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Cope v. Wal-Mart Stores East, LP

United States District Court, D. Connecticut

June 28, 2017

SPYROS COPE, Plaintiff,



         Plaintiff 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.

         Plaintiff 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.

         I. Standard of Review

         A 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).

         "In 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)).

         II. Factual Background

         The 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.[1] 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 favor.

         A. Facts Not In Dispute

         Spyros 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.[2] 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.

         Wal-Mart 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. Id.

         Plaintiff 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.

         Important 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.

         Wal-Mart's 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.

         After 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 ¶ 2.

         Robinson 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 ¶ 20.

         Following 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.

         B. Disputed Facts

         The 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.

         Edwards 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.

         Robinson 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.

         Plaintiff 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.

         C. Objections to the Canales Affidavit

         As 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.

         Plaintiff 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.

         Defendant 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.

         Defendant 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.

         In 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, ...

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