Fabiniak v. Wal-Mart Stores E., LP

• Decision Date: 29 June 2022
• Docket Number: 1:21-CV-00673
• Parties: BRIAN FABINIAK, Plaintiff, v. WAL-MART STORES EAST, LP, Defendant.
• Court: U.S. District Court — Northern District of Ohio

BRIAN FABINIAK, Plaintiff,
v.
WAL-MART STORES EAST, LP, Defendant.

No. 1:21-CV-00673

United States District Court, N.D. Ohio

June 29, 2022

MEMORANDUM OPINION & ORDER

PAMELA A. BARKER, U.S. DISTRICT JUDGE

Currently pending is Defendant Wal-Mart Stores East, LP's (“Defendant” or “Walmart”) Motion for Summary Judgment. (Doc. No. 23.) Plaintiff Brian Fabiniak (“Fabiniak”) filed a Brief in Opposition to Defendant's Motion (Doc. No. 25), to which Defendants replied (Doc. No. 27). For the following reasons, Defendant's Motion for Summary Judgment is GRANTED.

I. Facts

A. Fabiniak's Employment History

In 1992, Plaintiff Brian Fabiniak began working for Walmart. (Doc. No. 24-1 (“Fabiniak Dep.”) at PageID# 186.) Fabiniak rose up through the ranks during his employment at Walmart, eventually becoming Store Manager of the Walmart Super Center in Madison, Ohio (the “Store”) in 2005. (Id. at PageID# 186-193.) Fabiniak remained at Walmart as the Store Manager of the Madison Store until he was terminated on August 27, 2020. (Id. at PageID# 193, 93.) From July 2019 until Fabiniak's termination, Market Manager Ed Gregorek served as Fabiniak's supervisor. (Id. at PageID# 197-98; Doc. No. 24-5 (“Gregorek Dep.”) at PageID# 807-08.) From 2016 through 2019, Fabiniak was earning over $200,000 in salary and bonuses during his employment at Walmart. (Doc. No. 25-1 at ¶¶ 2-3 & Exs. A1-A4.)

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B. Walmart's Relevant Policies and Procedures

Fabiniak was aware that Walmart had a Discrimination and Harassment Prevention Policy that prohibited discrimination based on an individual's age. (Fabiniak Dep. at PageID# 199-200.) Fabiniak admits that he did not complain to anyone during his employment at Walmart that he thought he was being treated unfairly because of his age. (Id. at PageID# 203.)

Fabiniak was also aware of Walmart's Disciplinary Action Policy. (Id. at PageID# 203-04.) Under the Policy, there are three color-coded levels of Disciplinary Actions: First Written/Yellow Action Plan, Second Written/Orange Action Plan, and Third Written/Red Action Plan. (Doc. No. 242 at PageID# 438-440.) The Disciplinary Action level assigned to an employee's conduct is based on the severity of the conduct and any previous Disciplinary Actions taken against the employee. (Id.) While the Policy states that a level may be skipped, or termination may result if the “unacceptable performance and/or conduct is found to be serious” (id.), Fabiniak alleges that disciplinary levels were only skipped in “extreme circumstance[s]” (Fabiniak Dep. at PageID# 205). Once a Disciplinary Action was taken against an employee, the action was active on the employee's record for twelve months. (Doc. No. 24-2 at PageID# 439.) Fabiniak acknowledged that under Walmart's Disciplinary Action Policy, if an employee received a Disciplinary Action and the employee's job performance or conduct remained unacceptable, termination could result. (Fabiniak Dep. at PageID# 209-210.)

C. Fabiniak's Performance at Walmart

From fiscal year 2010 through fiscal year 2020, Fabiniak received yearly employment evaluations with performance ratings of either “Solid Performer” or “Exceeds Expectations.” (Doc. No. 25-1, ¶¶ 4-5 & Exs. A5-A15.) After one of Gregorek's first tours of the Store in September 2

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as Fabiniak's supervisor, however, Gregorek emailed Fabiniak a list of sixteen issues with the Store, including issues related to the Store's cleanliness and standards. (Gregorek Dep. at PageID# 820-24; Fabiniak Dep. at PageID# 311-12; Doc. No. 25-2 at PageID# 484.) Fabiniak admitted he received this email. (Fabiniak Dep. at PageID# 311-12.)

