United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
Spyros Cope brings this action against Defendant Wal-Mart
Stores East, LP ("Wal-Mart"), his former employer.
Plaintiff alleges that he was improperly terminated from his
job as an assistant store manager at Wal-Mart Store #3547
located in Norwalk, Connecticut based on his race. Plaintiff
filed the action in Connecticut Superior Court on September
18, 2015. Defendant thereafter removed the case on October
20, 2015, invoking this Court's diversity jurisdiction
pursuant to 28 U.S.C. § 1332.
brings statutory claims under the Connecticut Fair Employment
Practices Act ("CFEPA"), Conn. Gen. Stat. §
46a-60(a)(1) (Count I), and Conn. Gen. Stat. §§
31-51x and 31-51z (Count IV). The Court previously dismissed
Plaintiff's common law claims for wrongful discharge
(Count II) and breach of the implied covenant of good faith
and fair dealing (Count III). Cope v. Wal-Mart Stores
East, LP, No. 3:15-cv-01523, 2016 WL 3561847 (D. Conn.
June 27, 2016). Defendant now moves for partial summary
judgment [Doc. 31] as to Plaintiff's first claim for
unlawful termination. This Ruling resolves that motion.
Standard of Review
motion for summary judgment shall be granted "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). If, after discovery,
the nonmoving party "has failed to make a sufficient
showing on an essential element of [his] case with respect to
which [he] has the burden of proof, " then summary
judgment is appropriate. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The moving party must
"demonstrate the absence of any material factual issue
genuinely in dispute" to be entitled to summary
judgment. Am. Int'l Grp., Inc. v. London Am.
Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981)
(quoting Heyman v. Commerce & Indus. Ins. Co.,
524 F.2d 1317, 1319-20 (2d Cir. 1975)) (internal quotation
marks omitted). A fact is material if it "might affect
the outcome of the suit under the governing law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). "[I]f the evidence is such that a reasonable
jury could return a verdict for the nonmoving party, "
then a dispute concerning the material fact is genuine.
Id. All inferences and ambiguities must be viewed in
the light most favorable to the nonmoving party. Rogoz v.
City of Hartford, 796 F.3d 236, 245-46 (2d Cir. 2015).
order to defeat a summary judgment motion that is properly
supported by affidavits, depositions, and documents as
envisioned by Fed.R.Civ.P. 56(e), the opposing party is
required to come forward with materials envisioned by the
Rule, setting forth specific facts showing that there is a
genuine issue of material fact to be tried."
Robertson v. Wells Fargo Bank, N.A., No.
3:14-cv-01861, 2017 WL 326317, at *7 (D. Conn. Jan. 23, 2017)
(quoting Gottlieb v. Cnty. of Orange, 84 F.3d 511,
518 (2d Cir. 1996)) (internal quotation marks omitted).
"A plaintiff may not rely solely on 'the allegations
of the pleadings, or on conclusory statements, or on mere
assertions that affidavits supporting the motion for summary
judgment are not credible.'" Id. (quoting
Gottleib, 84 F.3d at 518). In other words,
"[w]hen the moving party has carried its burden under
Rule 56, its opponent must do more than simply show that
there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The nonmoving party
"must present specific evidence demonstrating a genuine
dispute." Gannon v. UPS, 529 F.App'x 102,
103 (2d Cir. 2013) (citing Anderson, 477 U.S. at
248). Such evidence must be admissible. Allegations alone,
without evidence in support of such allegations, are not
sufficient. Robertson, 2017 WL 325317, at *7 (citing
Welch-Rubin v. Sandals Corp., No. 3:03-cv-481, 2004
WL 2472280, at *1 (D. Conn. Oct. 20, 2004)). "Where
there is no evidence upon which a jury could properly proceed
to find a verdict for the party producing it and upon whom
the onus of proof is imposed, such as where the evidence
offered consists of conclusory assertions without further
support in the record, summary judgment may lie."
