Ellison et al v. Wal-Mart Stores, Inc.
MEMORANDUM OPINION AND ORDER granting 17 Motion for Summary Judgment and dismissing case with prejudice. Signed by Honorable Robert T. Dawson on April 3, 2012. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
ERNEST E. ELLISON AND
Case No. 11-5070
WAL-MART STORES, INC.
MEMORANDUM OPINION AND ORDER
Support (Doc. 18) and Statement of Undisputed Facts (Doc. 19)
and Plaintiffs’ Response (Doc. 22), Supplements (Docs. 23-24) and
Statement of Facts (Doc. 25). Plaintiff Theresa Simmons-Ellison
pursuant to Title VII of the Civil Rights Act and
the Arkansas Civil Rights Act, Ark. Code Ann. § 16–123–101 et
alleges retaliation under the same statutes. For reasons stated
herein, Defendant’s Motion for Summary Judgment (Doc. 17) is
GRANTED and Plaintiffs’ complaint (Doc. 1) is DISMISSED WITH
assemble the lenses into frames which are sold in Walmart’s
Vision Centers located in its stores.
The U.S. labs are located
in Fayetteville, Arkansas; Dallas, Texas; and Crawfordsville,
There is one so called “Call Center” for all three
labs and it is located in the same facility as the Fayetteville
The Call Center handles calls from all the Vision
Centers and from customers of the Vision Centers.
are housed in the same facility, the employees of the Optical
Lab and the Call Center have different reporting structures.
(Docs. 19 & 25, ¶ 1).
Plaintiff Eugene Ellison (“Ellison”) worked for Walmart as
the Call Center Manager for the Walmart Optical Labs.
became the Call Center Manager sometime in June of 2004.
19 & 25, ¶ 2).
Beginning in 2009, Ellison’s manager was David
Finley’s title was later changed to Senior Manager of Quality
Assurance for non-store operations.
(Docs. 19 & 25, ¶ 3).
Finley reported to Volker
Walmart since 2001, and held the position of Training Manager in
the Sanger, Texas Distribution Facility.
On February 8, 2010,
she became the Human Resource Office Manager (“HROM”) for the
Fayetteville Optical Lab.
Although the position had existed
within Walmart for several years, Simmons was the first person
to hold the HROM position at the Optical Lab, and a written job
description for this position was not created until after her
(Docs. 19 & 25, ¶ 4, 6).
Simmons reported to Human
Resources Manager Linda Braun, who in turn reported to Rick
Carlson1, Senior Human Resource Manager, whose office was located
Senior Director of Human Resources, also in Bentonville.
19 & 25, ¶ 5).
Within two weeks of arriving at the Fayetteville Optical
Lab/Call Center, Simmons contends rumors developed that she and
Ellison were in a romantic relationship.
(Docs. 19 & 25, ¶ 13).
Home Office Manager Steve Proffitt allegedly asked Ellison if he
was “hittin that” (“hitting,” an euphemism for sexual relations;
“that” referring to Simmons.)
together a lot.”
Proffitt supposedly made other
When Simmons confronted Proffitt about such
Walmart contends that because Rick Carlson is located in the
Walmart home office in Bentonville and Linda Braun, his direct
report, is physically located in the Fayetteville Optical Lab
which also houses the Call Center, Carlson had delegated the day
to day Human Resource matters for the Call Center to Braun in
addition to her responsibilities for the Optical Lab.
Therefore, they maintain, Simmons’s duties also included human
resource support for the Call Center. (Doc.18). Simmons
disputes this contention, insisting that WalMart has not defined
“support.” (Doc. 25).
anymore. (Doc. 17-1, Simmons’s Deposition pp. 23-25).
Plaintiff contends Co-Manager Don Hawkins asked another
manager about any Simmons-Ellison relationship and relayed to
Simmons admits that she was spending a lot of time with Ellison,
but insists Ellison was only helping her get some “system issues
(Doc. 17-1, p. 31).
Within the next few weeks, Ellison moved out of his home
and Simmons asked Braun if it would be alright for Ellison to
rent a room from her. Braun told her they could not live in the
perception2 by other employees that Simmons and Ellison were in a
The Court’s use of the term “perception” several times is not by
accident. In both plaintiffs’ deposition testimonies they
describe this as the word used by Walmart management to explain
why they were not allowed to be romantically involved or have it
appear as though they were romantically involved. “No one
relationship, or even friends, should be avoided, and for that
(Doc. 17-1, p. 21).
