Mosiejute v. Wal-Mart Stores E., LP

ERIKA MOSIEJUTE, Plaintiff, v. WAL-MART STORES EAST, LP, Defendant.

CASE NO. 19-CV-61046-JMS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

January 26, 2021

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

THIS MATTER came before the Court upon Defendant's Motion for Summary Judgment and Supporting Memorandum of Law ("Motion") [DE 57], filed on October 30, 2020. I have reviewed the Motion, the Response [DE 67] and Reply [DE 69] thereto, all other summary judgment materials, and all other pertinent portions of the record. For the reasons discussed herein, the Motion [DE 57] will be GRANTED.

BACKGROUND

In this case, Plaintiff brings interference and retaliation claims under the Family and Medical Leave Act ("FMLA") against her former employer. Plaintiff began working for Defendant as a cashier in 2001. Declaration of Erika Mosiejute ("PL Decl.") [DE 68-1] ¶ 6. Over time, she received several promotions, eventually becoming a Store Manager in 2015. Id. ¶ 7. See also Defendant's Statement of Undisputed Material Facts in Support of Its Motion for Summary Judgment ("DEF Stmt.") [DE 58] ¶ 1; Plaintiff's Statement of Material Facts in Opposition to Defendant's Motion for Summary Judgment ("PL Stmt.") [DE 68] ¶ 1. Thereafter, Plaintiff received two further promotions, becoming the Store Manager of larger locations - first Defendant's "Sawgrass Store" (in 2016 or 2017), then Defendant's "Broward Store" (in October 2018). PL Decl. ¶¶ 8-9; Deposition of Erika Mosiejute ("PL Depo.") [DE 58-1] at p. 17. See also DEF Stmt. ¶ 1; PL Stmt. ¶ 1.

On January 12, 2019, Plaintiff was involved in a car accident and required hospitalization. PL Decl. ¶ 17. Nevertheless, she continued working through January 24, 2019, at which time she was re-hospitalized. Id. ¶ 18. Due to her "serious health condition," Plaintiff applied for and received FMLA leave from January 25, 2019 until April 18, 2019. Amended Complaint [DE 15] ¶¶ 10-11; Answer [DE 27] ¶¶ 10-11. See also PL Decl. ¶ 20. In her declaration, Plaintiff states that Defendant did not "provide any paperwork and/or notice to [her] regarding [her] rights under the FMLA despite notice of an FMLA-qualifying event, but rather, [she] was forced to seek out FMLA leave on [her] own accord from Sedgwick." PL Decl. ¶ 19. Sedgwick is a third party that manages the leave process for Defendant. Deposition of Jacqueline Perez ("Perez Depo.") [DE 58-5] at p. 14. It is commonly known across Defendant's organization that employees seeking leave must contact Sedgwick. Id. at pp. 25-26.

When Plaintiff returned from leave on April 18, 2019, she reported to Defendant's Market Office as instructed. DEF Stmt. ¶¶ 39-40; PL Stmt. ¶¶ 39-40. There, she was interviewed (or, in Plaintiff's words, interrogated) by Market Asset Protection Manager Timothy Regan ("Regan") in connection with an asset protection investigation regarding bulk sales of cell phones and the receipt of gifts from a bulk-sales customer. See DEF Stmt. ¶¶ 40-43; PL Stmt. ¶¶ 40-43. Plaintiff states that during the interview, Regan made derogatory remarks towards her, telling her "she looked good for someone who was so sick" three (3) times, and asking her whether her medical condition would reoccur. PL Decl. ¶¶ 24-25. Regan's supervisor, Regional Asset Protection Manager Christina Brosky ("Brosky"), observed the interview as a witness. DEF Stmt. ¶ 40; PL Stmt. ¶ 40.

Regan's investigation began back in February 2019 when Plaintiff was on leave. See DEF Stmt. ¶ 16; PL Stmt. ¶ 16. While conducting routine tours of the Broward Store and the Sawgrass Store (the same day), Regan observed what he believed to be suspicious activity from a customer named Mohammad (at both stores). DEF Stmt. ¶¶ 16-20; PL Stmt. ¶¶ 16-20. Consequently, Regan reviewed Mohammad's transaction records and video footage, and he determined that members of management at the Sawgrass Store "had been placing special orders in order to facilitate bulk sales to Mohammad." DEF Stmt. ¶¶ 21-22; PL Stmt. ¶¶ 21-22. He thus proceeded to interview eight members of the store's management team. DEF Stmt. ¶ 23; PL Stmt. ¶ 23.

