Opinion
CIVIL ACTION NO. 00-CV-11213-RGS.
November 15, 2001.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On June 20, 2001, Lorraine P. Haley brought this Complaint against her former employer, Wal-Mart Store 1762, and its parent corporation, Wal-Mart Stores, Inc. (together Wal-Mart), alleging that she had been terminated for reasons of age and sex in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the Massachusetts analog discrimination statute, G.L. c. 151B, § 4. Haley also alleged retaliation by Wal-Mart for exercising her rights under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601. On July 30, 2001, Wal-Mart moved for summary judgment on all claims. On November 8, 2001, the court heard a spirited oral argument on the motion.
FACTS
In the light most favorable to Haley, as the nonmoving party, the material facts are these. In January of 1992, Haley was hired to work at Walmart's Seabrook, New Hampshire store. She was forty-nine years old at the time. In 1992, Haley was promoted to Snack Bar Manager. She continued in that position for two and a half years, reviving what had been an unprofitable operation. She then transferred to a cashier's position from which she was promoted to Layaway Manager.
The exact duties of a Layaway Manager are not identified in the pleadings, but presumably the position entails supervisory responsibilities.
In 1998, Haley was asked to retake the helm at the Snack Bar. Haley agreed after a Wal-Mart assistant manager acceded to her request that staff be permitted occasional free drinks because of the intense kitchen heat. Haley told Walter Vanderpool and Mark Raynes, employees at the Snack Bar, about the privilege. Haley, Vanderpool, and Raynes attest that store managers observed staff take free drinks on numerous occasions. Throughout her career at Wal-Mart, Haley received outstanding performance reviews and saw her pay increase from $5.50 to $10.89 an hour.
The manager is identified only as "Manager Gary." It is apparently a Wal-Mart custom for managers to use first names exclusively.
In January of 1999, Haley notified Wal-Mart's Personnel Manager, Catherine Haye, that she needed a leave to care for her husband who was scheduled to undergo major surgery. Haley was told that she could take whatever time she needed, so long as her shifts at the Snack Bar were covered.
Before Haley commenced leave, a service representative came to the Snack Bar to repair a malfunctioning frialator. After the repairman finished his work, Haley cooked a batch of chicken fries to test the machine. Haley gave the test fries to the repairman. She noted the test chicken on a spoilage report. She also gave the repairman a drink, which she paid for herself.
In January of 1999, Vanderpool had come under suspicion for consuming or giving away food and drink. In February, William Harvey, a Wal-Mart loss prevention associate, reviewed two weeks of accumulated Snack Bar surveillance tapes. Harvey observed Haley giving the repairman the chicken fries and a drink. Harvey also saw Raynes consuming food that he had not paid for. While Harvey did not witness Vanderpool eating food without paying for it, he did see him take free drinks. Harvey informed his supervisor, Carrie DiNapoli, about his findings.
Harvey's affidavit is silent as to whether he witnessed Vanderpool give Raynes the food that Raynes was fired for accepting and eating.
Haley meanwhile had returned to work. On February 25, 1999, Haley was summoned to the manager's office. There she was confronted by Harvey and DiNapoli about the chicken fries. Haley admitted to serving the fries to the repairman, but stated that she had paid for his drink. She also admitted to taking drinks herself on various occasions, but insisted that she had permission to do so. Haley was summarily terminated.
Haley was also required to sign a "restitution note" for $2.81, the retail value of the chicken fries.
Later that day, Raynes, then thirty-two years old, was "accused of taking food from Walter Vanderpool at the Snack bar without paying for it." Raynes's affidavit, ¶ 10. Raynes' denial fell on deaf ears. He was fired on the spot for violating Wal-Mart's "anti-grazing" policy. Vanderpool was not immediately questioned or accused of giving free food to Raynes. Vanderpool was, however, transferred out of the Snack Bar and had his pay reduced by $1.00 per hour. In early March, a thirty year old sales associate, Nancy Ruksznis, was appointed Snack Bar Manager.
This is disputed, but the issue must be taken in Haley's favor.
Wal-Mart's company handbook states that "grazing" (a theft of company property) is serious misconduct punishable by immediate termination. "Grazing" is defined in the handbook as "eating from an open/damaged package an item that has not been paid for."
