Melcher v. Lowe's Home Ctrs.
| Docket Number | CIVIL 3:20-cv-30094-KAR |
| Decision Date | 03 August 2022 |
| Parties | ROBERT MELCHER, Plaintiff, v. LOWE'S HOME CENTER, LLC, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION TO STRIKE RADER AFFIDVIT AND DEPOSITION TESTIMONY (Dkt Nos. 45, 50)
Robert Melcher (“Plaintiff”) brings this action against his former employer Lowe's Home Center, LLC (“Defendant” or “Lowe's”) asserting claims for age and disability discrimination in violation of the Massachusetts anti-discrimination statute Mass. Gen. Laws ch. 151B. Presently before the court are Defendant's motion for summary judgment (Dkt. No. 45) and Plaintiff's motion to strike certain material from the summary judgment record (Dkt. No. 50). The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73 (Dkt. No. 16). For the following reasons, Plaintiff's motion to strike is DENIED and Defendant's motion for summary judgment is DENIED as to Plaintiff's claim of age discrimination but GRANTED as to Plaintiff's claim of disability discrimination.
Plaintiff seeks to strike from the summary judgment record an affidavit and the deposition testimony of his former manager, Mark Rader. First, Plaintiff argues that the affidavit should be stricken under the so-called sham affidavit doctrine, which provides that “[w]hen an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.” Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994). Here, “[t]he cited disparity between the declaration and deposition testimony is not such that the Court must regard it as ‘clearly contradictory.'” Mantha v. QuoteWizard.com, LLC, Civil No. 19-12235-LTS, 2022 WL 325722, at *2 n.4 (D. Mass. Feb. 3, 2022). Thus, Mr. Rader's affidavit will not be stricken on this basis.
Second, Plaintiff argues that Rader's deposition testimony should be stricken because it “is riddled with such untruths and inconsistencies that the Court, exercising its duty as gatekeeper, must strike or disregard [it]” (Dkt. No. 50 at 1). In the testimony that Plaintiff seeks to strike, Rader denies any recollection of the two employees hired to replace Plaintiff. Plaintiff suggests that this lack of recall is incredible based on electronic correspondence regarding the two individuals that included Rader. The fact that Rader was included on electronic correspondence regarding the two individuals and even worked with them for a short time does not establish that he was lying when he claimed not to recall them. Plaintiff may find the testimony incredible, and he is free to question Mr. Rader about his claimed lack of memory to convince a factfinder that he is being untruthful. However, there is no basis for excluding the testimony simply because Plaintiff does not believe it. Indeed, “credibility determinations are for the factfinder at trial, not for the court at summary judgment.” Simas v. First Citizens' Fed. Credit Union, 170 F.3d 37, 49 (1st Cir. 1999) (citing Perez-Trujillo v. Volvo Car Corp. (Sweden), 137 F.3d 50, 53 (1st Cir.1998)). Accordingly, Plaintiff's motion to strike is without merit and will be denied.
Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute is ‘genuine' if the evidence ‘is such that a reasonable jury could resolve the point in the favor of the non-moving party ...,' Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1, 7 (1st Cir. 2018) (citation omitted), and a fact is ‘material' if it ‘has the potential of affecting the outcome of the case,' Perez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 25 (1st Cir. 2011) (citation omitted).” Taite v. Bridgewater State Univ., Bd. of Trs., 999 F.3d 86, 93 (1st Cir. 2021). In evaluating whether a genuine dispute of material fact exists, a court “‘look[s] to all of the record materials on file, including the pleadings, depositions, and affidavits' without evaluating ‘the credibility of witnesses [ ] or weigh[ing] the evidence.'” Id. () (quoting Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014)).
A party seeking summary judgment is responsible for identifying those portions of the record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden either by “offering evidence to disprove an element of the plaintiff's case or by demonstrating an ‘absence of evidence to support the non-moving party's case.'” Rakes v. United States, 352 F.Supp.2d 47, 52 (D. Mass. 2005) (quoting Celotex, 477 U.S. at 325). If the moving party meets its burden, “[t]he non-moving party bears the burden of placing at least one material fact into dispute.” Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir. 1994) (citing Celotex, 477 U.S. at 325). The record is viewed in favor of the nonmoving party, and reasonable inferences are drawn in the nonmoving party's favor. See Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d 411, 417 (1st Cir. 2017) (citing Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 68 (1st Cir. 2015)).
