Harris v. Wal-Mart Stores E., LP, CIVIL ACTION NO. 1:11-CV-03406-CC
| Decision Date | 23 December 2013 |
| Docket Number | CIVIL ACTION NO. 1:11-CV-03406-CC |
| Parties | DANA HARRIS and DARREN HARRIS, Plaintiffs, v. WAL-MART STORES EAST, LP, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
This matter is before the Court on Defendant's Motion for Summary Judgment [Doc. No. 71].1 The Court heard oral argument on Defendant's Motion on December 9, 2013. After carefully reviewing the parties' submissions, the record in this case, and the applicable law, the Court DENIES in part and GRANTS in part Defendant's Motion.
On July 31, 2007, Plaintiff Dana Harris ("Ms. Harris") was arrested for theft by taking at Wal-Mart store number 5275 (the "Store") in Woodstock, Georgia. (Def.'s Statement of Material Facts as to Which There Exists No Genuine Issue to Be Tried & Theories of Recovery "DSUMF" ¶ 1.) Defendant Wal-Mart Stores East, LP ("Wal-Mart") accused Ms. Harris of making fraudulent returns with Wal-Mart associate, Katum Williams, who was also arrested that day. (DSUMF ¶¶ 1, 10, 11.) When she was arrested, Ms. Harris was an hourly supervisor in the Store's electronics department. (DSUMF ¶ 2.) Ms. Harris's son, Darren Harris ("Mr.Harris") was an hourly part-time associate in the Store's tire and lube express department. (DSUMF ¶ 3; Compl.¶ 7.) Williams also worked in the tire and lube express department. (DSUMF ¶ 6.) He was a department manager and hourly supervisor, but was never a salaried Wal-Mart manager. (DSUMF ¶ 6.)
Kristina Collins is a Wal-Mart asset protection manager, but on the day of the arrest, she was an asset protection coordinator and was post certified.2 (PSMF ¶¶ 1, 2.) Before working for Wal-Mart, Collins was a police officer for eight years, and she had worked as an officer with the Cherokee County Sheriff's Department. (PSMF ¶¶ 2, 4; DSUMF ¶ 39.) Collins graduated from North Central Georgia Law Enforcement Academy (the "Academy"), took a course in probable cause at the Academy, and was familiar with the concept of probable cause. (PSMF ¶¶ 2, 3; DSUMF ¶ 39.) Before July 31, 2007, Collins had arrested suspects for theft by taking and had applied for warrants for this crime. (PSMF ¶ 5.) In fact, she had taken out more than ten warrants. (PSMF ¶ 5.) At the time of the arrest, Natasha Sutton was also a Wal-Mart asset protection employee. (DSUMF ¶ 15.)
While working at Wal-Mart, Williams allegedly made several fraudulent refunds, which were recorded in an electronic journal. On May 20, 2007, he used Rosetta's employee number to make a fraudulent refund for $317.85. (PSMF ¶ 18.) On July 6, 2007, he used salaried assistant manager Wesley's employee number to make a fraudulent refund for $367.82. (PSMF ¶ 19.) On July 13, 2007, he again used salaried manager Wesley's employee number to make a fraudulent refund for $1,676.52. (PSMF ¶ 13.) On July 14, 2007, he made fraudulent refunds for $379.48 and for $402.29, again by usingsalaried manager Wesley's employee number. (PSMF ¶¶ 14-15.) On July 15, 2007, he made a fraudulent refund for $104.69. (PSMF ¶ 16.) And on July 20, 2007, he again used salaried manager Wesley's employee number to make a fraudulent refund for $1,477.64. (PSMF ¶17.) Many of these refunds were made at register 90 in the customer service area. (PSMF ¶¶13-16, 19.)
Williams also made a fraudulent refund to Ms. Harris's debit card. (DSUMF ¶¶ 20-23.) Ms. Harris did not observe Williams perform the refund, but about an hour after she had given him her card, he returned it. (DSUMF ¶¶ 22, 23.) Ms. Harris admitted that Williams owed her $100 for bonding him out of jail about a month or two before her arrest. (DSUMF ¶¶ 13, 18.) She agreed to allow him to repay her by returning merchandise she did not purchase onto her debit card. (DSUMF ¶¶ 17, 21.) She also admitted giving him her debit card for him to do the returns in the automotive department. (DSUMF ¶¶ 17, 21.) According to Ms. Harris, Williams told her that he could not do the return on his account because his account was overdrawn. (PSMF ¶ 20.)
Although Williams owed her only $100, he returned about $400 worth of merchandise and placed the entire amount on Ms. Harris's card. (DSUMF ¶ 24.) A few days after the returns, Williams went to Ms. Harris and asked her to check her account balance, which she did. (DSUMF ¶¶ 25, 26.) She then withdrew the $400 at the Store, gave the entire amount to Williams, and then he gave her $100; the entire transaction occurred on the job. (DSUMF ¶ 26.) But no one was present during this exchange. (DSUMF ¶ 27.) This transaction occurred at least a couple of weeks before July 31, 2007. (DSUMF ¶ 28.) After the transaction, but before July 31, 2007, Williams again asked Ms. Harris to let him use her debit card to return merchandise because he needed cash. (DSUMF ¶ 29.) But she refused. (DSUMF ¶ 29.)
