Nasuti v. Walmart, Inc.
| Docket Number | 5:20-CV-5023-LLP |
| Decision Date | 23 November 2021 |
| Parties | MATT NASUTI, Plaintiff, v. WALMART, INC., Defendant. |
| Court | U.S. District Court — District of South Dakota |
Plaintiff Matt Nasuti ("Nasuti") has filed a renewed motion for summary judgment. (Doc. 93.) Defendant Walmart, Inc. ("Walmart") has also moved for summary judgment. (Doc. 95.) The parties have fully briefed the issues, and the Court gave the parties an opportunity to present argument at a motion hearing on October 13, 2021. For the reasons stated below, Nasuti's motion is denied and Walmart's motion is granted.
Viewing the facts in a light most favorable to Nasuti for purposes of Walmart's motion for summary judgment, the record establishes the following. On August 13, 2019, Walmart hired Nasuti to work as an assistant manager for Walmart's Spearfish, South Dakota store ("the Store"). Nasuti received a letter from Walmart that stated, in part (Doc 96-15.) Nasuti signed the letter. (Id.)
Nasuti began working in August of 2019. He attended Walmart's Academy for Managers in Colorado for six weeks. Nasuti was in training in Colorado when he filed a complaint about being retaliated against by the training manager after reporting a safety violation. Walmart's investigation found that Nasuti had raised valid safety concerns, but that he had not been retaliated against.
In his declaration filed in opposition to Walmart's motion for summary judgment, Nasuti says that, during his time at the Store, store manager, Corey Heiting ("Heiting") treated at least three women abusively, illegally and in violation of Walmart policy. (Doc. 98 at ¶ 30.) At his deposition, Nasuti testified that several of his female co-workers suffered unfair treatment because Heiting "treated women different than men." (Nasuti depo. at 23:19-24:4.) Three of the women are Martha McMannis ("McMannis"), Jean Larsen ("Larsen") and Tammy Brothern ("Brothern"). (Id. at 24:3-4.) Nasuti also described female assistant managers quitting "in part because they weren't being treated properly." (Nasuti depo. at 24:12-18.) He explained that no male assistant managers quit. Rather (Id.)
Regarding McMannis - the store personnel manager - Nasuti testified that Heiting "would always talk behind her back," and "[w]hen she would raise questions, he'd roll his eyes." According to Nasuti, Heiting would sometimes criticize McMannis for not doing her job well- for example, "nitpicking about schedules [not being] correct for this particular person or that particular person." Nasuti also thought McMannis was treated abusively, illegally and in violation of Walmart policy because Heiting once "riled against her" at a meeting, and "said he wasn't going to give her an exceeds performance evaluation." McMannis never complained to Nasuti that she thought she was being treated unfairly, nor did anyone else express that view to him. Nasuti never told Heiting that he thought McMannis was being mistreated. Nasuti disagreed with Heiting's criticisms of McMannis, and Heiting's purported poor opinion of McMannis's job performance. On one page of his deposition, Nasuti said it "appeared to be all gender related." Walmart did not provide the Court with the previous page of Nasuti's deposition, so the question Nasuti was responding to is unknown.
Larsen worked as a department manager for stationery and office supplies. According to Nasuti, Larsen struggled to perform well in her role, because she had difficulty lifting items and was "over her head." Nevertheless, Heiting refused to move her to a different department, and would refuse to discuss with Nasuti the topic of moving Larsen. Nasuti does not know whether Larsen suffered from a disability, or whether she ever asked for an accommodation. Nasuti thought that "it made no business sense" for Heiting to decline to move Larsen to a different department. Nasuti stated at deposition that Heiting would talk about male department supervisors and moving them" but he did not want to talk about moving Larsen. It was Nasuti's view that Heiting Nasuti testified further: (Id. at 34:16-20.)
Brothen was in charge of the liquor department. Nasuti recommended to Heiting that Brothen be moved to a different department. At Nasuti's urging, after months of effort, Heiting moved Brothen to run the pharmacy department. Nasuti thinks Brothen should have been transferred sooner, and that Heiting kept her in the liquor department position despite knowing that Brothen was "in pain." Brothen suffers from carpal tunnel syndrome and wore braces on her wrists. Nasuti is not aware of Brothen ever making a formal request for an accommodation, and never himself recommended to her that she ask for an accommodation, even though it was part of his job to tell associates whom he thought needed a disability accommodation how to seek one out.
During Nasuti's employment, Walmart had a number of policies including a Global Statement of Ethics, a Disciplinary Action Policy, Disciplinary Action Management Guidelines, an Open Door Communications Policy, and a Discrimination & Harassment Prevention Policy. All of these policies included language indicating that they do not create an express or implied contract of employment or any other contractual commitment, and that employment with Walmart is on an at-will basis. (Docs. 96-18, 96-19, 96-20, 96-21, and 96-22.) Nasuti attached to his declaration copies of both the Open Door and Disciplinary Action policies that were given to him by Walmart. Nasuti doesn't deny that the policies include language that employment with Walmart is at-will, but he says the "at-will" language is "difficult to impossible to read." (Doc. 100, pp. 6-7.) At deposition, Nasuti was asked: "Are you aware of any document at Walmart that said it had to have cause to terminate your employment? He responded: "Not those specific words." (Nasuti depo. at 89:19-22.)
Nasuti contends that Walmart has a personnel manual or an equivalent, but Walmart's Market Human Resources Manager submitted a declaration averring that Walmart has not had a personnel manual since the 1990s and instead uses various policies online as described in this paragraph. (Doc. 82-3.) Nasuti cites no evidence to support his assertion that Walmart withheld a personnel manual. At deposition, Nasuti was asked: (Nasuti depo. at 94:9-15.)
On January 10, 2020, Heiting had a conversation with Nasuti (which co-manager Josh Hehn witnessed, following which Heiting recorded in writing his impressions). (Doc. 96-25, Declaration of Heiting.) Heiting's impressions included that Nasuti "needed attendance at management tours and meetings, helping answer management calls, and [Heiting]challenged him on building relationships with the team to assist." (Doc. 96-26.) Heiting recorded that Nasuti was "[e]xtremely defensive and upset" by this, and responded by "challenging every bit of feedback that he receives." (Id.) At his deposition, Nasuti said that "there was nothing to change" about his workplace behavior after the meeting with Heiting on January 10, 2020.
On February 1, 2020, Heiting had another conversation with Nasuti, for which Heiting also took notes. Heiting recalled that he and co-manager Manny Schryvers talked "with Matt about his tours, building relationships, and his desire/drive to be an [assistant manager] for us." (Doc. 96-26.) Heiting "[mentioned the perception is that [Nasuti] does not want to be here," and set "[expectations of his tours and our direction moving forward." (Id.) At deposition, Nasuti testified that he remembered this meeting, and recalled Heiting saying "we don't think that you're happy," which Nasuti thought was "just really creepy" and "a weird thing to say."
On February 3, 2020, Nasuti, at the direction of one of his supervisors, co-manager, Manny Schryvers, emailed Heiting to express his concerns about Tom Ferguson ("Ferguson"), a fellow male assistant manager who worked an overnight shift. (Doc. 96-3.) Nasuti claimed that Ferguson had been "abusive" to another associate causing this associate to cry. Nasuti also took issue with Ferguson's management of other associates. Nasuti was also concerned about a comment Ferguson made about how certain pallets needed to "be removed from 'his backroom.'" Nasuti stated that Ferguson "needs to be advised that the backroom is not his." In this email, Nasuti recounted what he perceived to be Ferguson's inadequate job performance, and he stated that ...
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