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Amy G. Dejohn v. Wal-Mart Stores East

August 16, 2012

AMY G. DEJOHN, PLAINTIFF,
v.
WAL-MART STORES EAST, LP; WAL-MART STORES EAST, INC.; WAL-MART STORES, INC.; AND DONALD DEFEO, DEFENDANTS.



The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge

MEMORANDUM-DECISION and ORDER

I. Introduction

Presently before the court in this employment discrimination action is a motion for summary judgment by defendants ("Defendants"), Wal-Mart Stores East, LP; Wal-Mart Stores East, Inc.; Wal-Mart Stores, Inc. (collectively, "Walmart"); and Donald DeFeo ("DeFeo"), seeking dismissal of the entire action against them by plaintiff, Amy G. DeJohn ("Plaintiff"). Plaintiff opposes and Defendants reply. Decision on the pending motion is rendered based solely on the parties' written submissions, without oral argument.

II. Procedural Background

Plaintiff commenced this action on November 24, 2009, after receiving a right-to-sue letter from the United States Equal Employment Opportunity Commission ("EEOC") on October 28, 2009.*fn1 See Dkt. Nos. 1, 5. By her Amended Complaint, filed December 11, 2009, Plaintiff alleges claims against Walmart of gender discrimination, hostile work environment, disparate treatment and retaliation under both Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., ("Title VII") and the New York Human Rights Law, N.Y. Executive Law § 290, et seq. ("NYHRL"), as well as a claim for violation of her rights under the Equal Pay Act, 29 U.S.C. § 206(d) ("EPA"). In addition, Plaintiff alleges a claim against DeFeo for aiding and abetting discrimination under the NYHRL.

Following completion of discovery, Defendants filed the pending motion for summary judgment.

III. Factual Background

In accordance with the Local Rules of this court, the following facts, which are undisputed unless otherwise indicated, are gleaned from Defendants' Statement of Material Facts and Plaintiff's response thereto. In addition, in Plaintiff's memorandum of law in opposition to Defendants' motion for summary judgment, she sets forth a lengthy recitation of the facts, which includes facts not addressed in Defendants' Statement of Material Facts or her response thereto.*fn2

For the sake of completeness, these facts, where relevant and admissible, have also been considered.*fn3

Plaintiff was hired by Walmart as a management trainee in 1993. Later that year, she was promoted to assistant manager. Plaintiff became co-manager of the Rome, New York store in 1998. Almost two years later, Plaintiff was promoted to store manager of the Oneida, New York store. At all relevant times, defendant DeFeo was a market manager, and Plaintiff's direct supervisor. There is a dispute in the record as to whether Plaintiff was promoted by, or at the recommendation of, DeFeo, or whether Plaintiff was promoted by regional vice president Todd Harbaugh, without recommendation by DeFeo.*fn4 It is undisputed, however, that DeFeo terminated Plaintiff on October 2, 2008.

On November 7, 2008, Plaintiff filed a complaint against Walmart with the DHR charging unlawful discriminatory practices under the NYHRL. After an investigation, the DHR found probable cause that Walmart engaged in unlawful discriminatory practices. On September 1, 2009, at the request of Plaintiff, the DHR dismissed her complaint for administrative convenience so that she could seek remedies in federal court. After receiving a right-to-sue letter from the EEOC, Plaintiff commenced this action.

A. Plaintiff's Complaints Regarding Compensation

During the time of Plaintiff's employment, she was compensated with a salary and a bonus based on her store performance. In January 2006, the end of fiscal year 2006, Walmart changed its bonus compensation structure for all store managers. According to Defendants, the structure was changed from one based solely on profit to one based on yearly profit and store revenues. Plaintiff complained about the new plan, but Walmart, through its regional vice president, Paul Busby, decided the plan would stand. According to Plaintiff, while she was on maternity leave in 2005, her store received the most difficult sales and profit plan for fiscal year 2006, and her bonus was based on that plan. She began complaining to Busby about the plan change in April 2005, stating that she felt she was being discriminated against, but nothing was done to change the bonus plan policy. See DeJohn Aff., ¶ 12. At his deposition, DeFeo admitted that Plaintiff had been complaining that she was short on a bonus. See DeFeo Dep., 56-57, at Ex. C to Aff. of Stephen Ciotoli ("Ciotoli Aff."), Jan. 13, 2012, Dkt. No. 40-3. It is undisputed that in 2008, Plaintiff again complained about being short on a bonus. Thereafter, an investigation took place, resulting in Plaintiff being paid approximately $12,000 that she was due in bonus compensation. While DeFeo claims the shortage was from fiscal year ending 2006, the supporting documentation submitted by Defendants reflects that the shortage was actually for fiscal year ending 2007, not 2006. See Ex. B to DeFeo Decl. The 2007 fiscal year ended January 31, 2007. See id. DeFeo testified that the shortage was a mistake on the part of Walmart's finance department. See DeFeo Dep., 56-57. DeFeo further testified that Plaintiff was the only store manager in his market who was short on her bonus, and that none of the male managers experienced a shortfall.

