Doering v. Wal-Mart Stores, Inc.

• Decision Date: 11 July 2014
• Docket Number: Civil No. 12-2629 (JRT/LIB)
• Parties: WENDY DOERING, Plaintiff, v. WAL-MART STORES, INC., Defendant.
• Court: U.S. District Court — District of Minnesota

WENDY DOERING, Plaintiff, v. WAL-MART STORES, INC., Defendant.

Civil No. 12-2629 (JRT/LIB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Dated: July 11, 2014

MEMORANDUM OPINION AND

ORDER GRANTING IN PART AND

DENYING PART DEFENDANT'S

MOTION FOR SUMMARY

JUDGMENT

Christopher J. Kuhlman, KUHLMAN LAW, PLLC, 333 Washington Avenue North, Suite 300, Minneapolis, MN 55401, for plaintiff.

Rhiannon C. Beckendorf, LITTLER MENDELSON, PC, 80 South Eighth Street, Suite 1300, Minneapolis, MN 55402, for defendant.

Plaintiff Wendy Doering brings this action against her former employer Wal-Mart Stores, Inc. ("Walmart") based on events that occurred during her employment as a grocery reclamation associate as well as her termination from that position. Doering brings claims for retaliatory discharge for seeking workers' compensation benefits and failure to offer continued employment after a workplace injury in violation of Minn. Stat. § 176.82, retaliation under the Family Medical Leave Act ("FMLA"), and retaliation for reporting sexual harassment under the Minnesota Human Rights Act ("MHRA").

Walmart moves for summary judgment on each of Doering's claims. Because material issues of fact remain regarding whether Doering was terminated for seeking workers' compensation and FMLA benefits, the Court will deny Walmart's motion with respect to those claims. The Court will grant Walmart's motion with respect to Doering'sclaim for failure to offer continued employment as Doering has failed to present evidence upon which a reasonable jury could conclude that she was physically unable to perform her job functions as a grocery reclamation associate after her workplace injury and that Walmart failed to offer her an alternative position. Finally, the Court will grant Walmart's motion with respect to Doering's claim for retaliation under the MHRA because Doering has failed to demonstrate a causal connection between her report of sexual harassment and any adverse employment action.

BACKGROUND

I. BEGINNING OF DOERING'S EMPLOYMENT

Doering began her employment at Walmart's Hibbing, Minnesota location on September 10, 2002. (Aff. of Christopher Kuhlman, Ex. 1 (Dep. of Wendy Doering ("Doering Dep.") 45:5-7), Jan. 16, 2014, Docket No. 55.)¹ Doering first worked as an overnight stocker. (Doering Dep. 48:15-20.) Doering later held positions as a sales associate, cashier, department manager, maintenance worker, and direct store delivery associate. (Id. 48:22-49:21; Kuhlman Aff., Ex. 2 at 00253-00278.)² In her annual performance reviews Doering typically received marks indicating that she was meeting orexceeding Walmart's expectations. (See, e.g., Kuhlman Aff., Ex. 2 at 00253-00254, 00256-00257, 00259-00260, 00262-00263.)

II. GROCERY RECLAMATION ASSOCIATE POSITION

In November 2008, Doering accepted a position as a grocery reclamation associate. (Doering Dep. 86:24-87:6.) A grocery reclamation associate is responsible for removing damaged goods from the store - such as dented cans - and submitting claims with respect to those products. (Kuhlman Aff., Ex. 3; Doering Dep. 115:11-116:18.)

A. Manny Incident

One of Doering's claims in the present lawsuit arises out of an incident of alleged sexual harassment at work. On November 15, 2011, Doering was scanning products in the grocery receiving area, when Emmanuel Akomaning ("Manny"), a shift manager, carried some boxes into the area. (Doering Dep. 130:22-131:7.) Doering asked Manny if she could help him put the boxes into the compactor or the garbage. (Id. 131:6-10.) Manny replied "I can think of something else better you can grab," then giggled and smirked. (Id. 131:10-11, 139:15-17; First Aff. of Stephanie Sarantopoulos, Ex. A at 103-04, Dec. 16, 2013, Docket No. 50.) Doering testified that she interpreted this comment to be sexual in nature. (Doering Dep. 131:10-17, 139:9-17.) Doering testified that immediately following the comment she felt violated, scared, and speechless. (Id. 131:21-23.) Doering began crying and felt sick to her stomach. (Id. 131:23-24.) Doering then ran outside. (Id. 132:1-11.)

After staying outside for several minutes, Doering went back inside and reported the incident to the store manager. (Id. 132:9-18.) The store manager initiated an investigation and Zach Butler, another manager, interviewed Doering the following day. (Id. 134:15-135:10; First Sarantopoulos Aff., Ex. A at 89-92, 106-09.) Butler and the store manager also interviewed two other employees - one who was in the grocery receiving area at the time of the incident and one who had spoken to Doering about the incident. (First Sarantopoulos Aff., Ex. A at 93-102.) Finally, as part of the investigation Butler and the store manager interviewed Manny. (Id., Ex. A at 110-18.) Manny denied that he had made the alleged statement. (Id.) During the two-day investigation, Manny was not allowed to return to work. (Kuhlman Aff., Ex. 6 (Dep. of Emmanuel Akomaning ("Akomaning Dep.") 59:2-7).)

