United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Court Judge.
Jean-Michel Bartolo, a former Whole Foods employee, sued
Defendant Whole Foods Market Group in two related cases
following his termination from the company. In the first
case, 1:17-cv-1453-which the court refers to as Bartolo
I-Plaintiff alleges retaliation under the D.C. Wage
Theft Prevention Act (“DCWTPA”) for his claimed
role in reporting manipulation of an employee bonus program,
and he brings three quasi-contract claims based on the
company’s employee handbook. In the second case,
1:18-cv-1681-which the court will shorthand Bartolo
II-Plaintiff sued Defendant for defamation; violation of
the DCWTPA for failing to make a bonus payment upon his
termination; and three quasi-contract claims related to the
alleged unpaid bonus.
now moves for summary judgment on all counts in both cases.
Plaintiff cross-moves for partial summary judgment on his
unpaid bonus claim under the DCWTPA. For the reasons that
follow, Defendant’s motion is denied as to
Plaintiff’s claims of retaliation and common law
defamation but is granted as to all other claims.
Plaintiff’s partial motion is denied.
Plaintiff’s Employment History at Whole Foods
Jean-Michel Bartolo began his employment at Defendant Whole
Foods in 1997. See Compl., Bartolo II, ECF
No. 9, ¶ 6. For fourteen years he worked as a Store Team
Leader at various stores in the Washington D.C.-area.
Id. In January 2013, Plaintiff transferred to
Defendant’s Georgetown store. Id. While
working at the Georgetown store, Plaintiff was cited for two
infractions. See Def.’s Mot. for Summ. J., ECF
No. 14 [hereinafter Def.’s Mot.], Ex. 7, ECF No. 14-10,
at 2, 4–5. The first incident occurred in November
2014, when Plaintiff divulged confidential information
regarding another employee in violation of Defendant’s
company policy. Id. at 4–5. Plaintiff received
a written citation, which he signed. Id. at 4. The
citation indicated that “any further violation of
Unsatisfactory Team Member Conduct policies will result in
termination of employment.” Id. Plaintiff was
cited again in May 2015, when he “fail[ed] to meet
company standards for a Store Team Leader” because he
lacked an “appropriate leadership presence, ” did
not satisfactorily execute the “Armed Forces Day
Spaghetti Dinner Event, ” and his store displayed
“unacceptable retail standards.” Id. at
2. Notes from the Order-to-Shelf Coordinator for the
Mid-Atlantic Region, Jane Mueller, include a concern about
“[s]tore cleanliness and organization.”
Id. at 3; Def.’s Mot., Ex. 23, Decl. of Jane
Mueller, ECF No. 14-40 [hereinafter Mueller Decl.], ¶ 1.
No further action was taken against Plaintiff following these
contends that Plaintiff had fraught relationships with some
subordinates, which Whole Foods discovered only after his
termination, but which otherwise might have resulted in a
citation or termination. Def.’s Mot. at 5–6. For
example, Defendant asserts that Plaintiff had a romantic
relationship with at least one female subordinate,
id. at 5, and that he sent inappropriate and
sexually suggestive emails to another. ECF No. 14-10, at
48–53. There have also been allegations of
discrimination by Plaintiff against minority employees.
See, e.g., Def.’s Mot., Ex. 4, ECF No. 14-7,
¶ 13. But again, Defendant does not offer any evidence
that Plaintiff was disciplined for this behavior.
Gainsharing Manipulation Allegations
offered what it called a “Gainsharing Program, ”
an incentive program that awarded bonuses to employees whose
departments came in under budget. Def.’s Mot., Ex. 8,
Decl. of Nicole Wescoe, ECF No. 14-38 [hereinafter Wescoe
Decl.], ¶ 2. Store Team Leaders were not eligible to
participate in the program. Id.
October 24, 2016, Defendant received on its anonymous tip
line a complaint about execution of the Gainsharing Program
at the Kentlands store in Gaithersburg, Maryland.
Def.’s Mot., Ex. 11, ECF No. 14-13 [hereinafter
Def.’s Ex. 11], at 3. The tipster claimed to have
observed the Kentlands store manager order shifting labor
costs from one department to another department “to
make the store look good” and to allow the store
manager to get a bonus. Id. Rose Smith, an employee
of Team Member Relations, followed up on the tip. On October
25, 2016, she reported that “Team Member Services . . .
investigated the allegations outlined in this anonymous call
and found them to be without merit.” Id. at 4.
It is not clear whether the tipster had access to this
finding, and if so, when. However, a hotline-call record
indicates that the tipster followed up three days after
Smith’s notation, with additional specifics about
shifting of labor costs between departments. Id.