See DeFeo Dep., 58:4-9.

B. Plaintiff's February 2008 Coaching

Walmart employees are disciplined according to its "Coaching for Improvement Policy." There are generally four steps of coaching, including a verbal coaching, a written coaching, a "Decision-Making Day" coaching, which is a final opportunity for an employee to evaluate and change his or her behavior or job performance before termination, and finally, termination. Coaching levels may be skipped and more serious levels of coaching may be used depending on the conduct at issue.

In February 2008, Plaintiff received a verbal coaching for poor business judgment as a result of her improper use of Cash Fund Transfers ("CFTs"), which are Walmart funds budgeted for store initiatives such as associate picnics, charity donations, and local invoices. All CFTs were to be made to authorized Walmart vendors, and all transactions over $100 required approval of a market manager. During a routine audit, market asset protection auditor, Vincent Santilli, observed a number of CFTs that were either unexplained or were for the exact amount of $100. Suspecting that expenses were divided to $100 or less so that they would not be reviewed by the market office, Santilli further reviewed the records with DeFeo and discovered that several of Plaintiff's CFTs were for expenses that were not authorized by DeFeo. Consequently, Plaintiff was given a verbal coaching for failure to seek market office approval for CFTs and for using unauthorized vendors. Further, Plaintiff was told that going forward, she should not break down CFTs of greater than $100 into amounts of $100 or less, not use unauthorized vendors, and ensure that her management team was aware of those directives.

According to Plaintiff, prior to February 2008, DeFeo instructed her to break down CFTs into increments of $100 or less so that it would not show up on a report for his supervisor to see. See DeJohn Aff., at ¶ 38. By way of example, Plaintiff alleges that when she needed to purchase approximately 600 picture frames for employee awards, DeFeo told her to split up that expense into increments of $100 or less. See id., ¶ 39. According to the listing of CFTs from the Oneida store, Plaintiff purchased those frames on February 1, 2008. See Ex. A to Decl. of Vincent Santilli ("Santilli Decl."), Dkt. No. 37-6. Plaintiff alleges that DeFeo again instructed her to account for CFTs in this away at a meeting in March 2008, after she received the coaching, thereby giving her a mixed message regarding how she should account for CFTs in excess of $100 going forward. See DeJohn Aff. at ¶ 39. DeFeo testified that there was one occasion when he gave Plaintiff permission to break down a large purchase into CFTs of $100 or less, and that was for the purchase of picture frames. See DeFeo Dep., 296:14-18. DeFeo testified that this occurred around the time of Plaintiff's coaching, and that prior to the coaching she was told not to account for purchases in this way. See id., 169:2-16. In September 2008, Plaintiff gave a signed, written statement to market asset protection manager David Oakes during his investigation of questionable CFTs found in August 2008. See Ex. N to Decl. of Elizabeth Hatch, Dkt. No. 37-4. In this eight-page statement, Plaintiff never mentioned that DeFeo told her to break up CFTs into increments of $100 or less after her February 2008 coaching. See id.

C. Plaintiff's Complaint Regarding Scheduling

In 2008, Walmart implemented a new scheduling system for store managers nationwide, which required all managers to work a rotating work schedule instead of a fixed one. According to Plaintiff, during a meeting in June 2008, DeFeo handed out the new schedule to Plaintiff and the other managers in attendance, but singled Plaintiff out, telling her alone not to ask for any special requests. See DeJohn Aff., ¶ 23. Plaintiff complained to the regional vice president's human resources director, Baldomero Silva, that the new schedule was unfair to her and all female store managers, especially those with children, but Silva told her to just get used to it. See id. Plaintiff next complained to Walmart's executive vice president, Bill Simon. Eventually, however, DeFeo changed the managers' schedule in his market back to a fixed schedule. See id. ¶¶ 23-24. DeFeo decided to go back to the fixed schedule on his own, without a directive from his superiors, after all of the managers except one said that they wanted the fixed schedule. See DeFeo Dep., 158. Plaintiff admits that the schedule change was a nationwide action that impacted both men and women. See DeJohn Dep., at 207-208.

D. Plaintiff's Termination

Plaintiff was terminated on October 2, 2008. According to Defendants, Plaintiff was terminated for (1) failing to report a sexual harassment complaint, (2) the unauthorized sale of Walmart property, (3) use of an unauthorized vendor, (4) failing to properly use and account for vending machine income, and (5) failing to properly account for CFTs.

1. Failure to Report a Sexual Harassment Complaint

On June 10, 2008, a Walmart associate in the Oneida store told another associate, Patty Keller, that an assistant manager at the store was making her feel uncomfortable, including that he gave the associate his cell phone number and private email address, told her he was married but getting a divorce, and told her he wanted to hang out with her. Later that week, Ms. Keller saw Plaintiff at a charity event. At that time, Ms. Keller told Plaintiff that an associate complained that the assistant manager was sexually harassing her. Plaintiff told Ms. Keller that Plaintiff was off the clock and that Ms. Keller should have the associate come to see Plaintiff when they are back at the store. After the charity event, neither the associate, nor Ms. Keller, ever came to see Plaintiff about the alleged harassment. During the following week, when Plaintiff was at the store, and the week thereafter, when she was out on vacation, Plaintiff did nothing about the report of alleged sexual harassment. After Plaintiff went on vacation, her co-manager, Chris Lahue, received a report of the alleged sexual harassment, and immediately opened an investigation.