Id. (citing Fincher v. Depository Trust &
Clearance Co., 604 F.3d 712 (2d Cir. 2010)).
following facts are derived from the parties' submissions
pursuant to D. Conn. Local Rule 56(a) (referred to herein as
"Def. Local Rule 56(a)(1) Statement, " "Pl.
Local Rule 56(a)(2) Statement, " and "Pl.
Addt'l Statement of Undisputed Facts");
uncontroverted deposition testimony; the affidavits attached
to the parties' submissions; and the exhibits attached to
the parties' submissions (respectively, "Def. Ex.,
" "Pl. Ex., " and "Reply Ex.").
Docs. 31, 37, 40. The facts recounted in Part II.A are
undisputed or the opposing party has not presented any
evidence to the contrary in the record. The following
factual background does not include facts not supported
solely by the Affidavit of Lauri Canales ("Canales
Aff.") submitted by Defendant that are not otherwise
admitted. Plaintiff has objected to that submission and the
Court will address that objection in Part II.C. All
reasonable inferences have been drawn in Plaintiff's
Facts Not In Dispute
Cope is a black man and a member of a protected class. Pl.
Addt'l Statement of Undisputed Facts ¶ 1. As of
December 8, 2007, and at all times relevant to the facts
alleged in the Complaint, Wal-Mart employed Plaintiff as an
assistant store manager at its Store #3547 in Norwalk, CT.
Def. Local Rule 56(a)(1) Statement ¶ 1. In April 2013,
market manager La'Shion Robinson assumed responsibility
for the store in which Plaintiff worked. Id. ¶
2. The store manager at that time was Maxine Edwards.
Id. ¶ 3. Both Ms. Edwards and Mr. Robinson are
African-American. Id. ¶ 2-3. Robinson later
placed Edwards on a performance improvement plan in May 2013.
Id. ¶ 4. Robinson then terminated Edwards's
employment approximately six months later in November 2013.
Id. Jasmin ("Jazz") Noel, hired by
Robinson and also an African-American, replaced Edwards
effective on December 7, 2013. Id. ¶ 5.
has a comprehensive "Coaching for Improvement"
policy, which establishes a progressive discipline protocol
designed to address certain performance deficiencies and
conduct related missteps. Def. Local Rule 56(a)(1) Statement
¶ 6. In May 2013, a month after Robinson became a market
manager of Plaintiff's store, Edwards and Joseph Grasso,
a co-manager at the store in which Plaintiff worked, issued
to Plaintiff a First Written Coaching. Id. ¶ 7.
According to the coaching form, Plaintiff failed to manage
productivity on the overnight shift by neglecting to execute
turnover notes flagging overstocked merchandise and failed to
maintain basic store standards by ensuring that all features
are priced properly and have the appropriate signage.
was placed on a performance improvement plan by Noel in
December 2013. Pl. Addt'l Statement of Undisputed Facts
¶ 4; Def. Ex. B (Cope Dep. Ex. E). About nine months
after the first coaching, on February 17, 2014, Noel issued
plaintiff a Second Written Coaching after Noel investigated
and concluded that Plaintiff had acted unprofessionally in an
altercation with an hourly associate. Def. Local Rule
56(a)(1) Statement ¶ 8. Just over a month later, Noel
issued Plaintiff a Third Written Coaching on March 22, 2014.
Id. ¶ 9. This coaching issued because,
according to the coaching form, Plaintiff had: (1) failed to
conduct a performance evaluation for an associate in a timely
manner; (2) neglected to ensure merchandise was promptly
unloaded from delivery trucks; and (3) paid inadequate
attention to "SPARK, " a daily process for
monitoring perishable merchandise stored in freezers located
in the food department. Id. The coaching form
explained that the late evaluation and the daily execution of
"SPARK" are compliance issues while the unloading
schedule is a key metric on which the entire store as a whole
was evaluated. Id. It is clear from the coaching
forms that after three written coachings if an employee's
"unacceptable job performance or conduct" warrants
another level of coaching within the 12 months immediately
preceding the unacceptable job performance or conduct, then
the employee will be subject to termination. Def. Ex. B (Cope
Dep. Ex. B) at W-00019.
