Willmore-Cochran v. Wal-Mart Assocs., Inc.

Decision Date22 January 2013
Docket NumberCivil Action No. 4:11–cv–2140–JEO.
Citation919 F.Supp.2d 1222
PartiesAmy Lynn WILLMORE–COCHRAN, Plaintiff, v. WAL–MART ASSOCIATES, INC., Defendant.
CourtU.S. District Court — Northern District of Alabama


Russell P. Parker, Birmingham, AL, for Plaintiff.

Jonathan S. Harbuck, Lynlee Wells Palmer, Gilpin Givhan PC, Birmingham, AL, for Defendant.

JOHN E. OTT, United States Chief Magistrate Judge.

In her complaint this action, Amy Lynn Willmore–Cochran (Plaintiff) brings claims alleging race discrimination in violation of 42 U.S.C. § 1981; interference and retaliation in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; as well as claims arising under Alabama law for breach of contract and breach of the covenant of good faith and fair dealing. (Doc.1 1 (“Complaint” or “Compl.”)). She brings the action against her former employer, whom she identifies as “Wal–Mart Associates, Inc.” (“Wal–Mart”) 2. The case now comes to be heard on Wal–Mart's motion for summary judgment. (Doc. 14). Upon consideration, the court 3 concludes that Wal–Mart's motion is due to be granted in part and denied in part.


Pursuant to Rule 56 of the Federal Rules of Civil Procedure a party is authorized to move for summary judgment on all or part of a claim asserted against the movant. Under that rule, the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion,” relying on submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.

Both the party “asserting that a fact cannot be,” and a party asserting that a fact is genuinely disputed, must support their assertions by “citing to particular parts of materials in the record,” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B), Fed.R.Civ.P. Acceptable materials under Rule 56(c)(1)(A) include “depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials.”

At summary judgment, “the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, in its review of the evidence, a court must credit the evidence of the nonmovant and draw all justifiable inferences in the non-movant's favor. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir.2000).


On November 13, 2008, Plaintiff, a white female, submitted an application for employment with Wal–Mart. (Ex. 3 to Plaintiff's Deposition (“Pl. Depo.”) 5, Bates 00053). The final portion of the application was a section marked IMPORTANT, which directed the applicant to “carefully” read and initial several statements. ( Id. (emphasis original)). One of those statements included the following:

I understand that this application is not a contract, offer, or promise of employment and that if hired, I will be able to resign at any time for any reason. Likewise, the company can terminate my employment at any time with or without cause, unless otherwise required by law. I further understand that no one other than the President of Wal–Mart Stores, Inc., or Vice President of its People Division has the authority to enter into an employment contract or agreement with me, and that my at-will employment can be changed only by a written agreement signed by the President of Wal–Mart Stores, Inc. I have read, understand and agree to this statement.

( Id.) Plaintiff initialed that statement and affixed her full signature to the application just below it. ( Id.) On November 21, 2008, Plaintiff signed an application addendum that similarly stated, “I understand that this application is not a contract, offer, or promise of employment and that if hired, I will be able to resign at any time for any reason. Likewise, the company can terminate my employment at any time with or without cause.” ( Id., Bates 00057). Wal–Mart hired Plaintiff, and, on December 1, 2008, she began working in a store in Gadsden, Alabama, as a part-time Sales Associate in the Menswear Department.

Near the end of April 2009, Plaintiff applied for a transfer to a Pharmacy Clerk position. She was awarded that position by the Manager of the Pharmacy Department, Jimmy Crump, a white male. (Ex. 4 to Pl. Depo., Bates 00046). Crump became Plaintiff's immediate supervisor. The job offer sheet upon which Plaintiff indicated that she accepted the position also stated that it did not “create[ ] an express or implied contract of employment or any other contractual commitment.” ( Id.) Plaintiff remained in that position in the pharmacy until her employment was terminated on April 27, 2011.