DISCUSSION
Summary judgment is appropriate when, based upon the pleadings, affidavits, and depositions, "there is no genuine issue as to any material fact, and [where] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Gaskell v. Harvard Co-op Society, 3 F.3d 495, 497 (1st. Cir. 1993). An issue is only "genuine" if there is sufficient evidence to permit a reasonable jury to resolve the point in the nonmoving party's favor. NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28, 32 (1st Cir. 1994). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986) (citations omitted).
Under ADEA, "a plaintiff establishes a prima facie case by showing that (1) she was over 40 years of age, (2) she suffered an adverse job action, (3) her job responsibilities were assumed by another person, demonstrating the employer's continuing need for an individual of the plaintiff's skills, and (4) she was qualified for the position that she held and performing well enough to rule out the possibility that the adverse job action was for inadequate job performance." Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 760 (1st Cir. 1994). Similarly, under Title VII, a prima facie case requires proof "that: (1) the plaintiff was within a protected class; (2) she was qualified for, and adequately performed, her job; (3) she was nevertheless dismissed; and (4) after her departure, the employer sought someone of roughly equivalent qualifications to perform substantially the same work."Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 153 (1st Cir. 1990). Wal-Mart does not dispute that Haley is female, over forty years of age, and terminated.
Wal-Mart argues, however, that Haley cannot show that she was adequately performing her job (an element of either prima facie case). Wal-Mart argues that it is undisputed that Haley violated company policy by giving away food. This may be true, but it overstates Haley's "not onerous" burden in limning a prima facie case. See Kiesling, 19 F.3d at 761. Haley's consistently positive performance reviews and successful tenures as manager of the Snack Bar establish, that at least until the chicken fries incident, she was adequately, perhaps even exceptionally, performing her job.
Wal-Mart also argues that Haley cannot show that she was replaced by someone of commensurate skills. Wal-Mart, however, offers no evidence on this point.
Wal-Mart's next point, that it has offered a legitimate, non-discriminatory reason for Haley's termination, that is, a zero tolerance policy regarding theft of company property, easily satisfies the employer's burden at the second phase of a disparate impact case. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1998) ("The defendant's 'burden of production is not onerous.' . . . 'The reasons given for a decision may be unsound or even absurd,' and the action may appear 'arbitrary or unwise,' nonetheless the defendant has fulfilled its obligation.")
That being so, it falls to Haley to produce evidence from which a factfinder could reasonably conclude that Wal-Mart's explanation for her termination is a pretext and that the true reason for her discharge was her age or sex. Pages-Cahue v. Iberia Lineas Aeres de Espana, 82 F.3d 533, 536 (1st Cir. 1996); Lipchitz v. Raytheon Co., 434 Mass. 493, 504 (2001). Massachusetts and federal law setting the summary judgment bar in this regard has recently converged. A history is in order. In Blare v. Husky Injection Molding Systems Boston, Inc., 419 Mass. 437, 443 (1995), the Supreme Judicial Court held that under "[t]he [state] pretext only rule. . . . a plaintiff who has established a prima facie case and persuaded the trier of fact that the employer's articulated justification is not true but a pretext, is entitled to judgment." (Emphasis added). While the Blare holding was a matter of much debate, it was generally taken at face value. See McMillan v. Society for the Prevention of Cruelty to Animals, 140 F.3d 288, 298 n. 4 (1st Cir. 1998). The holding, however, was retracted in Abramian v. President Fellows of Harvard College, 432 Mass. 107 (2000), where the Court, in a retrospective look at Blare, acknowledged that "[l]iterally applied, that language [quoted above] improperly compels a verdict for the plaintiff," a result "[w]e never intended. . . ." "While there is some appeal in an instruction that requires a jury to find for a plaintiff who shows that the employer's reasons are untrue . . . the instruction should not [be] given because it strip[s] the jury of its fact-finding role." Id. at 117-118.
