Ellison et al v. Wal-Mart Stores, Inc.
Filing
37
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
FAYETTEVILLE DIVISION
ERNEST E. ELLISON AND
THERESA SIMMONS-ELLISON
v.
PLAINTIFFS
Case No. 11-5070
WAL-MART STORES, INC.
DEFENDANT
MEMORANDUM OPINION AND ORDER
Before
(“Walmart”)
the
Court
Motion
are
for
Defendant
Summary
Wal-Mart
Judgment
(Doc.
Stores,
17),
Inc.’s
Brief
in
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
(hereinafter
retaliation
“Simmons”)
alleges
sex
discrimination
and
pursuant to Title VII of the Civil Rights Act and
the Arkansas Civil Rights Act, Ark. Code Ann. § 16–123–101 et
seq.
Plaintiff
Ernest
E.
Ellison
(hereinafter
“Ellison”)
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
PREJUDICE.
I.
Background
Defendant
Optical
Labs
Wal-Mart
which
Stores,
manufacture
1
Inc.
(“Walmart”)
lenses
for
has
eyeglasses
three
and
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,
Indiana.
There is one so called “Call Center” for all three
labs and it is located in the same facility as the Fayetteville
Optical Lab.
The Call Center handles calls from all the Vision
Centers and from customers of the Vision Centers.
Although they
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.
Ellison
became the Call Center Manager sometime in June of 2004.
(Docs.
19 & 25, ¶ 2).
Beginning in 2009, Ellison’s manager was David
Finley,
Manager
Senior
of
Quality
Assurance
for
Optical.
Finley’s title was later changed to Senior Manager of Quality
Assurance for non-store operations.
Heimeshoff,
Division
operations.
(Docs. 19 & 25, ¶ 3).
Plaintiff
Theresa
Manager,
Finley reported to Volker
Health
Simmons-Ellison
&
Wellness
(“Simmons”)
Non-Store
worked
for
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
2
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
dismissal.
(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
in
Bentonville,
Arkansas.
Carlson
reported
to
David
Scott,
Senior Director of Human Resources, also in Bentonville.
(Docs.
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.)
“insinuations”
that
together a lot.”
Simmons
Proffitt supposedly made other
and
Ellison
were
“hanging
out
When Simmons confronted Proffitt about such
1
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).
3
comments,
he
apologized
and
promised
not
to
talk
about
it
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
her
that
he
mealtime--on
had
Ellison
day
off.
(Doc.
statement).
Plaintiff
also
supervisor,
told
Simmons
friendships
with
the
picking
contends
position
in
his
witnessed
HR.”
that
she
managers
(Doc.
in
17-1,
17-2,
the
Ellison’s
that
was
Braun,
not
lab
Simmons’s
Simmons
up
at
10/7/10
Simmons’s
allowed
“because
Deposition
to
of
have
[her]
p.
33).
Simmons admits that she was spending a lot of time with Ellison,
but insists Ellison was only helping her get some “system issues
straightened out.”
(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
same
house
associates;
(Doc.
17-1,
because
they
p.
it
might
21).
“might
not
Braun
upset
feel
one
of
comfortable
further
told
his
(Ellison’s)
coming
her
that
to
you.”
even
the
perception2 by other employees that Simmons and Ellison were in a
2
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
4
relationship, or even friends, should be avoided, and for that
reason
they
together.
should
not
go
to
lunch
(Doc. 17-1, p. 21).
together
or
take
breaks
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
outrun this3.”
(Doc. 1).
In her deposition, Simmons testified that early in April,
she
and
Ellison
attended
a
training
session
Rueben Perez, Director, HR Investigations.
facilitated
by
(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].”
Simmons
discussed
explicitly
stating
with
Perez
certain
“policies
things,
was
that--in
there
some
override those without some written clarification.”
“No.
If it’s in policy, it’s policy.”
writing
way
to
He said:
(Doc. 22-6, p. 18).
discussed ‘policy’ with them, but‘perceptions’ were discussed.”
(Doc. 17-1, p. 87).
3
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.
5
On April 30, Ellison moved in with Simmons and on May 1,
Ellison and Simmons married.
No one at Walmart was advised of
the marriage.
According
to
his
deposition
testimony,
Ellison’s
supervisor, David Finley, came to the lab and told Ellison that
he had talked to Rick Carlson, Senior Human Resource Manager,
about
the
relationship
between
Simmons
and
Ellison
perception it was causing. (Doc. 22-5 pp. 27-28).
Ellison,
Finley
said,
“I
am
sure
you
would
not
and
the
According to
want
to
do
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
“friends”
and
there
was
no
policy
against
being
friends.
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
Ellison
and
he
were
being
treated
differently
than
other
managers.
