Lawrence v. Wal-Mart Stores, Inc.

• Decision Date: 02 December 2002
• Docket Number: No. 6:01-CV-1415-ORL-31K.,6:01-CV-1415-ORL-31K.
• Citation: 236 F.Supp.2d 1314
• Parties: Larry Wayne LAWRENCE, Plaintiff, v. WAL-MART STORES, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

236 F.Supp.2d 1314

Larry Wayne LAWRENCE, Plaintiff, v. WAL-MART STORES, INC., Defendant.

No. 6:01-CV-1415-ORL-31K.

United States District Court, M.D. Florida, Orlando Division.

December 2, 2002.

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Gregorio A. Francis, Morgan, Colling & Gilbert, P.A., Orlando, FL, Mary E. Lytle, Amari & Theriac, P.A., Cocoa, FL, for Plaintiff.

Scott A. Forman, Patrick H. Gonyea, Matthew S. Kish, Michael Craig Scher, Vernis & Bowling of Miami, P.A., North Miami, FL, for Defendant.

ORDER

PRESNELL, District Judge.

This cause comes before the Court on consideration of Defendant's Motion for Summary Judgment (Doc. 65) and Plaintiff's Opposition thereto (Doc. 89).

I. Background

Plaintiff, Larry Wayne Lawrence, began working at the Port Orange supercenter location of Defendant Wal-Mart Stores, Inc. ("Wal-Mart") between May 15-17, 1999 (Pl.'s Depo. at 72). At that location, Plaintiff was the only African-American management-level employee. As assistant manager, Plaintiff was assigned to oversee Area A and later Area D. (Id. at 88).¹ Co-manager Ron Dixon directly supervised Plaintiff, and Robert Mulack was the store manager. During Plaintiff's eight-month employment at the Port Orange store, Dixon allegedly made several race-related comments to Plaintiff, including: 1) on Plaintiff's first day of work, Dixon said in front of another co-manager, Gary Graves, that Plaintiff should be careful in Port Orange because the police frequently pulled over and harassed a former African-American employee (id. at 97, 116); 2) Dixon said, during lunch with Plaintiff some time during the summer of 1999, that he had slept with a black woman and that she was too aggressive for him, "you know how you all can be" (id. at 97-98, 115); 3) while patting Plaintiff on the back² (id. at 279-80), Dixon said to Plaintiff in September or October of 1999, "... I have that gun [like the one that was missing from the store] at home along with several more at home just like it to shoot blacks." (Id. at 99-100; 115); 4) in a discussion held prior to November 9, 1999 between Plaintiff, Mulack, and Dixon, about Mulack's daughter being interested in dating an African-American man, Dixon said "I guess your daughter has `Jungle Fever.'"³ (Id. at 105-07); 5) during a November 9, 1999, manager's meeting, Dixon said, in response to positive feedback from upper management about Plaintiff's work-related photos,⁴ "I've got two words for you Wayne, low key, low profile. We don't like superstars around here and we don't like heroes.... remember how we did blacks back in the thirties when they got out of hand ... we would take them out back and lynch them" (id. at 122); 6) on December 9, 1999, Dixon said that his friend called Plaintiff a "Jesse Jackson type black guy" if he continued to complain to Dixon's superiors (id. at 114); 7) Dixon referred to Plaintiff twice as "homeboy,"⁵ once or twice as "boy," and daily as "brother." (Id. at 278-79).

Plaintiff admits that he did not respond to the first comment about being pulled over by the local police. (Id. at 108). Plaintiff claims, however, that he responded to the second comment about sleeping with a black woman. (Id. at 108). Plaintiff did not respond to or report the third comment regarding the missing gun because he was "terrified" and because as Plaintiff's supervisor, Dixon had control of his career. (Id. at 108-09). Plaintiff did confront Dixon about the lynching comment immediately after it occurred on November 9, 1999. (Id. at 132-133; Dixon Depo. at 103-04). Two weeks later, on November 22, 1999, Plaintiff decided to report the lynching comment to the district manager, Steve Leake. (Pl.'s Depo. at 110). By phoning Leake, Plaintiff pursued Defendant's "open door" policy, which allows any employee to report or discuss problems with any member of management. Plaintiff claims he also attempted to report the gun comment in that conversation, but Leake cut him off. (Id. at 179).⁶ In response to Plaintiff's complaint, Leake called a meeting with Dixon, Plaintiff, Mulack, and two other assistant managers, Faye Bishop and Al Landi, who confirmed that Dixon made some comment related to blacks in the 1930s. (Id. at 185, 187; Bishop Depo. at 21; Mulack Depo. at 43). At that meeting, Dixon apologized to Plaintiff, who indicated he could continue to work with Dixon as long as he was reassured that he would not suffer retaliation for using the open door policy. (Pl.'s Depo. at 189-190; Dixon Depo. at 55). For making the comment, Leake gave Dixon a verbal warning.⁷ (Dixon Depo. at 28; Mulack Depo. at 50). Plaintiff claims he did not know what discipline Leake gave Dixon. (Pl.'s Depo. at 191). Importantly, Plaintiff alleges no race-related comments after this disciplinary meeting, except the comment about "Jungle Fever."

