Hubbard v. Walmart Stores, Inc.

Filing 24

MEMORANDUM OPINION. Signed by Honorable Susan O. Hickey on April 3, 2014. (cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
TRUDY HUBBARD
v.

PLAINTIFF
CASE NO. 12-cv-1118

WAL-MART STORES ARKANSAS, LLC

DEFENDANT

MEMORANDUM OPINION
Before the Court is Defendant Wal-Mart Stores Arkansas, LLC’s (“Walmart”) Motion
for Summary Judgment. (ECF No. 14). Plaintiff Trudy Hubbard (“Hubbard”) has responded.
(ECF Nos. 19 & 23). Walmart has replied. (ECF No. 22). The Court finds the matter ripe for
consideration.
BACKGROUND
The case involves employment discrimination claims brought by Hubbard, an AfricanAmerican female, against Walmart. Hubbard began working at Walmart in Crossett, Arkansas in
2004. Hubbard then transferred to a Walmart store in Monticello, Arkansas. Subsequently, in
approximately July 2010, Hubbard transferred to a Walmart store in El Dorado, Arkansas. At the
El Dorado store, Hubbard worked as a salaried paid assistant store manager.
The responsibilities of assistant store managers at Walmart include supervising associates
and completing evaluations for those associates.

When completing evaluations, Walmart

requires assistant store managers to key in the evaluation to a computer system by a deadline—
thirty days prior to the anniversary of the associates’ hire date. To ensure that assistant store
managers comply with this deadline, the personnel department sends reminder e-mails and posts
lists of upcoming evaluation dates in the managers’ offices.

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Despite these procedures, in this case, Hubbard missed an evaluation deadline.
Specifically, Hubbard failed to key Laquita Kemp’s (“Kemp”) evaluation into the Walmart
computer system thirty days prior to the anniversary of Kemp’s hiring date. Hubbard had
completed Kemp’s evaluation by telephone prior to the deadline.

However, Hubbard was not

working in the store on the days before and after the deadline so she asked a personnel
coordinator Stacy Sorrell (“Sorrell”) to submit the form. Hubbard faxed the form to Sorrell, and
Sorrell informed Hubbard she received the form and would key in the evaluation for Hubbard.
However, Sorrell forgot to submit the form into Walmart’s computer system. When Hubbard
returned to work, after the deadline, she discovered the evaluation had not been submitted.
Hubbard then keyed the form into the computer herself.
After Hubbard missed the deadline, Walmart sought disciplinary action against her.
Walmart’s disciplinary procedure consists of four steps: (1) Verbal Coaching; (2) Written
Coaching; (3) Decision Day Coaching; and (4) Termination. Throughout her employment with
Walmart, Hubbard had received Verbal Coaching 1 and Written Coaching. 2 Thus, for missing the
evaluation deadline, Walmart issued Hubbard a Decision Day Coaching form on October 6,
2011. The Decision Day Coaching form states:
Trudy had a[n] evaluation go late and show up on the recap.
Laquita Kemp’s evaluation was not covered in the time allotted.
This is a violation of company policy. Associate evaluation has to
be keyed in the time it should. Having a late evaluation is a
violation of company policy.
(ECF No. 14-2).

Dissatisfied with the Decision Day Coaching, Hubbard disputed the

disciplinary action with the store manager, Keith Miller (“Miller”). Hubbard explained to Miller

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Hubbard received verbal coaching when she worked at the Monticello Walmart store. (ECF No. 20). Hubbard
states that she disagreed with the verbal coaching. Id.
2
Hubbard received written coaching also at the Monticello Walmart store. (ECF No. 20). Again, Hubbard disagreed
with the written coaching. (ECF No. 19-3).