Defendant also received additional anonymous calls on the tip
line on October 26 and 30, 2016, about Gainsharing Program
manipulation at the Kentlands store. Id. at
6–7, 9– 10.
claims that he was the anonymous tip-line caller. He contends
that, after hearing from a fellow employee that the employee
was directed to participate in gainsharing manipulation, he
called the tip line. Def.’s Mot., Ex. 12, Pl.’s
Resp. to Def.’s First Set of Interrogatories, ECF No.
14-14 [hereinafter Pl.’s Resp. to 1st Interrog.], at
2–3, 8. Plaintiff claims that he anonymously called the
tip line at least four times “after his initial call
was rejected by Smith as ‘without merit.’”
Id. at 8.
received another call on the tip line about the Gainsharing
Program on November 12, 2016. See Def.’s Ex.
11 at 13. This time the call concerned the Georgetown store.
The tipster reported labor shifting and complained that
Plaintiff was “responsible for these labor-transfer
issues” and that he had failed to address the
impropriety. See id.
tip-line calls prompted Defendant to initiate an
investigation. Pl.’s Mem. In Opp. to Def.’s Mot.
for Summ. J., ECF No. 34 [hereinafter Pl.’s Opp.], Ex.
H, Dep. of David Gearheart, ECF 25-1 [hereinafter Gearheart
Dep.], at 106–07. On November 14, 2016, Plaintiff was
interviewed as part of that investigation. Pl.’s Opp.,
Ex. B, Dep. of Jean-Michel Bartolo, ECF No. 24-2 [hereinafter
Bartolo Dep.], at 168–70; see also Pl.’s
Opp., Ex. Z, ECF No. 28-4 [hereinafter Ex. Z]. According to
contemporaneous notes of the interview, Plaintiff did not
explicitly identify himself as one of the tip-line callers.
See Ex. Z. Plaintiff did say, however, that other
employees had told him about episodes of gainsharing
manipulation, and that he had encouraged at least one other
employee to make a report to the tip line. Id. at
claims that three days after his interview, Scott Allshouse,
Whole Foods’s Regional President for the Mid-Atlantic
Region, came to the Georgetown store to discuss the
gainsharing investigation. Bartolo Dep. at 421–22.
According to Plaintiff, Allshouse “directed [Plaintiff]
to stop telling team members to call the tip line, ”
and to “report [gainsharing abuses] to him directly and
not the tipline.” Pl.’s Resp. to 1st Interrog. at
9. For his part, Allshouse recalls meeting with Plaintiff in
November 2016 at the Georgetown store but does not remember
telling Plaintiff not to have people call the tip line.
Pl.’s Opp., Ex. J, Dep. of Scott Allshouse, ECF No.
25-3 [hereinafter Allshouse Dep.], at 133–34. Another
Whole Foods executive, David Gearheart, testified that
Allhouse would have had access to investigation materials,
including notes of Plaintiff’s interview, in November
or early December 2016. Gearheart Dep. at 7, 118–21.
does not point to any other testimony or evidence showing
that any other Whole Foods official viewed Plaintiff as
having called the tip line.
Rodent Problems at the Georgetown Store
January 2013 through early 2017, Plaintiff worked as a Store
Team Leader at Defendant’s Georgetown store in
Washington, D.C. See Compl., Bartolo II,
¶ 6; Wescoe Decl. ¶¶ 6–7. Rodents were a
serious recurring problem throughout Plaintiff’s tenure
at the Georgetown store. Def.’s Mot., Ex. 21, Expert
Rebuttal Report by Dr. Jill M. Gordon, ECF No. 14-23
[hereinafter Gordon Expert Rpt.], at 6. The problem had
persisted for many years. Id.; see also
Pl.’s Opp., Ex. E, Dep. of Derek Gruber, ECF No. 24-5
[hereinafter Gruber Dep.], at 30–31 (noting reports of
pest issues in 2014). One Store Team Leader noted rodents in
the Georgetown store as early as 2012, well before Plaintiff
began working there. Pl.’s Opp., Ex. CC, ECF No. 28-6,
¶¶ 5– 6.
Plaintiff’s time leading the store, Defendant hired a
pest-management company, Steritech, in an attempt to control
the problem. See Gordon Expert Rpt. at 7. In 2016,
the pest-control company removed several hundred mice from
the store over the course of more than 70 visits.
Id. Steritech also advised Whole Foods on strategies
to help manage the problem, suggesting that it direct its
employees to “clean under shelves, not move rodent
control, seal holes, move equipment, and many other items . .
