Burkard v. Finner N Finner, LLC

187 F. Supp. 3d 991, 2016 U.S. Dist. LEXIS 64583, 2016 WL 2866051
CourtDistrict Court, S.D. Indiana
DecidedMay 17, 2016
DocketCase No. 1:14-cv-00515-TWP-DML
StatusPublished

This text of 187 F. Supp. 3d 991 (Burkard v. Finner N Finner, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burkard v. Finner N Finner, LLC, 187 F. Supp. 3d 991, 2016 U.S. Dist. LEXIS 64583, 2016 WL 2866051 (S.D. Ind. 2016).

Opinion

ENTRY ON MOTION FOR SUMMARY JUDGMENT

TANYA WALTON PRATT, JUDGE

This matter is before the Court on ■ a Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendant Finner N Finner, LLC (“Finner”) (Filing No. 44). Plaintiff Serena Burkard- (“Burkard”), an “in-store employee” for Finner at one of its Jimmy John’s sandwich shops, initiated this lawsuit alleging discrimination and retaliation based on her sex and pregnancy after she was terminated. Finner moved for summary judgment on the bases that Burkard cannot establish a prima facie case for her claims and that it had a legitimate, non-discriminatory reason for terminating her. For the following reasons, the Court GRANTS in part and DENIES in part Finner’s Motion for Summary Judgment.

I. BACKGROUND

- The following material facts are not necessarily objectively true; but, as required by Federal Rule of Civil Procedure 56, both the undisputed and disputed facts are presented in the light most favorable to Burkard as thé non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Finner owns and operates numerous Jimmy John’s sandwich shops in the Indianapolis area, including the restaurant -located at 1437 East 86th Street in Indianapolis, Indiana. Burkard was hired as an “in-store employee” to work at this location on May 12, 2013, and she continued working there until her employment was terminated seven months later on December 16, 2013. “In-store employees” performed various duties as sandwich makers, cashiers, stockers, and cleaners. Finner [994]*994also employed “drivers” who delivered sandwiches but also occasionally performed in-store duties. Burkard was supervised by the person-in-charge/shift manager Ana Anzorena (“Anzorena”), the store manager Michael O’Rourke (“O’Rourke”), and the area manager Ronald Strainis (“Strainis”).

At the time that she was hired, Burkard received a copy of Finner’s employee handbook, which provided information about the policies and procedures for working at Jimmy John’s. The employee handbook included Finner’s equal employment and non-discrimination policies and its attendance and punctuality policies. The handbook explained that when an employee was unable to report to work or arrive on time, the employee must notify the supervisor before the employee’s start time. The handbook also noted that unauthorized or excessive absences or tardiness and the failure to inform a supervisor could result in disciplinary action, including termination. Burkard signed an ac-knowledgement of receipt and understanding of the handbook at the start of her employment.

She was also given a copy of Finner’s new hire paperwork. This paperwork explained that all employees must adhere to the Jimmy John’s dress code, which included a provision that a black or white long sleeve t-shirt could be worn under a Jimmy John’s shirt during cold weather. Burkard was informed of this dress code orally by O’Rourke and in the new hire paperwork. She confirmed in writing that she read and agreed to follow the dress code.

When they were hired or soon thereafter, Finner employees were informed that they were responsible for finding a substitute to work shifts for which they knew in advance that they would be absent. The employees created a tool called the “I Need a Sub Sheet” to request that a shift be-covered by another employee so that the listing employee could be absent from work during that shift. If another employee wanted to work the listed shift, they could sign up for that shift, and a manager would authorize the substitution if it did not cause the employee to work overtime.

Finner explains that the “I Need a Sub Sheet” did not,, in itself, constitute providing notice to management of an absence or making a request for -time off work. If an employee was unable to find a substitute for a shift, the employee was expected to speak with a manager about their specific circumstances and seek approval for the absence. It was not acceptable to simply list a shift on the “I Need a Sub Sheet” and, if no other employee agreed to cover the shift, to be absent from work without first obtaining approval for the absence from management. Doing, so would result in an unexcused absence for which discipline could be. imposed. However, Finner had a limited exception to this policy in cases where the employee produced a doctor’s note to excuse the absence.

Burkard, on the other hand, explains that the “I Need a Sub Sheet” did provide notice to management of an absence because the managers checked the sheet each day, and they would become aware of an anticipated absence by looking at the sheet.

At the time that Burkard was hired, she was approximately seven months pregnant, but her pregnancy was not readily apparent. She did not immediately disclose her pregnancy to Finner when she was interviewed, hired, and began work. An-zorena, the shift supervisor, recognized that Burkard was pregnant and the two shared pregnancy stories.

Sometime in July 2013, shortly béfore Burkard’s labor and delivery of her baby, O’Rourke learned that Burkard was pregnant. Upset that Burkard had not in[995]*995formed him earlier of the pregnancy and the approaching labor and delivery, O’Rourke called Burkard around July 22, 2013, and complained that he would have to cover her absences for the six weeks while she was away from work for the delivery and recovery.. Finner excused Burkard’s absence related to the birth of her child and permitted her to return to work as soon as she was ready. Burkard had her baby on July 30, 2013, and she took only two days off work. Upon her return to work, she furnished medical documentation to Finner.

Two weeks after Burkard gave birth, on August 14, 2013, O’Rourke began disciplining Burkard under Finner’s attendance policy. Burkard was given a written warning from O’Rourke for being nineteen minutes late to work on August 13, 2013. In September, Finner began to significantly reduce Burkard’s work hours, allegedly because of poor work performance. Bur-kard complained to management about her work hours being cut and not being allowed to transfer to a different store.

Anzorena, O’Rourke, and Strainis each noted Burkard’s repeated tardiness and unexcused absences. Despite verbal counseling from O’Rourke and Anzorena, and the August 14, 2013 written warning, Bur-kard’s tardiness continued. Additionally, Anzorena, O’Rourke, and Strainis each observed Burkard on multiple occasions wearing a gray long sleeve t-shirt under her Jimmy John’s shirt, which was non-compliant with the work uniform. Anzore-na and O’Rourke allege that they provided verbal redirection to Burkard, which was witnessed by Strainis, regarding wearing unapproved clothing. However, Burkard does not recall ever receiving warnings or counseling regarding her work uniform.

On two days in December 2013, Burkard missed work, and she did not inform management of her absence or get another employee to cover her shift.

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187 F. Supp. 3d 991, 2016 U.S. Dist. LEXIS 64583, 2016 WL 2866051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burkard-v-finner-n-finner-llc-insd-2016.