Cope v. Wal-Mart Stores E., LP

SPYROS COPE, Plaintiff, v. WAL-MART STORES EAST, LP, Defendant.

3:15-cv-01523 (CSH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

JUNE 28, 2017

RULING ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

HAIGHT, Senior District Judge:

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 affidavitssupporting 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 thecontrary 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 aprogressive 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 totermination. 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 ...