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Jeffries v. Gates

August 31, 2010

DWIGHT JEFFRIES, PLAINTIFF,
v.
ROBERT M. GATES, SECRETARY OF DEFENSE, DEPARTMENT OF DEFENSE, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the "Motion for Summary Judgment Or, in the Alternative, for Partial Summary Judgment" ("Motion for Summary Judgment"), filed by Defendant Robert M. Gates. (Doc. # 15).

I. Background

On March 20, 2009, Plaintiff Dwight Jeffries initiated this action by filing a Complaint in this Court. (Doc. # 1). Plaintiff, an African-American who is employed by the Department of Defense Commissary Agency ("DeCA"), alleges that his demotion and related incidents were racial discrimination, and his pay reduction was retaliation for filing a complaint with the Equal Employment Opportunity Commission ("EEOC" or "EEO"). The Complaint contains three counts: (1) "disparate treatment based upon race" in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-16; (2) "retaliation for filing EEOC complaint" in violation of Title VII; and (3) "unlawful employment action" in violation of the Civil Service Reform Act of 1978 ("CSRA"), 5 U.S.C. § 1101. (Id. at 2, 9, 10).

On April 29, 2010, Defendant filed the Motion for Summary Judgment. (Doc. # 15). Defendant seeks summary judgment as to each of Plaintiff's claims.

On June 21, 2010, Plaintiff filed an opposition to the Motion for Summary Judgment. (Doc. # 17). Plaintiff also filed objections and requests to strike paragraph 2 of the declaration of Ernani Pacoma, paragraph 17 of the declaration of William Vick, and Defendant's exhibits 12, 13, 14, 19, 32, 37, 39, 42, 43 and 44. (Doc. # 17-2, 18).

On July 2, 2010, Defendant filed a reply in support of the Motion for Summary Judgment and four supplemental exhibits. (Doc. # 19).

On July 21, 2010, Plaintiff filed four supplemental exhibits in opposition to the Motion for Summary Judgment. (Doc. # 22).

On July 25, 2010, Defendant filed a reply brief addressing Plaintiff's four supplemental exhibits. (Doc. # 24).

On July 26, 2010, the Court conducted oral argument on the pending motions. (Doc. # 25).

II. Facts

Plaintiff has been employed by the DeCA for over thirty years, including twelve years as the Meat Department Manager at the San Diego Naval Base Commissary ("San Diego Commissary" or "Commissary"). (Compl. ¶¶ 4, 8, Doc. # 1).

A. "Accountability"

Because commissaries exist not to make a profit, but to sell groceries to service members and their families at low prices, commissaries are subject to tight gain/loss tolerances. According to DeCA directives, a meat department's gains or losses for any month may not exceed 2% of product cost, and "[c]umulative meat account tolerance shall not exceed three-tenths of 1 percent gain with no loss to be considered in compliance." (Def. Ex. 6 at NOL_181, Doc. 15-4; Def. Ex. 27 at NOL_267-268, Doc. # 15-4; Vick Decl. ¶ 10, Doc. # 15-2; Jeffries Dep. at 34, 238, Def. Ex. 3, Doc. # 15-3). "A Meat Department Manager is responsible for all operations of the Meat Department," but "[h]is primary responsibility is to ensure that his department operates within accountable tolerance at all times, which is known as 'accountability.'" (Vick Decl. ¶ 10, Doc. # 15-2).

B. Plaintiff's History as Meat Department Manager

In 1996, Plaintiff was promoted to Meat Department Manager at the San Diego Commissary, the position he held until his demotion became effective on May 12, 2008. (Jeffries Dep. at 14, Def. Ex. 3, Doc. # 15-3; Def. Ex. 49, Doc. #15-5). In 1999, Plaintiff was promoted to GS-10, "which made him one of only a handful of meat department managers in the entire 250-plus commissaries world-wide to hold that pay grade." (Vick Decl. ¶ 13, Doc. # 15-2; Jeffries Dep. at 22, Def. Ex. 3, Doc. # 15-3).

