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Faruq v. Wal-Mart Stores

January 23, 2006

CANARA FARUQ, PLAINTIFF,
v.
WAL-MART STORES, INC., DEFENDANT.



The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.

MEMORANDUM and ORDER*fn1

Plaintiff, an African-American Muslim female, commenced this discrimination action on January 17, 2003 in New York State Supreme Court, County of Erie, against her former employer, Wal-Mart Stores, Inc. Defendant removed this action to this Court on March 10, 2003. Plaintiff filed an Amended Complaint on March 22, 2004 claiming that defendant violated, inter alia, Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §621 et seq., and New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law §296 et seq., and asserting several state law causes of action - viz., breach of contract, breach of covenants, negligence and intentional infliction of emotional distress. On November 29, 2004, defendant filed a motion for summary judgment, which was argued and submitted on June 3, 2005, seeking dismissal of plaintiff's claims. For the reasons set forth below, defendant's motion will be granted as to plaintiff's federal claims and the corresponding state claims under NYHRL. As such, the Court lacks jurisdiction to adjudicate plaintiff's state law claims and will remand the matter to state court.

Plaintiff claims that defendant discriminated against her based on her race, ethnic background, religion and age by subjecting her to disparate treatment, failing to promote her and ultimately terminating her in violation of Title VII, the ADEA and NYHRL. Plaintiff also alleges that defendant's said discrimination and conduct (1) breached contractual and procedural safeguards, (2) breached covenants to treat her fairly and in a nondiscriminatory manner, (3) breached defendant's contractual obligation to provide her with a bonus and (4) was negligent and harassing and intentionally inflicted emotional distress. In moving for summary judgment, defendant asserts that plaintiff's Title VII, ADEA and NYHRL claims should be dismissed because (1) she cannot meet her prima facie burden and (2) she was terminated due to her poor attendance and tardiness record, and that her state law claims should be dismissed because (1) she is an atwill employee and thus cannot make a claim for a tort, breach of contract or wrongful discharge under New York State law and (2) she was not eligible for a bonus.

The facts, in the light most favorable to plaintiff - the non-moving party -, are found as follows and are undisputed except where otherwise noted. Plaintiff was hired as a part-time ophthalmic assistant by defendant on December 26, 1996 and was terminated on January 21, 2002. Plaintiff was first employed in the vision center at the Wal-Mart store in Clarence, N.Y. ("Clarence Wal-Mart") and was later transferred to the vision center at the Wal-Mart store in Lockport, N.Y. ("Lockport Wal-Mart"). On her signed application for employment, plaintiff initialed a paragraph that stated that defendant "can terminate [her] employment at any time with or without cause." (Schröder Aff., Ex. L; see also Ex. O.) Defendant's disciplinary procedure, of which plaintiff was aware, is to inform its employees of conduct or performance that is below expectations and to provide the employees with a plan of action for improving the problem.

Plaintiff attained an Associates of Science degree in Ophthalmic Dispensing ("AS Degree") eight months after commencing her employment with defendant and, during the course of her employment, passed the American Board of Opticianry ("ABO") exam, which is the basic exam that certifies opticians. Plaintiff had prior managerial and retail experience and, when she began working at WalMart, she claims that the Clarence Wal-Mart vision center manager, Greg Long, informed her that promotions and management opportunities would be available and that Wal-Mart promotes from within the company. Plaintiff also claims that Long had told her that flexible scheduling would not be a problem. Upon receiving her AS Degree, plaintiff inquired about a position for a licensed optician and was told that no such opening was available in the Clarence Wal-Mart but allegedly might be in the Lockport Wal-Mart. Plaintiff also claims that she was supposed to receive a pay raise upon passing her ABO licensing exam, but did not receive said raise until well after passing the exam.

Plaintiff alleges that, while she was working at the Clarence Wal-Mart, Jim VanDuzer, a Caucasian, was hired in the vision center and was later promoted to manage the vision center in the Wal-Mart store in Cheektowaga, N.Y. Plaintiff claims that Long recommended VanDuzer for this promotion although there were several complaints regarding VanDuzer of which Long was aware. Plaintiff claims that, as a result of VanDuzer's promotion and her own lack of promotion, she transferred to the Lockport Wal-Mart where she hoped that she would have a better chance of receiving a promotion.

The manager of the Lockport Wal-Mart vision center was Jenna Burkard. When plaintiff began working at the Lockport Wal-Mart, Burkard was already training an employee for a management position and could only train one employee at a time. Pursuant to plaintiff's request, Burkard gave her a raise based on passing the ABO exam. Plaintiff asserts that customers commented on how much they enjoyed working with her and that she was a leading sales associate in her department at the Lockport Wal-Mart; in particular, plaintiff claims that she sold as much as that sold by 6 or 7 other sales associates combined. Defendant, on the other hand, claims that other employees complained about plaintiff's performance and constant tardiness.