. to assist in [Defendant’s] pest control program and
prevent or help remediate the pest problems.”
Id. But, according to an expert rodentologist
retained by Defendant, the “sanitation conditions and
many of the structural issues . . . were not properly
addressed” by Plaintiff, so the rodent problem
persisted. Id. at 8.
Plaintiff’s Application and Transfer to the Tenleytown
in late 2016 or early 2017, Plaintiff sought a transfer and
applied to be Store Team Leader at the Tenleytown store.
Bartolo Dep. at 201–02; Wescoe Decl. ¶ 3.
Plaintiff formally interviewed for the job several weeks
later. Bartolo Dep. at 205–07; Wescoe Decl. ¶ 6.
Plaintiff got the job, and Whole Foods announced the transfer
on February 6, 2017. Wescoe Decl. ¶¶ 6–7;
see also Def.’s Mot., Ex. 9, ECF No. 14-11, at
Georgetown Store Closure and Plaintiff’s
February 9, 2017, the District of Columbia Department of
Health closed the Georgetown store for failing “to
minimize the presence of . . . pests on the premises.”
ECF No. 14-10, at 56–57. Plaintiff was on vacation on
the day that the Health Department shut down the Georgetown
store, see Pl.’s Opp., Ex. F., Dep. of Mansur
Aman, ECF No. 24-6, at 19–22, but when he returned, he
was apparently given a specific list of tasks to complete in
order to get the store reopened, Mueller Decl. ¶ 8. The
record is not clear on exactly when Plaintiff received the
instructions, but he seems to have received them during a
visit by Mueller and Allshouse just a day or two after the
store closed. In his deposition, Allshouse referenced a
meeting during which he and Mueller “instructed
[Plaintiff] on the things he should focus on in order to get
the store reopened and to build the confidence back of the
customers.” Allshouse Dep. at 167. But Allhouse could
not remember precisely when that meeting occurred, stating
that it was “probably” on the evening of February
10, 2017. Id. at 168. Mueller remembered giving
Plaintiff instructions at some unspecified point
after she and Allshouse observed the problems at the
Georgetown store. Mueller Decl. ¶¶ 7–9;
see also Def.’s Mot., Ex. 17, ECF No. 14-19
[hereinafter Wescoe Dep.], at 14–15 (Plaintiff was
given a list of duties “after the store was
closed.”). In any event, Plaintiff was apparently asked
to take certain steps to get the store cleaned up and
reopened following the store closure but prior to February
12, 2017, when Mueller returned.
days after the store closure, Allshouse sent a text message
to Ken Meyer, the Executive Vice President of Operations,
stating, “I [w]ant to write Jane up and ask
JM”-referring to Plaintiff-“to leave with a
separation agreement. Can you support that decision.”
Pl.’s Opp., Ex. W, ECF No. 28-1 [hereinafter Ex. W], at
11. A few minutes later, Allshouse sent a second message:
“Again. I’m offering him a separation agreement.
Pay to go. And remind him that he takes good care of TMs and
to keep that in mind to not hurt them by doing anything
crazy.” Id. at 12.
February 12, 2017, Mueller visited the store again, this time
on her own, and took photographs of the condition of the
sales floor and the store in general. Pl.’s Opp., Ex.
D, ECF No. 24-4 [hereinafter Mueller Dep.], at 67–68,
Exs. 4, 5; Def.’s Mot, Ex. 22, Decl. of Scott
Allshouse, ECF No. 14-39, Ex. A. Mueller also learned that
“[o]n [Plaintiff]’s watch a sprinkler was broken,
” causing “substantial damage.” Mueller
Decl. ¶ 9. According to Allshouse, Mueller was
“disgusted by her visit in the store” and felt
like Plaintiff had not listened to the instructions he was
given. Allshouse Dep. at 28–29. Later that evening,
Mueller relayed her findings to Allshouse and Nicole Wescoe,
the Regional President of the Northeast Region. Wescoe Decl.
¶ 1; Mueller Dep. at 72–73, 109–10.
following day, February 13, 2017, Mueller, Allshouse, Wescoe,
and Gearheart met to “recap [Mueller’s] visit
to the store.” Wescoe Dep. at 46. The group decided to
“separate [Plaintiff] for gross insubordination.”
Id. at 47; see also Mueller Decl. ¶
12. On the morning of February 14, 2017, Mueller and
Gearheart informed Plaintiff that he was being terminated.
See Pl.’s Opp., Ex. X, ECF No. ...