district. He had already threatened me by telling me to find a new job real soon. On 9/1/15, I called my supervisor [Cain] and let her know I was unable to come to work that day. I had been in a car accident and had been up all night with muscle spasms. I then called [Siecko] and told him the same thing. My doctor had given me 2 new medications on that day. While driving to work on 9/2, I felt very dizzy, and my arms and legs[] and throat were going numb, and it was hard to talk. I made it to work and could not walk straight or function. I told [Cain], my supervisor, that I had to leave. I told her about what was happening to me, and let her know I would be lying down in my truck before attempting to drive home. After leaving and finally making it home, I sat down and passed out. When I woke, I sent [Siecko] a text telling him what had happened. He came to the store a few days later and wrote me up for not reporting to him why I was absent. He even told me that he received my text. This is very untrue! This past Friday, I was scheduled off because of my daughter[']s wedding[.] I failed to send [Siecko] an[] email telling him or asking him to be off. I had only sent one request before, and it was with the help of my previous manager. Yesterday [Siecko] called as I was about to leave[] and asked [Cain] and [me] to wait. When he arrived, we went to the office, where he ended up terminating my employ[]ment! This is nothing more than retaliation from the previous incidents that I had reported. That is why I asked to be moved out of his district, as I knew this would happen[] due to the previous things he said to me. I am requesting an investigation into this matter. I would like Randy Bhetts to be invo[lv]ed[] or aware of these entire 2 incidents.[59]

         A few hours after receiving Plaintiff's email, Dalrymple forwarded the email to Myers, asking how he would like for her to proceed.[60]

         Myers responded later that day in an email that stated:

[Plaintiff] was corrected several times regarding failure to comply with notifying his DM when tardy and absent. He was absent during his first couple of weeks with the company, back in December 2014, and he called his [manager Lucadou] only. A few days later his DM [Siecko] talked to him at the store and fully explained that he is required to call the DM anytime [he] would be absent, late, or schedule change [sic]. (no EE journal was done). On August 4, 2015[, ] [Siecko] sat with [Plaintiff] to tell him about his transfer to [Store #] 91; [Siecko] also talked again to [Plaintiff] about calling him due to a couple of tardies he had in recent weeks, but[, ] since the timing of this talk coincided with transferring him as a “fresh start” at [Store #] 91, [Siecko] told him he was not going to document this correction.
On Sept[.] 3rd[, ] [Siecko] gave [Plaintiff] a written coaching for violation of policy, failure to notify for his Sept[.] 2 absence. He signed it, checked agreed, and wrote “. . . I agree with the phone policy of not calling him.” This written coaching informed [Plaintiff] that further violation of policy “will” result in termination.
In [Plaintiff's] complaint today, he wrote[, ] “I told my supervisor [Cain] that I had to leave.” What he actually did on Sept[.] 2 is[, ] at 9am, when he and [Cain] opened the store, he told her the needed to go sit in his truck because he was not feeling well. At 9:50am[, ] [Cain] went out in the parking lot looking for [Plaintiff] and he was gone. [Cain] then contacted [Plaintiff], that is when he told her he was going home sick.
The text he sent [Siecko] that day was not seen by [Siecko] until he was clearing his phone that evening. And as [Plaintiff] knows, texting is not allowed as a means of notification.
[Plaintiff] stated today that he “failed to send [Siecko] an email . . . asking him to be off” for Sept[.] 4. Again, on Sept[.] 3[, ] he was coached and documented that this would result in dismissal.
He stated that [the] previous vacation request he had sent in he had done “with the help of my previous manager.” But[, ] when I reviewed the request, [Plaintiff had] filled it out and signed it. He did so on 5-21-15 for the days June 8-11, 2015.
The consequences for [Plaintiff's] refusal to comply with policy that is spelled out to him in writing, would be the same regardless of who his DM is. To say the DM is retaliating is not a credible statement. The DM provided the consequences that he said he would.
On a sidenote, when [Plaintiff] was off work for more than 3 days in July 2015 and received the standard LOA letter[, ] he wrote an email to you, accusing his [manager Lucadou of] falsifying a request? Harassing him? Asks i[f] he needs a lawyer? In my opinion[, ] he is reacting in the same way to a situation he caused.[61]

         On September 21, 2015, Plaintiff completed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) that was received by the agency on September 24, 2015.[62] Therein, Plaintiff complained of retaliation and stated: “I reported Lucadou to Corporate Headquarters because of numerous employee complaints that he was abusive. I believe my write-up and discharge was motivated by that earlier complaint.”[63] Plaintiff did not mention any discrimination against female ...


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