Bain v. Wal-Mart Stores, Inc.

• Decision Date: 12 November 2008
• Docket Number: No. 06-CV-6399L.,06-CV-6399L.
• Citation: 585 F.Supp.2d 449
• Parties: Monica BAIN, Plaintiff, v. WAL-MART STORES, INC., Defendant.
• Court: U.S. District Court — Western District of New York

Page 449

585 F.Supp.2d 449

Monica BAIN, Plaintiff, v. WAL-MART STORES, INC., Defendant.

No. 06-CV-6399L.

United States District Court, W.D. New York.

November 12, 2008.

COPYRIGHT MATERIAL OMITTED

Christina A. Agola, Rochester, NY, for Plaintiff.

Ginger D. Schroder, Esq., Linda H. Joseph, Schroder, Joseph & Associates, LLP, Buffalo, NY, for Defendant.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Plaintiff Monica Bain ("Bain") brings this action alleging discriminatory retaliation against her former employer, Wal-Mart Stores Incorporated ("Wal-Mart"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYHRL"). Wal-Mart now moves for summary judgment. For the reasons that follow, Wal-Mart's motion is granted and the complaint is dismissed.

Bain was hired by Wal-Mart on June 23, 2004 as a cashier. She worked under the supervision of several customer service managers, including Greg Soucie ("Soucie"). The customer service managers, in turn, were supervised by front-end manager Ed Narrod ("Narrod").

On September 2, 2004, as she began preparations to close the store for the night, Bain claims that Soucie spoke to her in a "rude and nasty" tone, instructing her to "shut up" and "count-down [her] till." Bain, who was aware of Wal-Mart's "open door" policy with respect to complaints of harassment or discrimination, claims that within the next day, she complained about Soucie's reprimand to two people; Keisha Mitchum, a customer service manager, and a blonde, Caucasian Wal-Mart employee in his late twenties whose name and job title she does not remember.

On September 7, 2004, seventy-six days after she was hired and five days after her complaint about Soucie's comment to her, customer service manager Dan Stream ("Stream") reported to Narrod that Bain had referred to Soucie as a "fucking faggot asshole" in Stream's presence. Narrod immediately terminated Bain's employment on the grounds of "gross misconduct," specifically, the use of obscene and disrespectful language toward a supervisor, as well as previous register shortages and attendance issues. Bain denies having referred to Soucie in the terms described by Stream.

On or about February 7, 2005, Bain filed a discrimination complaint with the Equal Employment Opportunity Commission. Upon receipt of a Right-to-Sue Notice, Bain timely filed the instant action on August 9, 2006, alleging that her employment was terminated unlawfully, in retaliation for her complaint concerning Soucie on September 2, 2004.

DISCUSSION

I. Summary Judgment in Discrimination Cases

Summary judgment will be granted if the record demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although courts should be cautious about granting summary judgment in cases where motive, intent or state of mind are at issue, a common component of discrimination actions, see Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988); Montana v. First Federal Savings and Loan Ass'n of Rochester, 869 F.2d 100, 103 (2d Cir.1989), "the salutary purposes of summary judgment—avoiding protracted, expensive and harassing trials—apply no less to discrimination cases than to ... other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) (summary judgment rule would be rendered sterile if mere incantation of intent or state of mind would act as a talisman to defeat an otherwise valid motion). See also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (trial courts should not "treat discrimination differently from other ultimate questions of fact").

In order to defeat a summary judgment motion properly supported by evidence in admissible form, the non-movant must offer comparable materials demonstrating the existence of a genuine issue of material fact. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir.1990), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993), and cannot rely on the allegations in his or her pleadings, conclusory statements, or "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.1996) (internal citations omitted). Affidavits submitted in opposition to summary judgment must be based on personal knowledge from a competent source, and "set forth such facts as would be admissible in evidence." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004). "Rule 56(e)'s requirement the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavit also means that an affidavit's hearsay assertions that would not be admissible at trial if testified to by the affiant is insufficient to create a genuine issue for trial." Patterson, 375 F.3d at 219, citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir.1999).

