Mayes v. WinCo Holdings, No. 14-35396 (9th Cir. Feb. 3, 2017)

By Paul Mollica

This takes the cake: an employee on the night shift at an Idaho supermarket is accused of (and fired for) taking a cake from the bakery’s “stales cart” without permission to serve to co-workers. The Ninth Circuit thinks that a jury could find management’s story unpalatable, though, and remands it for a trial.

Mayes v. WinCo Holdings, No. 14-35396 (9th Cir. Feb. 3, 2017): Mayes was “a Person in Charge (PIC) in 2006. As a PIC, Mayes supervised employees on the night-shift freight crew.” At times, when stocking demands were intense, Mayes would motivate her co-workers with a cake from the bakery. “Several WinCo employees gave sworn statements that taking cake from the store to the break room was a common, accepted practice by PICs and management at WinCo.”

“In January 2011, the bakery department instructed Mayes and the other freight crew PIC, Andrew Olson, that they should take cakes only from the ‘stales’ cart,” destined to be donated to a charity forod bank. Mayes abided by this instruction, but in July 2011, bakery management complained that a fresh cake had disappeared from the case. A loss-prevention team investigated and eventually discovered that freight crew employee McInelly was responsible. McInelly, in turn, told loss management that Mayes okayed the removal of the cake. While Mayes denied this and insisted that management had approved the consumption of stale cakes, both she and McInelly were fired.

Mayes alleged (1) gender discrimination claims under Title VII of the Civil Rights Act of 1964 and the Idaho Human Rights Act; (2) a claim under COBRA; and (3) wage claims under the Fair Labor Standards Act and the Idaho Wage Claim Act. The district court granted summary judgment on all counts.

The panel reverses summary judgment, finding genuine disputes of material fact on the veracity and motives of company management. The panel holds that There was both direct and indirect evidence of improper bias.

The direct evidence included several statements by Mayes’s direct supervisor – herself a woman, named Steen – expressing belief that a man should be the PIC:

“Mayes offered ample direct evidence of discriminatory animus: (1) Steen’s alleged comment that a man ‘would be better’ leading the safety committee; (2) Steen’s alleged comment that she did not like ‘a girl’ running the freight crew; and (3) Steen’s alleged criticism of Mayes, but not her male counterpart, for leaving work early to care for her children.”

The comments were not “stray remarks” because “reasonable jurors could decide that Steen’s comments, including the alleged comment that a man ‘would be better’ as chair of the safety committee, demonstrate Steen’s overt hostility to having women in leadership roles.” In sum, “Mayes’s direct evidence alone is sufficient to defeat summary judgment.”

This holding was supported by admissions (in discovery and in unemployment hearing testimony) that Steen participated in the firing. “[T]he animus of a supervisor can affect an employment decision if the supervisor ‘influenced or participated in the decision making process.'” The panel cites the “cat’s paw” case, Staub v. Proctor Hosp., 562 U.S. 411 (2011).

The store tried to rely on the loss-prevention investigation as an intervening cause of the termination, but crossed itself up by presenting no evidence of the manager who made the final decision: “… no one at WinCo admitted to making the decision to fire Mayes, and it is impossible to know who believed what at the time Mayes was fired.”

The inference of discrimination “is further bolstered by indirect evidence.” To begin with, “[m]ultiple employees testified that it was a common, accepted practice-rather than an offense punished by termination-for PICs to take cakes to the break room.” Assuming that the jury credited Mayes’s testimony, “Mayes could not have stolen a cake that she had permission to take. Nor could management have reasonably thought that Mayes lied about having permission if they knew that PICs were allowed to use stale cakes to motivate employees.” Moreover, “Mayes presented evidence that WinCo replaced her with a less qualified male employee” and that Steen was involved in that decision as well.

The panel also holds that because the plaintiff created a genuine dispute about whether she was fired for “gross misconduct,” she was also entitled to a trial on her COBRA and state and federal wage claims.