The store manager concluded the investigation by determining that Doering's claims were unsubstantiated. (First Sarantopoulos Aff., Ex. A at 88.) Manny was informed that he could return to work and the store manager reminded him that he must maintain a professional working relationship with his coworkers. (Akomaning Dep. 59:11-20.)

Doering was never informed of the outcome of the investigation, but was told that whether discipline was issued was confidential and that the matter "had been taken care of." (Doering Dep. 135:11-13, 135:22-136:7.) Doering testified that after the incident no member of management ever made any negative comments or acted in a negative way toward her in reference to the harassment investigation. (Id. 147:5-14.)

B. Disciplinary Action

As part of her responsibilities as a grocery reclamation associate, Doering was tasked with donating to a program called Feed America certain goods that could not be returned to vendors. (Kuhlman Aff., Ex. 4 (Dep. of Louis Clark ("Clark Dep.") 20:24-21:4); Doering Dep. 116:19-117:14.) When a damaged product was submitted to Doering it was her job to determine whether the product should be sent back to the distributor for a refund, discarded, or donated to the Feed America program, and then process the product accordingly. (Clark Dep. 20:24-21:4.)

On November 30, 2011, the representative in charge of picking up the Feed America donations called Doering to indicate that he was going to be late to pick up the donations that day, arriving around 1:00 p.m. (Doering Dep. 163:25-164:2, 168:12-20; Kuhlman Aff., Ex. 8 at 4.) Doering was not finished scanning the items for the Feed America donation when she took an early lunch, sometime after 11:00 a.m. (Doering Dep. 164:2-10, 169:3-10.) Doering intended to return to work and complete the scanning prior to the donation pickup. (Id. 168:10-169:10.) Doering testified that she told a coworker that the donation box was not ready to be taken as all the items had not been scanned. (Id. 164:6-10.) When Doering returned from her lunch break she discovered that the donations, including the unscanned items, had already been picked up by the Feed America representative. (Id. 164:11-12; Kuhlman Aff., Ex. 8 at 2.) An assistant manager had allegedly approved the pickup in Doering's absence. (Doering Dep. 166:14-167:2; Kuhlman Aff., Ex. 8 at 2.) Doering immediately told her manager thatunscanned items had been picked up by the Feed America representative. (Doering Dep. 165:15-19, 166:7-12; Kuhlman Aff., Ex. 8 at 2.)

Following the Feed America incident, on December 2, 2011, Louis Clark, a manager, called a meeting with Doering to discuss the incident, as a well as an October 26, 2011 incident where a scanning error of Doering's resulted in a $735.00 loss to Walmart. (Kuhlman Aff., Ex. 10.)³ On December 2 Doering was issued a "Decision Day" level of discipline. (Id.) After receiving the discipline, Doering was sent home to write a letter explaining why she should be allowed to keep her job. (See Kuhlman Aff., Exs. 8, 10.) Doering testified that she believed this discipline was retaliation for her report of sexual harassment because it did not identify any new performance issues but merely "repeat[ed] comments [from] prior coachings." (Doering Dep. 147:19-148:12.)⁴

Walmart follows a "Coaching for Improvement" policy of discipline. The policy's stated goal is "to provide instruction and assistance" to employees if their "job performance fails to meet the reasonable expectations and standards for all associates in the same or similar position" or if their "conduct violates a company policy or interferes or creates a risk of interfering with the safe, orderly and efficient operation of [Walmart's] business." (First Sarantopoulos Aff., Ex. A at 75.)⁵ The policy produced byWalmart indicates three levels of "coaching" or discipline prior to termination: first written, second written, and third written. (Id.) An employee may receive only one of each level of coaching in any twelve-month period, but the policy allows levels of coaching to be skipped depending on the particular situation. (Id.) The "Decision Day" level of discipline received by Doering is equivalent to a third written coaching under the new policy. (Def.'s Mem. in Supp. of Mot. for Summ. J. at 7 & n.2, Dec. 16, 2013, Docket No. 49.) A third written coaching is described as:

Your supervisor or manager may use a Third Written level of coaching to notify you that your job performance or conduct does not meet our expectations, when you have failed to correct a job performance or conduct issue despite a prior First and/or Second Written level of coaching, or if the job performance or conduct warrants a higher level of coaching.

If you receive a Third Written level of coaching, your supervisor or manager will meet with you to discuss the unacceptable job performance or conduct at issue and explain the improvements that you must make and/or the actions that will be taken in light of the unacceptable job performance or

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