Atkins v. Walmart, Inc.

NGCOBA ATKINS, Plaintiff, v. WALMART, INC., Defendant.

Nos. 6:20-CV-1217 (ATB), 6:20-CV-1218 (ATB)

United States District Court, N.D. New York

May 2, 2022

NGCOBA ATKINS, Plaintiff Pro Se

DANIEL J. MOORE, ESQ., Attorney for the Defendant

MEMORANDUM-DECISION AND ORDER

ANDREW T. BAXTER, United States Magistrate Judge

Plaintiff filed two employment discrimination actions against defendant on October 5, 2020, which were consolidated into the above-captioned lead case by Decision and Order dated November 2, 2020. (Case No. 6:20-CV-1217, Dkt. Nos. 1, 7; Case No. 6:20-CV-1218, Dkt. Nos. 1, 5).^[1] The consolidated case was assigned to me to conduct all proceedings, by Order of U.S. District Judge Brenda K. Sannes, with the consent of both parties, on February 3, 2021. (Dkt. No. 31). Presently before this court are the papers related to plaintiff's motion for summary judgment (Dkt. Nos. 81 (motion), 84 (response), 86 (reply)); as well as the papers related to defendant's motion for summary judgment (Dkt. Nos. 82 (motion), 85 (response), 90 (reply)).

I. Background

Plaintiff Ngcoba Atkins, was employed by Walmart as a full-time loader in the Shipping Department at Distribution Center #6038 (“DC6038”) in Marcy, New York, from October 4 2016 through January 14, 2020, when he was terminated. (Def.'s Statement of Material Fact (“SMF”) ¶¶ 2, 3, 85, Dkt. No. 82-1).^[2] Plaintiff filed complaints of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the New York State Division of Human Rights (“NYSDHR”) against Walmart on October 23, 2019 and on May 14, 2020. (Def.'s Exs. 33 & 34, Dkt. No. 82-2 at 230-34). On September 9, 2020, the EEOC advised plaintiff that it was “unable to conclude that the information obtained establishes violations, ” and advised him of his right to sue in federal or state court. (Def.'s Exs. 35 & 36, Dkt. No. 82-2 at 235-40).

A. The Complaints

The controlling complaints in this case are docketed as plaintiff's Second Amended Complaint (“SAC”). (Dkt. No. 44). The pro se plaintiff's two overlapping complaints both list the bases for employment discrimination as race, religion, national origin, and “other protected activity.” (SAC, Dkt. No. 44 at 2, 8 (¶¶ 6(a), (b), (d) and (f)). Plaintiff identifies as a “Black Jew.” (Pl.'s Response to Defendant's SMF ¶ 17, Dkt. No. 85). In the complaint in the lead case, plaintiff states that the defendant's “conduct” involved termination, unequal terms and conditions, retaliation, and “failure to accommodate, removal of accommodation[;] pretextual termination, dishonest explanation.” (Dkt. No. 44 at 3, ¶ 7). In the member case complaint, plaintiff states that the defendant's “conduct” involved failure to promote, unequal terms and conditions of employment, reduction in wages, retaliation, and “failure to accommodate, removal of accommodation[;] dishonest explanation.” (Id. at 8, ¶ 7(C), (D), (E), (F) and (G)).^[3]

1. The Lead-Case Complaint

In the lead-case complaint, plaintiff alleges that in June or July of 2018, defendant Walmart first introduced the “StrongArm/Fuse” (hereinafter “StrongArm”) device at ¶ 6038.^[4] (Id. at 3, ¶ 8 (FACTS)). Plaintiff alleges that, “in the beginning of the pilot, ” he requested an exemption from wearing the device “for medical reasons.” He further claims that, after obtaining “medical documentation” and providing it to Manager Anne McRedmond, he was not required to wear the device, as an “accommodation.” (Id.)

Plaintiff claims that, in July of 2019, he filed a charge of racial and religious discrimination and retaliation with the EEOC against Walmart. (Id.) However, plaintiff also acknowledges that he signed the “official EEOC charge” on October 23, 2019. Within one week of signing the EEOC complaint, he was told by manager Tom Christiano that plaintiff's medical accommodation with respect to the StrongArm device was no longer going to be honored. (Id.) Mr. Christiano allegedly told plaintiff that there was no medical documentation in his file supporting an accommodation, and that plaintiff would have to go through ADA (Americans with Disabilities Act) procedures. (Id.) Plaintiff states that these “actions” were “a pretext for termination.” (Id.)