Regan learned that when Plaintiff was the Store Manager of the Sawgrass Store, she had introduced Mohammad to several members of management, calling Mohammad an "important customer." Declaration of Timothy Regan ("Regan Decl.") [DE 58-6] ¶ 6. From the interviews, Regan also learned that Plaintiff "approved and initiated the bulk sales of prepaid cellular phones to Mohammad" when she was the Store Manager of the Sawgrass Store. Id. Plaintiff disputes Regan's finding that she approved and initiated such sales. See DEF Stmt. ¶ 24; PL Stmt. ¶ 24. According to Plaintiff, she did not engage in bulk sales after receiving a March 2018 email from Defendant's Home Office notifying her of bulk cell phone sales occurring at the Sawgrass Store and Defendant's policy prohibiting such sales, the Sale of Prepaid Wireless Merchandise Policy, OP-45. See PL Decl. ¶ 14; DEF Stmt. ¶¶ 5-12; PL Stmt. ¶¶ 5-12. That policy provides that "[w]ireless hardware (cellphones, etc) purchases will be limited to two of the same (UPC/Item Number) item at one time during the same transaction." [DE 58-1] at p. 122. It further provides that the "limit is set via POS restrictions" and that "[s]tore management and associates are not authorized to override [the] POS restriction." Id. In arguing that she did not violate the policy after receiving the March 2018 Home Office email, Plaintiff contends that the policy does not limit the amount of transactions per customer. [DE 67] at p. 13. Thus, she argues that an employee who sells ten (10) cell phones to a customer as part of five (5) separate transactions (in a row) does not violate Defendant's policy so long as only two (2) phones are sold in each of the five (5) transactions. Id. See also PL Decl. ¶¶ 11-14.

During his investigation, Regan determined that of the ten (10) stores in the market where he oversaw asset protection, only two (2) stores sold significant numbers of prepaid cell phones (from January 1, 2018 through January 31, 2019). DEF Stmt. ¶¶ 27-29; PL Stmt. ¶¶ 27-29. Those two stores were the Sawgrass Store (where the number was the highest) and the Broward Store. DEF Stmt. ¶¶ 28-29; PL Stmt. ¶¶ 28-29. Regan determined that the high sales numbers were the result of bulk sales. DEF Stmt. ¶¶ 28-29; PL Stmt. ¶¶ 28-29. At the Sawgrass Store, bulk sales continued following Plaintiff's receipt of the March 2018 email. Regan Decl. ¶ 12. At the Broward Store, bulk sales only began after Plaintiff became the Store Manager in October 2018. DEF Stmt. ¶ 31; PL Stmt. ¶ 31.

In reviewing data from the Broward Store, Regan determined that Co-Manager Byron Gore ("Gore") had placed large prepaid cell phone orders. Regan Decl. ¶¶ 14-15. Gore confirmed he did so to sell them to Mohammad. Id. ¶ 15. According to Gore, Plaintiff introduced him to Mohammad (referring to Mohammad as the "phone guy") and told him to take care of, and buy phones for, Mohammad. Id. ¶ 16. Gore said he had never conducted a bulk sale in his over seventeen (17) years with Defendant until directed to do so by Plaintiff. Id. ¶ 17. See also DEF Stmt. ¶¶ 32-36; PL Stmt. ¶¶ 24, 32-36.

Ultimately, Regan determined it would be necessary to interview Plaintiff in conjunction with his investigation. Regan Decl. ¶ 18. As noted above, that interview occurred on April 18, 2019, when Plaintiff returned from leave. During the interview, in addition to discussing alleged bulk-sales issues, Regan and Plaintiff discussed Plaintiff's receipt of gifts from Mohammad. Specifically, Plaintiff acknowledged receiving two (2) gifts from Mohammad. PL Decl. ¶ 29; Regan Decl. ¶ 23. See also DEF Stmt. ¶ 43; PL Stmt. ¶ 43. In her declaration, she states that she received the gifts from Mohammad "as a friend or familiar acquaintance." PL Decl. ¶ 29. However, Plaintiff had not previously stated that Mohammad was a friend, either during her interview or at her deposition. See Deposition of Christina Brosky ("Brosky Depo.") [DE 58-4] at p. 50; PL Depo. at pp. 26-30.¹ Instead, she said that she was first introduced to Mohammad after arriving at the Sawgrass Store by the current management, who said Mohammad was a customer who bought merchandise in bulk. PL Depo. at pp. 26-27. When asked when she would interact with Mohammad, Plaintiff said when she saw him at the store. Id. at p. 28. Outside of the store, they did not communicate (with the exception of a single message Mohammad sent Plaintiff, to which she did not respond). Id. at 29-30.

At the conclusion of Plaintiff's interview, Plaintiff prepared a written statement. Therein, she recounted seeing Mohammad "in the store twice a month, sometimes once a week, which could account for 10, 20, 30 transactions in total." [DE 58-1] at p. 129. Plaintiff also noted the gifts she had received from Mohammad. Id. After the interview concluded and Plaintiff provided her written statement, she was told to return home pending the outcome of Defendant's investigation and that Defendant would be in touch. Brosky Depo. at p. 47; PL Decl. ¶ 26. Six (6) days later, on April 24, 2019, Brosky and a regional human resources director called Plaintiff to inform her of the termination of her employment, effective immediately. PL Depo. at pp. 54-55. See also DEF Stmt. ¶ 48; PL Stmt. ¶ 48. In addition to Plaintiff, an assistant manager and a co-manager were terminated as a result of Defendant's investigation. DEF Stmt. ¶ 47; PL Stmt. ¶ 47. Defendant decided to terminate these individuals (including Plaintiff) because they were the only salaried members of management who accepted or facilitated gifts from Mohammad. DEF Stmt. ¶ 47; PL Stmt. ¶ 47. Nevertheless, all employees involved in the bulk sales of phones received some level of discipline. DEF Stmt. ¶ 47; PL Stmt. ¶ 47.

On April 25, 2019, the day after Plaintiff's termination, Plaintiff filed this case [DE 1]. She subsequently filed an...