Royster v. Costco Wholesale Corp., No. 1:03 CV 000579.

• Decision Date: 28 March 2005
• Docket Number: No. 1:03 CV 000579.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Brenda ROYSTER, Plaintiff, v. COSTCO WHOLESALE CORPORATION, a.k.a. COSTCO CORPORATION, Defendant.

378 F.Supp.2d 595

Brenda ROYSTER, Plaintiff, v. COSTCO WHOLESALE CORPORATION, a.k.a. COSTCO CORPORATION, Defendant.

No. 1:03 CV 000579.

United States District Court, M.D. North Carolina.

March 28, 2005.

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COPYRIGHT MATERIAL OMITTED

Angela Newell Gray, Gray Newell Johnson & Blackmon, LLP, Winston-Salem, NC, for Plaintiff.

J. Nathan Duggins, III, Tuggle Duggins & Meschan, P.A., Greensboro, NC, Steven Michael Staes, Thomas J. Wybenga, Seyfarth Shaw, Atlanta, GA, for Defendant.

ORDER AND JUDGMENT

BEATY, District Judge.

On September 3, 2004, the United States Magistrate Judge's Recommendation [Document # 24] was filed and notice was served on the parties pursuant to 28 U.S.C. § 636(b). Plaintiff filed timely Objections. The Court has now reviewed the Objections and the portions of the Magistrate Judge's report to which objection was made, and the Court has made a de novo determination which is in accord with the Magistrate Judge's report. The Magistrate Judge's Recommendation [Document # 24] is therefore affirmed and adopted.

IT IS THEREFORE ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment [Document # 16] is GRANTED, and this case is DISMISSED WITH PREJUDICE.

DIXON, United States Magistrate Judge.

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE

This matter is before this court on Defendant's motion for summary judgment (docket no. 16). Plaintiff has responded (docket no. 18) and Defendant has replied (docket no. 19). In this posture, this matter is ripe for disposition. For the reasons stated below, it will be recommended that the summary judgment motion be granted.

Background

A. Procedural Background:

Plaintiff filed a complaint on June 19, 2003, alleging two claims: first, a state law claim that "[t]he Defendant Company is liable to the Plaintiff for the Negligent Supervision and Retention of employee-Defendant, Pat Spangler;" and second, a federal claim that "[t]he Defendant Company is liable to the Plaintiff for subjecting her to race discrimination, failure to hire, demotion and racial harassment, including a racially Hostile Work Environment and for disparate treatment in the terms and conditions of her employment" in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e-2(a)(1)), 42 U.S.C § 1981 and N.C.Gen.Stat. § 143-422.2. Plaintiff requests declaratory judgment, injunctive relief, compensatory and punitive damages, back pay, a jury trial, and other appropriate relief.

In the motion for summary judgment, filed May 12, 2004, Defendant argues that there are no genuine issues of material fact as to any of Plaintiff's claims. Plaintiff responded on June 14, 2004, opposing the motion. Defendant replied on July 2, 2004.

B. Factual Background:

Plaintiff, who is African-American, was hired by Costco Wholesale Corporation (Costco) in November 2000 as a part-time food service attendant in the Food Court at the Costco location in Durham. Plaintiff worked evenings and weekends earning $10 an hour at the beginning. She was not able to work during the day because of her primary job with Duke University. Pl. Dep. Vol 1, pp. 13-15 (attached to Motion for Summary Judgment). After completing a 90-day probationary period, Plaintiff's hourly rate was increased to $10.25 per hour on or after February 18, 2001. Pl. Dep. Vol 1, pp. 18, 19, 21-23 (attached to Motion for Summary Judgment).

On September 10, 2001, Plaintiff filed a claim with the Durham Human Relations Commission. Plaintiff's Charge of Discrimination was later filed with the Equal Employment Opportunity Commission, which issued a right-to-sue letter on March 21, 2003. Plaintiff's Charge of Discrimination alleges discrimination in two specific incidents. See Charge of Discrimination, Ex. 8 (attached to Defendant's Motion for Summary Judgment). She complains first about her request to be transferred to a position working as a Gas Station Attendant, and second about her request for vacation time. After a general discussion of Plaintiff's performance, the factual background for each of these two incidents will be discussed.

1. Plaintiff's Performance

Plaintiff's time on the food court staff was not without incident. She was issued counseling notices and requested, and was granted, a transfer. Nevertheless, she has worked primarily in the food court under the supervision of Pat Spangler, Food Court Manager. Several of the incidents are outlined here.

Less than two weeks after the end of her probationary period, Plaintiff was issued her first counseling notice for performing three voids in a row without the approval required by company policy. Pl. Dep. Vol. 1, pp. 23-28; Pl. Dep. Vol. 1, Ex. 3 (attached to Motion for Summary Judgment). Plaintiff did not sign the counseling notice, stating instead that she was unaware of Costco's procedures for handling voids. Pl. Dep. Vol. 1, pp. 24, 28; Pl. Dep. Vol. 1, Ex. 3 (attached to Motion for Summary Judgment).