to this action, Wal-Mart maintains an "asset protection
policy" known as AP-09, which sets forth certain
guidelines for dealing with suspected shoplifters. Def. Local
Rule 56(a)(1) Statement ¶ 10. Plaintiff, like other
Wal-Mart employees, received training on this policy and felt
that he had a "full grasp of its requirements, as was
his obligation as an assistant manager." Id. On
April 12, 2014, Juan Baez, an asset protection associate at
Plaintiff's store, radioed for Plaintiff requesting
assistance with the active investigation of a suspected
shoplifter in the store. Id. ¶ 11. Plaintiff,
at Baez's directive, walked to the vestibule where
customers exiting the store passed the register, and waited
for the suspected shoplifter, a person known to Plaintiff as
a recidivist shoplifter. Id. When the shoplifter
came through the vestibule with a shopping cart containing
store merchandise, Plaintiff stepped in his path and asked to
see the shoplifter's receipt for the merchandise in his
car. Id. ¶ 12. The shoplifter attempted to
evade Plaintiff and continue on his way out of the store.
Id. Plaintiff attempted to stop the shoplifter from
doing so and a physical struggle ensued. Id.; Def.
Ex. A (Cope Dep.) at 305:12-306:24. After the shoplifter
calmed down, Plaintiff directed him towards the customer
service desk to await Baez. Def. Local Rule 56(a)(1)
Statement ¶ 13. Plaintiff obstructed the suspected
shoplifter by standing in front of him and placing one hand
on the desk and the other on a shopping cart, in effect
creating a barricade, while the shoplifter was at the
customer service desk. Id. The shoplifter again
became agitated and sought to escape. Id. ¶ 14.
He attacked Plaintiff, punching him the face three times
before three Wal-Mart customers intervened and tackled the
shoplifter to the ground. Id. The police arrived
shortly thereafter. Id.
AP-09 Policy provides that Wal-Mart personnel are to
immediately disengage once a suspected shoplifter becomes
physical and that objects or equipment should not be used to
limit or control or block the suspected shoplifter's
movements. Def. Ex. B (Cope Dep. Ex. M) at W-000023 ("If
at any point the Suspect or any other involved person becomes
violent, disengage from the confrontation, withdraw to a safe
position and contact law enforcement."; "The use of
any object or equipment to limit or control the movements of
the Suspect or to block the Suspect from leaving the facility
is not allowed." (emphases in original)). The AP-09
Policy also states that "If at any point the suspect or
any involved person exerts physical resistance, [the employee
is directed to] determine whether your next reasonable step
is to disengage with the confrontation or move to an
authorized detention method." Id.
the alleged shoplifting incident occurred, Cope worked for
three days despite suffering injuries from the incident. Pl.
Addt'l Statement of Undisputed Facts ¶ 7. He then
had to take three days off because of his injuries, namely a
concussion that had resulted due to the physical
confrontation. Id. ¶ 8. When Cope came back to
work, he was asked to submit a drug test. Id. ¶
9. When he asked Noel why he was taking the test, Noel stated
that Robinson had ordered the test performed. Id.
¶ 11. On April 24, 2014, twelve days after the incident,
Wal-Mart terminated Plaintiff citing "misconduct with
coachings." Def. Local Rule 56(a)(1) Statement ¶
19. Plaintiff had been coached three times in a four month
period in February, March, and April 2014. Pl. Addt'l
Statement of Undisputed Facts ¶ 5; Def. Ex. B (Cope Dep.
Ex. I & L). Prior to 2013 he had never received a single
formal coaching. Pl. Addt'l Statement of Undisputed Facts
was not involved in or consulted about the decision to
terminate Cope's employment. Def. Local Rule 56(a)(1)
Statement ¶ 20. The decision to terminate was made by
Noel, in consultation with Stephen Ramirez, a market asset
protection manager. Id.; Robinson Aff. ¶ 8;
Reply Ex. A at 267:11-269:8. Noel determined that Cope's
violations of AP-09 warranted disciplinary action and because
Cope had an active Third Written Coaching at that time, the
next coaching level was termination in accordance with
Wal-Mart's Coaching for Improvement Policy. Robinson Aff.
