Fernandez-Ocasio v. Walmart Puerto Rico Inc.

• Decision Date: 31 March 2015
• Docket Number: Civil No. 13–1598 PAD.
• Citation: 94 F.Supp.3d 160
• Parties: Lorraine FERNANDEZ–OCASIO, Plaintiff, v. WALMART PUERTO RICO INC., Defendant.
• Court: U.S. District Court — District of Puerto Rico

94 F.Supp.3d 160

Lorraine FERNANDEZ–OCASIO, Plaintiff

v.WALMART PUERTO RICO INC., Defendant.

Civil No. 13–1598 PAD.

United States District Court, D. Puerto Rico.

Signed March 31, 2015.

Anibal Escanellas–Rivera, Escanellas & Juan, San Juan, PR, for Plaintiff.

Ana B. Rosado–Frontanes, Mariela Rexach–Rexach, Schuster & Aguilo LLP, San Juan, PR, for Defendant.

OPINION AND ORDER

DELGADO–HERNÁNDEZ, District Judge.

Plaintiff Lorraine Fernández Ocasio initiated this action against her former employer, Wal–Mart Puerto Rico Inc., under the American with Disabilities Act of 1990, 42 U.S.C. §§ 12102 et seq.; its Puerto Rico counterpart, Law No. 44 of July 2, 1985, P.R. Laws Ann. tit. 1 §§ 501 et seq.; and Puerto Rico's Unjust Discharge Act, Law No. 80 of May 30, 1976, P.R. Laws Ann. tit. 29 §§ 185a et seq. Before the Court is Wal–Mart's Motion for Summary Judgment (Docket No. 24). For the reasons explained below, the motion is GRANTED and the case DISMISSED.

I. BACKGROUND

Initially, plaintiff alleged to have been discriminated against because of disability, denied reasonable accommodation, subjected to retaliation, and unjustly discharged from her employment with Wal–Mart (Docket No. 1). Following discovery, Wal–Mart moved for summary judgment as to all claims except the Law No. 80 claim. Plaintiff opposed Wal–Mart's motion (Docket No. 49), Wal–Mart replied (Docket No. 49), and plaintiff sur-replied (Docket No. 61).¹

II. STANDARD OF REVIEW

Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The purpose of summary judgment is to pierce the pleadings and assess the proof in order to see whether there is need for trial. Mesnick v. General Electric Co., 950 F.2d 816, 822 (1st Cir.1991).

The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual dispute is “genuine” if it could be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is “material” if it potentially affects the outcome of the case in light of applicable law. Calero–Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004). As to issues on which the nonmovant has the burden of proof, the movant need to no more than aver absence of evidence to support the nonmoving party's case. Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548 ; Mottolo v. Fireman's Fund Insurance, 43 F.3d 723, 725 (1st Cir.1995).

Once the moving party has satisfied this requirement, the nonmoving party has the burden of presenting facts that demonstrate a genuine issue of material fact for trial. LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841 (1st Cir.1993). All reasonable factual inferences must be drawn in favor of the party against whom summary judgment is sought. Shafmaster v. United States, 707 F.3d 130, 135 (1st Cir.2013).

To resist summary judgment, the nonmovant must do more than show some metaphysical doubt as to a material fact. Matsushita Elec. Inds. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative will not suffice to ward off a properly supported motion for summary judgment. Nieves–Romero v. United States, 715 F.3d 375, 378 (1st Cir.2013). Careful record review reflects absence of genuine dispute as to the facts identified in the section that follows.² Based on those facts, Wal–Mart is entitled to judgment as a matter of law.

III. FINDINGS OF FACT

A. Plaintiff's Position and Responsibilities

Plaintiff was employed with Wal–Mart as a Clerk in the Bakery Department of the Amigo store in Monserrate, in Carolina, Puerto Rico. See Docket No. 24, Exh. 1 Wal–Mart's “Statement of Uncontested Facts in Support of Motion for Summary Judgment” (“SUMF”) at ¶ 1. Her responsibilities included assuring that the bakery products were displayed and marked with the “sell by” and/or expiration dates; reducing the price of products that were close to the sell by date; removing merchandise that was expired or not apt for sale, in order to avoid selling a damaged and potentially unhealthy product; replenishing the display trays; and decorating cakes. Id. at ¶ 2.³ Associates in the Bakery Department would also take out merchandise such as bread and pastries from the freezer and place them in the oven for baking. Other products, such as cakes and cupcakes, did not have to be placed in the oven. They were simply taken out of the freezer, decorated and marked with the appropriate expiration date prior to being placed on display. Id. at ¶ 5.⁴

