Jessica T. Devin v. Schwan's Home Service, Inc.

491 F.3d 778, 2007 U.S. App. LEXIS 16017, 89 Empl. Prac. Dec. (CCH) 42,878, 100 Fair Empl. Prac. Cas. (BNA) 1713, 2007 WL 1948310
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 6, 2007
Docket06-3551
StatusPublished
Cited by68 cases

This text of 491 F.3d 778 (Jessica T. Devin v. Schwan's Home Service, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jessica T. Devin v. Schwan's Home Service, Inc., 491 F.3d 778, 2007 U.S. App. LEXIS 16017, 89 Empl. Prac. Dec. (CCH) 42,878, 100 Fair Empl. Prac. Cas. (BNA) 1713, 2007 WL 1948310 (8th Cir. 2007).

Opinion

BYE, Circuit Judge.

Jessica T. Devin was employed by Schwan’s Home Services, Inc. (Schwan’s) as a sales and delivery driver, otherwise known as a Route Manager. After her resignation, she brought an action against Sehwan’s asserting claims of gender discrimination, hostile work environment, and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17 and the Minnesota Human Rights Act, Minn.Stat. 363A.03. 1 The district court 2 granted Schwan’s motion for summary judgment. We affirm.

I

Schwan’s sells a variety of frozen foods, meats, and dairy products via a truck delivery route system. Drivers called Route Managers (RMs) make deliveries, collect payments, and solicit customers. Schwan’s employed Devin as an RM from January 2003 to January 2004 at its distribution center in Savage, Minnesota (Savage Depot). Devin was hired by Pat Dero. Soon after, Joey Gilb became the Savage Depot Sales Manager and Devin’s supervisor. When Devin was hired there was one other female RM at the Savage Depot— Barbara Struffert. Shortly after Devin started, Struffert left Schwan’s.

RMs are initially compensated with guaranteed compensation for a fixed peri *782 od of time. Over time, such pay is “stepped down” and RMs are compensated by relying more and more on a commission basis, until eventually being paid entirely by commissions earned based on sales volume. Per a written agreement, during her first eight weeks of training, Devin was guaranteed $700 per week after which her guaranteed pay would begin to incrementally decline. It is undisputed her step-down guarantee was in effect until she resigned. She claims, in addition to this step-down guarantee, both Dero and Gilb verbally promised her pay would never fall below $700 per week, even after her step-down guarantee ended. She believed her pay would be supplemented if she fell short of the $700 weekly amount and this supplemental pay would continue until she achieved 100 to 120 stops on her route. The record reflects Gilb supplemented her pay during three weeks in 2003 when she did not meet the $700 goal. On three other occasions, however, she did not reach the goal and. Gilb did not supplement her pay. Devin approached Gilb about the pay issue in late November when she knew her December 4, 2003, paycheck would be less than $700. Gilb responded he was not going to supplement her pay because he did not “believe [she] deserve[d] it” as her overall sales were low and she was not “making as many new customers per day as [she] could.” The record indicates Gilb did supplement her December 18, 2003, paycheck, paying her $874 rather than the $695 she earned. He also agreed to extend her a written $700 per week guarantee provided she met certain performance criteria including working twelve hours of “sell time” and obtaining six new contacts each day. She was “shocked” by the offer as she did not know of other RMs being required to meet such criteria and believed they broke Department of Transportation regulations. She claims three male RMs — Ken Fistrovieh, Bradley Wolberson, and David Christenson — were given weekly pay guarantees outside their training periods.

One of Devin’s primary complaints is she was not assigned a Route Builder during her first eight months on a route. Route Builders are employees who accompany RMs on their routes and obtain new Schwan’s customers by soliciting homes of non-customers. Gilb testified a Route Builder’s primary function is to add new “route days” to an existing route in order to “tak[e] regular routes and ... mak[e] them into split route systems that actually supported two people instead of one.” Route Builders are also used to add customers to existing routes. In April 2003, when Devin was not initially assigned a Route Builder, she complained to Gilb. She claims Gilb told her she was not assigned a Route Builder because her “route was not a priority” and other routes needed it more. In May or June 2003, 3 Fistrovieh was assigned a Route Builder. Devin claims when she asked Gilb why Fistrovieh was assigned a Route Builder instead of her, he responded it was “because Mr. Fistrovieh had a family to support and bills to pay.” Devin reported this comment to Schwan’s Human Resources Director La Verna Hovance. On December 10, 2003, Gilb did assign Devin a Route Builder. He testified he did so “[a]s soon as [he] had somebody available to top off routes.” He claimed he considered Devin’s route to be “first priority” because she had asked for a Route Builder on several occasions. She claims RMs Wolberson and Dudley Thomas were assigned Route Builders before her despite the fact their routes had more customers than hers. Gilb claims *783 these RMs and other RMs who were assigned Route Builders were working routes that were shifting “from regular routes to split routes, and [Schwan’s] had to finish building the route dates.” There is evidence in the record Wolberson’s route was shifting to a split route when he was assigned a Route Builder. There is no evidence to the contrary regarding Thomas’s route. Fistrovich’s route ultimately became a split route. Devin’s route was not a split route and was not shifting to a split route. While she testified part of the Route Builder’s role was to create split routes, she contends Gilb initially told her a Route Builder’s role was to increase all routes to 100 to 120 stops.

Devin alleges other incidents during her tenure at Schwan’s to support her claims. When she first met Gilb in February 2003, he said he “belie[ved] that [she] would not make a very good route manager and [she] should consider hostessing sampling parties.” 4 Gilb later indicated, after riding with her on the route, she was “a lot tougher than [he] thought [she] would be.” Finally, in December 2003, after Devin and Gilb discussed Route Builders, she claims he called her “emotionally charged.” When Devin was hired, there were no available routes. She was initially trained on Wolberson’s route, as he had indicated he was leaving Schwan’s. This route never became available as Wolberson stayed on at Schwan’s. Another RM — Travis— indicated he might be leaving. She claims Gilb told her, instead of guaranteeing her Travis’s route, he was considering holding a skill-based contest for the route between her and the other RMs still in training. She reported this conversation to Dero, and Gilb never held the contest. In mid-March, Travis left, and on March 31, 2003, Devin was assigned his route. She believed this route was less profitable than others because it had many inactive customers. She concedes, however, this was the only route available and she specifically requested the route.

On June 26, 2003, after Devin missed a morning sales meeting, Gilb told her to “choose [her] last day at Schwan’s” and said she “was not route manager material.” She reported the incident to Hovance. Later that day, Gilb met with her and withdrew his request that she leave Schwan’s.

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Bluebook (online)
491 F.3d 778, 2007 U.S. App. LEXIS 16017, 89 Empl. Prac. Dec. (CCH) 42,878, 100 Fair Empl. Prac. Cas. (BNA) 1713, 2007 WL 1948310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jessica-t-devin-v-schwans-home-service-inc-ca8-2007.