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that she completed the evaluation over the phone prior to the deadline but Sorrell forgot to
submit it. Miller told Hubbard that Walmart did not tolerate an evaluation conducted over the
phone and the Decision Day Coaching would remain on her record. Hubbard then contacted the
Market Resources Manager, Maurice Cabble (“Cabble”), to complain about the coaching.
Cabble did not remove the Decision Day Coaching from Hubbard’s record.
Still dissatisfied with the Decision Day Coaching, on February 6, 2012, Hubbard filed a
Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). In
her EEOC charge, Hubbard claimed Walmart issued the Decision Day Coaching because of her
race and sex in violation of Title VII of the Civil Rights Act of 1964. Specifically, on the EEOC
charge form, Hubbard placed an “X” in the boxes next to race and sex discrimination. (ECF No.
14-3). She further reported on the form that she was “aware that a similarly situated [w]hite male
manager conducted a telephone evaluation and was not disciplined like [her].” (ECF No. 14-3).
Hubbard later confirmed in her deposition that the white male she referenced in her charge is
assistant store manager, Marc Harris (“Harris”). Harris asked Tyler Lacey (“Lacey”), an hourly
employee, to conduct an evaluation over the phone on behalf of Harris. Lacey conducted the
evaluation over the phone for Harris and then asked the store manager, Miller, to key the
evaluation into the computer. Miller keyed the evaluation into the computer prior to the deadline
on behalf of Harris and Lacey.
After Hubbard filed the EEOC charge, but before the EEOC reviewed her claims,
Walmart issued Hubbard another disciplinary action 3 on November 7, 2011, and then terminated
Hubbard’s employment on February 17, 2012. Subsequently, on September 14, 2012, the EEOC
dismissed Hubbard’s claim against Walmart and issued her a Notice of Suit Rights.
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The disciplinary action was the issuance of a Performance Improvement Plan (PIP). The PIP states that Hubbard
received the reprimand for the “inability to perform job duties.” (ECF No. 19-8). The PIP provided Hubbard the
opportunity to improve her performance. Id.

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Hubbard then initiated this pro se action on December 11, 2012. In her Complaint,
Hubbard alleges that Walmart discriminated against her based on her race and sex. 4 Specifically,
Hubbard claims that Walmart issued the Decision Day Coaching based on her race and sex.
Hubbard reiterated her comparison to Harris from her EEOC charge in her Complaint.
Additionally, in her Complaint, Hubbard alleges that Walmart discriminated against her by
terminating her employment. Walmart then filed the instant Motion for Summary Judgment.
STANDARD OF REVIEW
The standard of review for summary judgment is well established. The Federal Rules of
Civil Procedure provide that when a party moves for summary judgment: “The court shall grant
summary judgment 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); Krenik v. Cty.
of LeSueur, 47 F.3d 953 (8th Cir. 1995). The Supreme Court has issued the following guidelines
for trial courts to determine whether this standard has been satisfied:
The inquiry performed is the threshold inquiry of determining whether there
is a need for trial-whether, in other words, there are genuine factual issues
that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). See also Agristor Leasing v. Farrow,
826 F.2d 732 (8th Cir. 1987); Niagara of Wis. Paper Corp. v. Paper Indus. Union-Mgmt.
Pension Fund, 800 F.2d 742, 746 (8th Cir. 1986). A fact is material only when its resolution
affects the outcome of the case. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence
is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252.

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Hubbard used a pro se form to file her Complaint. On the form, Hubbard checked a box indicating that she brought
this suit pursuant to the Age Discrimination in Employment Act. (ECF No. 1). However, in her Response to
Defendant’s Motion for Summary Judgment, Hubbard informs the Court that she is not pursuing a claim for age
discrimination. (ECF No. 20).

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The Court must view the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank, 92
F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. The
nonmoving party must then demonstrate the existence of specific facts in the record that create a
genuine issue for trial. Krenik, 47 F.3d at 957. A party opposing a properly supported motion
for summary judgment may not rest upon mere allegations or denials, but must set forth specific
facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256.
DISCUSSION
Hubbard asserts two Title VII claims against Walmart: (1) discrimination based on race
and sex for the Decision Day Coaching decision pursuant to 42 U.S.C. § 2000e-2(a); and (2)
retaliation for filing an EEOC charge pursuant to 42 U.S.C. § 2000e-3(a). The Court will first
address Hubbard’s discrimination claim. Then, the Court will discuss Hubbard’s retaliation
claim.
1. Discrimination Claim
To establish a prima facie case of race or sex discrimination, plaintiff must demonstrate
that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3)
she was meeting the employer’s legitimate job expectations; and (4) a similarly situated
employee outside the protected class was treated differently. Tolen v. Ashcroft, 377 F.3d 878,
882 (8th Cir. 2004). A failure to establish just one element of a prima facie case defeats a Title
VII discrimination claim. Tatum v. City of Berkeley, 408 F.3d 543, 550-51 (8th Cir. 2005).
If the plaintiff can establish a prima facie case, the burden of production shifts to the
defendant to articulate a legitimate, non-discriminatory reason for its actions. Takele v. Mayo

