Rozmiarek v. Walmart Stores, Inc.
| Decision Date | 05 October 2018 |
| Docket Number | 8:17CV353 |
| Parties | ROBERT ROZMIAREK, Plaintiff, v. WALMART STORES, INC., Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on the Motion for Summary Judgment filed by Defendant Walmart Stores, Inc., ECF No. 30. For the reasons stated below, the Motion will be granted, in part.
Unless otherwise indicated, the following facts are those stated in the parties' briefs, supported by pinpoint citations to admissible evidence in the record, in compliance with NECivR 56.11 and Federal Rule of Civil Procedure 56.
Defendant, Walmart Stores, Inc., ("Walmart") is an Arkansas corporation licensed to do business in Nebraska. Plaintiff, Robert Rozmiarek, is an individual residing in Douglas County, Nebraska. Rozmiarek had an obvious disability—a leg amputation, which requires him to use a wheelchair. Walmart hired Rozmiarek as a Meat SalesAssociate at store #5141 in Omaha, Nebraska, on August 15, 2015. His job duties included customer service; assisting with purchases; promoting products; receiving and stocking merchandise; identifying shrinkage; and making sure food products were rotated, removed if out of date, and handled in a safe manner.
Sherri McCallie was the Meat Department Manager for the duration of Rozmiarek's employment.2 McCallie Decl., ECF No., 32-4, Page ID 96. Assistant Store Manager Paul Teff was one of Rozmiarek's supervisors from August 15, 2015, to May 2016, when Teff moved to a different department. Assistant Store Manager Robert Plash was one of Rozmiarek's supervisors for the duration of his employment. Payton Goldapp became an Assistant Store Manager in June of 2016.
Construing the facts in a light most favorable to Rozmairek, at the time his employment commenced, Walmart had a policy stating that meat department associates were to wear company-issued coats. McCallie Decl. ECF NO. 32-4, Page ID 97; Teff Decl., ECF No. 32-2, Page ID 89. In May 2016, the policy changed to require company-issued aprons instead of coats. McCallie Decl. ECF NO. 32-4, Page ID 97; Teff Decl., ECF No. 32-2, Page ID 89. Until the aprons arrived at the end of June 2016, meat department associates were required to wear the butcher coats. Def.'s Br., ECF No. 31, Page ID 74; McCallie Decl. ECF NO. 32-4, Page ID 97; Teff Decl., ECF No. 32-2, Page ID 90. In early 2016, Teff talked to Rozmiarek about his inconsistent wearing of a butchercoat.3 Teff Decl., ECF No. 32-3, Page ID 90. During the conversation, Rozmiarek informed Teff that the coat sometimes got caught in his wheelchair. Id. Teff testified that he told Rozmiarek to submit an accommodation request through Human Resources if needed. Id. Rozmiarek disputes this assertion and testified a pharmacy coat was discussed and that Rozmiarek Dep., ECF No. 32-13, Page ID 152-53.4 No evidence has been presented that Rozmiarek submitted a written accommodation request. In May 2016, Teff moved to a different department and was no longer Rozmiarek's supervisor.
Early in his employment, Rozmiarek began raising complaints to McCallie and Teff about unsafe placement of ladders in the meat department. Id. at 144-45. Rozmiarek never raised concerns regarding the ladders with Goldapp or Plash. Id. at 159. McCallie, Teff, and Plash testified they had no knowledge of Rozmiarek's complaints about ladder placement before Rozmiarek raised such concerns at his termination meeting. McCallie Decl., ECF No. 32-4, Page ID 97; Plash Decl., ECF. No. 32-3, Page ID 93; Teff Decl., ECF. No. 32-2, Page ID 90.
