Norma Perez v. Thorntons, Incorporated

731 F.3d 699, 2013 WL 5420979, 2013 U.S. App. LEXIS 19979, 97 Empl. Prac. Dec. (CCH) 44,923, 120 Fair Empl. Prac. Cas. (BNA) 1
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 30, 2013
Docket12-3669
StatusPublished
Cited by106 cases

This text of 731 F.3d 699 (Norma Perez v. Thorntons, Incorporated) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Norma Perez v. Thorntons, Incorporated, 731 F.3d 699, 2013 WL 5420979, 2013 U.S. App. LEXIS 19979, 97 Empl. Prac. Dec. (CCH) 44,923, 120 Fair Empl. Prac. Cas. (BNA) 1 (7th Cir. 2013).

Opinions

HAMILTON, Circuit Judge.

All employees, not only perfect employees, are protected by Title VII. Norma Perez was in all likelihood far from a perfect employee. From 2005 until 2009 she worked for Thorntons, Inc., a gasoline and convenience store chain. She was working as a retail store manager in November, 2009 when she deeply discounted about $127 worth of candy bars that she sold to herself for only $12. She was fired for failure to “control cash and/or inventory.” But only a few months earlier, Perez’s non-Hispanic male supervisor had committed a similar act and was merely warned, not fired.

Perez brought suit under Title VII of the Civil Rights Act of 1964 for gender and national origin discrimination. The district court granted summary judgment in Thorntons’ favor. If Perez discounted the candy she “bought” without permission, her behavior was wrongful, and a jury might well find that her firing was not tainted by unlawful bias. In reviewing a grant of summary judgment, however, we must give Perez the benefit of conflicts in the evidence and any reasonable inferences in her favor. In that light, a jury could find that Perez’s wrongdoing for which she was fired was comparable to the wrongdoing of her non-Hispanic male supervisor, and that the supervisor’s animus against women and Hispanics tainted the decision to fire her. Based on this record, a jury must sort out the conflicting evidence and decide why Thorntons chose to treat arguably similar wrongdoing so dif[701]*701ferently. Accordingly, we reverse the district court’s judgment and remand for further proceedings.

Facts for Summary Judgment

We assume that the following facts are true for purposes of summary judgment. Perez was hired by Thorntons in January, 2005 as a customer service representative in its store in Cicero, Illinois. Her job included stocking the shelves and operating the cash register. She was promoted a year later to retail store manager. Her duties then included supervising the customer service representatives at the store. In November 2008, she was transferred to a different store located in Summit, Illinois. Bill Darlington was Perez’s regional manager. He made the original decision to hire her and then promoted her and transferred her. The Summit store was a “high volume” store, and Darlington believed that a transfer to the Summit store would broaden Perez’s management experience.

At the Summit store, Perez’s immediate supervisor was store general manager Donald Koziol. When Perez and Koziol met, Koziol told her that “he [didn’t] want [her] in the store; that he [didn’t] want to work with [a] woman.” Perez informed Darlington about Koziol’s comments, and informed him of her preference to remain at the Cicero location. Darlington refused to return Perez to the Cicero store, telling her that she either had to work where he had assigned her or would lose her job with Thorntons. Perez testified that later, in the summer of 2009, Koziol said to Perez, “this is the reason why I don’t like to work with women, always have something to do with the kids or they have a period.” He also told her that he “did not like” Hispanics. However, Perez did not disclose these later remarks to Darlington or anyone else at Thorntons.

Every month, each Thorntons store received a “Sales Planner” from the store support center that identified upcoming store promotions and items that would be specifically promoted for sale with discounted prices. Stores were required to follow these directives strictly. Every month each store conducted a “change over,” changing the manner in which particular products were priced as dictated by the Sales Planner.

During a store visit in October 2009, Darlington noticed that the candy inventory was low. When Darlington talked to Koziol and Perez about the store’s candy bar sales, Darlington learned that the store’s cashiers had deviated from the Sales Planner’s directive. Cashiers had been allowing customers to pay sale prices for full-priced candy bars, using a sale-priced bar to scan the purchase of the full-priced bar into the register. Darlington warned both Koziol and Perez that they could not swap full-priced candy for discounted candy.

The November 2009 Sales Planner ordered that pre-priced versions of Nestle brand candy bars were to be sold at a price of two for $2.22. The Summit store was scheduled for change over on November 4, 2009. On the date of the change over, Perez rang up approximately 80 of these candy bars and sold them to herself. Her transactions were captured on store video and were recorded in the cash register’s memory. Perez initially rang up the candy bars at the approved price — two for $2.22 — but then performed a manual price override, ultimately charging herself only 15 cents for each candy bar.

A few days later, Darlington conducted a routine review of the store’s video surveillance and saw Perez buy a large number of candy bars at the approved price, void the transactions, manually override the price, and walk out of the store carry[702]*702ing the discounted candy bars she had purchased. Darlington reported what he had seen to Lori Roberts, the human resources manager for Thorntons’ Northern Division. Darlington then went to the store to investigate. He met with Koziol and showed him the video footage of Perez buying the candy. He asked Koziol if he was aware that Perez had purchased the candy after performing the price overrides. Koziol denied having any knowledge of the incident or giving Perez permission to make the purchase. Darlington then called Perez at home. Darlington told her to report to the store immediately for a meeting. When she arrived, Darling-ton initiated a conference call with Roberts. Darlington, Roberts, and Perez were the only people on the call. Darlington showed Perez the video footage and asked her to explain the price overrides.

Perez’s account diverges from Darling-ton’s and Roberts’ at this point, but of course, on summary judgment, we must accept Perez’s version as true.1 Perez testified that she told Darlington and Roberts that she had Koziol’s permission to conduct the price overrides. Darlington suspended Perez until further notice. Perez departed and Darlington consulted with Roberts. Darlington told Roberts that he wanted to fire Perez. Roberts concurred with that decision, and Darlington and Roberts then notified their respective superiors of Perez’s termination. Darlington notified the regional vice president, Sam Picone. Roberts notified the executive vice president of human resources, Brenda Stackhouse. Neither Picone nor Stack-house objected to Darlington’s decision.

On November 10, 2009, Roberts called Perez at home and told her she was being fired. The personnel action form noted failure “to control cash and/or inventory” as the reason for her termination. Thorn-tons later clarified that Perez was fired for her failure to adhere to prices stated in the November Sales Planner and for violating Thorntons’ “Write-Off Policy.” The Write-Off Policy prohibited managers from writing off more than $25 of merchandise without an auditor as a witness. Although the Write-Off Policy was in effect during Perez’s employment, Thorn-tons has not pointed to evidence in the record showing that she knew of its existence, or that she knew the Write-Off Policy would trump permission from her immediate supervisor.

If that were the entire record, Perez would not have a viable claim for discrimination.

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731 F.3d 699, 2013 WL 5420979, 2013 U.S. App. LEXIS 19979, 97 Empl. Prac. Dec. (CCH) 44,923, 120 Fair Empl. Prac. Cas. (BNA) 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norma-perez-v-thorntons-incorporated-ca7-2013.