In 2014, Plaintiff began working as an Assistant Store Manager (“ASM”) in Defendant's retail store located in Ware, Massachusetts (Def. SOF ¶¶ 1-2; Pl. Resp. ¶¶ 1-2). During his tenure in Ware, Plaintiff qualified for the management's bonus plan and received a ring and a diamond for sales performance (Pl. SDF ¶ 2). Plaintiff was never formally disciplined while he was in Ware; he was “talked to” on only one occasion in 2016 or 2017 for failing to secure all the gates and doors at the Ware store (Pl. SDF ¶ 3).
On September 2, 2017, Plaintiff was transferred to Defendant's retail store located in Springfield, Massachusetts, where he became ASM of Operations (Def. SOF ¶¶ 2, 7; Pl. Resp. ¶¶ 2, 7). Lowe's has about 1,700 stores in the chain, and Springfield was regarded as one of the toughest stores to run in the entire company (Pl. SDF ¶ 27). Before Plaintiff moved to the Springfield store, District Manager Kevin Becker asked Plaintiff on several occasions to accept a transfer to the Springfield store because there was a culture problem, and he wanted Plaintiff to help improve the store's performance (Pl. SDF ¶ 28).
Not quite a year after Plaintiff came to Springfield, on August 18, 2018, Mark Rader (“Rader”) was transferred to the Springfield store as Store Manager, in which role he was Plaintiff's direct supervisor (Def. SOF ¶¶ 3, 6; Pl. Resp. ¶¶ 3, 6). Plaintiff was 62 years-old at that time, significantly older than Rader, who was in his mid-40s (Pl. SDF ¶ 4). Plaintiff was also older than the other three ASMs in Springfield, who were in their early-to-mid 40s (Pl. SDF ¶ 4). During Plaintiff's time working under Rader, Rader referred to him as “old man,” “jumpy old man,” “grumpy old man,” and “grandpa;” he also referred to another employee as an “old guy,” and said that another employee was “getting too old for this” (Def. SOF ¶¶ 126, 130; Pl. Resp. ¶¶ 126, 130; Pl. SDF ¶ 40). In addition, Rader stated that Plaintiff was “probably there when Jesus was born;” that Plaintiff “should have to work during the day because [he doesn't] have headlights on [his] car because [he's] not allowed to drive at night;” and that Plaintiff needed a position that allowed him to sit as Rader needed “young blood on the [sales] floor” (Def. SOF ¶¶ 127-128; Pl. Resp. ¶¶ 127-128; Pl. SDF ¶ 41). Further, on one occasion in November 2018, Rader mentioned employees' salaries and asked Plaintiff is he was going to retire soon (Def. SOF ¶ 129; Pl. Resp. ¶ 129; Pl. SDF ¶ 22).
According to Defendant's job description:
The Assistant Store Manager is responsible for leading a team of associates who work together to ensure the store remains in-stock and customers receive exceptional service while shopping in a clean and safe store environment. The Assistant Store Manager is accountable for achieving sales and margin goals while driving operational efficiencies and maximizing overall customer satisfaction with Lowe's in-store experience. In addition, the Assistant Store Manager is expected at times to provide full leadership over the store.
(Dkt. No. 46-1 at 79). The document further provides that specific ASM responsibilities include team leadership, program execution, business leadership, manager on duty, and self-leadership (Dkt. No. 46-1 at 79-80). The ASM of Operations is assigned additional responsibilities, including overseeing all front-end and back-end operational programs, driving collaboration between day and night operations teams, and identifying any barriers to operations processes or the customer experience (Dkt. No. 46-1 at 81). According to Plaintiff, in addition to his assigned duties, he was held accountable for “IRP” functions (i.e., Inventory Replacement Process), which were properly the obligation of other ASMs but that Rader assigned to Plaintiff (Pl. Resp. 8; Pl. SDF ¶ 16). As ASM in the Springfield store, Plaintiff was in charge of and responsible for, directly or indirectly, all employees under the department heads, which numbered approximately 50 to 55 individuals (Def. SOF ¶ 10; Pl. Resp. ¶ 10).
In or around late October 2018, Plaintiff failed to ensure that a bag of money generated from store sales was secured at store closing; an...
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