Gender Bias is No Piece of Cake – Part I

Katie Mayes was described as an employee that “worked hard” and “followed the rules” during her 12 year employment at WinCo in Idaho Falls. That is, until she was terminated for allegedly stealing and being dishonest. If you think that sounds like an unlikely conclusion to a spotless performance, disciplinary and attendance record, you’re not alone. On February 3rd, 2017, the appellate court overturned previous judgments against Mayes in the gender discrimination case she filed following her termination.

The situation begins with Mayes being hired on as a Clerk for the company in 1999. In 2006, she was promoted to a PIC (Person in Charge) for the Nighttime Freight Crew. She also served as the store’s Safety Committee Chief. Because the crew she managed worked long hours full of grueling physical labor, Mayes often motivated her employees in the form of stale cakes from the bakery. She states that her original General Manager Mark Wright had given her approval to take cakes from the bakery area to use as motivation and boost morale, so long as she wrote them down in the “in-store use log”, which she always followed protocol for. When Wright left the store in 2007, a new General Manager took over by the name of Dana Steen.

Everything was seemingly okay until about January 2011 when Mayes and other managers were instructed to only take cakes from the “stales cart”. The items on the cart had been deemed unsellable due to freshness though they were still safe to eat, and would be donated to a local food bank or charitable organization. Mayes testified that she was told she no longer had to mark the stale items in the “in-store use log”, as they had already been scanned out of inventory and reported as a “lost product”. It was also around this time that Mayes’ title as Safety Committee Chief was taken from her and given to another employee. When Mayes asked Steen why she had been removed as the chair, she alleges that Steen replied by saying that “a male would be better in that position”. Mayes then reported to Assistant Manager Scott McCartney that she felt she was being discriminated against. She testified that McCartney’s response was for her to “stay away” from Steen, because she didn’t like that a “girl” was in charge of the freight crew. McCartney however later denied recalling such a conversation in his deposition.

From there on out, Mayes contends that she was treated differently from her male peers. Of course, there was the comment about a male being better fit to the safety committee position. Another example Mayes offered was that she was given criticism for sometimes not being able to stay late or having to leave early to care for her children. According to Mayes, another PIC named Andrew Olson was in a similar situation, sometimes having to leave early to care for his daughter, but never received any negative commentary.

The situation reached its peak on July 7th, 2011 when bakery manager Terri Bruun notified Steen that a cake had gone missing from their shelves and was eaten in the employee breakroom. Steen then initiated an investigation and reviewed 6 months of surveillance video in order to find the culprit. What she saw was a freight crew employee, Nick McInelly, taking the cake in question to the breakroom. She also reported seeing Mayes take a cake from the stale cart back in June of that year. Afterwards, Steen turned everything over to their loss prevention investigator, Scott Samuelson. He visited the store later that same day in order to review surveillance footage, in-store use logs, and sales records in to help determine what had happened. Another loss prevention specialist inferred that because management would not be present that night, McInelly might try to take another cake – and he did just that.

The following morning, Samuelson confronted McInelly about the cakes, at which point he said that Mayes had given him permission to take them. Mayes of course stated that she only instructed her crew to take cakes from the stales cart.

Ultimately, both Mayes and McInelly were fired over the matter. At the termination, Mayes was told she was being let go due to “theft” and “dishonesty”. She was also presented with a document banning her from WinCo property for 100 years. Despite McCartney carrying out the termination meeting and preparing the paperwork, he testified that he had no part in making the decision to terminate nor did he know who did.

Mayes attempted to appeal the termination with WinCo’s employee grievance committee but the decision was upheld. She then filed a complaint of discrimination based on gender with the EEOC (Equal Employment Opportunity Commission) and the Idaho Human Rights Commission. She was issued a Right to Sue letter on April 11th, 2012.

Having exhausted her other options, Mayes filed a lawsuit on June 15th 2012, alleging discrimination on the basis of gender, violation of her COBRA rights, and wage issues as the company refused to pay her out for accrued vacation time.

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/03/14-35396.pdf

http://www.employmentlawblog.info/2017/02/mayes-v-winco-holdings-no-14-35396-9th-cir-feb-3-2017.shtml

https://www.law360.com/employment/articles/888471/9th-circ-revives-bias-suit-over-store-s-cake-theft-firing

https://casetext.com/case/mayes-v-winco-holdings

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