When Simmons went to Braun
complaining of the “gossip, innuendo and sexist remarks,” Braun
told Simmons and Ellison that they were “just going to have to
In her deposition, Simmons testified that early in April,
Rueben Perez, Director, HR Investigations.
(Doc. 22-6, p. 18).
Because “such a ruckus had been made about [her] relationship
with [Ellison],” Simmons asked Perez a “hypothetical question
regarding the fact that the leadership in the lab seemed to be
so unhappy about the friendship that had formed between [them].”
override those without some written clarification.”
If it’s in policy, it’s policy.”
(Doc. 22-6, p. 18).
discussed ‘policy’ with them, but‘perceptions’ were discussed.”
(Doc. 17-1, p. 87).
Braun describes the conversation a little differently, stating
in her deposition that senior leaders and associates in the
building were coming by her office and asking if there was a
relationship between Simmons and Ellison. Braun testified that
when the rumors got back to Simmons, Braun told her “It’s very
difficult to outrun a perception, so you have to make it
extremely hard for people to have any fodder to talk about.”
(Doc. 22-1). For purposes of Summary Judgment only, the Court
assumes Simmons’s account is accurate.
On April 30, Ellison moved in with Simmons and on May 1,
Ellison and Simmons married.
No one at Walmart was advised of
supervisor, David Finley, came to the lab and told Ellison that
he had talked to Rick Carlson, Senior Human Resource Manager,
perception it was causing. (Doc. 22-5 pp. 27-28).
anything to jeopardize Theresa’s position and she would not want
to jeopardize yours.4”
(Doc. 17-2, Ellison’s 10/7/10 statement.)
Ellison told his supervisor that he and Simmons were just
Simmons assured Finley that he would make an effort to “minimize
[their] time together in the facility that was not required to
perform [his] job duties, but [he] did not say that [he] would
not see her away from work as friends.” (Doc. 17-2). It was at
this time, according to Simmons, that he began to feel that
In Ellison’s written statement of October 7, 2010 (Doc. 17-2),
he said this conversation happened in May, but in his
deposition, Ellison testified that Finley talked to him in
After Ellison made the arrangement with Finley, he went to
Simmons and told her about it.
Simmons went to her supervisor,
Braun, and offered to make a similar one; she agreed that she
would not acknowledge a relationship with Ellison while they
were in the building together.
On May 12, 2010, Simmons received a verbal Coaching for
Improvement5 from Braun regarding Simmons’s recent role in the
discipline of an associate.
The Coaching stated:
Theresa is still very new at the HROM role and is
still learning all processes.
There are some
things that Theresa needs to focus on for her to
be successful in her role at 9149. Encourage the
Open Door, Meet all Deadlines, Make decisions
based on facts, not emotion, keep any negativity
about work processes between her and her manager.
I am confident that Theresa will focus on these
opportunities and turn them around quickly.
resulted in decreased morale and could possibly have
an effect on turnover numbers.
The expected performance was that Simmons “walk the floor
on a regular basis, let the shift managers know if you will be
(lunch/errands), let AP know when you leave [and] what time to
expect you back, meet all deadlines.”
(Doc. 17-2, Ex. 8).
Simmons believes this write-up was unfair and “in retaliation”
for enforcing Walmart’s policy prohibiting smoking within 50
feet of the entrance. (Doc. 26-6, p. 41).
In mid-May6, well after they were married, Ellison went to
Simmons’s supervisor and told her he “would like to pursue a
relationship with Theresa...and since it seemed to be creating
Shortly thereafter Simmons went to Braun and said, “Regardless
of the nature of our relationship in the building, if it is
causing a problem, can you help Gene get a transfer?”
1, p. 36).
According to Ellison, Braun’s assistance was minimal
and did not result in finding a position outside the Optical
anyone they worked with that they had married in May.
On Friday, September 10, 2010, Simmons received a written
Coaching for Improvement from Braun, stating that there had been
little improvement in the areas that were discussed during the
The effects of her performance were
impact on her team’s ability to trust her.”
Braun indicated the
need for Simmons to own all aspects of her business and “be
available not only to the managers but to the associates in the
Ellison wrote that this discussion in June, but Simmons says it
was April or May.
She was advised to follow through on her commitments
and that if she did not improve in 30 days, she would receive
further coaching and demotion.
(Doc. 17-2, Ex. 9).