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Clinic, 576 F.3d 834, 838 (8th Cir. 2009). If the defendant makes such a showing, the plaintiff
must demonstrate by a preponderance of the evidence that the stated non-discriminatory rationale
was a mere pretext for discrimination. Id.
In this case, Walmart argues that Hubbard fails to establish a prima facie case for
discrimination based on race and sex for the Decision Day Coaching. Specifically, Walmart
argues that Hubbard cannot: (A) demonstrate she suffered an adverse employment action; (B)
establish she was meeting Walmart’s legitimate job expectations; and (C) identify a similarly
situated employee who received a more favorable treatment under the same circumstances. The
Court will now discuss each of these elements separately.
A. Adverse Employment Action
The Court first agrees with Walmart that Hubbard has failed to demonstrate that she
suffered an adverse employment action for the Decision Day Coaching.

“An adverse

employment action is defined as a tangible change in working conditions that produces a material
employment disadvantage, including but not limited to, termination, cuts in pay or benefits, and
changes that affect an employee’s future career prospects, as well as circumstances amounting to
a constructive discharge.” Wilkie v. Dep’t of Health and Human Servs., 638 F.3d 944, 955 (8th
Cir. 2011). “A reprimand is an adverse employment action only when the employer uses it as a
basis for changing the terms or conditions of the employee’s job for the worse.” Elnashar v.
Speedway SuperAmerica, LLC, 484 F.3d 1046, 1058 (8th Cir. 2007).
In this case, the Court concludes that Hubbard has failed to establish that the Decision
Day Coaching adversely affected her employment with Walmart. Hubbard offers no evidence
that the terms and conditions of her employment changed after she received the coaching.
Hubbard continued to work as an Assistant Store Manager at the El Dorado store and received

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the same salary that she received prior to the Decision Day Coaching. Hubbard argues that the
Decision Day Coaching put her in jeopardy of termination. Specifically, after Walmart issued
her the Decision Day Coaching, she received another disciplinary action and then Walmart
terminated her employment. Thus, Hubbard argues, if she had not received the Decision Day
Coaching, she would have not have been on the last stage of the disciplinary procedure and she
would not have been terminated. The Court finds Hubbard’s argument unpersuasive. Hubbard’s
Complaint alleges that Walmart discriminated against her based on race and sex when it issued
her a Decision Day Coaching form. Thus, the issue in this case is whether the Decision Day
Coaching resulted in an adverse employment action, not whether a subsequent disciplinary action
resulted in an adverse action. Accordingly, because the Decision Day Coaching did not change
the terms and conditions of her employment, Hubbard has failed to establish an adverse
employment action. 5
B. Legitimate Job Expectations
Even if the Decision Day Coaching was an adverse employment action, Hubbard has
failed to establish that she was meeting Walmart’s legitimate job expectations.

Hubbard

admitted in depositions that it was her responsibility as an assistant store manager to key
associates’ evaluations into the computer prior to the deadline and she did not submit Kemp’s
evaluation by that deadline. She further does not contest that Walmart’s implementation of the
deadline is a legitimate job expectation. Accordingly, Hubbard has failed to establish that she
was meeting Walmart’s legitimate job expectations.

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The Court notes that the Seventh Circuit has held that progressive discipline, ending in termination, is not an
adverse employment action. See Oest v. Ill. Dept. of Corrections, 240 F.3d 605, 613 (7th Cir. 2001) (“With the
benefit of hindsight, it can be said that . . . each oral or written reprimand brought [the plaintiff] closer to
termination. Such a course was not an inevitable consequence of every reprimand however; job-related criticism
can prompt an employee to improve her performance and thus lead to a new and more constructive employment
relationship.”).