4
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
March.
6
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.
Braun
noted
on
the
form
that
Simmons’s
performance
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
out
of
the
building
for
an
extended
period
of
time
(lunch/errands), let AP know when you leave [and] what time to
expect you back, meet all deadlines.”
(Doc. 17-2, Ex. 8).
5
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).
7
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
such
a
stir...”,
another
position
he
asked
within
Braun
the
for
company.
assistance
(Doc.
in
17-2,
finding
p.
80).
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).
(Doc. 17-
According to Ellison, Braun’s assistance was minimal
and did not result in finding a position outside the Optical
Lab/Call
Center.
At
no
time
did
Ellison
or
Simmons
advise
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
verbal
coaching
improvement
in
in
May.
her
areas
Associate engagement).”
noted
to
include
“Theresa
of
needs
to
responsibility
make
(i.e.
immediate
HR
admin,
The effects of her performance were
“associate
morale,
decreased
impact on her team’s ability to trust her.”
productivity,
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
6
Ellison wrote that this discussion in June, but Simmons says it
was April or May.
8
facility.”
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
“very
unfortunate
experiences9
as
the
Manager at the Fayetteville Optical Lab.”
Human
Resource
Office
(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
7
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.
(Doc. 23-13).
8
Simmons’s statement was seven pages long and consisted of 66
numbered paragraphs. (Doc. 23-12).
9
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
complaint.
9
forms were warranted10; that Braun was the cause of her missing a
deadline leading to her second coaching; that Braun had told her
she
was
responsible
for
HR
in
the
building,
making
Simmons
responsible for Braun’s job; that a manager called her a liar
when she tried to explain why a coaching was not warranted; that
she
had
been
“threatened
and
treated
without
regard.”
In
conclusion, Simmons requested a transfer to a different facility
or a different position, “based on [her] qualifications.”
(Doc.
23-12).
What occurred next is the subject of some dispute.
contends
that
complaint
and
During
the
admitted
it
properly
addressed
the
investigation
that
they
were
investigated
issues
both
in
Simmons’s
Simmons
Open
Door
complained
about.
Ellison
finally
Simmons
and
romantic
a
Walmart
relationship.
Senior
Director of Human Resources David Scott determined that both had
been
told
that
a
romantic
violation of Walmart policy.
relationship
between
them
was
in
Both were given a Coaching for
Improvement11, removed from their respective positions in the
10
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 –
14).
11
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.”
10
Optical
Lab/Call
Center
facility,
and
ultimately
days leave to find another job within Walmart.
given
sixty
When neither
found a position, both were terminated effective December 31,
2010.
(Doc. 17, ¶ 4).
Ellison and Simmons contend that when
Scott met with them, instead of questioning them about Simmons’s
“allegations
of
sex
discrimination12,”
relationship between the two employees.
he
focused
on
the
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.
1).
After Scott’s decision, Ellison initiated an Open Door with
Volker
Heimeshoff.
Heimeshoff
upheld
Scott’s
decision,
but
granted Simmons and Ellison paid leave rather than unpaid leave13
while they looked for another position within Walmart.
initiated
an
Open
Door
request
with
Scott’s
Simmons
manager,
Bryan
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).
12
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).
13
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).
11
Miller,
Senior
Vice
President
Walmart
U.S.
Miller did not overturn Scott’s decision.
an
Open
Door
with
Susan
Global People Division.
Jill Wesbecher.
Chambers,
Vice
President,
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.
to
Resources.
Simmons also pursued
Executive
Chief Executive Officer of Walmart.
appealed
Human
Gisel
Ruiz,
Executive
Vice
Finally, Simmons
President,
People,
Walmart U.S., who told her that the matter had already been
reviewed.
(Doc. 19).
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,
2011.
Dismissals
Plaintiffs
Rights.
each
received
and
Notices
of
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.
II.
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
12
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
make
a
showing
sufficient
to
establish
the
existence
of
an
element essential to that party’s case, and on which that party
will
bear
the
burden
of
proof
at
trial.
Catrett, 477 U.S. 317, 322 (1986).
Celotex
Corp.
v.
“A party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying
those
portions
of
interrogatories,
the
and
pleadings,
admissions
depositions,
on
file,
answers
together
with
to
the
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).
summary
judgment,
a
court
credibility determinations.”
must
Id.
“In ruling on a motion for
not
weigh
evidence
or
make
“Where the unresolved issues
are primarily legal rather than factual, summary judgment is
13
particularly appropriate.”
371
F.3d
394,
396
(8th
Koehn v. Indian Hills Cmty. Coll.,
Cir.
2004).
Despite
Ellison’s
and
Simmons’s contention that the rubrics for reviewing a motion for
summary
judgment
in
an
employment
case
are
more
stringently
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).