Title VII "forbids an employer to retaliate against an employee for, inter alia, complaining of employment discrimination prohibited by Title VII." Kessler v. Westchester County Dep't of Soc. Servs., 461 F.3d 199, 205 (2d Cir.2006). Claims of retaliation pursuant to Title VII and the NYHRL are subject to the burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). On a motion for summary judgment, a plaintiff must first establish a prima facie case of retaliation by showing: (1) her participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action. Once she has done so, the burden shifts to the defendant to establish a legitimate, non-retaliatory basis for the complained-of action. If the defendant does so, the burden returns to plaintiff, who must show that the legitimate, non-retaliatory reason articulated by the defendant is a mere "pretext," and that retaliation was more likely than not the reason for the complained-of action. See Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir.2000); Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir.1998).

While granting Bain the liberal interpretation and favorable inferences due to her as a nonmovant, I find that she has failed to establish a prima facie case of discrimination and cannot rebut Wal-Mart's legitimate, nondiscriminatory reason for terminating her employment.

II. Bain's Retaliation Claims

Bain alleges that her complaint to Wal-Mart concerning Soucie's having told her to "shut up" and "count-down [her] till" constituted a complaint about a hostile work environment within the meaning of Title VII, and that her termination five days later occurred in retaliation for that complaint. Upon review of the record, I find that there is no evidence that Wal-Mart acted with a retaliatory motive.

As an initial matter, Bain's complaint did not constitute "protected activity." Protected activity has been defined as that which opposes unlawful employment practices under Title VII. See 42 U.S.C. § 2000e-3(a). "[I]n order for an employee's complaints to be a `protected activity' they must relate to an alleged violation of Title VII, i.e., the complaints must relate to race or gender. Otherwise, any employee who is disgruntled or dissatisfied with any aspect of his or her employment would ultimately find relief in Title VII even when race or gender was not an issue." Taylor v. Family Residences & Essential Enters., 2008 WL 268801 at *13, 2008 U.S. Dist. LEXIS 6915 at *29-*31 (E.D.N.Y.2008), quoting Gourdine v. Cabrini Med. Ctr., 307 F.Supp.2d 587, 598 (S.D.N.Y.2004), aff'd in part and vac'd in part and remanded on other grounds, 128 Fed.Appx. 780 (2d Cir.2005). See also Cruz v. Coach Stores Inc., 202 F.3d 560, 566" (2d Cir.2000) (protected activity for Title VII retaliation claims "refers to an action taken to protest or oppose statutorily prohibited discrimination"); McGullam v. Cedar Graphics, Inc., 2008 WL 3887604 at *9, 2008 U.S. Dist. LEXIS 65391 at *26 (E.D.N.Y.2008) (plaintiffs generalized complaints of unfair treatment are not protected activity for purposes of Title VII); Roff v. Low Surgical & Med. Supply, Inc., 2004 WL 5544995 at *6, 2004 U.S. Dist. LEXIS 30845 at *16 (E.D.N.Y.2004) (retaliation claim must be dismissed where plaintiff fails to allege that her complaints related to prohibited discrimination).

Bain testified that she complained about the "tone" of Soucie's comment, relating that he was "red in the face" and "puffed up his chest" when directing her to "shut up" and count her till, and that the incident made her uncomfortable. Bain also testified that although she could not remember the specifics of her complaint, she believed she had also described some prior, joking comments by Soucie of a "vulgar" nature, which related to his sexual preferences, sex life, and the attractiveness of certain customers. At the same time, Bain admitted that prior to Soucie's "shut up and count your till" comment, she considered "everything" between herself and Soucie to be "okay," and stated that she was not uncomfortable with any of Soucie's comments until the incident on September 2, 2004.¹ Construing these facts in Bain's favor, she has failed to establish that her complaint described conduct approaching the level of a hostile work environment for Title VII purposes. See Harris v. Forklift Systems, Inc., 510 U.S. 17,...