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Bartolo v. Whole Foods Market Group, Inc.

United States District Court, District of Columbia

September 30, 2019





         Plaintiff 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.

         Defendant 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.


         A. Factual Background

         1.Plaintiff’s Employment History at Whole Foods

         Plaintiff 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.[1] 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 citations.

         Defendant 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.

         2. Gainsharing Manipulation Allegations

         Defendant 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.

         On 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.

         Plaintiff 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.

         Defendant 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.

         These 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 5–6.

         Plaintiff 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.

         Plaintiff does not point to any other testimony or evidence showing that any other Whole Foods official viewed Plaintiff as having called the tip line.

         3. Rodent Problems at the Georgetown Store

         From 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.

         During 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.

         4. Plaintiff’s Application and Transfer to the Tenleytown Store

         Meanwhile, 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 2.

         5. Georgetown Store Closure and Plaintiff’s Termination

         On 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.

         Two 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.

         On 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.

         The 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. ...

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