Plaintiff claims that she requested and received a meeting with the district manager for Wal-Mart's Optical Division, James O'Neill, regarding her desire for management training. Plaintiff claims that, as a result of this meeting, she was supposed to receive managerial training from Burkard, but said training did not occur. Shortly thereafter, Ann Marie Szolnoky, a Caucasian, joined the staff. Szolnoky had previously worked for defendant, was a friend of Burkard and was promised managerial training by Burkard. Szolnoky temporarily replaced Burkard while she was on maternity leave and plaintiff claims that Szolnoky was hired for the next available managerial position in a vision center in the district. Defendant claims that no such managerial positions were available.

Plaintiff contends that, in addition to not receiving managerial training, she was not given the opportunity for any advancement while Caucasian employees received such. For example, plaintiff was not trained on how to order contact lenses but claims that Jessica Diemert, a Caucasian employee, received said training on plaintiff's day off.

Plaintiff met with O'Neill and Burkard in September 2001, but plaintiff's lack of training was not the focus, although, subsequent to this meeting, Burkard arranged a weekly time to train plaintiff but allegedly made excuses to avoid such.

During the meeting, O'Neill and Burkard discussed plaintiff's attendance problems. Plaintiff claims that her attendance had been approved by Burkard as "flex time" and that, because the schedule could easily and was often edited, Burkard's approvals were not necessarily noted. Plaintiff asserts that the attendance records of Szolnoky, Candy Rueb, Christopher Mack and Rebecca Perry - all Caucasian employees - were edited to their benefit. Furthermore, plaintiff alleges that her schedule was changed in an untimely manner to create a reason for her termination. Plaintiff, however, does not provide any evidence to substantiate her claims - such as when her schedule was untimely altered - or provide specific information regarding the alleged altering of other employees' attendance records - such as the employees' positions, the dates of these employees' alleged attendance problems and the instances when their records were altered.

There is no dispute, however, that plaintiff did have problems with her punctuality and other attendance-related issues and that attendance records could and would often be altered by the manager. Plaintiff does not dispute having significant problems with clocking-in on time and with taking an appropriate number of breaks for the approved amount of time. She also admits to continuing said violations after the September 2001 meeting, during which she was warned that, if the problems continued, she would be terminated. Nonetheless, plaintiff's attendance problems continued. Plaintiff's only claim is that Caucasian employees with similar violations were not terminated and instead had their attendance records altered to their benefit. In response, defendant claims that its time and attendance reports were not altered without documentation and without cause - to wit, exceptions to tardiness or failure to attend as scheduled were given when, inter alia, a last minute shift change occurred or an employee requested time off from a supervisor. Defendant, moreover, asserts that Burkard had disciplined other employees for poor attendance and terminated a Caucasian male employee for attendance problems and violations of other company policies.

Plaintiff claims that defendant was planning on terminating her for requesting to receive managerial training and that defendant anticipated plaintiff's discrimination suit prior to her termination. Moreover, plaintiff claims that she was the only Muslim and African-American who, to the best of her knowledge, was employed by defendant in the vision center at the Lockport Wal-Mart and possibly in the district. Plaintiff cites a few instances where racist comments were allegedly made to her - to wit, (1) Burkard told her that everyone wants white women, (2) Burkard told plaintiff that she always wanted something special in response to plaintiff's request for a day off for prayer after the Ramadan holiday, (3) a co-worker said "I didn't think that Muslims prayed" and (4) a Caucasian employee told plaintiff that she was not allowed to discuss Muslim religious practices because it was disturbing to others. Finally, plaintiff maintains that she was not warned nor were there complaints of any attendance violations after the September 2001 meeting. She does, however, admit that she continued to violate defendant's policy and was warned that, if such continued, she would be terminated. Defendant maintains that it followed its policy by informing plaintiff that she was not meeting the requirements and expectations of her position and by working with her to improve her attendance. It is undisputed that plaintiff continued to abuse the attendance policy even after being warned on her yearly evaluations and at personal meetings, which abuse resulted in her termination.

Summary judgment may be granted if the evidence offered shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FRCvP 56(c). There is no genuine issue for trial unless the evidence offered favoring the non-moving party would be sufficient to sustain a jury's verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, when reasonable minds could not differ as to the outcome of an issue, summary judgment is appropriate on that issue. Id. at 251-252. The moving party initially bears the burden of showing that no genuine issue of material fact is present but the opposing party must then "set forth specific facts showing that there is a genuine issue for trial." Id. at 250. If the non-moving party fails to establish, after a reasonable opportunity for discovery, the existence of an element essential to that party's claim and on which ...


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