Coffey v. DSW Shoe Warehouse, Inc.

145 F. Supp. 3d 771, 2015 U.S. Dist. LEXIS 146619, 2015 WL 6560525
District Court, N.D. Illinois·Decided October 29, 2015·No. No. 14 C 4365·Published·Cited by 11 cases

Opinion

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, United . States District Judge

While working as an assistant store manager for Defendant DSW Shoe Warehouse, Plaintiff Melissa Coffey observed customers she suspected of shoplifting and called the policé. DSW promptly terminated her employment, citing a company policy prohibiting employees in her position from calling law enforcement. In this lawsuit, Plaintiff alleges that her firing violated the Illinois Whistleblower' Act (“IWA”). 740 ILCS 174/15. The parties have filed cross-motions for summary judgment on the question-' of Defendant’s liability [27][31] and Plaintiff requests a hearing on damages,1 Defendant argues, among other things, that the IWA does not apply here because Plaintiff exposed a third party’s misdeeds rather than her employer’s. Even if the IWA applies, however, Defendant contends that Plaintiff failed to mitigate her damages by diligently seeking a new job. For the reasons stated below, the court concludes that the IWA’s protections are not so narrow as Defendant suggests and that Plaintiff made reasonable efforts to .find employment. Plaintiffs motion for partial summary judgment [31] is therefore, granted, and Defendant’s motion for summary judgment [27] is denied.

BACKGROUND

The facts of this case are largely undis.-puted. Defendant hired Plaintiff on May 3, 2009 as an- assistant store; manager for its store in Skokie, Illinois. (Def.’s Rule 56 Statement of Undisputed Facts [29], hereinafter “DSUF”, ¶¶ 5-6.) Defendant has a Shoplifting and No-Apprehension Policy (“the Policy”) which states:

Under no circumstances is law enforcement, mall security or any other third party to be called to notify or respond to a suspected shoplifting/theft incident. If special circumstances exist (such as a high.dollar theft, grab and run, etc.), immediately contact your RLPM [Regional Loss. Prevention Manager] for direction. The RLPM is the only individual who may authorize an exception. This authorization must be obtained pri- or to any call to law enforcement.

(Id. ¶ 17; PL’s Rule 56 Statement of Undisputed. Facts [33], hereinafter “PSU'F”, ¶ 3.) The Policy directs employees to use customer service to deter shoplifting in [774] lieu of contacting law enforcement by, for example, providing immediate one-on-one attention to a customer suspected of attempting to shoplift. (DSUF ¶ 18.) Defendant “maintains a zero-tolerance policy” with respect to employee violations of the Policy. (Fruehe Decl. [30-3] ¶ 13.) .

Although Plaintiff admits that her conduct (described more fully below) violated this Policy, she denies having been told about it beforehand. (Id. ¶ 47.) The Policy is not included in Defendant’s employee handbook or distributed to each new employee, nor is it included in the “checklist” given to store managers of necessary paperwork for new employees to review upon their hiring. (PSUF ¶¶ 4, 6; Fruehe Dep. [30-2] at 78.) A copy of the Policy is, however, available at every DSW store, and store manager do ordinarily receive training related to the Policy. (DSUF ¶¶ 26-27.)

While at work on the evening of August 28, 2009, Plaintiff was approached by Alvi-na 2, one of the store’s associates. Alvina told Plaintiff that a group of three or four female customers whom Alvina suspected of shoplifting from the store on August 24, 2009 had just returned. (Id. ¶ 29.) This was the first Plaintiff had heard of the alleged shoplifting incident on the 24th. (Id.) Plaintiff noticed that the individuals identified by Alvina were not behaving like légitimate customers who “normally [look] at the merchandise and gaz[e] at it or touch[ ] it.” (PUSF ¶ 16- 17.) Instead, the group walked around the store “on their cell phones” with their eyes on the store’s employees rather than its goods. (Id. ¶ 17.) Plaintiff also noticed a running car parked just outside of the store. (Id. ¶ 18.)

Based on these circumstances, Plaintiff “made an executive decision to call the police.” (DSUF ¶ 31.) She grabbed her store-issued walkie-talkie, which connected her to all the Skokie store’s employees, and said, to no one in particular, “I think we’re going to call the police.” (Id. ¶ 30.) Interpreting this as a directive, store associate Carmen Torres, one of Plaintiffs subordinates, called 911 and requested that the police conduct a “walk-through” of the store. (Id. ¶ 33; PSUF ¶ 22.) Torres apparently was not disciplined for placing the call. (See Fruehe Dep. at 55.)

After Torres placed her call but before the police'entered the store, all but one of the suspected shoplifters left the premises in the running car that Plaintiff had noticed earlier. (DSUF ¶34; PSUF ¶24.) The officer who arrived on the scene questioned the lone remaining suspect, later identified as Natasha Richards, but apparently no arrest was made. (D'SUF ¶ 35, 38.) Plaintiff suspected Richards of shoplifting only because Richards was using her cell phone and entered the store at the same time as the group identified by Alvi-na. (Id. ¶ 37.)

Shortly after the police officer left the store that evening, Plaintiff e-mailed DSW District Manager Donna Fruehe, informing her that Plaintiff had asked the police to perform a walk-through of the store in response to a suspected shoplifting (i.e., she took responsibility for Torres’s phone call).. (DSUF ¶ 39; PSUF ¶ 32.) Fruehe then instructed Plaintiff3 to provide a written statement summarizing her account of the August 28 incident; Plaintiff complied, writing that she “ask[ed] for 911 to be called.” (PSUF ¶ 33.)

[775] Three days later, on August 31, -DSW customer service representative Stacy Ross-Fox e-mailed Fruehe to report that Richards had called the customer service unit and expressed dismay that Plaintiff had not apologized for calling the police. (DSUF ¶ 43.) On September 2, Fruehe and the Skokie store’s acting manager, Pat O’Connor, spoke with Torres, who said that Plaintiff had asked her to call 911 because there were shoplifters in the store. (Id. ¶ 34; Fruehe Dep. at 39.) That same day, Fruehe fired Plaintiff via a written termination notice, citing Plaintiffs violation of the Policy. (PSUF ¶ 35; DSUF ¶ 49)

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Coffey v. DSW Shoe Warehouse, Inc., 145 F. Supp. 3d 771, 2015 U.S. Dist. LEXIS 146619, 2015 WL 6560525 (N.D. Ill. 2015).

145 F. Supp. 3d 771 (Coffey v. DSW Shoe Warehouse, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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