III. Discussion
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
relationships:
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
environment.
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
productivity.
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
14
employment.
Walmart
strives
to
eliminate
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
relationship.
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
to
whether
a
family
member
or
romantic
relationship
partner
of
the
associate
or
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
our assets.
Examples of situations to avoid
include, but are not limited to:
A
romantic
relationship
with
another
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.”
Associates
participating
in
an
investigation or a performance evaluation
involving
family
members
or
romantic
relationship partners.
Family Member, for purposes of this policy, means
your
relative,
whether
by
birth,
adoption,
marriage, domestic partnership or civil union,
including spouse, children, parents, siblings,
grandparents or grandchildren and, in the state
of Hawaii, reciprocal beneficiaries.
15
Romantic
relationship
means
a
consensual
relationship between individuals of a romantic or
intimate nature.
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
relationship.
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
when:
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:
Romantic Relationships.
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
influence.
Associates who violate this policy
will be subjected to immediate termination of
employment.
(Doc. 23-8).
16
Walmart
has
a
chart
that
sets
out
what
kinds
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.
Area
Manager
Level
2...No
relatives
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.
Maintenance
Supervisor...No
relatives
permitted
to
work
in
their
area
of
responsibility.
Process
Control
Manager...No
relatives
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.
Asset
Protection
Associate...AP
Hourly
Associates are permitted to have relatives
work within the facility.
AP
Manager...AP
Managers
can
have
no
relatives working in the building.
Human
Resource
Manager...No
relatives
permitted to work in the facility.
HR
Hourly
Associate..Relatives
will
be
permitted.
Training
Coordinator...Relatives
will
be
permitted.
17
It states:
If any Associate is involved in a situation
(hiring,
evaluation,
coaching,
investigation,
etc.)
regarding
his/her
relative
he/she
must
remove/excuse
himself/herself
from
the
investigation/decision making situation.
Exceptions
to
the
policy,
based
on
extenuating circumstances, may be made by
the Senior HR Manager supporting the Optical
Labs/DC group.
(Doc. 17-3, Ex. 23).
The Field Logistics Matrix provides:
General
Manager/General
Transportation
Manager/Assistant
General
Manager...No
relatives permitted to work in the facility,
which
entails
entire
scope
of
responsibility.
Operations
Manager/Area
Manager...No
relatives permitted to work in their area of
responsibility.
Asset Protection...AP Hourly associates are
permitted to have relatives work within the
facility.
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.
HR
Office
Clerical/Training
Manager/HR
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
to
the
Optical
Lab/Call
Center
18
in
Arkansas.
Simmons’s
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
the building.
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
handle
HR
issues
for
the
entire
building,
included the Call Center Manager.
which
would
have
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
someone
needed
to
discuss
discuss it with her.
something,
they
would
“absolutely”
(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
policies
was
such
a
relationship
prohibited.
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
any kind.
Q. Okay.
A. Okay.
Q. That--that’s your belief.
A. Yes, ma’am, absolutely.
Q. And you know Walmart has a different belief?
A.
Well, for five years, Walmart paid me to
teach other people about their policies, so I
14
Simmons worked 2:00 p.m. to
12:00 a.m. (Doc. 18).
19
Simmons’s
feel fairly confident in my understanding of
them.
Q. Okay.
A. Okay.
Q. So Linda Braun is wrong.
A. Absolutely.
Q. David Finley is wrong.
A. Yes.
Q. David Scott is wrong.
A. Yes.
Q. Karen Churchman was wrong.
A. Yes.
Q. Volker Heimeshoff was wrong.
A. Yes.
Q. Dale Henry was wrong?
A. Yes, ma’am.
Q. Anybody else you appealed to that was wrong?
A.
I can’t think of anyone.
Bryan Miller, did
you say?
Q. Bryan Miller was wrong?
A. Uh-huh.
Q. Okay. And you’re right.
A. Yes, ma’am.
(Doc. 17-1, pp. 21-22).
Ellison
also
gave
a
similar
view
in
his
deposition
testimony:
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
correct?
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.
...
Q.
Okay.
So you believe that, I guess it was
David Scott who gave--who wrote this coaching
20
form, was wrong when he said it was against
company policy.
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).
Simmons
had
been
told
at
one
point
that
many
of
the
Logistics Division policies would apply in the Optical Center.
Under the Logistics romantic
relationships
prohibited.
position
of
between
an
relationship
associate
policy,
and
their
only
supervisor
are
Because Simmons was the first person to hold the
Human
Resources
Office
Manager
at
the
Optical
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.
that
regardless
of
the
specific
Except for the fact
positions
Walmart’s policies have the same goal:
involved,
all
of
to avoid conflicts of
interest and the perception of conflict.