Plaintiff has irritable bowel syndrome (“IBS”), which causes her at times to experience symptoms that include constipation, diarrhea, spasms, bloating, cramping, and exhaustion. (Pl. Depo. at 33–38). Flare-ups occur sporadically for Plaintiff, anywhere from once a week to once every couple of months. ( Id. at 35). When she has such attacks, Plaintiff takes up to six doses of Imodium, an over-the-counter medication generally used to treat diarrhea, although it is not always effective. ( Id. at 9–10, 34–35). Plaintiff's IBS has caused her to visit hospital emergency rooms on several occasions. (Pl. Depo. at 43–44). However, the record only specifies one such visit—at the ER at Gadsden Regional Hospital because she was experiencing bloody bowel movements in about November 2009. ( Id. at 36–38; Doc. 19–1, ¶ 7). She also saw her regular physician, Dr. Herschel Patel in late 2009 or early 2010, for problems with her stomach (Pl. Depo. at 33). Dr. Patel referred Plaintiff to Dr. Vipul Amin at Digestive Disease Specialists, who saw Plaintiff two separate times and diagnosed her with IBS or chronic gastritis. ( Id. at 32–33, 43–44). The first visit to Dr. Amin was an initial consultation, and the second, on April 30, 2010, involved administration of an endoscopy and a colonoscopy. ( Id.; Docs. 19–12, 19–13, and 19–14). Later, sometime “after the first of the year” in 2011, Plaintiff's IBS again caused her to have bloody bowel movements, this time about two to three hours into her shift at work. (Pl. Depo. at 36–37). That circumstance prompted Plaintiff to go home early, around lunchtime. ( Id. at 36–38). Plaintiff did not go to the hospital on that occasion, although she followed the same course of treatment at home that had been recommended when she had visited the ER in November 2009: drinking clear fluids, avoiding solid foods, and resting. ( Id. at 36–37).

Plaintiff has also been diagnosed with occasional migraine headaches ( id. at 39), which have caused her to visit the emergency room “several times” since 2006. (Doc. 19–1, ¶ 7). When Plaintiff has such an episode, she “typically” gets a “visual aura,” which she describes as a “spot that shows up in the middle of [her] field of vision” and “grows ... to the point that it blocks [her] ... vision in that eye.” (Pl. Depo. at 40–41). That is usually followed by a headache, light and sound sensitivity, and nausea. ( Id. at 41–42). For her migraines, Plaintiff takes Imitrex, a prescription medication, and “most of the time” she has to apply an ice pack, and retreat to a cold, dark room. ( Id.)

During Plaintiff's employment, Wal–Mart had a written, four-step progressive discipline policy entitled, “Coaching for Improvement.” ( See Ex. 1 to Declaration of Kim Rancher (“Rancher Decl.”), Doc. 16–5 (“Coaching Policy”), Bates 00556–00559; Pl. Depo. at 147). At the first step of that Coaching Policy, a supervisor may use a “verbal coaching” to explain that an employee's job performance or conduct does not meet expectations and advise corrective action. (Coaching Policy at Bates 00556). The policy also expressly provides, however, that a “verbal coaching ... may be skipped if the job performance or conduct warrants a higher level of coaching.” ( Id.) The second step of the process is a “written coaching.” ( Id., Bates 00557). Under it, a supervisor notifies the employee “in writing that [the employee's] job performance or conduct does not meet [Wal–Mart's] expectations or when [the employee has] failed to correct a job performance or conduct issue despite prior Verbal coaching or if the [problem] warrants a Written level of coaching.” ( Id.) The third step is a “Decision Making Day,” which Wal–Mart employees sometimes refer to colloquially as a “D–Day.” ( Id.) During a Decision Making Day, a supervisor provides the employee written notice of job performance or conduct problems and meets with the employee to discuss corrective action, as with a Written coaching. In addition, the employee must also take off his or her next scheduled work day to develop and submit a “plan of action to correct the problems or concerns that exist.” ( Id.) On the employee's next scheduled work day after that, the employee must again meet with the supervisor to review the proposed plan of action and discuss the...

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