B. Food Handling

Wal–Mart must comply with the Federal Food and Drug Administration's Food Code. Selling products that are expired and/or not apt for human consumption has serious implications regarding food safety and customer's health, and may have a negative impact on Wal–Mart's image, may lead to suits, and may affect future sales, in addition to fines and /or an adverse impact during inspections carried out by regulatory agencies, such as the Puerto Rico Department of Health, and the Puerto Rico Department of Consumer Affairs. Id. at ¶ 3.⁵ Thus, it needs to follow certain procedures for handling food with expiration dates. Plaintiff received training on the procedures to be followed. Id. at ¶ 4.⁶

C. Work Plans

Evelyn Soto, plaintiff's supervisor during the relevant period, gave associates in the Bakery Department, including plaintiff, work plans with lists of items to be completed, including verifying quality of product and throwing away products. Id. at ¶ 6.⁷ Items consistently appearing in the work plans were: maintaining the department stocked with merchandise; checking expiration dates; reducing the price of merchandise that was about to expire and throwing away expired merchandise; cleaning display trays; ensuring that products had price and were codified; verifying the quality of the products, throwing away products that were not apt for human consumption, independently of the expiration date; not leaving out merchandise without expiration date; maintaining production table clean when not in use; and placing appropriate signs.Id. at ¶ 9.⁸

Soto prepared work plans for: August 13, 2011; August 24, 2011; December 10, 2011 January 29, 2012; February 8, 2012; February 3, 2012; February 13, 2012; February 20, 2012; February 21, 2012; March 2, 2012; March 5, 2012; March 7, 2012; March 14, 2012; March 16, 2012; March 21, 2012; March 26, 2012; May 10, 2012; May 22, 2012; June 9, 2012; June 11, 2012; June 30, 2012; and July 2, 2012. Id. at ¶ 7. The work plans corresponding to August 13, 2011, August 24, 2011, and December 10, 2011, reflect a number of action items, including: keeping the floor stocked with merchandise; cleaning display trays and refrigerator drawers, among other areas; maintaining production table clean; placing in production table only products to be worked on; not leaving products exposed unless they were being worked on; and working on codifying all products. Id. at ¶ 8.

D. Disciplinary Process

Wal–Mart's Coaching for Improvement Policy provides for the following disciplinary process: a verbal coaching; a written coaching; and Decision Day or “D–Day.” The policy states that if an employee receives a coaching within twelve months of receiving a D–Day, the employee will be terminated. Id. at ¶ 10.

On January 23, 2012, plaintiff received a verbal warning (confirmed in writing), for failure to comply with Wal–Mart's policy in that her shirt did not have a collar, as required, and for leaving the store to go change without registering her time out. Id. at ¶ 11.⁹ On January 26, 2012, she received a written warning based on deficiencies found in the Bakery Department, including: deficiencies in replenishment, signage and cleanliness; and leaving trays of cupcakes in the production area without balance labels. Id. at ¶ 12.¹⁰ The warning was based on observations made during a visit by Mr. Lemuel Pagán, District Food Merchandiser. Id. at ¶ 13.

On March 14, 2012, plaintiff received a third warning (D–Day) for not complying with her responsibilities in failing to reduce the price on items that were about to expire as required by Wal–Mart's policy, of which she was aware. Id. at ¶ 14.¹¹ As a result, plaintiff was required to prepare an action plan, which she did on March 15, 2012. Id. at ¶ 15.¹² Based on Wal–Mart's disciplinary procedure, the next step in the disciplinary process would be termination of plaintiff's employment. Id. at ¶ 16.¹³

On July 6, 2012, plaintiff received the evaluation for the period of September 2011 to August 2012. The evaluation resulted in a below expectations rating, the lowest possible rating. Id. at ¶ 17. Plaintiff was advised that she needed to improve in several areas, including: maintaining lay out, verifying products' dates, tardiness, and complying with the department's procedures. Id. at ¶ 18.

On January 18, 2013, plaintiff received a written memo for failing to remove damaged biscuits that were not apt for human consumption. The biscuits were sold to a customer who came back to the store to return them. Id. at ¶ 19. Based on Wal–Mart's disciplinary process, this incident should have resulted in termination of plaintiff's employment, for she already had a verbal warning, a written warning and a Decision or D–Day. Wal–Mart, however, provided her with an additional opportunity to keep her job. Id. at ¶ 20.

E. Termination

Wal–Mart's Employee Handbook contains a list of items that may require immediate termination, such as: dishonesty, lack of integrity, falsifying Company...