The federal "pretext plus" standard labored under a similar contradiction. In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), a majority of the Supreme Court appeared to reject the proposition that a plaintiff who disproves an employer's explanation for an adverse job action could prevail on that showing alone. "It is not enough . . . to disbelieve the employer. . . . Title VII does not award damages against employers who cannot prove a nondiscriminatory reason for adverse employment action, but only against employers who are proven to have taken adverse employment action by reason of [discrimination]." Id. at 519, 523-524. But Justice Souter pointed out in dissent, the majority's opinion was internally inconsistent. "In one passage, the Court states that although proof of the falsity of the employer's proffered reasons does not compe[l] judgment for the plaintiff,' such evidence, without more, will permit the trier of fact to infer the ultimate fact of intentional discrimination'. . . . But other language in the Court's opinion supports a more extreme conclusion, that proof of the falsity of the employer's articulated reasons will not even be sufficient to sustain judgment for the plaintiff." Id. at 535. The tension identified by Justice Souter was reflected in post-St. Mary's First Circuit opinions. Compare Lattimore v. Polaroid Corp., 99 F.3d 456, 465 (1st Cir. 1996) ("When the prima facie case is very strong and disbelief of the proffered reason provides cause to believe that the employer was motivated by a discriminatory purpose, proof of pretext may' be sufficient" without more to warrant a finding for the plaintiff) with Dichner v. Liberty Travel, 141 F.3d 24, 30 (1st Cir. 1998) ("At the proof-of-pretext stage, however, there is a critical difference [between state and federal law]. To prevail under federal law, it is insufficient for a plaintiff merely to undermine the veracity of the employer's proffered justification; instead, she must muster proof that enables a factfinder rationally to conclude that the stated reason behind the adverse employment decision is not only a sham, but a sham intended to cover up the proscribed type of discrimination.")
The ambiguity in federal case law, however, was resolved in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147-148 (2000), a case decided almost contemporaneously with Abramian.
In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Cf. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). ("[W]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts with some reason, based his decision on an impermissible consideration"). Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. (Some internal citations omitted).Reeves, together with the well-established rule that summary judgment is a disfavored remedy in disparate treatment cases, see Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 587 (1st Cir. 1999), has the effect of lowering the summary judgment threshold for plaintiffs pursuing employment discrimination claims in federal court.
Haley argues that her evidence establishes a genuine dispute of fact as to whether she was treated differently from a "person situated similarly 'in all relevant respects.'" The Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989). The congener, of course, is Vanderpool, similarly situated to Haley in all respects but sex and age, but the recipient of more lenient treatment even though his was arguably the larger crime. Haley's point is that while she was fired for giving away food that had been consigned as "spoiled," Vanderpool was giving away food from the company stores.
While Vanderpool's exact age is not readily discernable from the record, there is no dispute that he was under forty years of age.
Wal-Mart argues that Haley received the identical punishment meted out to a younger male employee, Raynes (thirty-two years old), who was fired for "grazing." Haley, however, points out that Raynes was terminated for accepting and eating otherwise saleable food, which clearly falls within the definition of "grazing," while she was terminated for giving away "spoiled" food, which arguably does not.
While this case is as thin on the issue of discriminatory animus as one could imagine, the factual dispute over the more lenient and therefore disparate treatment of Vanderpool, coupled with what could be viewed as an irrationally zealous application of Wal-Mart's zero tolerance policy, might be the whiff of possible discrimination that could cause a jury to find in Haley's favor. Thus, Wal-Mart's motion for summary judgment on Haley's state and federal age and sex discrimination claims will be DENIED.
It is, of course, open to Wal-Mart to argue at trial that even if its application of the "anti-grazing" policy to Haley was overly zealous, that does not, by itself, make the explanation pretextual.
Haley's FMLA claim, however, does not fare as well. "To make out a prima facie case of retaliation, [a plaintiff] must show that (1) [s]he availed [her]self of a protected right under the FMLA; (2) [s]he was adversely affected by an employment decision; (3) there is a causal connection between the employee's protected activity and the employer's adverse employment action." Hodgens v. General Dynamics Corp., 144 F.3d 151, 161 (1st Cir. 1998). While Haley's evidence satisfies the first two prongs of this test, she has offered nothing that suggests a causal connection between her termination and her taking of FMLA leave. At most, she points to the fact that her termination occurred in close proximity to her return from leave. But the undisputed evidence is that the investigation that led to Haley's termination originated because of a complaint about Vanderpool. Nothing in the record suggests that the investigation was directed at her or connected in any way to her decision to take FMLA leave. Nor is there any evidence that the supervisor (Haye) who had approved her leave played any role in instigating her termination.
ORDER
For the foregoing reasons, Wal-Mart's motion for summary judgment on Haley's state and federal age and sex discrimination claims is DENIED. Wal-Mart's motion for summary judgment on Haley's FMLA claim is ALLOWED.
SO ORDERED.