Tucovic v. Wal-Mart Stores E., LP
| Decision Date | 28 March 2013 |
| Docket Number | No. 1:09 CV 148,No. 1:10 CV 386,1:09 CV 148,1:10 CV 386 |
| Parties | JASMINA TUCOVIC, Plaintiff, v. WAL-MART STORES EAST, LP, et al., Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the court on an unopposed motion for summary judgment filed by defendant Wal-Mart Stores East L.P. (DE # 94.)1 Before addressing the merits of the motion, the court summarizes the procedural background which brought the case to this point.
Plaintiff Jasmina Tucovic ("Tucovic") filed this action, pro se, alleging her employer, Wal-Mart, discriminated against her on the basis of her national origin and religion. (DE # 1.) As the case progressed, she requested, and was granted, an appointed attorney. (DE # 19; DE # 23.) Counsel then filed an amended complaint. (DE # 40.) In that complaint Tucovic alleged discrimination in violation Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and 42 U.S.C. § 1981, on the basis of her national origin (and read most broadly, religion), in the formof a hostile work environment, and retaliation for having filed an EEOC complaint and the present suit; and violations of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. ("FMLA"), in the form of failing to reinstate her to her prior position after taking FMLA leave and retaliating against her for taking that leave by reducing her work hours. (Id. at ¶¶ 49; 50.)
At the request of the parties, the court then consolidated case 1:10 CV 386 into this action. (DE ## 51; 52.) Tucovic had filed the complaint initiating 1:10 CV 386 pro se. In substance her allegations in that suit were the same as those in her amended complaint in 1:09 CV 148, with additional claims of retaliation and a claim that Wal-Mart's actions had violated the Rehabilitation Act, 29 U.S.C. § 701 et seq. A few months later the court granted Wal-Mart's motion to dismiss the Rehabilitation Act claims. (DE # 66.)
No too long after that, the relationship between Tucovic and her appointed attorney deteriorated. She asked for a new attorney, prompting her appointed counsel to move to withdraw. (DE ## 71; 78.) Magistrate Judge Cosbey held a hearing to address the matter (DE # 77), found that there had been an irreconcilable breakdown in the attorney/client relationship, granted counsel's request to withdraw and ordered Tucovic to retain an attorney or she would be deemed to have elected to proceed pro se. (DE # 80.) Tucovic then again requested an appointed attorney. (DE # 81.) Magistrate Judge Cosbey then set the case for a scheduling conference, noting that Tucovic's request for appointed counsel was under advisement. (DE # 83.) Tucovic then filed adocument stating that she would refuse to attend any conference until her request for an appointed counsel was granted. (DE # 85.)
A week later Magistrate Judge Cosbey held the conference and Tucovic failed to appear. (DE # 86.) The next day he denied her request for appointed counsel requiring her to proceed pro se. (DE # 87.) A few months later Wal-Mart moved for summary judgment (DE # 95) and gave Tucovic appropriate notice as required by Kincaid v. Vail, 969 F.2d 594 (7th Cir. 1992), Timms v. Frank, 953 F.2d 281 (7th Cir. 1992) cert. denied, 504 U.S. 957 (1992), and Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982), of the consequences of failing to respond. (DE # 96.) As noted, Tucovic has not responded. By failing to do so, the properly-supported facts Wal-Mart put forth in its motion will be considered by this court to be undisputed, and the motion will be ruled on in summary fashion. FED. R. CIV. P. 56(c)91)(A), (e)(2); Local Rule 7-1(d)(4).
Because the court is addressing Wal-Mart's motion in summary fashion, it briefly outlines only the facts essential to ruling on the motion.
Tucovic was born in Bosnia and Herzegovina, but immigrated to the United States in 1993 and has lived here since then, except for a two-year period when she temporarily returned to Bosnia. (DE # 95-2 (Plaintiff's Dep. 61-63) at 5.)2 In February, 2008, Tucovic applied for a position at a new Wal-Mart store opening in Fort Wayne,Indiana, store no. 4230. (DE # 95-1 at ¶ 11.) In March she was hired as part-time cashier in the store's "Money Center." (Id. at ¶ 12.)
At the Money Center, located in the front of the store, customers could do things such as apply for Wal-Mart credit cards, cash checks, buy gift cards, pay bills, etc. (Id. at ¶ 13.) In addition to Tucovic there were seven other Money Center cashiers, only three of whom were full-time employees. (Id. at ¶¶ 14; 16.) Tucovic received the same training as every other Money Center cashier. (Id. at ¶ 22.) There were additional "front end" employees who worked as cashiers, greeters, at the customer service desk, and clearing carts from the parking lot. (Id. at ¶ 16.) Most of these employees were part-time. (Id.) All of the front-end employees had to perform each other's jobs as needed, for example, to allow other employees to take a break, or if an additional check-out line needed to be opened because of the number of customers standing in line. (Id. at ¶ 19; DE # 95-4 at ¶ 8.) Tucovic was not assigned to perform those other jobs more than any other Money Center cashiers were. (DE # 95-4 at ¶ 13.)
