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Fernandez v. Winn-Dixie Stores, Inc.

United States District Court, S.D. Florida

January 24, 2018




         THIS CAUSE is before the Court upon Defendant's Amended Motion for Final Summary Judgment as to Count I, ECF No. [48], (the “Motion”). The Court has carefully reviewed the Motion, the record, all supporting and opposing filings, the exhibits attached thereto, and is otherwise fully advised. For the reasons that follow, Defendant's Motion is granted.

         I. BACKGROUND

         Plaintiff Anibal Antonio Aguilar Fernandez (“Plaintiff” or “Fernandez”) was an employee of Defendant Winn-Dixie Stores, Inc. (“Defendant” or “Winn-Dixie”). As further explained below, Plaintiff claims that Winn-Dixie terminated him after he reported several violations of the Fair Labor Standards Act (“FLSA”) to management and to Defendant's hotline. Winn-Dixie, on the other hand, contends that it terminated Plaintiff for theft of store merchandise in violation of its policies. Plaintiff's Complaint contains a single count of retaliation in violation of 29 U.S.C. § 215(a)(3).[1] See ECF No. [1]. In its Motion, Defendant argues that Plaintiff cannot prove the prima facie elements of an FLSA retaliation claim. See ECF No. [48]. Plaintiff has since filed a Response in opposition and Defendant has filed a Reply. See ECF Nos. [50] and [52]. The Motion is now ripe for review.

         1. Winn-Dixie Policies

         Winn-Dixie is the owner and operator of a regional chain of grocery stores located in Florida and Georgia. See ECF No. [48] at ¶ 1.[2] Defendant's Associate Handbook sets forth its policies, procedures and benefits for all employees.[3] Id. at ¶ 2. One such policy contained within Winn-Dixie's Associate Handbook is its Open Door policy, which states:

         We strive to create an environment founded in fairness and respect where Associates may talk freely with members of the management staff. Associates are encouraged to bring questions, suggestions, or complaints to their Supervisor. While we cannot guarantee that we will always provide you with the answer that you want, your questions, suggestions, or complaints will be discussed openly and given fair consideration. Because we are interested in all of our Associates' success and happiness with us, our Company has developed an Open Door Policy to enable Associates to comfortably address their concerns. We understand that in any business environment, differences of opinion may occur. Before these differences become major issues, please follow our Open Door Policy, which consists of three steps outlined below:

Step One: Discuss your concerns with your immediate Supervisor. It is their responsibility to listen to your concerns and to do their best to resolve them, if possible.
Step Two: If your immediate Supervisor has not answered or satisfactorily addressed your concerns within a period of seven days, discuss your concerns with a second level Manager.
Step Three (Alternate Step): If for any reason you prefer to discuss your concerns with a Human Resources Representative, you may contact your department, facility, or Regional Human Resources Representative. They will be happy to listen to your concerns and address them accordingly.
An Associate may also call the Winn-Dixie Involved Associate Line (“W-DIAL”) at 1-877-919-3425. This is a confidential reporting system which can be used anonymously and is accessible via the internet or by phone. Management will not fire, demote, harass or otherwise “retaliate” against an individual for utilizing the Open Door Policy or calling the “W-DIAL” at 1-877-919-3425.

Id. at ¶ 3. Defendant's Associate Relations System records any reports, whether to a manager, human resources representative or W-DIAL, and forwards such reports to the corporate headquarters to be addressed and investigated as necessary. Id. at ¶ 4. Defendant also has policies in place to ensure its compliance with the FLSA. Id. at ¶ 5. Such policy provides: “It is each Associate's responsibility to properly record all hours worked. By clocking in and out, Associates are acknowledging that they have properly recorded their hours. Associates may not perform any work off the clock. Failure to properly record all hours will result in disciplinary action, up to and including termination.” Id.

