Why it matters

Firing an employee over a cake theft may have been pretextual, the U.S. Court of Appeals for the Ninth Circuit ruled in reversing dismissal of a Title VII gender discrimination suit. Katie Mayes frequently took cakes from the bakery department's "stales" cart to share with and motivate the workers on the night shift she supervised at a WinCo grocery store. But after the store terminated her and issued a 100-year ban when she was caught taking a cake on camera, she sued. Arguing that the practice by supervisors of taking stale cakes was common and accepted, Mayes alleged that the employer used the purported cake theft as pretext for gender discrimination. She cited a number of comments by supervisors where, for example, she was removed from leading a safety committee because a "man would be better," was told that "a girl" shouldn't be running the freight crew, received criticism for leaving work to care for her children when a male counterpart did the same thing without comment, as well as her replacement by a man with just three weeks' time at the company and no supervisory experience. A district court granted summary judgment in favor of the employer but the unanimous Court of Appeal panel reversed, finding "ample direct evidence of discriminatory animus, as well as specific and substantial indirect evidence challenging the credibility of WinCo's motives."

Detailed discussion

Katie Mayes began working at a WinCo grocery store in 1999. During her 12 years on the job, she was promoted to a supervisory position over employees on the night-shift freight crew. She also served in a leadership role on the store safety committee and received positive reviews throughout her tenure.

Mayes stated that she was given permission to take cakes from the bakery to motivate the freight crew, to boost morale and to encourage the crew to stay past the end of their shifts when big loads required extra work. She discussed taking the cakes with other supervisors, and several employees agreed that taking cake from the store to the break room was a common, accepted practice. The bakery later instructed Mayes and the other freight crew supervisor only to take cakes that could no longer be sold from the "stales" cart.

In July 2011 it was reported that a different employee had taken a cake from the shelves to eat in the break room. While viewing video footage of the time in question, the general manager observed Mayes taking a cake from the stales cart. Mayes was terminated and banned from the store for 100 years. Because WinCo said that her behavior rose to the level of gross misconduct, the company denied her (and her seven children) benefits under the Consolidated Omnibus Budget Reconciliation Act (COBRA), as well as credit for accrued vacation days.

Mayes sued. She claimed that WinCo fired her not for theft and dishonesty but in order to put a man in charge of the freight crew. She claimed that the general manager removed her as the chair of the safety committee and told her that "a male would be better in that position" and that a fellow supervisor warned her to "stay away" from the general manager because she did not like that "a girl" was running the freight crew.

The general manager criticized Mayes because she could not stay late or come in on her days off because she was taking care of her children, but did not make similar comments to Mayes' male counterpart, she alleged, and her replacement was a man who had no supervisory experience and had only worked at the company for three weeks. Her complaint stated violations of Title VII, state law and COBRA.

WinCo moved for summary judgment and a district court judge granted the motion. But the U.S. Court of Appeals for the Ninth Circuit reversed.

Since the district court found that Mayes established a prima facie case of gender discrimination, and that WinCo proffered a legitimate, nondiscriminatory reason for terminating her, the federal appellate panel focused on whether Mayes had presented sufficient evidence that WinCo's proffered reason for her termination was pretextual.

"Direct evidence of discrimination is often not easy to come by," the Court wrote. "Here, however, Mayes has offered multiple examples of direct evidence that implicate gender discrimination."

Specifically, Mayes alleged that the general manager said that she did not like "a girl" running the freight crew, remarked that a man "would be better" leading the safety committee and criticized Mayes, and not her male counterpart, for leaving work early to care for her children.

"These remarks directly concerned Mayes and the decisional process for retaining and promoting employees," the Court noted, and the plaintiff's failure to provide precise dates for the remarks or establish a closer temporal link between the comments and her termination did not defeat her claims.

WinCo argued that the general manager did not fire Mayes, but the Court found that the record remained unclear regarding who had actually terminated Mayes. The employer admitted in an interrogatory answer that the general manager "participated" in the termination decision, and the GM testified in Mayes' unemployment hearing that she was involved in the decision to terminate Mayes.

"Even if the supervisor does not participate in the ultimate termination decision, a 'supervisor's biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor's recommendation, entirely justified," the Court explained.

The Court rejected WinCo's contention that the general manager's comments were "stray remarks" insufficient to establish discrimination. "If Mayes's testimony is believed, reasonable jurors could decide that [the general manager's] comments … demonstrate overt hostility to having women in leadership roles," the Court held, adding that the fact that the general manager is also a woman was irrelevant.

While the plaintiff's direct evidence was sufficient on its own to defeat summary judgment, the Court found that her claims were bolstered by indirect evidence. Multiple employees testified that it was a common, accepted practice for supervisors to take cakes to the break room.

"That WinCo purportedly fired Mayes for following a practice described by some witnesses as 'common,' and that another [supervisor] thought was authorized, is specific and substantial evidence that WinCo's proffered explanation for her termination is not believable," the Court said. "Mayes could not have stolen a cake that she had permission to take. Nor could management have reasonably thought that Mayes lied about having permission if they knew that [supervisors] were allowed to use stale cakes to motivate employees."

Mayes also presented evidence that she received no negative performance reviews over the course of 12 years with the company, including five in a supervisory position, and was replaced with a less qualified male employee.

"In sum, circumstantial evidence raises a material dispute of fact regarding pretext," the Court concluded, reversing summary judgment on Mayes's Title VII claims. "This is particularly true when the circumstantial evidence is viewed in conjunction with the powerful direct evidence of [the general manager's] discriminatory comments."

For similar reasons, the Court reversed summary judgment on the state law and COBRA claims as well.

To read the opinion in Mayes v. WinCo, Holdings, Inc., click here.