Jones v. Wal-Mart Stores, Inc.

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TERRI JONES, Plaintiff, v. WAL-MART STORES, INC., et al., Defendants.

No. 1:22-cv-604

United States District Court, W.D. Michigan, Southern Division

January 23, 2024

OPINION

HALA Y. JARBOU CHIEF UNITED STATES DISTRICT JUDGE

Plaintiff Terri Jones worked for Defendant Walmart, Inc. (formerly Wal-Mart-Stores, Inc.) from June 2018 until May 26, 2019 after which she took a medical leave of absence. She contends that she faced a hostile work environment at Walmart, and that it discriminated against her on the basis of sex and retaliated against her for complaining about harassment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., and Michigan's Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2101 et seq. She brought this action against Walmart and some of the employees with whom she worked Kandis Ellis, Laura Evans, Michael Goffnet, Thomas Kjellin Ashley Langerak (formerly Ashley Hankiewicz), and Alex Zock. Before the Court is Defendants' motion for summary judgment (ECF No. 47). For the reasons herein, the Court will grant the motion in part and deny it in part.

I. BACKGROUND

A. Jones's Position at Walmart

Jones started working as a cashier at a Walmart store in Comstock Park, Michigan, on June 6, 2018. (Jones Dep. 100, ECF No. 53-2.) In October 2018, she was promoted to the position of customer host, also known as “asset protection host” or “greeter.” (Id. at 115.) The latter position required her to greet customers as they entered the front doors of the store and check customer receipts as they left the store. (Id. at 126, 205-06.)

B. Harassment

Jones claims that she experienced sexual harassment from three employees at the store, beginning in October 2018.

1. Zock

Defendant Zock worked with Jones as a customer host from October 2018 to March 2019. (Jones Dep. 201.) Jones claims that, beginning in October 2018, Zock sang popular songs with “sexually suggestive” lyrics in her presence, such as “I Want to Sex You Up” and “Sexual Healing,” as well as “tropical songs about him being on an island and . . . using coconuts for boobs[.]” (Id. at 141, 200.) Sometimes he did so while dancing or rubbing his belly just underneath his belt. (Id. at 41-42.) She repeatedly told him to stop, but he would not do so. Once, he rolled his eyes and made a sexual gesture, pretending to pull a butt toward his crotch while saying to Jones, “[S]he says that I am out of my mind. I think she wants me to hit it from behind.” (Id. at 142-43.) He directed lewd songs at her “about three times.” (Id. at 141.) She reported these incidents to her supervisor, Defendant Evans.

Zock would also comment on female customers' body parts in Jones's presence, such as referring to a customer's “big tits” or “big behind.” (Id. at 147.) His comments were “so constant” that Jones did not report everything he said, but she did complain to Evans “every time” he made comments about women, sang sexual songs, or made “sexual suggestions with his body parts.” (Id. at 168-69, 201.) In all, she complained about Zock's conduct “up to 15 to 20 times” from October 2018 to March 2019. (Id. at 201, 248.) Jones contends that Evans simply brushed off these complaints and did nothing, saying, “[O]h, he's so crazy . . . he's nuts.” (Id. at 201-02.) After Zock learned that Jones had reported him, he told her, “I'm going to have to give you a spanking” and then continued his conduct. (Id. at 201.) Finally, in March 2019, Zock asked Jones to “grab his nuts” while gesturing toward his crotch. (Id. at 147.) When she refused, he said, “Why not? They're right there on the shelf.” (Id.) According to Jones, “he was actually talking about his snack that was on the . . . shelf.” (Id.) She complained about this to Evans. (Id. at 172.) She also submitted a complaint to Walmart's “ethics” department on April 15, 2019, reporting that Zock “is . . . always singing lewd songs about ‘how he wants to rub his body against you' and has even implied sodomy with [Jones].” (Investigations Email, ECF No. 48-5, PageID.519.)

Evans claims that she learned about Zock's inappropriate singing from the ethics department in April 2019. (Evans Dep. 59, ECF No. 53-14.) She contends that she gave Zock “verbal coaching,” but the coaching does not appear in his personnel file. (Id. at 58.)

When Defendant Goffnet, the store manager, interviewed Jones in June 2019 about other harassment complaints she made, he learned about her allegation that Zock had been “dancing lewdly.” (Goffnet Dep. 80-82, ECF No. 53-11.) He then interviewed Zock, who provided a written statement. (Id. at 82.) In his statement, Zock denied “mentioning or saying anything inappropriate” to Jones. (6/11/2019 Zock Statement, ECF No. 53-26, PageID.992.) Zock received no discipline following Goffnet's investigation. (Goffnet Dep. 25.)