The following Monday morning, September 13, 2010, Simmons
sent an e-mail to Reuben Perez, HR Investigations Director7,
detailing what she described as the “egregious circumstance” of
the behavior to which she had been forced to endure over the
last seven months.
(Doc. 17-2, Ex. 10). Attached to her email
was a numbered list8 of events that represented an outline of her
Manager at the Fayetteville Optical Lab.”
(Doc. 23-12). Simmons
complained generally and specifically about the “inappropriate
speculation and gossip” about whether she and Ellison had a
relationship; that other managers were friends with managers and
subordinates; that she did not think either of her two coaching
Simmons’s email initiated Walmart’s “Open Door” process, by
which associates are to resolve employment concerns and
complaints. (Doc. 18). Simmons explained in her email that she
was making her complaint “so high up the chain of command”
because the people to whom she would normally report were the
subjects of her complaint and she had no confidence that her
complaint would be given an unbiased investigation by them.
Simmons’s statement was seven pages long and consisted of 66
numbered paragraphs. (Doc. 23-12).
In her deposition, Simmons describes her Open Door complaint as
“claims of sexual harassment and discrimination.” (Doc. 17-1,
p. 93). The Court notes that Walmart’s definition of harassment
includes “making offensive comments about an individual’s
status, appearance, or sexual activity.” (Doc. 24-15). Simmons
alleged disparate treatment, not sexual harassment, in her
forms were warranted10; that Braun was the cause of her missing a
deadline leading to her second coaching; that Braun had told her
responsible for Braun’s job; that a manager called her a liar
when she tried to explain why a coaching was not warranted; that
conclusion, Simmons requested a transfer to a different facility
or a different position, “based on [her] qualifications.”
What occurred next is the subject of some dispute.
Director of Human Resources David Scott determined that both had
violation of Walmart policy.
Both were given a Coaching for
Improvement11, removed from their respective positions in the
Of her lengthy Open Door complaint, over four pages are
dedicated to describing grievances that had nothing to do with
her suspected relationship with Ellison. (Doc. 17-2 pp. 10 –
Ellison’s Coaching for Improvement Form states that “Gene is
involved in a relationship with another Associate in the
Fayetteville Optical Lab building which is against company
policy. He was informed that this is against policy on two
occasions and did not admit come forward (sic) to his supervisor
when the relationship developed into a romantic relationship.”
days leave to find another job within Walmart.
found a position, both were terminated effective December 31,
(Doc. 17, ¶ 4).
Ellison and Simmons contend that when
Scott met with them, instead of questioning them about Simmons’s
relationship between the two employees.
When Ellison demanded
to see a copy of Walmart’s “Romantic Relationship” policy, Scott
allegedly told her “Not everything we do is in writing.” (Doc.
After Scott’s decision, Ellison initiated an Open Door with
granted Simmons and Ellison paid leave rather than unpaid leave13
while they looked for another position within Walmart.
Under Associate’s Comments, Ellison wrote, “No comment.” (Doc.
24-1). Simmons’s Form has the identical charge, but she wrote
on hers “I deny that this is based in fact.” (Doc. 24-2).
Nowhere in the statement does Simmons give any indication that
she felt she was being treated differently because of her
gender. The closest is in paragraph 10: “In yet another
conversation with Don, in the HRM’s office, I was forced to
again discuss the nature of my relationship with Gene and was
told by Don at that time that the fact that I was a woman and
Gene was a man made him very uncomfortable about our
relationship. I continued to assure them that there was nothing
inappropriate going on. It was quite humiliating. I felt
dirty.” (Doc. 23-12).
Plaintiffs were originally given 30 days of unpaid leave to
find another job within Walmart. The leave period was extended
through the appeal process, and eventually changed to paid
leave. (Doc. 18).
Miller did not overturn Scott’s decision.
Global People Division.
Simmons spoke with Karen Churchman and
Simmons appealed to Mike Duke, President and
Dale Henry handled the
appeal and did not overturn Scott’s decision.
Simmons also pursued
Chief Executive Officer of Walmart.
Walmart U.S., who told her that the matter had already been
After the appeals process at Walmart proved unsuccessful
and they were terminated, Ellison and Simmons filed charges of
sex discrimination and retaliation
with the EEOC on February 7,
Walmart was first made aware that Ellison and Simmons
were married when the plaintiffs filed their complaint in this
Court, alleging sex discrimination and retaliation in violation
of Title VII of the Civil Rights Act of 1964, as amended, and
the Arkansas Civil Rights Act.
