Mudrich v. Wal-Mart Stores, Inc.

• Decision Date: 08 July 2013
• Docket Number: Civil No. 11–1229 (JRT/JJK).
• Citation: 955 F.Supp.2d 1001
• Parties: Bryan R. MUDRICH, Plaintiff, v. WAL–MART STORES, INC., Defendant.
• Court: U.S. District Court — District of Minnesota

955 F.Supp.2d 1001

Bryan R. MUDRICH, Plaintiff,

v.WAL–MART STORES, INC., Defendant.

Civil No. 11–1229 (JRT/JJK).

United States District Court, D. Minnesota.

July 8, 2013.

Bryan R. Mudrich, Burnsville, MN, pro se.

Stephanie D. Sarantopoulos and Joseph D. Weiner, Littler Mendelson, PC, Minneapolis, MN, for defendant.

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

JOHN R. TUNHEIM, District Judge.

Plaintiff Bryan R. Mudrich worked in the Tire and Lube Express department of Defendant Wal–Mart Stores, Inc. (“Wal–Mart”) for approximately one year before his termination in the spring of 2010. Mudrich alleges that he was wrongfully terminated because Wal–Mart engaged in gender discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq., and the Minnesota Human Rights Act (“MHRA”), Minn.Stat. § 363A.08. Mudrich also brings a claim for defamation and alleges that Wal–Mart violated the Whistleblower Act, Minn.Stat. § 181.932. On March 22, 2013, United States Magistrate Judge Jeffrey J. Keyes issued a Report and Recommendation (“R & R”) recommending that the Court grant Wal–Mart's motion for summary judgment with respect to Mudrich's whistleblower claim and deny the motion with respect to Mudrich's wrongful termination/gender discrimination claims and his defamation claim. Wal–Mart made timely objections to the R & R. (Docket No. 111.) Mudrich did not object to the dismissal of his whistleblower claim. Having conducted a de novo review of those portions of the R & R to which Wal–Mart objects, see28 U.S.C. § 636(b)(1)(C), D. Minn. L.R. 72.2(b), and having carefully reviewed the submitted materials, the Court overrules Wal–Mart's objections and adopts the R & R in its entirety.

BACKGROUND¹

Mudrich began working in Wal–Mart's Tire and Lube Express department in May 2009. (Aff. of Bryan R. Mudrich ¶ 2, Jan. 7, 2013, Docket No. 105.) Mudrich was a “Service Writer” and was responsible for writing orders and performing services such as oil changes, tire replacements, battery changes, and tire rotations. ( Id. ¶ 3.) Mudrich contends that he was wrongly terminated because he was accused of providing a free tire rotation on April 3, 2010, that his co-worker, Catherine Kinnonen, had provided. ( See id.)

Mudrich alleges that he was the victim of gender discrimination because Wal–Mart did not discipline Kinnonen at all, much less fire her. (Second Am. Compl. at 2, Dec. 9, 2011, 2011 WL 6140969, Docket No. 52.) Wal–Mart contends that it terminated Mudrich because he did not comply with a company policy that required him to write a corrective action plan as part of his discipline for violations that occurred on March 20, 2010, not the April 3 incidents.² (Aff. of Regina Gilmore ¶¶ 10–12, 15, Aug. 6, 2012, Docket No. 77.)

Wal–Mart's Disciplinary Policy and Mudrich's Disciplinary History

Wal–Mart has a “Coaching for Improvement Policy” that identifies types of discipline that may be administered depending on the nature and severity of the misconduct. (Gilmore Aff. ¶ 4.) The policy identifies verbal coaching, written coaching, and “Decision–Making Day Coaching” as possible types of discipline. ( Id.;see also Mudrich Aff. ¶ 20.) Decision–Making Day Coaching or “D–Day” coaching results in a one-day paid suspension and requires the employee to submit an “action plan for improved performance.” (Gilmore Aff. ¶ 4; see also Mudrich Dep. 182:1–2, Docket No. 110.)

During his year of employment with Wal–Mart, Mudrich received reprimands for violations of Wal–Mart policies. On February 7, 2010, he received a verbal coaching for inappropriately combining two customer discounts without manager approval. (Gilmore Aff. ¶ 5.) Mudrich does not dispute that he met with assistant manager Regina Gilmore about combining the discounts (Mudrich Dep. 136:22–137:20), but Mudrich did not recognize that the meeting was a verbal coaching ( id. 139:17–24). On February 28, 2010, Mudrich received a written coaching for attendance and punctuality concerns. (Gilmore Aff. ¶ 6.) Mudrich contends that although concerns about his attendance were addressed by his managers, he never received the documentation for the written coaching and he did not know either meeting was considered coaching under Wal–Mart's policies. (Mudrich Dep. 140:19–145:22.)

