Hayes v. Wal-Mart Stores, Inc.

• Decision Date: 23 July 1996
• Docket Number: Civil Action No. 95-D-1052-S.
• Citation: 953 F.Supp. 1334
• Parties: Cherita HAYES, Plaintiff, v. WAL-MART STORES, INC., Defendant.
• Court: U.S. District Court — Middle District of Alabama

953 F.Supp. 1334

Cherita HAYES, Plaintiff, v. WAL-MART STORES, INC., Defendant.

Civil Action No. 95-D-1052-S.

United States District Court, M.D. Alabama, Southern Division.

July 23, 1996.

COPYRIGHT MATERIAL OMITTED

Charles Neville Reese, Daleville, AL, for plaintiff.

Barry V. Frederick, Jennifer F. Swain, Birmingham, AL, for defendant.

MEMORANDUM OPINION

DE MENT, District Judge.

Before the court is defendant Wal-Mart Stores, Inc. motion for summary judgment filed June 26, 1996. The plaintiff failed to respond in opposition. After careful consideration of the relevant case law and the record as a whole, the court finds that the defendant's motion is due to be granted.

JURISDICTION

This court has subject-matter jurisdiction under the diversity jurisdiction statute, 28 U.S.C. § 1332, as there exists complete diversity between the parties and the amount in controversy exceeds $50,000. Personal jurisdiction and venue are uncontested.

SUMMARY JUDGMENT STANDARD

On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "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). As the Supreme Court has explained the summary judgment standard:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(e).

In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11.

FACTS

The plaintiff, Cherita Hayes, seeks to hold her former employer, Wal-Mart Stores, Inc. liable for defamation. She asserts that she was defamed by Wal-Mart's District Loss Prevention Manager, Jody Cullifer, who allegedly accused her of theft during a meeting held to investigate an occasion when the plaintiff gave merchandise to a fellow Wal-Mart employee but charged her only for the tax. She also claims that a Wal-Mart manager defamed her by responding to a phony reference check concerning the plaintiff by stating that she would never work for Wal-Mart again.

Ms. Hayes began working for Wal-Mart Supercenter # 734 in Enterprise, Alabama in March, 1993. Depo. of Hayes at 43. She began in the deli department as a cashier and transferred to a front-end cashier position at her own request in May, 1993. Id. at 43-44, 54-56 & 59. As front-end cashier, Ms. Hayes was responsible for checking out customers. Id. at 61. To ring up merchandise, Ms. Hayes scanned the bar code on products being purchased. Id. at 71. Ms. Hayes direct supervisor was Tonya Barber, the front-end manager. Id. at 60; Aff. of Cullifer at ¶ 9.

To monitor and investigate loss prevention and security concerns, Wal-Mart Supercenter # 734 is equipped with video cameras throughout the store. Id. at 109-110; Aff. of Cullifer at ¶ 3. Tapes made from these video cameras are reviewed by in-store loss prevention employees, and any suspected loss prevention or security problems are brought to the attention of the District Loss Prevention Manager. Aff. of Cullifer at ¶ 3. The District Loss Prevention Manager is responsible for supervising in-store loss prevention employees as well as monitoring stores for violations of Wal-Mart's loss prevention policies and investigating suspected policy violations and theft. Id. at ¶ 2.

Some time in August, 1993, it was brought to the attention of Ms. Cullifer that Cherita Hayes had been videotaped giving merchandise to a fellow Wal-Mart employee without requiring the employee to pay for the merchandise. Id. at ¶ 1, 4. The video taped incident occurred on July 29, 1993. Depo. of Hayes at 87; Aff. of Cullifer at ¶ 4.

Ms. Hayes acknowledges that on July 29, 1993, she was working as a cashier and checked out Pastoria Banks, a fellow employee. Depo. of Hayes at 77, 87. Ms. Banks came to Ms. Hayes' check out line with a Sunkist soda and some soap. Depo. of Hayes at 86, 88-89. Ms. Banks had been working at Wal-Mart that day and came to Ms. Hayes' register at the end of her shift. Id. at 89. Ms. Hayes rang up the soap and soda, then proceeded to void the price of the soda. Depo. of Hayes at 88, 97. Ms. Hayes asserts that Ms. Banks claimed to have brought the soda from home. Id. at 88. Nonetheless, Ms. Hayes did not attempt to verify that the soda was not store merchandise prior to voiding the sale. Id. at 90.

After voiding the soda sale, Ms. Hayes totaled Ms. Banks' purchase at $1.97, then added tax of $0.16 for a total of $2.12. Depo. of Hayes at 97. She then voided the price of the soap, $1.97, purportedly because Ms Banks informed her that the soap had been marked down to $1.37. Id. at 90-92, 97 & 98. Ms. Hayes claims that a nearby cashier named Regina stated that the soap was priced at $1.37. Depo. of Hayes at 91-92. Although Ms. Hayes asserts that it was Wal-Mart policy to have an employee known as a "skater" check the price of an item asserted to be on sale, she did not do this in Ms. Banks' case. Id. at 74 & 91. She claims that the "skaters" were gone for the night but admits that no one actually checked the price of the soap. Id. at 74, 91 & 93.

After voiding the price of the soap, Ms. Hayes used a "price override" function on the cash register to input what she claims was the reduced price of the soap, $1.37. Id. at 93-94 & 98. Ms. Hayes believes that the cash register automatically voided out the $1.37 by virtue of the "price override" function. Id. at 98. She then assessed tax at $0.11 and proceeded to give Ms. Banks the soap while charging her only $0.11 for tax. Id. at 98.

Although Wal-Mart's "Scanning Credibility Program," in effect at the time, directed that customers receive an item under $3.00 for free if the item is scanned at an incorrect price, this policy did not apply to Wal-Mart employees. Id. at 75-76; Aff. of Cullifer at ¶ 6. Because Ms. Banks was a Wal-Mart employee, she should not have received the soap for free even if it had scanned at an incorrect price. Id. at 115; Aff. of Cullifer at ¶ 6. Ms. Hayes admits that she violated Wal-Mart policy when she used the "price override" key to give Ms. Banks the soap. Id. at 115 & 129-30.

Even if Ms. Banks had not been a Wal-Mart employee, Ms. Hayes violated several Wal-Mart policies when she used the "price override" function with respect to Ms. Banks' purchases on July 29, 1993. Aff. of Cullifer at ¶ 7. Ms. Hayes did not check the price of the soap before using the "price override" function. Dep. of Hayes at 74, 91 & 93; Aff. of Cullifer at ¶ 7. In addition, Wal-Mart policy required cashiers to fill out a "Customer Satisfaction Card" whenever an item scanned at the incorrect price. Id. at 107, Ex. 14. A "Customer Satisfaction Card" was also required when a cashier utilized the "price override" function. Id. at 107, Ex. 14. Although she was aware that a "Customer Satisfaction Card" was required in both circumstances, Ms. Hayes did not fill out such a card when she voided the soda sale and utilized the "price override" function as to the soap. Id. at 107 & 109; Aff. of Cullifer at ¶ 7.

Wal-Mart policy also required associates to get management approval for all error corrections, voids or markdowns. Ex. 17; Aff. of Cullifer at ¶ 7. Ms. Hayes does not dispute that this was Wal-Mart's policy but...