Standard of Review
Summary judgment is appropriate when, viewing the facts and
inferences in the light most favorable to the nonmoving party,
“the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”
Fed.R.Civ.P. 56(c). The plain language of Rule
56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to
element essential to that party’s case, and on which that party
Catrett, 477 U.S. 317, 322 (1986).
“A party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying
affidavits, if any, which it believes demonstrate the absence of
a genuine issue of material fact.”
Id. at 323.
If the moving
party meets the initial burden, the burden then shifts to the
opposing party to produce evidence of the existence of a genuine
issue for trial.
Id. at 324.
The evidence must be viewed in the light most favorable to
the nonmoving party, giving the nonmoving party the benefit of
all reasonable inferences.
Kenney v. Swift Transport, Inc., 347
F.3d 1041, 1044 (8th Cir. 2003).
“In ruling on a motion for
“Where the unresolved issues
are primarily legal rather than factual, summary judgment is
Koehn v. Indian Hills Cmty. Coll.,
Simmons’s contention that the rubrics for reviewing a motion for
applied, the Supreme Court has reiterated that district courts
should not “treat discrimination differently from other ultimate
questions of fact.”
Togerson v. City of Rochester, 643 F.3d
1031, 1043 (8th Cir. 2011), quoting Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S.133, 148 (2000).
Numerous Walmart policies set out how associates should and
should not relate to one another.
In Walmart’s Statement of
Ethics, the following is stated about the boundaries of those
Personal relationships with other associates. At
Walmart, we want to provide a work environment
where associates can perform effectively and
achieve their full potential.
We are all
responsible for creating a climate of trust and
respect, and for promoting a productive work
There is a basic conflict of
interest when you manage someone with whom you
have a family, romantic, or dating relationship.
Even if you’re acting properly, your relationship
will likely be seen as influencing your judgment.
This can damage morale and disrupt workplace
Therefore, you may not supervise,
directly or indirectly, any family members or any
associate with whom you date or are romantically
involved. This includes situations where you may
be able to influence that associate’s terms and
conditions of employment, or if that associate
can influence the terms and conditions of your
personal relationships that interfere with work
performance or which may constitute harassment.
You should ask for guidance and advice from your
manager or from an in-country Ethics Committee
whenever an issue comes up regarding a personal
Your manager or Human Resources
manager can discuss options with you, such as a
possible transfer to remove the conflict.
(Doc. 23-6, Ex. 1).
Walmart’s Workplace Standards Policy states:
Relatives and romantic relationship partners.
All associates and applicants will be considered
for employment (or a new position) without regard
applicant is employed by us. No employee or
applicant may be considered for or placed in a
position where the associate’s supervision of
that individual would create an actual or
perceived conflict of interest, or where such
placement would adversely impact protection of
Examples of situations to avoid
include, but are not limited to:
associate when one associate supervises or
can influence the terms or conditions of
the other associate’s employment.
Associates’ family members or romantic
relationship partners placed in positions
that would involve the associates handling
or processing the same funds that would
compromise the “chain of security.”
investigation or a performance evaluation
Family Member, for purposes of this policy, means
marriage, domestic partnership or civil union,
including spouse, children, parents, siblings,
grandparents or grandchildren and, in the state
of Hawaii, reciprocal beneficiaries.
relationship between individuals of a romantic or
Romantic relationship partner means one of the
individuals in a romantic relationship.
When a supervisory relationship exists between
two associates who are related or who desire to
pursue a romantic relationship, one of the
associates must disclose the existence of the
relationship to an appropriate salaried member of
management and request a transfer for one of the
individuals involved to eliminate the supervisory
If a transfer is permitted, the
transferred associate will receive the wages,
hourly schedule that are appropriate for the new
position. Such a transfer will be permitted only
The associate makes the transfer request
prior to an allegation and/or investigation
of a potential violation;
An appropriate position is available; and
The associate seeking the transfer assumes
all expenses, including relocation costs,
related to the transfer.
(Doc. 23-7, Ex. 2)(emphasis in the original).
Walmart’s General Work Rules and Guidelines for
its Field Logistics division states:
Walmart associates are
expected to conduct themselves in a manner that
promotes respect, trust, safety and efficiency in
the workplace. It is against Company policy for
a manger or supervisor to become romantically
involved with an associate he or she supervises
or with an associate whose terms and conditions
of employment he or she may have the ability to
Associates who violate this policy
will be subjected to immediate termination of
relationships associates are allowed to have depending on their
position with the company.
