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Eastern District Renders Split Decision On Employer’s Motion for Summary Judgment

Published by on November 2, 2010

In Herbert v. Harris Teeter, Inc., the plaintiff brought suit against the grocery chain alleging race discrimination and retaliation, unpaid wages, and wrongful discharge in violation of public policy.  Herbert brought discrimination and retaliation claims against his former employer under 42 U.S.C. § 1981, alleging that he was demoted and then constructively discharged because of his race.  […]

In Herbert v. Harris Teeter, Inc., the plaintiff brought suit against the grocery chain alleging race discrimination and retaliation, unpaid wages, and wrongful discharge in violation of public policy.  Herbert brought discrimination and retaliation claims against his former employer under 42 U.S.C. § 1981, alleging that he was demoted and then constructively discharged because of his race.  The court’s order rendering a split decision for the employer is here.   More after the break.

The court found that Herbert had not established an adverse employment action for purposes of his discrimination claim because the company’s failure to transfer Herbert to his preferred department did not have any effect on his compensation, terms or conditions of his employment.  The court found, however, that a fact issue remained as to whether constructive termination had occurred.  With respect to the retaliation claim, the court stated that a plaintiff must show that a reasonable employee would have found the challenged action materially adverse.  Herbert alleged that after he complained to his superiors about racial discrimination, he was demoted.  The court once again found that a fact issue remained as to whether Herbert had suffered a materially adverse action, and so denied the employer’s motion for summary judgment on the discrimination and retaliation claims.

Herbert also brought a claim for unpaid wages under the Fair Labor Standards Act.  He alleged that his supervisors adjusted his timecard for meal times that he did not take and for which he should have been compensated.  The court granted summary judgment for the employer on this claim because the alleged unpaid hours were worked more than two years prior to the date of the lawsuit, and Herbert had not shown willfulness on the part of the employer.

Finally, Herbert alleged wrongful discharge in violation of public policy, a claim first recognized by the Virginia Supreme Court in Bowman v. State Bank of Keysville.  Herbert alleged that his supervisors instructed him to repackage and re-label expired meats for sale to customers, a violation of Virginia Code § 3.2-5127 which prohibits alteration or removal of labels on packaged foods for retail sale.  Herbert alleged that he was demoted after he refused to re-label and sell the expired meat.  The court stated that while this statute fell within the category of statutes that may be used to support a public policy exception to the at-will employment doctrine, Herbert was not part of the class of persons the policy was intended to benefit because of his status as an employee.  Therefore, the court granted the employer’s motion for summary judgment on this count.

Contributed by Claudia Guzman

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