On May 27, 2001, Plaintiff was issued another counseling notice for wearing jewelry while handling food in violation of Costco's policy. Pl. Dep. Vol. 1, pp. 28-31; Pl. Dep. Vol. 1, Ex. 4 (attached to Motion for Summary Judgment). She again refused to sign the notice, this time stating that her supervisor had also violated the policy by wearing a wedding band. Pl. Dep. Vol. 1, pp. 28-31 (attached to Motion for Summary Judgment). Plaintiff complained to various managers about this incident, claiming that Spangler was harassing and "nitpicking," but she did not indicate that this was based on her race. Pl. Dep. Vol. 1, pp. 30-31; Pl. Dep. Vol 2 pp. 37-41 (attached to Motion for Summary Judgment).

Plaintiff also complained that Spangler referred to Food Court employees as "you people" or "you guys," yet again, it is not obvious that this had anything to do with race, as some of the food court employees were white. Pl. Dep. Vol. 2, pp. 36-37, 43, 55-56, 90-91 (attached to Motion for Summary Judgment). Plaintiff asked to be transferred to another department because of Spangler's management style. Pl. Dep. Vol. 1, pp. 31-33, 42; Pl. Dep. Vol. 2, pp. 38-39 (attached to Motion for Summary Judgment). Keith Napolitano, Assistant Warehouse Manager, offered Plaintiff a position as a Clothing Stocker which she accepted for a brief time. Pl. Dep. Vol. 1, pp. 31-32, 37-38, 153; Pl. Dep. Vol. 2, p. 71 (attached to Motion for Summary Judgment). Plaintiff, however, requested a transfer back to the food court under Spangler's supervision because she did not want to work until midnight on a weekend night. Pl. Dep. Vol. 1, pp. 31-32, 34-36, 38, 153; Pl. Dep. Vol. 2, pp. 71-74; Pl. Dep. Vol 1, Ex. 1 (attached to Motion for Summary Judgment).

Finally, in August 2001, Spangler gave Plaintiff a performance evaluation that indicated that Plaintiff needed to improve quality of work, judgment, initiative, and communication skills. Pl. Dep. Vol. 1, p. 46; Pl. Dep. Vol. 1, Ex. 6 (attached to Motion for Summary Judgment). On the evaluation, Spangler indicated — among other things — that Plaintiff had refused to acknowledge her supervisors, and that Plaintiff lacked a sense of urgency, was apathetic, and had received a member complaint for rudeness. Pl. Dep. Vol. 1, pp. 46, 49-51, 53; Pl. Dep. Vol. 1, Ex. 6 (attached to Motion for Summary Judgment). Plaintiff always seemed to feel that she was being unfairly singled out. Even in the deposition, Plaintiff demonstrated that she did not agree with this evaluation. Pl. Dep. Vol. 1, pp. 46, 49-51, 53 (attached to Motion for Summary Judgment).

2. Plaintiff's application to be transferred to the Gas Station

After working primarily in the food court under Spangler, Plaintiff requested a job transfer to the position of Gas Station Attendant in July 2001.¹ A notice was posted at Costco on July 23, 2001, indicating a job opening for a Gas Station Attendant, a position that was in the same job and pay classification as Plaintiff's job in the food court. Pl. Dep. Vol. 1 p. 143; Pl. Dep. Vol. 1, Ex. 9-10 (attached to Motion for Summary Judgment). Although the notice indicated that applicants must be available to work between the hours of 5:45 a.m. and 10:00 p.m. Pl. Dep. Vol. 1, p. 124; Pl. Dep. Vol. 1, Ex. 9; McBroom Dep. pp. 9-10; McBroom Dep. Ex. 1 (attached to Motion for Summary Judgment), Plaintiff apparently thought that an applicant must only be available to work in the evening, between 5:45 p.m. and 10:00 p.m. Pl. Dep. Vol. 1, pp. 123-24; McBroom Dep. pp. 8, 12-16 (attached to Motion for Summary Judgment). McBroom recommended to Napolitano and Warehouse Manager Brian Minion that Plaintiff was the most qualified person for the position and they approved her transfer. McBroom Dep. pp. 8, 12-16 (attached to Motion for Summary Judgment). (Defendants also cite to the Minion Dep. pp. 40 48 for this proposition, but these pages were not actually included in the record.)

Plaintiff received a schedule that required her to work during the day. Pl. Dep. Vol. 1, pp. 125-26; McBroom Dep. pp. 8, 14 (attached to Motion for Summary Judgment). Plaintiff could not fulfill these obligations because of her day job at Duke University. She therefore contacted McBroom to discuss her schedule. Pl. Dep. Vol. 1, pp. 125-27; McBroom Dep. pp. 17 (attached to Motion for Summary Judgment). McBroom responded that he needed someone who was available during the day as well as the evening. Pl. Dep. Vol. 1, pp. 125-27, 132; Pl. Dep. Vol. 2, p. 27; McBroom Dep. pp. 17-18 (attached to Motion for Summary Judgment). Therefore, Plaintiff was transferred back to the food court on July 30, 2001. Pl. Dep. Vol. 1, p. 128, Pl. Dep. Vol. 2, p. 102; Minion Decl. ¶ 6 (attached to Motion for Summary Judgment).

At this point Plaintiff's pursuit of the gas station position was over and the search for a new candidate began. It is clear that, at that time, it was not in McBroom's interest to have an attendant who was not available for scheduling during...