2. Kjellin

Defendant Kjellin worked “front-end maintenance” at the Walmart store; he encountered Jones frequently while she worked as a cashier and a customer host. (Kjellin Dep. 23, ECF No. 5316.) Jones contends that he harassed her on several occasions.

First, at the end of January 2019, while Jones was checking customer receipts by the doors, Kjellin came up to her from behind, put his hands on her shoulder, and pressed his body against hers for a few seconds in such a way that she could feel that he had a partial erection. (Jones Dep. 127-29.)

She told him to get off her and then complained about it to Jessica, a front-end manager. (Id. at 130-31.)

Next, about a week later, Kjellin approached her from behind, put his hands on her, and caressed her shoulder while blowing on the back of her neck. (Id. at 41, 132, 243.) She complained about this incident to two customer service managers. (Id. at 244-45.)

Then, on February 24, 2019, while she was eating lunch with an assistant store manager, Nick Krave, Kjellin touched her shoulder with his hands. (Id. at 135, 160, 209.) She then submitted a written statement regarding the three incidents to Krave and Defendant Langerak. (Id. at 136, 151; see Walmart Global Ethics Statement Form, ECF No. 53-3.) Langerak was an assistant manager and was Kjellin's direct supervisor. (Langerak Dep. 64, ECF No. 53-12.) Kjellin was told to stay away from Jones. (Kjellin Dep. 38, ECF No. 53-16.) Krave asked Jones if she was comfortable returning to work, and Jones said that she was, so long as they moved her to a different location, away from where Kjellin worked. (Jones Dep. 136-37.) Krave agreed to do that. (Id. at 137.)

Later that day, however, Kjellin approached Jones with his palms out, saying, “Terri, Terri, I just want to talk to you, I'm sorry.” (Id. at 207, 209.) She immediately called Krave and then he and other managers came and escorted Kjellin away. (Id. at 208.)

Kjellin did not touch Jones again after February 24, 2019. (Id. at 137.) But she mentioned all his physical contacts with her in her April 15, 2019, complaint to Walmart's corporate ethics committee. (Jones Dep. 123-24.) And although he did not touch her again, Jones claims that he would give her “dirty looks” and glare at her. (Id. at 250-51.) In May 2019, she reported this to Pam, a customer service manager, who did nothing about it. (Id. at 251.) When Evans, Jones's supervisor, learned about the issue, she offered Jones the opportunity to move to a different set of doors, away from Kjellin. (Evans Dep. 68.) Jones refused. (Id.) Evans also contends that she reviewed store video of Kjellin and Jones from February because Jones had reported that Kjellin was walking by her and making her uncomfortable. Evans claims she did not see any intimidating conduct in the video. (Evans Dep. 14, 18-19, 21.)

Defendant Goffnet, the store manager, learned about Jones's allegations against Kjellin in April 2019 through Jones's April 15, 2019, ethics complaint, but he did not investigate them until June 2019 (as discussed below, from April 12 to May 21, 2019, and after May 26, 2019, Jones was on leave of absence). (Goffnet Dep. 46, 66, ECF No. 53-11.) As part of that investigation, he interviewed Jones and Kjellin. (Id. at 69-70, 78.) Kjellin gave a statement to Goffnet in which he admitted that he had touched Jones on several occasions. (Id. at 23.) According to Kjellin's statement, he gave Jones a “friendly hug” because she told him that she was “having a bad day[.]” (6/7/2019 Kjellin Statement, ECF No. 53-6, PageID.802.) Kjellin also admitted that he touched her on two other occasions: he squeezed her on the shoulder in one instance and he touched her on the shoulder when she was sitting at Subway. (Id.) Finally, he admitted that he was told to stay away from her, but nevertheless he approached her and tried to apologize. (Id.)

Goffnet reported the results of his investigation to the ethics committee at Walmart, which recommended “yellow coaching,” a “write-up,” for Kjellin due to lack of “respect for the individual.” (Goffnet Dep. 24-25; see 6/11/2019 Frick Email, ECF No. 48-15.)

3. Griesa

Brian Griesa was another one of Jones's co-workers at Walmart. (Jones Dep. 173.) Jones contends that, on May 26, 2019, Griesa approached her, rubbed her back, dragged his fingers down her back and bottom, and told her, “I'm so glad you're here.” (Id. at 43-44, 173-74, 176.) She turned around and told him that she would “break his neck” if he ever touched her again. (Id. at 176.)

She told managers about the incident, including Mark Southard, who told her to take time off and go home. (Id. at 44-45.)

On June 4, 2019, Goffnet interviewed Jones about Griesa's conduct and asked her to make a statement. (Goffnet Dep. 9, 69-70.) Evans claims that she and Goffnet also watched store video of the incident; they saw Griesa touch Jones's back “for a split second” and...