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C. Similarly Situated Employee
Finally, the Court also concludes that Hubbard has failed to identify a similarly situated
employee who received a more favorable treatment under the same circumstances. A similarly
situated employee “must have dealt with the same supervisor, have been subjected to the same
standards, and engaged in the same conduct without any mitigating or distinguishing
circumstances.” Morgan v. A.G. Edwards & Sons, Inc., 486 F.3d 1034, 1044 (8th Cir. 2007).
In this case, Hubbard argues that Harris is a similarly situated employee who received a
more favorable treatment under the same circumstances. Specifically, Hubbard argues that
Harris is similarly situated because, like Hubbard, he is an assistant store manager who
conducted an associate’s evaluation over the phone. Hubbard asserts that Harris received more
favorable treatment because Walmart did not issue him a Decision Day Coaching after he
conducted the phone evaluation. The Court disagrees. Even though both Harris and Hubbard
conducted phone evaluations, Harris’s evaluation was submitted by the deadline where as
Hubbard failed to meet the deadline. Thus, Harris and Hubbard did not engaged in the same
conduct and are not similarly situated.
Accordingly, for the foregoing reasons, Hubbard has failed to establish her Title VII
prima facie case. Therefore, Hubbard’s discrimination claim must be dismissed.
2. Retaliation Claim
Hubbard additionally alleges a retaliation claim against Walmart. Specifically, Hubbard
asserts that Walmart issued her a PIP and terminated her employment in retaliation for her filing
an EEOC charge of discrimination. Walmart argues that Hubbard cannot pursue the retaliation
claim. Specifically, Walmart argues that because Hubbard did not file an EEOC charge for the

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retaliation claim, she failed to exhaust administrative remedies and Title VII bars her from
bringing the claim.
The Court agrees with Walmart. Title VII requires a complainant to file a charge with the
EEOC within 180 days “after the alleged unlawful employment practice occurred,” and give
notice to the employer of the circumstances of “the alleged unlawful employment practice.”
Richter v. Advance Auto Parts, 686 F.3d 847, 851 (8th Cir. 2012) (quoting 42 U.S.C. § 2000e5(e)(1)). The use of the definite article in the statute shows that the complainant must file a
charge with respect to each alleged unlawful employment practice. Id.
For example, in Richter, the plaintiff filed an EEOC charge on August 18, 2009, alleging
that she suffered an adverse employment action because of her race and sex. Id. Subsequently,
on August 25, 2009, plaintiff’s employer terminated her employment.

Id.

Following her

termination, Plaintiff filed suit in federal court alleging a retaliation claim for the August 25,
2009 termination. Id. The defendant asserted that the retaliation claim was barred because the
plaintiff did not file an EEOC charge for that claim. Id. The plaintiff argued that she did not
need to file a charge for the retaliation claim because the claim was “like or reasonably related
to” her discrimination claim based on race and sex that she presented to the EEOC on August 18,
2009. Id. The Eighth Circuit disagreed. Id. The Eighth Circuit reasoned that the discrimination
claim and retaliation claim are “two discrete acts of alleged discrimination—one in violation of
42 U.S.C. § 2000e-2(a), one in violation of § 2000e-3(a).” Id. The Eighth Circuit stated that
“each discrete act is a different unlawful employment practice for which a separate charge is
required.” Id. (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061
(2002)). Thus, the Eighth Circuit concluded, because the plaintiff failed to file an EEOC charge
for the retaliation claim, the claim was properly dismissed. Id.

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In this case, like in Richter, Hubbard failed to exhaust remedies for the retaliation claim.
The parties do not dispute that Hubbard’s EEOC charge does not contemplate a retaliation claim.
Hubbard instead argues that the EEOC charge encompasses the retaliation claim because she
“listed on her charge that the discrimination was continuing.” The Court finds this argument
unpersuasive.

As the Eighth Circuit stated in Richter, the discrimination charge and the

retaliation claim are different unlawful employment practices for which a separate charge is
required. Thus, because Hubbard did not file an EEOC charge for the retaliation claim, she
failed to exhaust her administration remedies with respect to that claim. Accordingly, Hubbard’s
retaliation claim must be dismissed. 6
CONCLUSION
For the reasons stated above, the Court finds that Defendant’s Motion for Summary
Judgment (ECF No. 14) should be and hereby is GRANTED. Accordingly, Plaintiff’s claims
are DISMISSED WITH PREJUDICE. An order of even date consistent with this Opinion
shall issue.
IT IS SO ORDERED, this 3rd day of April, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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In Hubbard’s Response to Walmart’s Motion for Summary Judgment, Hubbard appears to assert new claims for
discrimination and retaliation pursuant to 42 U.S.C. § 1981. Although pro se complaints are to be held to less
stringent standards than formal pleadings drafted by lawyers, a district court may not “‘rewrite a petition to include
claims that were never presented.’” Palmer v. Clarke, 408 F.3d 423, 444 n.15 (8th Cir. 2005) (quoting Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999)). Hubbard did not plead the § 1981 claims in her Complaint. Thus,
the Court cannot consider these claims.

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