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Lane v. The Kroger Co.

United States District Court, W.D. Washington, Seattle

May 9, 2019

MARK LANE, individually, Plaintiff,
THE KROGER CO., a foreign corporation, registered and doing business in Washington as FRED MEYER STORE #25, and FRED MEYER STORES, INC., a foreign corporation, registered and doing business in Washington as FRED MEYER STORE #25, Defendants.




         This matter comes before the Court on Defendants Kroger and Fred Meyer Stores, Inc. (collectively “Defendants” or “Fred Meyer”)'s Motion for Summary Judgment Regarding Failure to Accommodate Claim. Dkt. #26. Plaintiff Mark Lane opposes. Dkt. #32. For the reasons stated below, this Motion is DENIED.


         The Court has previously set forth certain background facts in a prior Order. See Dkt. #25. The Court will now focus only on those facts relevant to the claim at issue and necessary for the Court to reach a ruling.

         Mark Lane started working for the grocery and retail chain Fred Meyer in 1997. Dkt. #33-1 (“Lane Dep.”) at 30:14-16. At all times relevant to this case, he worked as a cashier assigned to operate/supervise self-checkout terminals for a Fred Meyer store in Bellingham, Washington. See Dkt. #26 at 2-4. Beginning in 2011, Mr. Lane sought various accommodations for multiple disabilities. See Dkt. #1-1 (“Complaint”) at ¶¶ 3.3, 3.4, 3.7-3.10, 3.14, 3.21-3.22. The details of these early accommodations are not at issue in this Motion.

         On March 4, 2014, District HR Manager Kevin Ruoff and in-store HR Manager Karla Booker met with Mr. Lane to discuss new accommodation requests. Dkt. #28 (“Ruoff Decl.”) at ¶ 4; Dkt. #29 (“Booker Decl.”) at ¶ 4; Dkt. #34 (“Lane Decl.”) at ¶ 6. The content of this meeting was not memorialized in writing. The parties appear to agree that one of Mr. Lane's requests for accommodation was to “not go longer than two hours without a rest period.” Lane Dep. at 90:22-92:14. Pursuant to the applicable collective bargaining agreement and state law, cashiers are required to get a break after working three hours. Ruoff Decl. at ¶ 4(d). Fred Meyer's practice was to relieve employees for breaks within a 30-minute window around the mid-point of a four-hour work period; that is, after the cashier had worked between one hour and 45 minutes and two hours and 15 minutes. Id. Fred Meyer contends that Mr. Ruoff and Ms. Booker said they could not guarantee the break would always occur before Mr. Lane has worked two hours, but that Fred Meyer's managers would make their “best efforts” to relieve him before two hours had passed. Ruoff Decl. at ¶ 4(d); Dkt. #27 Dkt. #27 (“McCollough Decl.”) at ¶ 4; Booker Decl. at ¶ 4(d). On the other hand, Mr. Lane contends that he was granted his full request for this accommodation without exception. A genuine dispute exists as to this material fact.

         According to the declaration of front-end manager Dalene McCullough, after this meeting, Mr. Lane would sometimes work “a little more than two hours” because of increased customer traffic or because the store was short-staffed. McCollough Decl. at ¶ 4. Ms. McCullough says she discussed with Mr. Lane “many times” that “it was not possible to guarantee breaks at no more than two hours, but we would always make our best efforts.” Id.

         This break issue became critical on April 2, 2015. According to Fred Meyer, Mr. Lane was terminated that day because he left work in the middle of his shift, which it interpreted as a voluntary resignation. Dkt. #19 (“Cassels Decl.”) at ¶ 3. Ms. McCullough states she worked four hours that day, until 6:30 p.m., and that the store was short-staffed and there was an unusually large number of customers at that time. McCullough Decl. at ¶ 9. Front-end supervisor Nichole Lewis states that the store was short-staffed and much busier than usual during her shift from 2:15 p.m. to 11:15 p.m. Dkt. #30 (“Lewis Decl.”) at ¶ 4. These declarations do not describe how busy the lines for cashiers were at the exact time Mr. Lane left the store.

         Mr. Lane states that he felt nauseous and anxious that day “due to the stress of not being timely relieved for my rest periods” consistent with his prior requests for accommodation. Dkt. #22 at ¶ 2. The parties disagree on the basic fact of whether Mr. Lane had worked more or less than two hours before he got a break that day. Fred Meyer contends that Mr. Lane took a 50 minute break earlier that day based on electronic records for the self-checkout terminals. Dkt. #26 at 7 (citing McCollough Decl. at ¶ 10; Dkt. #31-2 (electronic cash register records) and Dkt. #31-3. Mr. Lane states via declaration that this was not the case, and argues that Fred Meyer is simply misinterpreting data from the electronic record systems. See, e.g., Lane Decl. at ¶ 12 (“…the customer transaction logs submitted by Defendants are not timesheets nor time clocks, but logs of the customer transactions…”); and ¶ 14 (“While there may be a ‘break' or ‘gap' in customer transactions on the single SCO register that I logged into with my Operator ID to activate the SCO Terminal, it does not mean that I am on a break.”).

         At approximately 6:40 p.m., Mr. Lane informed his supervisor he was feeling sick and needed a break, and that once he got one he went to the restroom and vomited. See Dkt. #22 at ¶¶ 3-4; Lewis Decl. at ¶ 5-6. He apparently went home shortly thereafter, either informing the right people or failing to inform the right people that he was leaving due to feeling ill, depending on whose testimony is to be believed. He pleads both that he was terminated and that he was constructively discharged. See Complaint.

         Following his termination, Mr. Lane filed a grievance with his union, United Food and Commercial Workers Union Local 21 (“Union”). The Union pursued the grievance through to arbitration. The matter was heard before Arbitrator Howell L. Lankford on February 24, 2016. See Dkt. #16-1. The Arbitrator ruled in favor of Fred Meyer and against Mr. Lane.

         Mr. Lane filed this action in state court on March 12, 2018. Dkt. #1-1. He asserts the following causes of action: disability discrimination and failure to accommodate in violation of the Washington Law Against Discrimination (“WLAD”); retaliation in violation of the WLAD; constructive discharge in violation of public policy; and intentional and negligent infliction of emotional distress. Id. This case was removed by Fred Meyer on April 3, 2018. Dkt. #1. Most of Mr. Lane's claims have been addressed by the Court previously, see Dkt. #25; the instant Motion addresses only the failure to accommodate claim.

         III. ...

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