The Disputed Discounts and D–Day Discipline

In late March 2010, Gilmore received a report indicating that Mudrich may have provided services on March 20 without charging for them. (Gilmore Aff. ¶ 7.) To fully understand the factual dispute, it is necessary to understand Wal–Mart's system of processing orders in its Tire and Lube Express department. First, a service writer like Mudrich is supposed to greet the customer and log into a handheld scanning device using a personal login and password. (Gilmore Aff. ¶ 9.) The service writer uses the scanning device to scan the Vehicle Identification Number and write the service order, creating a work order that is sent to the garage area. ( Id.; Mudrich Aff. ¶ 5.) After the garage technicians service the vehicle, they enter a work order via a computer. (Gilmore Aff. ¶ 9.) This completed work order is sent to the cashier area where the service writer signs onto the register and rings up the customer. ( Id.) Any discounts provided to the customer must be processed at the time of checkout. ( Id.) In addition, the handheld scanning device is programmed to log out an employee if it remains idle for more than two minutes. (Mudrich Dep. 167:18–168:2,)

Mudrich alleges that on April 3, 2010, after Kinnonen had clocked out for the day she returned to the Tire and Lube Express department and used a scanner Mudrich was logged in on to scan in at least one customer vehicle. ( Id. 153:11–154:9.) Mudrich states that because Kinnonen was using his scanner, he was unable to log into Wal–Mart's system and so he was sent to take his lunch break. ( Id. 162:5–2.)

Mudrich contends that he met with Gilmore and Kinnonen on April 4, 2010, and Gilmore asked him why he was “giving away” services. ( See Mudrich Dep. 165:1–166:20.) Mudrich denied giving away services. ( Id. 165:5.) Gilmore then showed him two tickets from the previous day and told him the tickets indicated that he was the service writer. ( Id. 165:5–11.) According to Mudrich, he then stated that Kinnonen had written up the tickets while he was at lunch. ( Id. 166:9–11) Gilmore then stated she would meet with Wal–Mart's Asset Protection group. ( Id. 166:21–167:3.) Mudrich testified that there were “a lot of people in the office,” including some he did not know, during this meeting. ( Id. 247:1–248:23.)

On April 9, 2010, Gilmore met with Mudrich and Mudrich's support manager, Buck Wiley. (Gilmore Aff. ¶ 11; Mudrich Dep. 171:3–7.) At this meeting, Gilmore told Mudrich they had “confirmed via video that he had provided an unauthorized discount.” (Gilmore Aff. ¶ 11.) Mudrich alleges that Gilmore presented him with video stills and the “tickets” from April 3. (Mudrich Dep. 171:12–172:12.) Mudrich also contends that Gilmore did not allow him or Wiley to explain or discuss the tickets. ( Id. 172:18–173:7.) Wal–Mart states that the evidence presented was for the March 20 violation, not the April 3 incidents. ( See Def.'s Mem. in Opp. at 2–3, Docket No. 115.) During that meeting, Gilmore told Mudrich she was giving him a D–Day. (Mudrich Dep. 172:13–14.) Gilmore instructed Mudrich to bring in three letters when he returned and to meet with another assistant manager Ahmed Jama to “finish” his D–Day. ( Id. 180:8–17, 181:17–21.) Mudrich finished working and took paid leave the next day, April 10, for his D–Day. ( Id. 181:22–182:2.) Mudrich did not write an action plan for improved performance. ( Id. 182:3–4; Gilmore Aff. ¶ 12.)

On April 11, his first day back at work, Mudrich met with Wiley and Jama to finish his D–Day process. (Mudrich Dep. 182:4–183:1.) According to Mudrich, Jama did not ask for Mudrich's action plan but told Wiley, “You can't give that man no D-day. Gina [Gilmore] has lost her mind.” ( Id. 182:4–23.) Mudrich assumed that the matter was resolved. ( Id. 184:20–23.)

On April 24, 2010, Mudrich received his performance evaluation, signed by Jama, Kinnonen, and Wiley. ( Id. 258:12–259:15 & Ex. 14.) Mudrich received “Development Needed” for all of the categories provided (out of five possible options from “Role Model” to “Below Expectations”). ( Id. Ex. 14.) Mudrich testified that Wiley had told him his first evaluation was boilerplate or “prewritten.” ( See id. 122:14–123:14.) Under Strengths, the evaluation stated:

Wears the right attire. He is dependable and is on time always. He has good customer service. Willing to do what ever ask [sic] of him. Very knowledgeable about the TLE service for the customers.

( Id., Ex. 14.) Under “Areas of Opportunity, the evaluation provided:

Needs to show proof of glasses are safety. Listen to his Supervisor. Let other Associates know if you need help. Slow down when you write up the orders. Make sure when writing order you have the right information and right oil, tires and filter ect. [sic] [M]ake sure the customer have the lifetime tire rotations with them or research. [W]hen slow make sure you stay busy and find something to do.

( Id.) The evaluation contains no reference to disciplinary action. ( See id.) Mudrich testified that both Wiley and Jama told him any disciplinary actions would have been listed in the Comments section. (Mudrich Dep. 260:5–261:2; see also id. 123:14–18.)

On April 30, 2010, Gilmore again met with Mudrich and another Wal–Mart employee. ( See Mudrich Dep. 185:2–9.) Gilmore asked Mudrich if he had completed an action plan, “admission letter,” and “apology.” ( Id. 185:12–21.) Mudrich said that he had not and Gilmore gave him another opportunity to write the letters. ( Id. 185:19–186:7.) Mudrich refused, saying that he would not admit responsibility for something that he had not done or for being a “thief.” ( Id. 185:19–186:9....