During Plaintiff's years as Meat Department Manager, his direct supervisor was Ernani Pacoma, the Perishables Manager. (Jeffries Dep. at 18-19, Def. Ex. 3, Doc. # 15-3). Beginning several years before Plaintiff's demotion, his second level supervisor was Rubin Barcelona, the Commissary's Administrator. (Id. at 19). In January 2008, William Vick became the Commissary's Director, and Plaintiff's third level supervisor. (Vick Decl. ¶ 1, Doc. # 15-2). Pacoma and Barcelona are Filipino American, and Vick is Caucasian. Plaintiff alleges that these are the individuals who discriminated against him. (Def. Ex. 2 at NOL_19, Doc. # 15-3).

In November 2003, a "plan of action to correct Meat Department inventory discrepancy" was drafted and distributed to Plaintiff. (Def. Ex. 13 at NOL_204, Doc. # 15-4). In December 2003, Plaintiff was counseled by Pacoma for being "out of tolerance on monthly inventory." (Def. Ex. 14 at NOL_206, Doc. # 15-4; Jeffries Dep. at 66-67, Def. Ex. 3, Doc. # 15-3).

On June 30, 2005, Pacoma completed Plaintiff's yearly performance review and rated Plaintiff "[o]utstanding: Employee exceeds all of the elements of the performance plan." (Pl. Ex. 2 at 7, Doc. # 17-3). Pacoma stated: "Due to Mr. Jeffries['] untiring effort of monitoring meat accountability, Meat department's April 15, 2005 annual inventory resulted in no loss and within DeCA's tolerance level." (Id. at 6).

In April 2006, Plaintiff was counseled by Pacoma because the "meat department monthly inventory for the month of January, February and March have revealed that your department ha[s] had a loss of $7,054.78, $7,037.76 and $7,024.20 respectively for the year [i.e., 2006]. As per DeCA [Directive] 40-3, 'a cumulative gain of .3 of one percent, no loss, is allowed based on the total sales since the last accountability inventory.'" (Def. Ex. 19 at NOL_225, Doc. # 15-4; Jeffries Dep. at 115, Def. Ex. 3, Doc. # 15-3). In April 2006, Pacoma gave Plaintiff a list of six "steps [that] will be taken to improve performance." (Def. Ex. 19 at NOL_226, Doc. # 15-4). On June 30, 2006, Pacoma completed Plaintiff's yearly performance review and rated Plaintiff "[o]utstanding: Employee exceeds all of the elements of the performance plan." (Pl. Ex. 3 at 11, Doc. # 17-3). Pacoma stated: "Mr. Jeffries' active involvement in the daily operation of the meat department has contributed greatly to a successful April 15, 2006 annual inventory gain of .03% which is within the DeCA's tolerance level." (Id. at 10).

Beginning in August 2006, Meat Department was out of either monthly or cumulative tolerance every month until Defendant decided to demote Plaintiff on April 29, 2008. (Def. Ex. 21, Doc. # 15-4; Def. Ex. 22, Doc. # 15-3; Def. Ex. 48, Doc. # 15-5; Ruiz Decl. ¶¶ 2-3, Doc. # 15-2). Beginning in December 2006, the Meat Department had a cumulative loss every month until April 2008. (Def. Ex. 22, Doc. # 15-3).

In April 2007, the San Diego Commissary moved to a new building. (Jeffries Dep. at 223-24, Def. Ex. 3, Doc. # 15-3). "As the largest, most modern and most advanced commissary in the world, the San Diego Commissary is considered DeCA's crowning achievement." (Vick Decl. ¶ 14, Doc. # 15-2; see also Jeffries Dep. at 223-24, Def. Ex. 3, Doc. # 15-3). According to Vick, "[e]xpectations for this commissary are very high." (Vick Decl. ¶ 14, Doc. # 15-2). Jeffries testified that he had never "experienced as much scrutiny as [he] did at the new [commissary]." (Jeffries Dep. at 223-24, Def. Ex. 3, Doc. # 15-3).

A "new computer system" was implemented at the same time the commissary moved to the new building. (Pacoma Dep. at 84, Pl. Ex. 41, Doc. # 17-5). Pacoma received eight hours of training regarding the operation of the new computer system, but Plaintiff received no training. (Id. at 85-86; Jeffries Dep. at 103-04, Pl. Ex. 7, Doc. # 17-3). This computer system "was deployed throughout the Commissaries worldwide in 2007." (Vick Decl., Pl. Ex. 15 at 63, Doc. # 17-3).