         During Plaintiff's most recent employment with Defendant in 2013 and 2014, Defendant utilized Workbrain software to record and manage employee time.[4] Id. at ¶ 6. When employees clocked in and out during their shift, they would log into Workbrain at the punch station computer in the front or rear of the store, which electronically recorded such information. Id. at ¶ 7. To clock in, employees selected “Begin Shift” on the computer and typed in their employee identification number. Id. Similarly, to clock out, employees selected “End Shift” and re-entered their employee identification number. Id.

         At Winn-Dixie, every associate receives a paid fifteen-minute rest break for each continuous four-hour work period and hourly associates who work a continuous shift of five hours or more are allowed an unpaid thirty-minute meal break. Id. at ¶ 8. Defendant requires that employees clock in and out for their rest breaks and meal breaks. Id. The Workbrain system does not allow any employees to clock in early or late for their scheduled shift without a manager override. Id. at ¶ 9. Although employees can clock out of the system without a manager override, any employee leaving early without manager approval is subject to termination. Id. at ¶ 10. Within the store, the only employees who have access to Workbrain and permission to make changes to employee time records are the salaried staff members consisting of the Store Director, Assistant Store Director, Service Area Manager or Fresh Manager. Id. at ¶ 11. When employee time records are changed, such changes are recorded in Workbrain, revealing the identity of the person who made the edits, the edits made, and the date and time of the edits. Id. According to Defendant's policies, “[i]f an Associate believes their time has not been properly recorded or has been altered, or that their pay is not correct, it is the Associate's responsibility to notify their Manager. If for any reason an Associate does not wish to discuss the situation with their Manager, they may contact Human Resources or call the ‘W-DIAL' at 1-877-919-3425.” Id. at ¶ 12.

         With regard to theft policies, “[i]nternal theft accounts for a large percentage of inventory shrink in the grocery industry.” Id. at ¶ 15. Defendant's internal theft strategy is primarily prevention; however, if prevention does not work, its Asset Protection Department becomes actively involved in detecting, investigating, and resolving any internal theft cases. Id. The Asset Protection Department is Defendant's authorized investigative entity and all internal and vendor theft investigations are coordinated and managed through this department. Id. Defendant's theft policy indicates it “has a Zero Tolerance policy for individuals involved in acts of theft from the Company” and “[a]ny Associate engaged in theft-related activity will be terminated and prosecuted if all of the statutory requirements (elements of theft) are met.” Id. at ¶ 16.

         2. Plaintiff's Employment

         Plaintiff began working for Winn-Dixie in February of 2007 until May of 2007 at the store in Miami Lakes. See ECF No. [48] at ¶ 17. On his first day of work for Winn-Dixie in 2007, Plaintiff participated in a New Hire Orientation and Training, during which he was informed of Winn-Dixie's rules, policies and procedures, including its Shrink Policy Statement, Associate Policy Awareness Confirmation, Wage and Hour Acknowledgment and Winn-Dixie Involved Associate Line confirmation. Id. As a result of his training, Plaintiff was aware that he “must never participate in any activity that causes a loss to” Winn-Dixie, including merchandise theft, which would result in termination. Id. at ¶ 18. Plaintiff also knew he had a duty to report any violations of rules or policies that he observed, and that he could make a confidential report to Winn-Dixie's hotline, W-DIAL. Id. at ¶ 19.

         Plaintiff ceased working for Winn-Dixie in May of 2007 and then resumed working for Defendant at the Sebring, Florida store in March of 2008. Id. at ¶ 20. Once again, he participated in a New Hire Orientation, which reaffirmed his awareness of Winn-Dixie's Shrink Policy Statement, Associate Policy Awareness Confirmation, Wage and Hour Acknowledgment and Winn-Dixie Involved Associate Line confirmation. Id. However, he only worked at the Sebring store for a brief period of time. Id. Plaintiff again resumed employment with Winn-Dixie on February 12, 2013 until his termination on October 17, 2014. Id. at ΒΆ 22. During this period, ...

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