Deghand v. Wal-Mart Stores, Inc.

• Decision Date: 11 April 1996
• Docket Number: No. 94-4172-SAC.,94-4172-SAC.
• Parties: Peggy DEGHAND, Plaintiff, v. WAL-MART STORES, INC., Defendant.
• Court: U.S. District Court — District of Kansas

926 F. Supp. 1002

Peggy DEGHAND, Plaintiff, v. WAL-MART STORES, INC., Defendant.

No. 94-4172-SAC.

United States District Court, D. Kansas.

April 11, 1996.

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Amy C. Bixler, Alan G. Warner, Topeka, KS, for plaintiff.

Mark D. Katz, Sherman, Taff & Bangert, P.C., Leawood, KS, Steven D. Steinhilber, Sherman, Taff & Bangert, P.C., Kansas City, MO, for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the defendant's motion for summary judgment (Dk. 43), the defendant's motion to strike (Dk. 49) the affidavits of the plaintiff and her husband, the defendant's motion for summary judgment on the defamation claim (Dk. 69), and the defendant's motion to strike or disallow the plaintiff's proposed additions to the pretrial order (Dk. 71). This is an employment discrimination case in which the plaintiff alleges seven claims: three of which are alleged as violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq. and the other four are alleged as state common-law actions. The defendant seeks summary judgment on all seven claims, and the plaintiff opposes the same.

SUMMARY JUDGMENT STANDARDS

A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).

The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the nonmovant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to" the nonmovant's claim or position. Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The nonmovant's burden is more than a simple showing of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356; it requires "`presenting sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995) (quoting Bacchus Industries, Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Id. A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45 F.3d 357, 363 (10th Cir.1995).

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas Drilling Partnership v. Federal Deposit Ins. Corp., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).

For purposes of this motion, the court considers the following facts to be uncontroverted.

The defendant Wal-Mart Stores, Inc. hired the plaintiff, Peggy Deghand, in October of 1991 to work as a cashier supervisor at Sam's Club in Topeka, Kansas ("Sam's Club"). At the time of hiring, Peggy received and signed for an employee handbook and other written information concerning her employment.

Later in 1991, Sam's Club also hired the plaintiff's husband, Anthony Deghand. He worked as a team leader¹ in the grocery department. In October of 1992, Anthony suffered a hernia that required surgical care and six weeks of medical leave from work. Anthony filed a workers' compensation claim for the hernia.

When he returned to work in December of 1992, Anthony Deghand avers that he asked for a transfer to the membership department, because this would be less physically demanding than his current position in the grocery department and because it was considered a management track position. Anthony did not receive his requested transfer; instead, he was transferred to team leader of the receiving department. According to Anthony, this new position was more physically demanding than the membership department work. John Festa, assistant manager, supervised Anthony in the receiving department after June 4, 1993.

In late June of 1993, Anthony Deghand spoke privately with John Festa and became quite emotional. Anthony worked July 2, 1993, and then took two weeks of leave. He returned on July 19, 1993, worked six hours and then was sent home. He has never returned to work at Sam's Club. Anthony says he suffered a mental breakdown in the summer of 1993 that caused him to take medical leave from Sam's Club. In July of 1993, Anthony was diagnosed as suffering from depression. The parties have stipulated that the defendant knew that from and after July 18, 1993, Anthony was a disabled person within the meaning of the ADA.

In July of 1993, Anthony Deghand filed a worker's compensation claim asserting that the depression was a compensable injury. Wal-Mart opposed Anthony's worker's compensation claim. The administrative law judge in the worker's compensation proceedings denied Anthony's application for preliminary benefits in an order dated June 9, 1994.

On September 28, 1993, Lori Falkenstein, an employee at Sam's Club assigned to the jewelry counter, telephoned an assistant manager of the Sam's Club store, Dawn Miller, at home and described some incidents involving Peggy Deghand. The next day, September 29, 1993, Lori Falkenstein was asked by Dawn Miller and the general manager of the Sam's Club store, Don Bradley, to put in writing what she had told Miller the previous evening. Falkenstein wrote the letter while sitting in the management office. Falkenstein's letter complained in part that Peggy Deghand had revealed to Falkenstein confidential payroll information and other confidential information. By affidavit, the plaintiff denies the allegation that she revealed to Falkenstein the salary increases of any Sam's Club employee.

Don Bradley testified that before receiving Falkenstein's letter he had heard that his unit managers suspected the plaintiff of some activities. Bradley said that Falkenstein's letter "basically put it the suspicion into perspective." (Bradley Dep. at 66). Dawn Miller also testified that others had come to her with complaints about the plaintiff. Miller also testified that she believed what was found in Falkenstein's letter because it was consistent with what others had said and with what she had observed.

On October 6, 1993, Don Bradley evaluated Peggy's work and gave her at least a satisfactory rating in all categories evaluated for the period. He further recommended that she receive a pay increase.

On October 7, 1993, Harley Lowe, acting at the direction of Don Bradley, removed the plaintiff from her supervisory position over the cashiers. Bradley testified he took this employment action because Peggy Deghand had divulged confidential information. The plaintiff avers that on October 7, 1993, Lowe first told her that "it's a dirty job but somebody's got to do it," and then he explained that he had been given orders to remove her from the cashier supervisory position. She further avers that Lowe said the removal was due to circumstances and that Lowe then talked about the plaintiff's husband and her stressful home life. She also avers that Lowe gave her no other explanations for the removal.

According to Bradley, when Lowe removed the plaintiff, he also offered her a position in marketing at the same rate of pay and with similar hours but without access to confidential information. The plaintiff stated that Lowe referred to two possible part-time positions but never mentioned that her pay and hours would remain the same. The plaintiff also avers that based on her experience and knowledge the positions offered were seasonal, required persons to work hours different from her previous schedule, and were compensated at a lower rate than what she had been receiving.

Beginning October 7, 1993, Peggy Deghand took a vacation that was scheduled to end on October 18, 1993. During her vacation, a physician diagnosed the plaintiff as suffering from hypertension or high blood pressure. The defendant did not know that the plaintiff had high blood pressure when it removed her from the supervisory position. Her physician placed the plaintiff on medical leave because of the hypertension. The plaintiff took the medical leave slips to the Sam's Club and told ...