Bevill v. Home Depot U.S.. Inc.

• Decision Date: 30 December 2009
• Docket Number: No. 4:08–cv–00287–JEG.,4:08–cv–00287–JEG.
• Citation: 753 F.Supp.2d 816
• Parties: Toby BEVILL, Plaintiff,v.HOME DEPOT U.S.A., INC., Defendant.
• Court: U.S. District Court — Southern District of Iowa

753 F.Supp.2d 816

Toby BEVILL, Plaintiff,

v.HOME DEPOT U.S.A., INC., Defendant.

No. 4:08–cv–00287–JEG.

United States District Court, S.D. Iowa, Central Division.

Dec. 30, 2009.

Scott M. Brennan, Davis Brown Koehn Shors & Roberts P.C., Des Moines, IA, Charles C. DeWitt, Jr., Littler Mendelson PLC, Detroit, MI, for Defendant.Mark D. Sherinian, Sherinian & Walker P.C., West Des Moines, IA, for Plaintiff.

ORDER

JAMES E. GRITZNER, District Judge.

This matter comes before the Court on a Motion for Summary Judgment brought by Defendant Home Depot U.S.A., Inc. (Home Depot), which Plaintiff Toby Bevill (Bevill) resists. The Court held a hearing on the motion on October 30, 2009. Bevill was represented by attorney Mark Sherinian. Home Depot was represented by attorney Charles DeWitt, Jr. The matter is now fully submitted and ready for disposition.

I. BACKGROUND

The facts of this case are either not in dispute or are viewed in the light most favorable to Bevill, the nonmoving party. See Eastling v. BP Prods. N. Am., Inc., 578 F.3d 831, 836 (8th Cir.2009). However, while this Court must view the facts in the light most favorable to Bevill, “it is not required to ‘accept unreasonable inferences or sheer speculation as fact.’ ” Reed v. City of St. Charles, Mo., 561 F.3d 788, 791 (8th Cir.2009) (quoting Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797, 800 (8th Cir.2004)).

Bevill was hired by Home Depot in 2002 and, as of the date of the hearing, continues to work for Home Depot as a department supervisor. Prior to beginning work for Home Depot, Bevill gained experience as a computer application engineer, an industrial sales representative, a regional sales manager, and as a retail sales associate.¹

A. Performance Reviews

Home Depot periodically assigns employees a performance rating as part of its review process. When Bevill received performance reviews from 2003 through 2007, Home Depot assigned Bevill an overall performance code (“O” outstanding, “V” achiever, “P” performer, or “I” improvement required), a leadership code (“1” exemplary, “2” effective, “3” acceptable, or “4” deficient), and a potential code (“*” high potential, “+” promotable, “=” grow in position, or “-” placement issue). In 2008, Home Depot simplified the performance code and included only an overall performance code (“O” top performer, “V” valued associate, or “I” unacceptable performance) and a potential code (“I” promotable or “2” well positioned).

In August 2003, Bevill received a performance rating of “I 4 -”. In December 2003, January 2004, July 2004, and February 2005, Bevill received a performance rating of “P3 =”. After February 2005, Rick Hawley (Hawley) became Bevill's supervisor, and in July 2005, January 2006, and July 2006, Hawley assigned Bevill a performance rating of “V 2 +”, which indicated that Hawley felt Bevill was promotable. Bevill's review sheets contained an area where, if an employee was promotable, a supervisor could suggest the employee's next potential position. In July 2005, however, Hawley did not list a potential position for Bevill; and in January 2006, Hawley listed Bevill's next potential positions as an assistant store manager (ASM) in zero-to-three months and as a human resources manager (HRM) potentially immediately. In July 2006, Hawley only listed ASM in zero-to-six months as Bevill's next potential position. Then, in April 2007, Hawley lowered Bevill's rating to “P 3 +” and no longer listed any new potential positions for Bevill. Hawley testified at his deposition that he “still thought [Bevill] had the potential [to be promoted], but it wasn't at this time.” Def. App. 112. Thereafter, Robert Gilbert (Gilbert) became Bevill's manager, and in March 2008, Gilbert rated Bevill as a “V 2” under the new rating system, meaning that Bevill was well positioned but not promotable.

B. Management Hiring Process

Home Depot uses a Retail Management Assessment (RMA) process in order to find qualified individuals to fill store management positions. An employee who wants to become an ASM or an HRM must first be rated “V 2 +” or better and have a supervisor endorse his or her candidacy. If the employee meets these criteria, then the employee is invited to take the RMA test for the position in which he has an interest, and if he scores at least 70 percent on the test, he is placed in the qualified pool of applicants. When an ASM or an HRM position becomes available in a store, the store manager contacts the district human resources manager, who in this case was Carol Wisecarver (Wisecarver). The district human resources manager in turn provides the store manager with a “slate” of eligible candidates from the pool of applicants. The store manager then selects three candidates to interview and thereafter selects one of the candidates to fulfill the position.