All of the employees' hours fluctuated, but the store managers did not do the scheduling. (DE # 95-1 at ¶ 18; DE # 95-3 at ¶ 5; DE # 95-4 at ¶ 7.) Instead, Wal-Mart uses a software program which creates a schedule, three weeks in advance, based on factors such as expected customer traffic at the store and the employees' reports of the times they are available. (Id.; DE # 95-2 (Plaintiff's Dep. 256) at 49.) Managers in the store override the software-generated schedule only if made necessary by, for example,an employee being absent due to illness. (DE # 95-1 at ¶ 18; DE # 95-3 at ¶ 5; DE # 95-4 at ¶ 7.) None of the managers ever overrode Tucovic's hours to reduce them. (Id.)
At some point during the first two to three months, a "Customer Service Specialist" (Wal-Mart's term for an hourly-paid supervisor of other hourly employees, usually abbreviated as "CSS") told Tucovic that because she was from Bosnia, she needed to wear deodorant because she was "stinking." (DE # 95-2 (Plaintiff's Dep. 220-22) at 41-2.)
On July 12, 2008, Tucovic received a 90-day evaluation and her overall rating was "meets expectations." (DE # 95-2 at 74.) She received a $.40/hr raise at this time. (DE # 95-4 at ¶ 11.) On March 3, 2009, she received an annual evaluation and again her overall rating was "meets expectations." (DE # 95-2 at 76.) She received another $.40/hr raise at this time. (Id.)
In early 2009 a decision was made at Wal-Mart headquarters to close six unprofitable Money Centers and have the Money Center services performed at the customer service desk. (DE # 95-5 at ¶ 3.) Pursuant to this decision, the Money Center in store 4230 where Tucovic worked closed on May 31, 2009. (Id.; DE # 95-1 at ¶ 24.) The Money Center cashiers were told they needed to change their "Career Preference" in order to be considered for a new position in the store. (DE # 95-1 at ¶ 25; DE # 95-6 at ¶ 6.) "Career Preference" was, at the time, a Wal-Mart computerized hiring and promotion system. (DE # 95-1 at ¶ 26.) If an employee's preferences matched an open position, the employee would automatically be considered an applicant for thatposition; but employees were not considered for positions their preferences did not match, even if in the past they had previously expressed interest in that position. (Id.)
Two Money Center cashiers immediately changed their career preferences and were hired for open positions at the customer service desk with no change in pay. (Id. at ¶ 27.) Two other Money Center cashiers then changed their career preferences, and were hired as cashiers with a slight reduction in pay. (Id.) The only career preference Tucovic had listed was "Asset Protection"3 and she did not change it. (Id. at ¶ 28.) There were no Asset Protection positions available. (Id.) In addition, there was no longer a Money Center cashier "job code" in the store, which was Tucovic's job code, so the work scheduling software no longer scheduled Tucovic for any hours. (DE # 95-4 at ¶ 17.) Instead, a CSS had to manually override the system to give Tucovic hours filling-in at other front-end positions with no change in pay, even though some of those job positions paid slightly less. (Id.) Tucovic did this for only a few days, then started a medical leave of absence. (Id.) The leave started four days after the Money Center closed. (DE # 95-1 at ¶ 30.)
Tucovic returned to work on June 21, 2009. (DE # 95-1 at ¶ 19.) When she returned she was reinstated into the same position which, however, was in the inactive job code for Money Center cashier. (Id.; DE # 95-1 at 34.) She again had to be manually scheduled to fill-in at other positions. (DE # 95-1 at ¶ 19.) She was again told she neededto change her career preferences, and was informed that cashier positions were available. (DE # 95-2 (Plaintiff's Dep. 240-50) at 45-48.) She did not change her preferences until July 29, 2009, adding "service desk" as a preference, but there were no service desk openings. (DE # 95-1 at ¶ 35.) Tucovic was then given written notice that she could not keep working under the Money Center cashier job code; that there were no available positions matching her career preferences; and that she needed to update her preferences within 15 days. (Id. at ¶ 36.) It was recommended she include cashier as a preference. (Id.) Despite the warning and recommendation, Tucovic did not update her preferences. (Id.)
Because Tucovic, unlike any other employee, stayed in her inactive job code of Money Center cashier for an extended period, it was difficult to manually schedule her to work very many hours, for a number of reasons. (DE # 95-1 at ¶ 41; ...
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