¶ 8. Noel informed Robinson of his decision to discharge
Plaintiff after the fact. Def. Local Rule 56(a)(1) Statement
his discharge, Plaintiff registered an open door complaint
and spoke with Human Resources at Wal-Mart. Def. Local Rule
56(a)(1) Statement ¶ 21. An investigation was done and
after review of the tapes, based on his misconduct,
Plaintiff's termination was affirmed. Reply Ex. A at
267:1-4. According to Store #3547's EEO-1 reports, in
2014, 183 of 264 individuals employed at the store were black
or African-American, or approximately 69%, and 24 were
Caucasian, or approximately 9.09%. Def. Local Rule 56(a)(1)
Statement ¶ 23. In 2015, 191 of the 288 individuals
employed at the store were black or African-American, or
approximately 66%, and 27 were Caucasian, or approximately
9.38%. Id. In 2013, when Robinson assumed
responsibility for the store the assistant managers were:
Sean Bell, Cherita Grant, Antoinette Gray, Kristin Hunter,
Ruby Prince, Wesley Roberts, and Plaintiff, all of whom are
African-American. Id. ¶ 24. Bell is the only
remaining manager at the store. Id. ¶ 25. Other
than Plaintiff and Prince, the other assistant managers have
left Wal-Mart, or stepped down to a lower-level position, of
their own volition. Id.
parties dispute whether Robinson ever made comments regarding
the racial composition of the employees in the store.
Plaintiff relies on the deposition testimony of himself,
Edwards, and Hunter, a former assistant manager, to confirm
these comments. Plaintiff testified that he had a "few
discussions" with Robinson regarding race and recounted
one that occurred prior to Edwards' termination (between
April 2013 and November 2013). Pl. Ex. A (Cope Dep.) at
80:6-21. In that conversation, Robinson stated that
"there was too much African-Americans into [sic] the
store. That is why the store is not running right. He said
Caucasians is [sic] the face of the company. And we need to
hire more Caucasians, because there is too much
African-Americans in the store." Id. at
80:9-15. According to Plaintiff, several other assistant
managers and a personal coordinator heard this conversation
or other similar conversations. Id. at 80:22-81:8.
Plaintiff also testified that Robinson followed up on his
request and told Cope to try harder to hire more Caucasian
associates. Id. at 92:13-93:21.
testified that all of the managers told her that Robinson had
"asked [them] to hire more white candidates." Pl.
Ex. B (Edwards Dep.) at 93:12-94:4; 115:14-19. Robinson also
instructed her that they "should change the racial mix
to fit our clientele." Id. at 95:1-4. Edwards
recounted that Robinson mentioned the racial composition of
the store numerous times. Id. at 113:21-114:3.
Hunter testified at deposition that Cope had told her about
his conversations with Robinson "about the fact that
there were too many black people in the store and too many
foreigners in the store." Pl. Ex. C (Hunter Dep.) at
29:8-17. She also testified that he said similar things to
her. Id. at 30:15-24; 80:10-16. Hunter testified
that to her knowledge Robinson never directed anyone to fire
any non-white employees and replace them with white
employees. Id. at 81:18-22.
disputes that these events occurred. He states in his
Affidavit that he was "not involved in the hiring
process for associates; that is handled by the assistant
managers in conjunction with the Store Manager [Edwards or
Noel]" and that he "did not instruct Spyros Cope,
or any other assistant manager, to hire more Caucasian
associates." Robinson Aff. ¶ 7. Plaintiff did not
take Robinson's deposition, or the deposition of any
other Wal-Mart witness including Noel, and did not submit any
affidavits from any such employees. Doc. 40 at 6 n.2.
also asserts that when employees attempted to complain about
Robinson's behavior, they were discouraged or ignored.
Plaintiff relies on his deposition testimony and the
testimony of Edwards and Hunter to support this assertion.
See Pl. Statement of Disputed Facts ¶ 4 (citing
Pl. Ex. A (Cope Dep.) at 237:11-241:15, 245:4-246:16; Pl. Ex.
