Ron Washington worked for Kroger supermarkets for 29 1/2 years at their store in Waynesboro near the Interstate 64 exit, where he was the deli manager until he was fired in 2011. He suspected racial prejudice was the cause of his dismissal, and he brought a Title Seven racial discrimination suit against the company in the United States District Court for the Western District of Virginia, which sits in the Charlottesville court building that looks out at the Lewis and Clark statue.
On November 19 he had his chance to appear before Judge Norman K. Moon.
Kroger hired Chicago lawyer Chris Griesmeyer, with the firm of Greiman, Rome and Griesmeyer, to make the case against Washington. Washington spoke for himself.
Griesmeyer had made a motion for summary judgment, in which the judge rather than a jury would decide the case, and dismissal of the suit.
Griesmeyer pointed out that Kroger had promoted Washington and described him as “well-liked by customers and employees.”
But trouble began in the deli department in the spring of 2010, Griesmeyer said, when store manager Tom Shepherd noticed cash shortages happening there. He called in a company loss prevention investigator, Diana Gallion. She ordered what Griesmeyer called MAX reports, “monitoring all exceptions” reports, detailed accounts of every purchase at every register. The company’s systems can pull up “a dizzying array of metrics,” he said, that allow it to diagnose unusual situations. Gallion also installed a surveillance camera in the department that focused on the register.
Camera video showed that an employee from a different department was stealing from the deli register. When confronted by Gallion, she admitted to the thefts, totaling $400, and to a gambling problem that was motivating her. She added that she had benefited from a “black bowl” discount program that she said Washington had instituted for his friends. For 99 cents, she said, a customer could load as much food as he wanted from the deli steam table. She said Washington gave this deal to employees and other favored customers. These were unauthorized discounts, Griesmeyer pointed out, and “an act of dishonesty.” The guilty employee resigned at the end of the interview in which she was confronted.
Gallion pursued the matter of the discount sales with two other deli employees, both white, who admitted that they had charged employees 99 cents for filling black bowls for lunch. One employee said she had been told by Washington to stop the discounted sales because the store was losing too much money on them. The other employee was suspended and subsequently fired for violating store policies.
“Kroger does not allow price-marking for yourself or over or under weighing produce,” Griesmeyer said.
Next Gallion interviewed Washington. According to her deposition, Washington denied giving or taking discounted items or to have any knowledge of the 99-cent charges or some suspect 25-cent charges. But he could not explain the MAX report data. She said Washington admitted to having worked off-the-clock, a violation of Kroger rules, when the deli department was short-handed. At the end of the three-hour interview, Washington was suspended. After Gallion’s report was read by Kroger’s human resources department, Washington was fired.
Griesmeyer said that Kroger had solid evidence that Washington had violated store rules and his suspension was not different from the way the white employees involved were treated.
“He didn’t like the result and filed a grievance through the union, [the United Food and Commercial Workers Union],” said Griesmeyer. “The union met with Kroger. Kroger showed them the same evidence being shown in court and the union decided not to pursue the case. Washington had violated a host of store rules.
“The union voluntarily withdrew and Washington did not like this. … He thought white deli managers in other stores had had the same program and had not been punished.”
Kroger investigated the other stores and found that the cases were different, Griesmeyer said. “Washington let employees and himself steal from the company. The others allowed employees to buy, off-the-clock, distressed merchandise that would have been thrown out. They didn’t buy it themselves. There was no evidence the other managers had violated rules.”
Griesmeyer said, “Washington identifies two incidents where the n-word was used. Kroger does not tolerate this. When asked about them, Washington said he never actually heard the word used. It’s only hearsay. One was eight years ago. He was told that Diana Gallion had referred to two employees as “Ns.” A customer had overheard this and told a store employee, who told Washington. Triple hearsay. That’s all he has.”
The other incident Washington alleged occurred in 2009.
“Washington was suspended because out-of-date inventory in the deli had gotten too high,” Griesmeyer said. The employee who later admitted to a gambling problem “told Washington that Shepherd had said, ‘We finally got rid of that nigger.’ Washington never once heard that word used himself. Based on these facts he cannot prevail because he cannot show a prima facia case. His job performance was not satisfactory.”
Essentially, he argued that Washington could not show that white employees similarly situated were treated more favorably than he.
“It may be that Washington did not steal from Kroger,” Griesmeyer said. “The company could be wrong. But the burden is on him to come up with evidence that his firing was discriminatory. There is no other evidence of a hostile work environment. N-word instances are not sufficient to prove it.”
“This is not my forte,” said Washington when his turn came. He tried to clarify points in Griesmeyer’s presentation.
“The charge against me was discounting product, not theft. They rely on [the thief] to prove the case against me. Gallion said to me, ‘I would believe the word of a thief before I would believe you.’
“I was called into an unannounced meeting. I asked for a union representative to be present.” He said that the union member who sat in was a membership recruitment person, not someone familiar with disciplinary matters. He said he considered it an “interrogation meeting and it was unfair.” He described it as “hostile.”
Washington said that in the case where he was suspended when out-of-date product was found in the deli case, that the ‘thief employee’ had been told by the manager to apply for Washington’s job. That was the occasion when Shepherd is alleged to have said, “We finally got rid of that nigger.” Washington said that she took cigarette breaks often with Shepherd and that she said he used the n-word repeatedly.
Washington disputed that any video from the surveillance camera showed him favoring his friends or employees or ringing up his own order.
He asserted racial bias in Shepherd and “a pattern of racial conspiracy by white employees.” He pointed to his 29 years of satisfactory performance evaluations.
He noted that he was supervised by Shepherd for the last three years. He called Shepherd’s supervisory methods “questionable” and “harsh.”
He said he was verbally offered a settlement of $2,000 dollars and the ability to get his pension. He said he asked for the offer to be put in writing.
“I emphatically deny the charges of theft. I refused to sign the paper they set aside for me to sign.” He said the charge of working off-the-clock was an instance in which after he had gotten off work he took three minutes to load an order into a customer’s car.
“Everything I did as manager was on the level,” Washington said.
Clearly still stung by it, he repeated the phrase he said he had been told, “I finally got rid of that nigger’s ass.”
In a rebuttal Griesmeyer said, “Washington wants this case to be about the fraud investigation. But that’s not what it’s about. He forgets he bears the burden of proof to support race discrimination. That’s what he has to show. He presents no evidence and he can’t because there is none. It doesn’t exist. A white employee got the same treatment.”
Judge Moon asked, “What’s the big deal about three minutes off-the-clock?”
“It’s a violation of store rules,” answered Griesmeyer. “It gets the company in hot water with the union. There are wage and hour issues.”
Washington asked for the case to proceed to a jury trial so he could call store employees as witnesses. He asked for summary judgment to be denied.
Judge Moon has not issued a ruling yet on the summary judgment motion. The trial date is currently set for January 16.