Until February 2020, Fabiniak had only received one disciplinary action during his employment at Walmart. (Doc. No. 24-2 at PageID# 451-55.) Then on February 14, 2020, Gregorek issued Fabiniak a Disciplinary Action 1 - Yellow for Violation of Company Policy/Procedures. (Fabiniak Dep. at PageID #240 & Ex. 8.) Fabiniak had been repeatedly directed to enter at least four weeks of the Store's management schedule into the WIRE management system but had failed to do so. (Id. at PageID# 241.) Gregorek testified that he discovered that Fabiniak had not worked a weekend in four or five months, even though “it's really important to have the leadership of the store manager in the facility during weekends” as most of Walmart's “business is done on the weekend,” only after viewing Fabiniak's handwritten schedule. (Gregorek Dep. at PageID# 824-28.) Fabiniak had physically posted the handwritten schedule in the Store but had not entered it into the online system. (Fabiniak Dep. at PageID# 241-42.) As a result, Fabiniak was issued the Yellow level discipline. (Id. at PageID# 240.) The “Observations of Associate's Behavior and/or Performance” section of the Disciplinary Action reads:

When the management schedules aren't in the system, the Market/Regional Teams do not know what managers are working More importantly, all associates have the right to know their schedules at least 3 weeks out to enable them to have work/life balance. It is also very important to have schedules in the system in case of an emergency so that we can know the location and ensure the safety of all associates including the managers. This is company policy and must be followed consistently

(Doc. No. 24-2 at PageID# 458.) After this discipline, Fabiniak entered the schedules into the WIRE system as required. (Gregorek Dep. at PageID# 869.)

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Later in February, Gregorek gave Fabiniak his annual performance evaluation with a “Meets Expectations” rating. (Doc. No. 24-2 at PageID# 447-450.) In that evaluation, Gregorek noted in the Overall Summary:

Brian does a [sic] excellent job teaching, training and developing talent within his facility. Brian is very knowledgeable and passionate about the business, he goes after and solves for [sic] problems in his facility. He has done a [sic] amazing job this year delivering ECOMM metrics both with OGP and GM. Brian led the market by a long shot with PRESUB, CSAT, OTP and GM wait time. I would like Brian do [sic] a better job delivering this year in seasonal transitions.

(Id. at PageID# 447.) Gregorek also gave Fabiniak four out of five stars in the “Clean Fast Friendly” category, rating him as “Exceed[ing] Expectations.” (Id. at PageID# 447-48.) In the Future Priorities section, Gregorek stated: “Brian [Fabiniak] must be more receptive to Market direction. There are times that something may seem that a certain direction has little value, but Brian must trust that we do not ask for items/tasks that aren't necessary.” (Id. at PageID# 449.) Gregorek had been managing Fabiniak for six months at this point and would tour the Store at least once a month. (Fabiniak Dep. at PageID# 817-18.)

Gregorek and/or Kelene Mavar (“Mavar”), People Operations Lead, then again toured the Store once during the months of March, April, and May 2020, twice in June 2020, and four times in July 2020. (Doc. No. 24-2 at PageID# 457.) After Mavar toured the Store on July 5, 2020, she emailed Fabiniak the following, recapping her tour, and noting issues with the Store's cleanliness:

Nice to speak with you today. Just a few call outs. Produce, bakery and meats were filled and looked great. Front End was well maintained and serving the customers with no waiting. However, cleaning is a big opportunity in your store. The only way to break this bad habit is to ensure EVERYONE works ‘clean.' I have attached a PDF doc with examples. Managers must all be on the same page with clean.

I don't think your management team knows what clean looks like, because they are accepting sub-standard results. Have a training Tuesday for everybody...all workers.. .on what clean looks like. (Jenny would be great at this training.) Make

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this your focus for every associate. They all have to walk around with their eyes open to dirt. They are stocking shelves and cases that are filthy. It makes the manager's life so much easier, when we take the time to explain what our expectations are going forward.

Example: the outside of the bunkers. Associates and managers would probably say that they cleaned the bunkers. They clean the inside of the bunkers but there is dust on the top of the case and around the bunker is dirty.

If the managers just continue to give direction by notes or over the walkie: the associates will never ever get it right: take them to the places that are dirty and show them the way it should be.

I look forward to my next visit to see big changes in the cleanliness of the store.

(Id. at PageID# 459.) Mavar attached to that email several photographs of the Store, showing Fabiniak areas in which he was performing to standards as well as areas in which he did not meet standards. (Fabiniak Dep. at PageID# 267-68.) Fabiniak admitted he received and reviewed those photos after her visit to the Store on July 5, 2020. (Id.)

Additional Store visits were then conducted in July.^[1] (Id. at PageID# 275.) On July 14, 2020, Mavar emailed Gregorek a draft of a Disciplinary Action for Fabiniak due to job performance issues based, among other things, on the Store's lack of cleanliness. (Doc. No. 24-8 at PageID# 1212-13.) This email contained a subject line of “Brian Fabiniak Orange DA.” (Id.) It was later determined, however, that the Disciplinary Action should be escalated to a level red. (Gregorek Dep. at PageID# 889.)

On July 25, 2020, Mavar forwarded her July 5, 2020 email to Fabiniak recapping her tour to her boss, Charles Patterson (“Patterson”), copying Regional General Manager Jay Cordray (“Cordray”), and attaching pictures from the tour. (Doc. No. 24-2 at PageID# 459.) In that email, 1 The parties dispute the dates in which the tours took place. (Fabiniak Dep. at PageID# 252.)

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Mavar stated she “was back in the store yesterday for listening sessions; and the cases were still...