Plaintiff claims that on January 6, 2020 he requested that the EEOC “return” his charge to investigation, after the defendant delayed mediation for one month. Plaintiff states that on January 7, 2020, he “clocked in” for his regular shift, but was one of the employees who volunteered to go home that day due to “low freight.” (Id.) Plaintiff went on an approved vacation from January 7, 2020 through January 13, 2020. (Id.) On January 14, 2020, when he returned to work, he was stopped at the door by Mike Copperwheat, who stated that he wished to speak with plaintiff before he began his workday. (Id.)

Plaintiff states that the “meeting” with Mr. Copperwheat was actually an “exit interview, ” demanding that plaintiff wear “the device” or be terminated. (Id.) Plaintiff states that he remained adamant about not wearing the device, but asked to be transferred to another position where wearing the StrongArm device was not required. He suggested the position of “yard driver, ” for which he was qualified. This request was denied, and he was terminated from his employment with Walmart. (Id.) Plaintiff states that, at the end of the meeting, he asked Mr. Copperwheat why he was being terminated at that time, rather than being allowed to take advantage of the company policy which allowed for three disciplinary infractions prior to termination. (Id.) Plaintiff claims that defendant Walmart continued to retaliate against him after termination by delaying his receipt of unemployment benefits. (Id.)

Plaintiff lists three causes of action in his lead-case complaint, all alleging “retaliation” against him for making claims to the EEOC. (Dkt. No. 44 at 5-6) (Causes of Action)). His statement of claims, however, also references a hostile work environment. (Id.)

2. The Member-Case Complaint

In the member-case complaint, plaintiff states that on June 1, 2018, he began wearing “fringes” on his shirts as representative of his faith. (SAC, Dkt. No. 44 at 9, ¶ 8(1) (“FACTS”)). Plaintiff alleges that, in July of 2018, while he was working as a “T3 Trainer, ”^[5] plaintiff reported, to management, that he had been advised about an act of racism against him that was witnesses by a trainee. Plaintiff claims that, after this report, he was demoted from T-3 trainer and never given any forklift assignments again. (Id.)

Plaintiff alleges that he made a request for a “religious” scheduling accommodation in October of 2018, which was denied in November of 2018, without a showing that the accommodation was an “undue burden.” (Id., ¶ 8(3)). He states that when he began trying to “dispute” the decision in November of 2018, he was singled out and disciplined as the sole individual responsible for destroying some freight, even though there were five people involved in the incident. (Id., ¶ 8(4)).

Plaintiff made another request for a scheduling accommodation in February of 2019, which was denied on March 1^st-a decision he questioned and disputed. (Id., ¶ 8(7)).

Plaintiff states that he was overlooked for cross-training positions in February of 2019. (Id., ¶ 8(6)). He also claims that he was denied permission to complete an online application for a managerial position in April of 2019. (Id., ¶ 8(8)). Plaintiff appears to allege that he was allowed to apply for other positions, but not for the management position. (Id., ¶¶ 8(8)-8(12)). Plaintiff allegedly was told that there was no record of a management application, that the management application had been “withdrawn, ” and then, that he had “failed” an assessment. (Id., ¶¶ 8(11)-(12)).

The member-case states that, on August 1, 2019, he made a second complaint about racism against him by “manager” R.Q.^[6] (Id., ¶ 8(13)). Plaintiff was then asked to finish his shift that day in the “yard” of the distribution center. He left early the next day, using his personal time, because he felt “tension from the management.” (Id.) When plaintiff returned to work, on August 6 and on August 7, he discovered that he received “unwarranted” disciplinary “write ups” for time and attendance violations. (Id.) Plaintiff alleges he received another unwarranted “write up” on August 13, 2019. (Id.) Some of the disciplinary actions were removed from plaintiff's record or mitigated after he met with “general manager Larry [Raike].” (Id., ¶ 8(14)). However, plaintiff realized, on October 22, 2019, that the disciplinary “points” that had been removed from his disciplinary record by manager Larry were added back into his “attendance Matrix.” (Id., ¶ 8(16)). Plaintiff again spoke with manager Larry, who agreed to remove the extra points so that plaintiff would be eligible for a “Warehouse incentive bonus check.” (Id., ¶ 8(17)).^[7]

The first cause of action in the member-case complaint alleges retaliation for reporting workplace racism, referencing his removal as a certified trainer and the loss of forklift assignments and cross-training opportunities. (SAC, Dkt. No 44 at 11, ¶ 9). The second cause of action also claims retaliation, referencing the allegedly unwarranted disciplinary actions. (Id.) The third cause of action asserts further retaliation, stating that, after reporting the racial and religious discrimination, his “medical accommodation” was revoked, ultimately leading to his termination. (Id., Dkt. No. 44 at 12). The fourth cause of action alleges religious discrimination relating to his request for a scheduling accommodation. (Id., Dkt. No. 44 at 12). The fifth cause of action claims “defamation” relating to disparaging statements about him made by co-workers,...