On the day of the arrest, but before Williams was arrested, Collins and Sutton interviewed him. Before the interview, Collins did not speak with any Wal-Mart associates. (PSMF ¶ 10.) During the interview, she did not take any notes or ask Williams any questions. (PSMF ¶¶ 11-12.) Sutton, however, had asked Williams to make a written statement. (PSMF ¶ 58.) After Williams wrote the statement, he, Collins, and Sutton signed it. (PSMF ¶ 20.) According to Collins, Williams told Sutton that Ms. Harris was involved in the refunds, knew they were fraudulent, and that Ms. Toundred Bond had picked up money for Ms. Harris. (PSMF ¶¶ 21, 22.) Collins signed a citizen's arrest form for Williams, and he was arrested. (PSMF ¶ 6.)
Ms. Harris was working in the electronics department when she learned from a co-worker that Williams had been arrested at the Store. (DSUMF ¶ 10.) After his arrest, Wal-Mart management paged Ms. Harris to its office, where she met with Collins, Sutton, and store manager Melanie Radocesky for less than an hour. (DSUMF ¶¶11, 15.) During that time, Radocesky advised Ms. Harris that she was being terminated for an integrity issue and theft because Ms. Harris had given her debit card to Williams so that he could return goods and place the value on her card. (DSUMF ¶ 16.) Sutton did not take any notes during Ms. Harris's interview and did not write any notes afterwards. (PSMF ¶¶ 52, 53.) Wal-Mart contends that no one from Wal-Mart harassed or intimidated Ms. Harris. (DSUMF ¶ 55.)
Ms. Harris provided a voluntary statement to Wal-Mart's management; Ms. Harris, Collins, and Sutton signed the statement. (DSUMF ¶¶ 14; PSMF ¶ 33.) The statement reads: (DSUMF ¶¶ 14, 18-20.) Collins said the statement is a confession to theft by taking and that Ms. Harris confessed to knowing the refunds were fraudulent, but did not care. (PSMF ¶¶ 34, 35, 41.)Collins completed a civil arrest form and a hold for a warrant for Ms. Harris. (PSMF ¶ 9.) Collins spoke to police officer Jason Nash, and at some point, Ms. Harris was arrested. (PSMF ¶ 6; DSUMF ¶ 1.) Before the arrest, Ms. Harris did not believe or think that any of her co-workers or superiors had any ill will or bad feelings toward her or wanted to harm her in any way. (DSUMF ¶ 50.)
In connection with the fraudulent refunds, Sutton allegedly interviewed Wesley because Williams made refunds in Wesley's name. (PSMF ¶ 54.) Collins and Sutton also interviewed Bond. (PSMF ¶ 23.) During Bond's interview, Collins did not talk with Bond or take notes, and Sutton did not ask Bond to make a written statement. (PSMF ¶¶ 23, 57.) Collins witnessed Sutton speaking with Bond, but does not remember what Bond told Sutton and nothing can be used to refresh her memory. (PSMF ¶¶ 23, 24.)
On August 20, 2007, the Magistrate Judge for Cherokee County signed an application for a warrant of Ms. Harris's arrest for theft by taking. (DSUMF ¶ 44.) At some point, Collins spoke with the District Attorney's Office. (PSMF ¶ 42.) On September 22, 2007, Sutton started an APIS investigation file on Ms. Harris. (PSMF ¶¶ 61, 64.) An APIS file, which is Wal-Mart's criminal file, is created when Sutton starts an incident that elevates to an investigation and then goes to a case. (PSMF ¶ 62.) Although Sutton started the APIS file in September 2007, she did not put any notes into the case file until December 3, 2007, which was the day the file was closed. (PSMF ¶¶ 65, 69.) The file does not contain any of comments that Bond, Wesley, or Williams allegedly made on July 31, 2007. (PSMF ¶¶ 66-68.)
On or about September 21, 2012, Ms. Harris's counsel deposed Collins and Sutton. During Sutton's deposition, she said Ms. Harris knew the credit card refund was fraudulent and that Ms. Harris used the word fraudulent in her statement, when Ms. Harris wrote, "he would refund them to my account," even though Suttondid not take any notes during or after Ms. Harris's interview. (PSMF ¶¶ 45, 46, 50.) Sutton stated, "To me, she knew that he actually didn't purchase those items to do a refund." (PSMF ¶ 45.) Later, Sutton admitted that Ms. Harris did not use the word fraudulent, or a word synonymous with fraudulent, in her statement. (PSMF ¶¶ 47, 48.) Sutton then admitted Ms. Harris never told her she knew Williams was refunding items that he never purchased. (PSMF ¶ 49.) Sutton had not seen any documents showing Ms. Harris signed for any refunds. (PSMF ¶ 51.) Sutton stated there was never a transaction analysis sheet that involved Ms. Harris, and that the only transaction analysis sheet involves Williams. (PSMF ¶¶ 55, 56.) Also, Sutton said that Williams's statement mentions Ms. Harris's involvement in the fraudulent refunds, and she referred to the sentence that states: "I helped a couple of other people Dana is one." (PSMF ¶ 59.) In addition to that sentence, Sutton also referred to the sentence, which states: ...
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