In July 2008, Lahue contacted market human resources manager, Elizabeth Hatch, and informed her of the investigation against the assistant manager. Once Hatch understood that Plaintiff had failed to commence the investigation, Hatch took over the investigation against the assistant manager and began to investigate the report that Plaintiff failed to take any action in response to the report of alleged sexual harassment. Hatch concluded that the assistant manager engaged in sexually inappropriate conduct and that Plaintiff improperly failed to respond to a report of sexual harassment against the assistant manager.

Walmart's Discrimination and Harassment Prevention Policy, last updated October 16, 2007, provides, among other things, that if a member of management receives a report, or otherwise becomes aware of any violations of the Policy, he or she must immediately report such conduct to the appropriate level of management for investigation. See Ex. D to DeFeo Decl. The Policy also advises that "[a] Salaried Member of Management who fails to report a violation of this Policy may be subject to discipline, up to and including termination." Id.

Plaintiff contends that she was not trained in the "new reporting requirements" under the anti-discrimination policy until July 2008, which required follow-up on a claim of discrimination no matter where it is first learned of or from whom. DeJohn Aff., ¶ 27. Walmart store manager Scott Louer testified that while this training was the most in-depth training he had received about the anti-discrimination policy, it was not training on a new policy. See Dep. of Scott Louer, 12-13, 22, at Ex. F to Ciotoli Aff. Plaintiff also contends that it is Walmart's policy that if a manager is approached "off the clock," the proper procedure is to have the associate contact the manager at work. See id. ¶¶ 26-27. DeFeo also testified that this is a proper procedure. See DeFeo Dep., 103:3-22. Moreover, a Power Point presentation at the July 2008 training, included the directive to ensure the associate is "on the clock" when meeting to discuss a report of discrimination. See Ex. M to Ciotoli Aff. However, this same Power Point includes the directive to respond promptly when put on notice of allegations of misconduct. See id.

2. Unauthorized Sale of Walmart Property

During Hatch's investigation into the handling of the June 2008 sexual harassment allegation, she discovered that Plaintiff sold a used industrial stand mixer from the Oneida store to an assistant manager for $200. Because Plaintiff did not have authorization to sell this Walmart asset, Hatch assigned market asset protection manager David Oakes to conduct a separate investigation. Oakes interviewed Robert Bird, the assistant manager that purchased the mixer. Mr. Bird stated that he was aware of a mixer in the bakery department that wasn't being used and had some missing parts. He asked Plaintiff if he could purchase the mixer, and offered to pay $200, since it was missing parts and he was unsure if it worked. Later, Mr. Bird stated, he checked online and saw that the mixer "could be worth about $4000." Ex. I to Hatch Decl. Oakes requested a depreciated value from the corporation that manufactured the mixer, stating that it was in "excellent condition" at the time of sale. Ex. K to Hatch Decl. According to the corporation, "street value" for the mixer, in "top shape," would have been $9500 - $10,000. Id.

Plaintiff stated that she accepted the $200 for the mixer and added it to a charitable donation account. Plaintiff admitted that she had no idea how much the mixer was worth, but that in the past she had been given direction to sell old equipment. By way of example, Plaintiff stated that she previously sold equipment from the meat department, with permission from the district manager. See Ex. J to Hatch Decl. Plaintiff testified that she sold the mixer to Mr. Bird for $200 without permission from DeFeo and without knowing the value of the mixer. See DeJohn Dep., 167:5-168:13. See also DeJohn Aff. ¶ 31. However, Plaintiff alleges that DeFeo told managers to sell unused equipment "for whatever we could get for it." Id. ¶ 32. Plaintiff alleges that another store manager sold a television to a contractor for his personal use at a significantly reduced price, and although this manager was demoted, he was not fired. See id. at ¶ 33.

Another Walmart store manager, Scott Louer, testified that he has seen old equipment being thrown away in the past, but that he is unsure whether it was approved by a market-level manager. See Louer Dep., 26:4-9. Louer further testified that it was always his understanding that the approval and authorization of a market-level manager was required in order to sell old equipment. See id., at 27:22-28:1. According to Louer, he understood that managers were required to get what they could for old equipment via a bidding process, albeit an informal one, whereby word of mouth with associates and customers was used. See id., 28:2-15.

Finally, it is important to note that while Plaintiff does not dispute that she sold the mixer for $200 and that she was investigated regarding the sale, she does dispute that this was a basis for her termination. In support of this dispute, Plaintiff cites her exit interview paperwork, which states that she was terminated for gross misconduct "[a]s a result of Redbook Investigations, PD-19*fn5 violations, poor business judgment, and repetitive ...


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