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Loggins v. Costco Wholesale Corp.

United States District Court, W.D. Tennessee, Western Division

May 21, 2019

DENNIS E. LOGGINS, Plaintiff,
v.
COSTCO WHOLESALE CORPORATION d/b/a “COSTCO, ” Defendant.

          ORDER

          SAMUEL H. MAYS, JR., UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Costco Wholesale Corporation's (“Costco”) September 17, 2018 Motion for Summary Judgment. (ECF No. 28.) Plaintiff Dennis E. Loggins responded on January 7, 2019, after receiving several extensions. (ECF No. 39.) Costco replied on January 25, 2019. (ECF No. 43.)

         For the following reasons, Costco's Motion for Summary Judgment is GRANTED.

         I. Background

         Loggins, an African-American man over the age of forty, began working at Costco in December 2014 as a Bakery Manager in Costco's Northeast Memphis warehouse. (ECF No. 39-2 at 734.)[1] In September 2015, he was demoted to Baker and transferred to Costco's Southeast Memphis warehouse. (Id. at 740.)[2] Loggins was directly supervised in his new position by Chris Kaufman. (Id.)

         Loggins received five counseling notices after starting at the Southeast Memphis warehouse. He received two for excessive absenteeism, one in April 2016 and one in August 2016. (Id. at 740-41.) He received one on August 30, 2016 for failing to swipe out at the end of his shift three times within thirty days. (Id. at 744.) He received one on October 7, 2016 for working overtime without authorization. (Id.) He received one on February 7, 2017 for disobeying company rules. (Id. at 746.) Loggins remains a Costco employee, and none of the counseling notices resulted in a decrease in pay, a change in job duties, a demotion, or otherwise affected Loggins's employment status. (Id. at 749.)

         On August 24, 2016, Loggins wrote a letter to Costco's CEO. (Id. at 741.) Loggins said he had been demoted from his Bakery Manager position based on race and age discrimination. (Id.) Loggins also said that Kauffman had subjected him to daily harassment, including “frivolous write-ups” and “disparaging comments about [his] age and fitness for the job.” (Id. at 742.) After receiving the August 30, 2016 and October 7, 2016 counseling notices, Loggins called Scott Riekers, a Costco human resources manager, and said the counseling notices were in retaliation for Loggins' August 24, 2016 letter. (Id. at 745.)

         On February 13, 2017, Loggins again contacted Riekers and said his February 7, 2017 counseling notice was in retaliation for his filing a workers compensation claim. (Id. at 746.) On March 3, 2017, Costco received a memorandum from Loggins that said his February 7, 2017 counseling notice was discriminatory and issued in retaliation for his earlier complaints of discrimination about his demotion. (Id. at 747-48.)

         On March 13, 2017, Loggins' attorney sent a letter to Costco's corporate headquarters that asserted Costco was harassing and discriminating against Loggins based on his race and in retaliation for his having filed workers compensation claims against Costco. (Id. at 748.) On June 28, 2017, the EEOC issued a Notice of Right to Sue to Loggins. (Id.) Loggins filed this lawsuit on September 18, 2017. (Id.)

         Loggins filed for Chapter 13 bankruptcy on April 1, 2013, which was voluntarily converted to a Chapter 7 bankruptcy on June 13, 2013. (Id. at 749.) The bankruptcy court issued its final decree on April 4, 2017. (Id.) Loggins never disclosed any claim against Costco to the bankruptcy court. (Id.)

         Loggins brings claims against Costco for age discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq.; race discrimination under Title VII, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981; retaliation under the ADEA and Title VII; hostile work environment based on his age under the ADEA and on his race under Title VII and Section 1981; and intentional and/or negligent infliction of emotional distress under Tennessee law. (ECF No. 1 at 9-11.)

         Loggins contends that, since starting as a Baker in the Southeast Memphis Warehouse, Kaufman has called him an “old man” and “too slow” on several occasions. (ECF No. 39-1 at 716.) He contends that Costco employees have heard other employees call Loggins “old man.” (Id.) He contends that others working at the Southeast Memphis warehouse were called “old” and treated differently because of their age. (Id.) He contends that Kaufman once gave him an energy drink while on the job, telling Loggins that it would speed up his work and help him move faster. (Id. at 716-17.)

         Loggins contends that Clay Cooper -- a white male baker at the Southeast Memphis warehouse under forty years old -- regularly engaged in the same conduct that caused Loggins to get poor performance reviews and counselling notices, but that Cooper was never similarly reprimanded. (Id. at 719.) Loggins also contends that Jimmy Sommerville, another African-American Costco employee at the Southeast Memphis warehouse, told Loggins that Don Bowden, the Southeast Warehouse General Manager, used a racial epithet to describe Sommerville. (ECF No. 39-2 at 752.)

         Loggins contends that his August 30, 2016, October 7, 2016, and February 7, 2017 counseling notices were in retaliation for the internal discrimination complaint he made on August 24, 2016. (ECF No. 39-1 at 724.)[3] Loggins also contends that he was given “write-ups” that “tend[ed] to track the dates of Loggins' protected activities.” (Id.)

         Loggins contends that Costco created a hostile work environment based on his race and age because he received frequent counseling notices and trips to the office, because Kaufman told him on ten to fifteen occasions that he was “too old” or “too slow, ” because Kaufman gave him an energy drink, because Bowden once told him that he “‘did not hire [Loggins] because he was too old,' but that he hired him because he was an experienced baker, ” because Bowden used a racial epithet to describe Sommerville, and because Bowden also used a racial epithet in conversation with Jamie Boslaugh, a white female employee married to an African-American man. (ECF No. 39-2 at 752-53.)

         II. Jurisdiction

         The Court has federal question jurisdiction. Under 28 U.S.C. § 1331, district courts have original jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United States.” Loggins asserts a right to relief against Costco under Title VII, Section 1981, and the ADEA. Those claims arise under the laws of the United States.

         The Court has supplemental jurisdiction over Loggins' state-law claim. See 28 U.S.C. § 1367(a). That claim derives from a “common nucleus of operative fact” with Loggins' federal claims against Costco. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966); Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 588 (6th Cir. 2016); see also 28 U.S.C. § 1367(a).

         III. ...


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