The “Optical Lab Matrix” covers the
Optical Lab and Distribution Centers.
General Manager...No relatives permitted to
work in the facility.
Co-Manager...No relatives permitted to work
in the facility.
permitted to work on their shift.
Area Manager Level 1...No relative permitted
to work in their area of responsibility.
Maintenance Manager...No relatives permitted
to work in their area of responsibility.
permitted to work in the facility.
QA Manager... No relatives permitted to work
in the facility.
Supervisor...No relatives permitted to work
in their area of responsibility. Supervisor
responsible for Process Control or QA no
relative permitted to work on their shift.
Process Control Associate.... No relatives
permitted to work on their shift.
QA Associate...No relatives permitted to
work on their shift.
Associates are permitted to have relatives
work within the facility.
relatives working in the building.
permitted to work in the facility.
If any Associate is involved in a situation
investigation/decision making situation.
extenuating circumstances, may be made by
the Senior HR Manager supporting the Optical
(Doc. 17-3, Ex. 23).
The Field Logistics Matrix provides:
relatives permitted to work in the facility,
relatives permitted to work in their area of
Asset Protection...AP Hourly associates are
permitted to have relatives work within the
Asset Protection Manager...AP Managers can
have no relatives working in the DC (both
Operations & Area level AP Managers).
HR Manager...No relatives permitted to work
in the facility.
Office Manager/Employment Manager/HR Office
Manager/Training Manager...Relatives will be
permitted, except within the HR function.
(Doc. 23-9, Ex. 3).
When Simmons was hired as the first Human Resources Office
Manager for the Optical Lab, she understood her job description
to be, as far as she knew, the same as that for HROM in the
Logistics Division of Walmart, where she worked prior to moving
supervisor, Braun, explained that since the position was new
there they would have to “tweak it as it goes.”
She was told
that she would be in charge of the HR office and the associates
in that office and support the overnight14 managers who were in
There was a two hour time period between the time
Braun left for the day and the Call Center closed at 8:00 p.m.
when Simmons was “the only person in the building” available to
included the Call Center Manager.
Since Simmons worked the
night shift, most of the issues that needed to be addressed had
already been discussed throughout the course of the day, but if
discuss it with her.
(Doc. 17-1, pp. 13-14).
Ellison and Simmons determined that to be married to one
another was perfectly acceptable, and that nowhere in Walmart’s
deposition testimony reveals her views on the subject:
A: Nowhere in policy does any of that ever form a
justification for prohibiting a relationship of
Q. That--that’s your belief.
A. Yes, ma’am, absolutely.
Q. And you know Walmart has a different belief?
Well, for five years, Walmart paid me to
teach other people about their policies, so I
Simmons worked 2:00 p.m. to
12:00 a.m. (Doc. 18).
feel fairly confident in my understanding of
Q. So Linda Braun is wrong.
Q. David Finley is wrong.
Q. David Scott is wrong.
Q. Karen Churchman was wrong.
Q. Volker Heimeshoff was wrong.
Q. Dale Henry was wrong?
A. Yes, ma’am.
Q. Anybody else you appealed to that was wrong?
I can’t think of anyone.
Bryan Miller, did
Q. Bryan Miller was wrong?
Q. Okay. And you’re right.
A. Yes, ma’am.
(Doc. 17-1, pp. 21-22).
Q. So you did your own research on the policy?
A. Yes, ma’am.
Q. Okay. And you discounted both Linda Braun’s
statement about how the perception would affect
your job and her job and you discounted Dave
Finley’s statement about the perception; is that
A. Policy as written did not apply to Theresa and
myself, in my opinion.
Q. I don’t want to know what the policy says.
A. Yes, ma’am.
Q. And this says it’s against company policy.
A. Yes, ma’am, it does.
So you believe that, I guess it was
David Scott who gave--who wrote this coaching
form, was wrong when he said it was against
A. Yes, ma’am.
Q. Okay. And you believe everybody up the chain
of command who handled the appeal was wrong in
determining that it violated policy.
A. Yes, ma’am.
(Doc. 17-1, pp. 41-42).
Logistics Division policies would apply in the Optical Center.
Under the Logistics romantic
Because Simmons was the first person to hold the
Lab/Call Center, her particular position was not listed on the
Optical Lab matrix.