In May 2007, Barcelona, the commissary's Administrator, reported in an email to the commissary's then-Director, Oriel Rice, that the meat and produce departments "have big shortages for the end of April." (Def. Ex. 28 at NOL_271). The Produce Manager responded that he did "not have control [of food orders in] my department during the grand opening." (Id. at NOL_270). Rice reported this to his boss, Zone 16 Manager Sandy Horan, adding that the meat department probably had sustained a loss too. Id. Michelle Frost, the Zone's Chief of Business Operations, responded that the meat department "was in the hole for at least two months prior to the grand opening." Id. Rice then sent an e-mail to Plaintiff, Frost, Horan, Pacoma and Barcelona which stated: "Jeff, you stated that you were in the hole prior to grand opening because of the frozen fish promo and the paper work needed to be corrected! Did you get it corrected and what was your final figures! Ms. Frost is right; you should have been in tolerance prior to the grand opening! Tell me what you did to correct it." Id.

On June 28, 2007, Plaintiff sent an email to Pacoma which stated: One of the reasons for the inventory shortage was the numerous damages and surveys we incurred due to the overstock of merchandise leading to and during the grand opening not to mention samples or demos that we did not get a credit and/or pilferage. Also, a [Government Property Lost or Damaged Survey Certificate] for the amount of $9,896.56 has been submitted ... and is pending approval. (Def. Ex. 29 at NOL_273, Doc. # 15-4; see also Barcelona Dep. at 113, Pl. Ex. 50, Doc. # 17-5 ("new items that were ordered by upper management for the grand opening" created "a lot of salvage," and "when you throw [food] away, that impacts inventory tolerance")). Plaintiff's email then stated a nine-part "plan of action to correct the meat department discrepancy." (Def. Ex. 29 at NOL_273, Doc. # 15-4). Pacoma forwarded Plaintiff's email to Rice, Barcelona and another individual with the message, "[i]nformation submitted as requested." Id. The Government Property Lost or Damaged Survey Certificate which was referenced in Plaintiff's June 28, 2007 email states: "On April 18, 2007 at 2:00 P.M. all meat items were marked down 50% on fresh meat in the front display case and beef & pork in the holding box. Received instruction these meat items were not to be transferred over to the new commissary store." (Pl. Ex. 5 at 17, Doc. # 17-3; see also Jeffries Dep. at 154, Pl. Ex. 6, Doc. # 17-3 ("[T]he commissary didn't have control of its orders until April 21st, 2007.")). Plaintiff testified that he did not "change anything" as a result of his "plan of action," except that he "[l]ooked at the [daily] sales [report] a little bit more." (Jeffries Dep. at 164, Def. Ex. 3, Doc. # 15-3).

On July 30, 2007, Pacoma completed Plaintiff's yearly performance review and rated Plaintiff "[e]xcellent: Employee exceeds more than one-half of the critical elements and meets all other elements." (Pl. Ex. 4 at 15, Doc. # 17-3). Pacoma found that Plaintiff "[m]et" the performance element, "ensure record of operation within established inventory tolerance," and Plaintiff "[e]xceeded" all other performance elements. (Id. at 14).

On August 20, 2007, the commissary did its annual inventory. (Jeffries Dep. at 207, Def. Ex. 3, Doc. # 15-3). As part of the inventory process, "the tolerance accounts were zeroed out and departments started anew for purposes of cumulative tolerances." (Pacoma Decl. ¶ 9, Doc. # 15-2). After the tolerance account for the meat department was "zeroed out," the Meat Department lost $11,113.45, or -7.0058%, for the last ten days of August. (Def. Ex. 21 at NOL_245-246, Doc. # 15-4).

During September 2007, a Commissary supply technician sent an e-mail to Rice which stated:

After reviewing [Plaintiff]'s receiving procedures, I discovered that they are not following DeCA rules on receiving, they are completing to delivery ticket after the driver is already departed and then completing the paperwork by cop[y]ing the invoice from the company instead of verifying what was delivered[.] [T]he final invoice is not signed by the meat department or the driver, so this would lead me to believe that the weights of the boxes may not be correct weights that are on the invoice. (Def. Ex. 32 at NOL_290, Doc. # 15-5). Rice forwarded this e-mail to Pacoma and Barcelona, stating: "[Pacoma], please investigate this in more detail and get the meat department to follow the proper receiving procedures ASAP! This explains why the meat department is always out of tolerance! This must be corrected immediately!" Id. Pacoma replied that he had discussed the matter with Plaintiff and "instructed him to follow the proper procedure." Id. Rice replied to Pacoma: "Ernie, you MUST ensure he is following procedures DAILY! He is in violation of DECA receiving directives and is putting our store in a situation which will require all of us to face disciplinary action!" Id.