Plaintiff alleges that in the days and weeks following the disciplinary meeting, Dixon retaliated against Plaintiff. Specifically, Plaintiff claims that Dixon verbally reprimanded him several times for things Dixon did not reprimand other similarly situated employees. (Id. at 151, 160-61). For example, Dixon reprimanded Plaintiff for leaving a back door open around December 9, 1999, in violation of store policy (id. at 158-61); for being too stern with an employee (id. at 161-62); and for failing to rewind a security tape (id. at 170). In addition, Plaintiff claims retaliation because he was called in to work on one of his days off in October 1999 (id. at 173-75), and for being singled out by Dixon for getting more "notes" or work assignments. (Id. at 149-50).⁸ In addition, around January 7, 2000, Mulack allegedly retaliated against Plaintiff by verbally reprimanding him (id. at 158), forcing him to restock the dairy department — a task not typically assigned to an assistant manager — and then continually asking Plaintiff if he was 25, 50, or 75 percent finished. (Id. at 85-87). Mulack apparently stated, "you look like a whipped dog ... you've got your head hung low." (Id. at 196-98). Plaintiff admits he did not complain about this particular remark (Pl.'s Opp'n at 5), but Plaintiff did complain to Bishop and co-manager Paul McAndrews that he felt he was being treated unfairly. (Bishop Depo. at 26, 33; McAndrews Depo. at 109).

Further, Plaintiff claims he suffered retaliation when, on his February 2000 evaluation, the Port Orange management gave him a score of "meets expectations" rather than the "exceeds expectations" he felt he deserved. (Pl.'s Answer to Interrog. No. 6 at "Approximately 1/27/00"). Plaintiff claims the evaluation rating impacted his promotability to co-manager. (Pl.'s Depo. at 273).

At Port Orange, Plaintiff says he felt as if he was "walking on eggshells" and suffered from pain in his stomach. (Id. at 204). Plaintiff decided to continue up the chain of management and report the retaliatory behavior via the open door policy. (Id. at 202). Thus, on January 11, 2000, Plaintiff phoned Regional Manager Arthur Emmanuel, who in turn called in Regional Personnel Manager Steve Schultheis to listen to the conversation. (Id. at 204). After Emmanuel and Schultheis heard Plaintiff's complaint regarding the lynching comment and the subsequent treatment, Emmanuel said, "we are going to get you out of that store immediately." (Id. at 205; Emmanuel Depo. at 54). When Emmanuel said he would transfer Plaintiff to the Ormond Beach location, Plaintiff allegedly told Emmanuel that a transfer to Ormond Beach was like "taking me out of the fire and putting me into the frying pan," because the Ormond Beach store manger, Brad Bower, was a friend and former co-worker of Ron Dixon. (Id. at 206). Thus, Emmanuel agreed that the Ormond Beach placement would be temporary until he could be permanently transferred to Melbourne or another location close to home, (id. at 206-209), even though Melbourne was not within Emmanuel's jurisdiction. Emmanuel also determined that Leake's verbal reprimand of Dixon for the lynching comment was an insufficient punishment and thus directed Leake to issue a written reprimand (Schutheis Depo. at 55; Dixon Depo. at 52).⁹

Plaintiff transferred to Ormond Beach the next day, on January 12, 2000. (Pl.'s Depo. at 211). He retained his benefits package, salary, and job title (id. at 213-214), but he claims that the transfer resulted in different responsibilities. (Id. at 214). Plaintiff also claims that Ormond Beach had a "morale problem" and lower sales profits than Port Orange, resulting in a smaller shareholder bonus. (Pl.'s Opp'n at 6). Plaintiff also claims that once at Ormond Beach, Bower retaliated against him first by assigning him to supervise only two departments as opposed to an entire area (Pl.'s Depo. at 216-217) and second by giving him excessive notes. (Id. at 227).

Plaintiff also claims discriminatory treatment because no one followed through with his transfer request. Plaintiff spoke to Ralph Kirchoff about the delay but was informed he would not be transferred until his two departments were cleaned up. (Id. at 228). Plaintiff then called Schultheis, who said they were working on it but that there were no openings available yet. (Id. at 233). Plaintiff was unsatisfied with Schultheis answer so he tried to contact Coleman Peterson, Vice President for the People Division, and left a message. (Id. at 236). Although Peterson did not return his phone call, Shultheis did, and reiterated that they were doing everything they could to transfer him to his choice locale. (Id. at 236-37). Shultheis further told him that although the Melbourne area already was overstaffed, he would have priority to transfer there. (Schultheis Depo. at 74). Schultheis asked Plaintiff to be patient, and Plaintiff responded "okay." (Pl.'s Depo. at 237). Plaintiff made no other attempt to contact a member of management after those phone calls. (Id. at 238).

On March 14, 2000, Plaintiff turned in his letter of resignation,...