This left her in, she contends, a no-man’s
land when it came to this specific policy.
Except for the fact
Walmart’s policies have the same goal:
to avoid conflicts of
interest and the perception of conflict.
supervisors and continued to carry on a relationship that caused
obvious15 problems for their respective departments.
Paragraph 14 of Simmons’s Open Door Complaint to Rueben Perez
states: “In the face of all of this, it became clear that the
friendship that had formed between Gene and me was causing a
problem....” (Doc. 23-12)
Title VII of the Civil Rights Act of 1964, as amended,
prohibits discrimination on the basis of sex: “It shall be an
unlawful employment practice for an employer to fail or refuse
compensation, terms, conditions, or privileges of employment,
because of such individual's...sex.” 42 U.S.C. § 2000e-2(a)(1).
The purpose of this provision is to prevent “disparate treatment
of men and women in employment,” regardless of its form. Oncale
v. Sundowner Offshore Services, Inc., 523 U.S. 75, 78, (quoting
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)).
critical issue, Title VII's text indicates, is whether members
of one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed.”
Oncale at 80 (quoting Harris v. Forklift Systems, Inc., 510 U.S.
17, 25 (1993) (Ginsburg, J., concurring)). The legal standard
for gender discrimination is the same for
Title VII and the
Arkansas Civil Rights Act. See Maxfield v. Cintas Corp. No. 2,
427 F.3d 544, 550 (8th Cir. 2005).
Simmons’s, where there is no direct evidence of discrimination,
under the familiar McDonnell Douglas burden-shifting framework.
Clegg v. Arkansas Dep't of Correction, 496 F.3d 922, 926 (8th
Cir. 2007). To make a prima facie case of gender discrimination,
Simmons must show that she: “(1) is a member of a protected
class; (2) was qualified for her job; (3) suffered an adverse
employment action; and (4) alleged facts that give rise to an
R.R. Co., 606 F.3d 455, 460-461 (8th Cir. 2010). If Simmons
makes her prima facie case, then the burden of production shifts
to Walmart to offer some legitimate, nondiscriminatory reason
Trustees, 628 F.3d 980, 990 (8th Cir. 2011). Simmons must then
show that Walmart’s proffered reason was pretextual and that
unlawful discrimination was instead a motivating factor. Ibid.
She is a member of a protected class and did in
Although Walmart contends she was not
meeting its legitimate job expectations because she failed to
disclose her relationship with Ellison in accordance with its
policy and did not otherwise comply with the company’s Statement
of Ethics, one could, for the sake of argument and viewing the
facts in a light most favorable to Simmons, contend that she was
qualified for her job.
The insurmountable hurdle for Simmons is
that there are no facts which infer gender discrimination.
nepotism policy is applied in a manner that disproportionately
discrimination without proof of discriminatory intent.
here is that
Simmons suffered the exact same adverse employment
action as Ellison, a male.
Both before and after Oncale, the Eighth Circuit has noted
discrimination, inappropriate conduct that is inflicted on both
Holman v. Indiana, 211 F.3d 399, 403 (8th Cir.
Title VII's text indicates, is whether members of one sex are
exposed to disadvantageous terms or conditions of employment to
Oncale, 523 U.S. at 80.
“Title VII should not be ‘unwittingly
expanded to impose liability on employers for condoning or not
remedying offensive co-worker conduct that does not amount to
discrimination ‘because of...sex[.]’”
Anderson v. Family Dollar
2009)(quoting Excel Corp. v. Bosely, 165 F.3d 635, 641 (8th Cir.
rumors or statements concerning Ellison’s and Simmons’s affair
were made because Simmons was female.
By the very nature of
Simmons and Ellison were made the subject
The rumors spread, irrespective of the truth, for
There are many motives for spreading slanderous
rumors in the workplace, but gender generally is not one of the
motives, and it does not appear to be so here.
Each of the
gender-neutral incidents that Simmons complains of are the sort
of minor indignities that are not actionable under Title VII.
See Oncale, 523 U.S. at 81.
Assuming a plaintiff establishes a prima facie claim for
discrimination, the burden shifts to the defendant to show a
legitimate, non-discriminatory reason for the adverse employment
action taken. The Court finds that Walmart has met this burden.