Bevill has sought to be promoted throughout his tenure at Home Depot. Bevill took and passed the HRM RMA test in October 2004 and the ASM RMA test in December 2005. After passing the RMA tests, Bevill interviewed for numerous promotions at Home Depot.² Among the managers who interviewed Bevill for these positions were Bob McLaughlin (McLaughlin), Patrick Ryan (Ryan), and Darrell Horn (Horn) (collectively, the interviewing managers). The interviewing managers used a structured interview form during the interviews to record both notes about the interview and the interviewee's answers to specific questions. Despite many opportunities and interviews, Bevill was never promoted.

The interviewing managers all noted that Bevill interviewed poorly and that the individuals ultimately selected for each position were far superior interviewees than Bevill. Horn testified, “[y]ou know, [Bevill] had trouble answering the questions that was [sic] asked. It really just wasn't a good interview.” Def. App. 129. McLaughlin concurred and stated, “[Bevill] has very poor interviewing skills.... His answers weren't very precise, and he just kind of talked in circles.” Def. App. 141. Finally, in regard to an April 2006 interview, Ryan noted that Bevill did not follow the “question structure. He was convoluted. He was telling me ... stuff about he [sic] used to work at GE, which had nothing to do with the HR position or the questions that were being answered.” Def. App. 162. Also, regarding an interview more than one year later, in May 2007, Ryan testified that Bevill's interviewing skills had not improved and that he “[d]id not respond well to the questions. Did not give specific examples. Rambling. Not tying his answer at all to the question.” Id. Further, in each case the interviewing manager stated that the individuals who were ultimately hired for these positions were better qualified than Bevill; the individuals hired for the HRM positions had years of human resources experience, and the individuals hired for the ASM positions had superior management and retail experience.

C. Discrimination Claims

Bevill alleged that he was not promoted by Home Depot in retaliation for his support of a friend, Luke Partridge (Partridge), who was formerly the HRM at the Ankeny, Iowa, Home Depot store. Partridge, who suffers from Parkinson's Disease, filed an initial complaint with the Iowa Civil Rights Commission (ICRC) in April 2005. After receiving right to sue letters from the ICRC and the Equal Employment Opportunity Commission (EEOC), Partridge filed an employment discrimination suit against Home Depot on June 13, 2006, alleging that Home Depot (1) failed to accommodate his disability and (2) retaliated against him and terminated him because of his disability and because he filed an EEOC charge. One incident in Partridge's claim that is key to Bevill's claim was a July 2005 meeting at which Partridge failed to bring refreshments and awards, which resulted in Partridge being disciplined. Bevill wrote a letter in connection with the “refreshment incident.” Bevill now asserts that he wrote the letter in support of Partridge and Partridge's fight against alleged discrimination. However, when deposed in the Partridge case, Bevill testified that he wrote the letter “to Luke thinking I had to protect me” because “there was an inference that maybe I was supposed to have brought food or beverage or something for a store meeting that wasn't going to last very long ... [and] I thought I was going to be called on the carpet.” Def. App. 54. Ryan said that he could not recall if Wisecarver had ever told him that Bevill was supporting Partridge in Partridge's discrimination action.

In connection with Partridge's lawsuit, Bevill signed an affidavit supporting Partridge on March 26, 2007, and had his deposition taken on May 18, 2007. Home Depot did not become aware of Bevill's affidavit until May 18, 2007, when Partridge's counsel (now counsel for Bevill) presented the affidavit to Home Depot. By May 18, 2007, the promotion decisions for ten of Bevill's opportunities had already been made, and therefore only three hiring decisions—the May 2007 Urbandale ASM position, the May 2007 West Des Moines HRM position, and the October 2007 Ankeny hourly HR position—could have occurred after Bevill's deposition in Partridge's lawsuit.

At his May 18, 2007, deposition, Bevill explained his belief that Home Depot retaliated against Bevill by not promoting him because of his support for Partridge. By support, Bevill clarified that he did not treat Partridge differently than anyone else, but he denied any recollection of (1) speaking out about anyone else treating Partridge differently because of his disability, (2) discussing Partridge's EEOC charge with anyone, or (3) hearing a promotion decisionmaker say something derogatory with regard to his support of Partridge. Bevill admitted that the only evidence he had for his allegation that he was not promoted in retaliation for supporting Partridge was the fact that he was not promoted.

Key to Bevill's claim is whether, and to what degree, Bevill had a conflict with...