In October 2007, "[i]n an effort to assist [Plaintiff] in [his] department," Pacoma "assigned [Plaintiff] an additional employee on a temporary basis to assist [Plaintiff] in timely processing of [Plaintiff's] Meat Department receipts, updating [Plaintiff's] desktop ledger and performing price checks as necessary." (Jeffries Dep. at 256, Def. Ex. 4, Doc. # 15-3).

In November 2007, after Horan was replaced as Zone 16 Manager by Dave Woody, Woody sent an e-mail to Rice, Pacoma, Barcelona, and others which stated:

San Diego Management Team

Take a look at the loss in your meat and produce departments for October. I want an explanation ... tomorrow ... on why these departments are out of tolerance. I don't want excuses I want to know why and how did we get to this point. Folks this is unacceptable and I want action taken. If you cannot get these in tolerance then we will be pulling weekly inventories and disciplinary action could be taken. If this is a true figure I am very disappointed. There is no excuse for this. (Def. Ex. 33 at NOL_294, Doc. # 15-5). Barcelona replied:

The grand opening fiasco still lingers in our operations, specifically for meat and produce departments' accountability posture. I am not making this as an excuse but I want to point out that part of this problem is where it started. Also, we have submitted two [Government Property Lost or Damaged Survey Certificate]'s ... to the region ... for the items that we lost on April 18, 2007 for reducing the prices of all meat and produce items due to closure of the old store in preparation for the move to the new store. We still have not gotten approval for these [Government Property Lost or Damaged Survey Certificate]'s. Although these amounts will not cover the departments' shortages, once approved, they will surely help in assessing these ongoing issues.

Id. at NOL_293-294. Barcelona proposed three "corrective actions" both departments would take to fix the problem. Id. at NOL_294. Woody replied:

I am still not very happy. There were losses during the grand opening but I know there are more underlying problems. Your meat manager should be checking the front end reports to ensure that all meat items are being rung up under the proper departments. It would not hurt him to go up front and monitor the front end to watch the cashiers and make sure they were ringing items in the right department. If I was meat manager or ... produce manager and my account was this far out of tolerance then I would take it upon myself to conduct more inventories not waiting until the zone manager or deputy store manager told them to. There is defi[nite]ly a trend going on here. The losses are growing and if the excuse is that the grand opening was the cause then common sense would tell me that these should not be growing but it seems like both the meat manager and the produce manager are not concerned and think that their problems are related to the grand opening.

In November if these inventories do not improve then both the [m]eat manager and the produce manager will be put on Performance Improvement Plan. Id. at NOL_293. Rice replied:

You are 100% right! I have told [Plaintiff] since last August to conduct inventories b[i] weekly or weekly if necessary! There is no excuse to continue with the losses without performing a weekly inventory! He must get a hand[le] on this problem!

I know we had problems with the grand opening but we need to move forward in addressing this issue. Weekly inventories need to be conducted before he [loses] his job!

Mr. Pacoma, please inplement a weekly inventory ... NOW! If you need help [Barcelona] and I are here, and if you prefer Mr. Woody is always willing to send meat managers to help [Plaintiff]! This has gone on too long!

Id.

On November 20, 2007, Pacoma sent an e-mail to Plaintiff and the Produce Manager, Numenano Reyes, "inform[ing] [them] that effective today ... you will be conducting weekly inventory until your monthly inventory results fall within the DeCA's tolerance level." (Def. Ex. 34 at NOL_296, Doc. # 15-5).

By the end of November 2007, the Produce Department had reduced its cumulative loss from -2.0192% to -.5463%, and the Meat Department had reduced its cumulative loss from -2.7287% to -1.1058%. (Def. Exs. 23 & 24, Doc. # 15-4; Def. Ex. 21 at NOL_248-249, Doc. # 15-4).

On December 20, 2007, Pacoma sent Plaintiff a memorandum stating that Plaintiff was being placed on a "Performance Improvement Plan" because Plaintiff's "performance ... is unsatisfactory" in the "critical elements" of "ensur[ing] record of operations remain within established inventory tolerance" and "no more than .3% ...


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