Walmart has several policy statements in effect that show their
testified that they believed one or more of the company policies
prohibited Simmons and Ellison from being involved in a romantic
relationship or that, at the very least, Simmons should have
compliance with the company’s general Statement of Ethics.
leadership represented to Simmons and Ellison that they were
“dishonesty” was not used in the plaintiffs’ Coaching documents,
Walmart’s response to interrogatories indicates that Simmmons
and Ellison were discharged, at least in part, because of their
(Doc 23-1, ¶1).
The defendant's burden at this stage is one of production
and not proof. Britton v. City of Poplar Bluff, 244 F.3d 994,
996-97 (8th Cir. 2001)(citing Krenik v. County of Le Sueur, 47
F.3d 953, 958 (8th Cir.1995); Fuller v. Alliant Energy Corporate
456 F.Supp.2d 1044, 2006 U.S. Dist. LEXIS 75497, 35
plaintiffs involved in employment discrimination cases are at
will, it is a simple task for employers to concoct plausible
reasons for virtually any adverse employment action ranging from
failure to hire to discharge.”). It is undisputed that Simmons
and Ellison were involved in a romantic relationship.16 Walmart
clearly has policies related to romantic relationships between
Plaintiff testified that “I still take exception to the
[phrase] ‘became romantic,’ because I am not sure what you mean
by that. We decided sometime between March and May to get
married, that we cared very much for each other....” (Doc. 171, p. 20).
“violating a company policy is a legitimate, non-discriminatory
rationale for terminating an employee.” Twymon v. Wells Fargo &
Co., 462 F.3d 925, 935 (8th Cir. 2006).
discriminatory reason for an employee's termination, the burden
then shifts back to the plaintiff to show that the defendant's
explanation for terminating her employment is pretextual. The
plaintiff's burden at this stage is more onerous, “merg[ing]
with the ultimate burden of persuading the court that [he] has
been the victim of intentional discrimination.” Dixon v. Pulaski
Cir.2009)(citing Tex. Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981)). Simmons must demonstrate that Walmart’s
proffered reason for terminating her was not the true reason,
but rather was a pretext for discrimination. Dixon, 578 F.3d at
868. She may do so “directly by persuading the court that a
indirectly by showing that the employer's proffered explanation
is unworthy of credence.' Hammer v. Ashcroft, 383 F.3d 722, 724
attempts to show pretext by arguing that there was no direct
company policy that applied to their relationship and it was
none of Walmart’s business whether they were dating or married.
adduce enough admissible evidence to raise genuine doubt as to
the legitimacy of [Walmart's] motive, even if that evidence does
reasons for its actions.” Dixon, 578 F.3d at 870 (citation and
The tone of Simmons’s pleadings and testimony appears to be
complained to her supervisor about comments people were making
about her and then she was fired in retaliation for filing an
treated more favorably. “Instances of disparate treatment can
support a claim of pretext, but [plaintiff] has the burden of
proving that he and the disparately treated [employees] were
similarly situated in all relevant aspects.” McNary v. Schreiber
Foods, Inc., 535 F.3d 765, 770 (8th Cir. 2008)(quoting Sherman
“similarly situated to more leniently treated employees in ‘all
stage.” Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 521 (8th
Cir. 2009)(quoting Wimbley v. Cashion, 588 F.3d 959, 962 (8th
Simmons acknowledged that the reason she was given
by Walmart for prohibiting a relationship with Ellison was that
relationship, they would not feel comfortable coming to her with
an issue involving him.
(Doc. 23-12, p. 1).
that Simmons was over the team that provided services to his
associates in the Call Center.
(Doc. 22-5, p. 75).
Even if the Court were to assume Simmons established a
Walmart’s explanation for termination was pretextual.
In her initial Open Door complaint, Simmons pointed out
other relationships within Walmart:
L.B., (female) HR Manager, takes breaks and lunch with
K.S., (female) lab manager, on a regular basis. (Doc.
(male) manager to whom he directly reports.
Simmons directs the Court to more alleged relationships
within Walmart in her response to Walmart’s Motion for Summary
J.L.17 (male) inspected product created by the Optical
When their marriage became an issue, J.L. was
temporarily re-assigned until such time as his wife
found another position within the Optical Lab.
B.K.18 (male) Area 2 Level Manager whose wife worked
for the Call Center at the Optical Lab.
B.C.19, (male) Optical Lab manager, was at one time
After he demanded to see the policy
he was accused of violating, the matter was dropped.