B. (Edwards Dep.) at 103:15-14:14; Pl. Ex. C (Hunter Dep.) at
80:17-81:9). Plaintiff recounts that Noel and Robinson were
best friends. Pl. Ex. A (Cope Dep.) at 90:18-91:19.
Objections to the Canales Affidavit
stated earlier, the above recitation of facts does not
include any facts not otherwise expressly admitted that are
supported solely by the Affidavit of Lauri Canales, a market
human relations manager for Wal-Mart, who investigated
Plaintiff's internal complaint after he was terminated.
Wal-Mart submits the Canales Affidavit in support of this
motion for partial summary judgment.
objects to Defendant's submission of the Canales
Affidavit. Doc. 37 at 21. The Court will treat these
objections as a motion to strike the Canales Affidavit.
Plaintiff challenges the Affidavit's admissibility on
four grounds: (1) Canales's investigation and her notes
were not disclosed during discovery and therefore Defendant
cannot use this information pursuant to Fed.R.Civ.P. 26 and
37(c)(1); (2) the contents would not be admissible at trial
because it violates the "Best Evidence Rule" (Fed.
R. Evid. 1002) when it describes a video in paragraphs 7-9
and the video was not submitted with the motion papers; (3)
paragraph 10 and the attached exhibits consisting of
Canales's notes are inadmissible as hearsay; and (4)
Canales offers conclusions that are improper and invade the
province of the fact finder. Doc. 37 at 21-23. Plaintiff
seeks to preclude the entire Affidavit from consideration and
has objected to certain parts of Defendant's Local Rule
56(a)(1) Statement, where it relies in part or in full on
this Affidavit to support its factual assertions. See
id.; Pl. Local Rule 56(a)(2) Statement.
responds by stating that Plaintiff admitted, or failed to
deny and thereby admitted, all but two facts from
Defendant's Local Rule 56(a)(1) Statement and that
Plaintiff relies solely "on supposition about
[D]efendant's motives rather than facts sourced in
admissible evidence, " and for that reason fails to
overcome summary judgment. Doc. 40 at 1-2. Defendant then
asserts in a footnote at the end of its brief that the
Canales Affidavit should not be precluded from consideration
because the failure to identify Canales in Defendant's
Initial Disclosures was substantially justified and/or
harmless. Id. at 10 n.5. According to Defendant,
it's Initial Disclosures identified Sharon Burns and only
after discovery had closed, in preparation for this motion,
did Defendant discover that Canales had investigated
Plaintiff's complaint regarding his termination.
Id. Defendant asserts that Plaintiff was well aware
of Canales's involvement in his termination and could
have alleviated any concerns related to her investigation by
filing a request pursuant to Fed.R.Civ.P. 56(d) to depose
her. Id. Defendant also argues that Canales's
notes are admissible and properly before the Court because
they recount Plaintiff's own statements and are not
hearsay, Fed.R.Evid. 801(d)(2)(D), or in the alternative, are
business records, Fed.R.Evid. 803(6). Id.
conflates two separate issues in addressing the Canales
Affidavit, or at least the facts put into the record by the
Affidavit. Defendant is correct that if Plaintiff has not put
forth admissible evidence sufficient to defeat summary
judgment, then Defendant is entitled to summary judgment.
However, that does not address Plaintiff's argument that
the facts and allegations put forth in the Canales Affidavit
are not properly considered a part of the summary judgment
record at all. The Court must address that issue first before
turning to whether Plaintiff has put forth sufficient
support, if any, to defeat summary judgment.
addition, it is true that if a party opposing summary
judgment fails to support a denial of a fact with admissible
evidence, the Court deems such facts admitted. See
Malick, 2015 WL 5797008, at *1 n.1. Thus, the Court has
accepted as admitted any facts that Plaintiff denies but does
not dispute with evidentiary support. See Part I(A),
supra. However, the Court does not regard as
admitted those facts to whose admission Plaintiff objects.
With regard to those particular facts, ...