Walmart maintained a Coaching for Improvement Policy designed to provide instruction and assistance when an associate's job performance failed to meet Walmart's reasonable expectations and standards or when an associate's conduct violated a company policy. On October 19, 2015, Rozmiarek received his first coaching to address his cursing at an associate, his accusing others of not performing their duties, and his intentional toppling of a cart full of meat, leaving chicken on the floor. On February 4, 2016, Rozmiarek received a second coaching for smoking just outside the food entrance instead of the designated smoking area. On or about April 22, 2016, Rozmiarek received a performance evaluation from his Manager Teff and Supervisor Linda Warecki. Performance Evaluation, ECF No. 32-17, Page ID 166. Rozmiarek received an overall performance rating of "Needs Improvement." Id. Rozmiarek's evaluation mentioned that Rozmiarek needed to prioritize his work to get it done in a correct and efficient manner, needed to be more respectful of other associates, needed to make sure all products were pulled off the shelves before their expiration, and needed to make sure all cases were clean. Id. at 167. The performance evaluation stated, underlined with an asterisk, the need for Rozmiarek "to wear a white coat at all times when on the floor." Id. On May 12, 2016, Rozmiarek received a subsequent coaching for again failing to use the designated smoking area. Consistent with Walmart's policy, this third coaching expressly stated that the next level of action would be termination.
On June 16, 2016, Rozmiarek was terminated. Exit Interview, ECF No. 19, Page ID 169. Walmart listed the reason for his termination as "Inability to Perform [his] Job." Id. Plash made the decision to terminate Rozmiarek's employment, in consultation with Goldapp. Plash Decl., ECF No. 32-3, Page ID 93. Plash testified that "[t]he week of June16, 2016, [Plash] both observed and heard from other supervisors that Mr. Rozmiarek was again failing to maintain the meat counter as required of him for several days in a row." Id. He also testified that the decision was made, "[b]ecause Mr. Rozmiarek had demonstrated similar behavior in the past, and because he had already received numerous verbal coachings and three written coachings regarding his job performance." Id. At the termination meeting, Plash noted Rozmierek's failure to wear the required butcher coat, but Plash maintains that Rozmierek's failure to wear the coat was not the basis for the termination decision. Id. Plash also testified that he "was unaware that Mr. Rozmiarek had any alleged issues with wearing a [butcher] coat, or that he had requested an accommodation, until he mentioned it at the end of the termination meeting." Id.
Rozmiarek testified that he was called into the office and told he was being terminated. Rozmiarek Depo., ECF No. 32-13, Page ID 148. When he asked why he was being termination, allegedly he was told "because you weren't wearing your meat coat." Id. Rozmiarek also testified that he tried to explain at the termination meeting that he couldn't wear the butcher coat because it got stuck in his wheelchair. Id. at 155. Rozmiarek alleges that he was told "I don't want to hear it, you're not wearing the coat, you're gone, it's a Wal-Mart policy."5 Id. Rozmiarek also testified that at the termination meeting he told Plash and Goldapp that Teff knew about the issue with the coat and "told [Rozmiarek] a couple of weeks ago that [Teff] was going to check into things."6 Id.
On September 22, 2017, Rozmiarek filed a Complaint, ECF No. 1, alleging Walmart failed to make reasonable accommodations for his disability, by requiring him to wear a butcher coat that got stuck in his wheelchair, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, and Nebraska Fair Employment Practices Act ("NFEPA"), Neb. Rev. Stat. § 48-1104 (Counts 1 and 2). Rozmiarek claims his termination was unlawfully motivated by his disability in violation of § 12112 of the ADA and § 48-1104 of NFEPA (Counts 3 and 4). Rozmiarek also claims he was unlawfully terminated in retaliation for requesting an accommodation for his disability, in violation of § 12203 of the ADA and § 48-1114 of NFEPA. (Counts 5 and 6). Finally, he claims he was unlawfully terminated in retaliation for reporting recognizable safety hazards—the butcher coat as well as ladder placement—in violation of §29 U.S.C. 654(a) and Neb. Rev. Stat. §48-1114(3) (Count 7).
"Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c)). "Summary judgment is not disfavored and is designed for every action." Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view "the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor." Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920,923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, "Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing "the absence of a genuine issue of material fact." Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477 U.S. at 325). Instead, "the burden on the moving party may be discharged by 'showing' . . . that there is an absence of evidence to support the nonmoving party's case." St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).
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