Walmart states that after a complaint was made to J.L.’s
manager that there was a perception by associates in the
Fayetteville Optical Lab that J.L. could show favoritism to his
wife concerning audits of her department’s work, J.L.’s
supervisor assigned another field quality assurance manager to
audit the Fayetteville Optical Lab until his wife stepped down
from her supervisory position to an hourly quality assurance
position. (Doc. 18).
Walmart states that before applying for the Level 2 Manager
position, B.K. asked the General Manager, Tommy Hyde, if he
could hold that position since his wife worked in the Call
Center. Hyde told him that he could do so. (Doc. 18).
Walmart states that B.C. was interested in dating an Asset
Protection Associate. He asked Optical Lab Co-manager Vic
Tumlinson whether dating her would create a problem. Tumlinson
told him it would. B.C. testified that he did not engage in a
relationship with the associate until after she changed
General Manager Hyde and Tumlinson questioned B.C.
about whether he had misrepresented the nature of his
relationship with the associate. B.C. told them that he had not
lied. They were married shortly thereafter.
L.B. (female) at one time tried to get her husband
hired on in the Call Center.
There is simply no evidence that these individuals were
similarly situated to the Simmons in all relevant respects, as
these individuals did not work under the same supervisor, work
in the same department or have the same responsibilities as
Simmons. See Hervey v. County of Koochiching, 527 F.3d 711, 720
(8th Cir. 2008) (“[T]he individuals used for comparison must
have dealt with the same supervisor, have been subject to the
same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances.”) (quoting Clark v.
Runyon, 218 F.3d 915, 918 (8th Cir. 2000)), cert. denied, 555
U.S. 1137 (2009).
Furthermore, and pointing out the obvious,
Simmons complains that she has been treated differently from
Simmons’s case any.
In Ellison’s statement of October 7, 2010,
investigation, he states:
“It seems that around this time (when
‘perception’ of a relationship between Ellison and Simmons) I
differently than other managers in the facility and there were
restrictions being put on us and our friendship that was never a
question with other manager’s friendships with other managers
and or hourly associates....It appears to me that there was a
double standard being applied.” (Doc. 17-2, p. 80).
Simmons claims that Walmart did not perform an adequate
focusing their attention on the relationship between Simmons and
The Court finds this argument unavailing.
“can certainly choose how to run its business, including not to
follow its own personnel policies regarding termination of an
employee or handling claims of discrimination, as long as it
does not unlawfully discriminate in doing so.” Haas v. Kelly
Servs., Inc., 409 F.3d 1030, 1036 (8th Cir. 2005).
there are pages of notes from interviews
with supervisors and a chart detailing each of Simmons’s Open
Door concerns, the result of the investigation and action plan
going forward.20 (Doc. 24-4).
Walmart’s action plan included adding the Human Resources
Office Manager to the Optical Lab Policy as being prohibited
from having relationships within the facility, engaging in
ongoing conversation with management team about leadership,
continuing to investigate the top leadership team, clarifying
with the Call Center team how HR support is provided, and
coaching one of Simmons’s supervisors for mistreating her during
a coaching conversation. (Doc. 24-4).
Simmons contends that she had no disciplinary history with
Walmart until she made her “complaint of sex discrimination to
complaints of discrimination and that he was disciplined and
ultimately terminated because of the complaints made by Simmons
and his relationship with Simmons.
Indirect evidence of retaliation is also analyzed using the
McDonnell Douglas burden shifting framework. McLain v. Andersen
Corp., 567 F.3d 956, 969 (8th Cir. 2009). A prima facie case of
retaliation requires (1) engagement in a protected activity; (2)
connection. Arraleh v. County of Ramsey, 461 F.3d 967, 977 (8th
Cir.2006). “[T]emporal proximity alone is generally insufficient
to prove pretext.” Id. at 978. If the plaintiff demonstrates a
articulate a legitimate reason for the action. McLain, 567 F.3d
at 969. The burden then shifts back to the plaintiff to show
evidence that the reason was pretextual. Id.
Simmons’s and Ellison’s claims of retaliation fail for the
same reasons Simmons’s discrimination claim fails. The only link
between their adverse employment actions and Simmons’s arguably
particularly in light of the fact that Plaintiffs’ complaints to
management were about a myriad of indignities, none of which
Accordingly, Defendant’s Motion for Summary Judgment (Doc.
17) is GRANTED and Plaintiffs’ Complaint (Doc. 1) is DISMISSED
Each party is to bear their own fees and costs.
IT IS SO ORDERED this 3rd Day of April, 2012.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge
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