Simmons
and
Ellison
ignored
the
warnings
of
their
supervisors and continued to carry on a relationship that caused
obvious15 problems for their respective departments.
Sex Discrimination
15
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)
21
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
to
hire
or
discriminate
to
discharge
against
any
any
individual
individual
with
or
to
respect
otherwise
to
his
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)).
“The
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).
The
Court
analyzes
Title
VII
and
ACRA
claims
like
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,
22
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
inference
of
gender
discrimination.”
Norman
v.
Union
Pacific
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
for
firing
her.
Tyler
v.
University
of
Arkansas
Board
of
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.
Simmons
has
discrimination.
fact
suffer
an
failed
to
make
a
prima
facie
case
of
sex
She is a member of a protected class and did in
adverse
ultimately termination).
employment
action
(suspension
and
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.
an
appropriate
case,
evidence
that
a
gender
In
neutral-anti-
nepotism policy is applied in a manner that disproportionately
23
impacts
women
may
give
rise
to
an
inference
of
sex-based
discrimination without proof of discriminatory intent.
here is that
The key
Simmons suffered the exact same adverse employment
action as Ellison, a male.
Both before and after Oncale, the Eighth Circuit has noted
that
because
Title
VII
is
premised
on
eliminating
discrimination, inappropriate conduct that is inflicted on both
sexes,
or
is
inflicted
statute's ambit.
2000).
Title
harassment
in
regardless
of
sex,
is
outside
the
Holman v. Indiana, 211 F.3d 399, 403 (8th Cir.
VII
does
the
not
prohibit
workplace;
“discriminat[ion]...because
all
is
it
verbal
directed
of...sex....”
“The
or
physical
only
critical
at
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
Oncale, 523 U.S. at 80.
other
sex
are
not
exposed.”
“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[.]’”
Stores
of
Arkansas,
Inc.,
579
Anderson v. Family Dollar
F.3d
858,
863
(8th
Cir.
2009)(quoting Excel Corp. v. Bosely, 165 F.3d 635, 641 (8th Cir.
1999).
There
is
no
suggestion
in
the
record
that
any
of
the
rumors or statements concerning Ellison’s and Simmons’s affair
24
were made because Simmons was female.
such gossip,
matter.
both
Both
speculation.
any
number
By the very nature of
Simmons and Ellison were made the subject
men
and
supposedly
women
participated
in
the
The rumors spread, irrespective of the truth, for
of
reasons,
discrimination.
none
of
which
had
to
do
with
sex
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
intention
perception
to
prevent
of
conflicts
impropriety.
of
All
interest
of
and
avoid
Defendant’s
the
witnesses
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
spoken
clarification
in
compliance with the company’s general Statement of Ethics.
At
all
to
times
her
during
supervisor
the
directly
investigation
25
for
and
afterward,
Walmart
leadership represented to Simmons and Ellison that they were
being
discharged
relationship
for
policy.
violation
(Docs.
24-1,
of
the
company’s
24-2).
Although
romantic
the
term
“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
dishonesty.
(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
Servs.,
456 F.Supp.2d 1044, 2006 U.S. Dist. LEXIS 75497, 35
(N.D.Iowa
always
2006)(“Because
involve
a
very
adverse
high
employment
degree
of
actions
discretion,
almost
and
most
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
coworkers.
The
Eighth
Circuit
has
consistently
held
that
16
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).
26
“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).
Once
a
defendant
establishes
a
legitimate,
non-
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
County
Special
Sch.
Dist.,
578
F.3d
862,
868
(8th
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
discriminatory
reason
more
likely
motivated
the
employer
or
indirectly by showing that the employer's proffered explanation
is unworthy of credence.' Hammer v. Ashcroft, 383 F.3d 722, 724
(8th
Cir.
2004)(quoting
Burdine,
450
U.S.
at
256).
Simmons
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.
(Doc.
26).
To
succeed
under
27
this
construct,
Simmons
“must
adduce enough admissible evidence to raise genuine doubt as to
the legitimacy of [Walmart's] motive, even if that evidence does
not
directly
contradict
or
disprove
[Walmart's]
articulated
reasons for its actions.” Dixon, 578 F.3d at 870 (citation and
quotation omitted).
The tone of Simmons’s pleadings and testimony appears to be
an
attempt
to
show
that
she
was
investigated
because
she
complained to her supervisor about comments people were making
about her and then she was fired in retaliation for filing an
Open-Door
complaint,
while
similarly
situated
employees
were
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
v.
Runyon,
omitted)).
235
The
F.3d
406,
burden
for
409
(8th
Simmons
to
Cir.
show
2000)
(citation
that
she
was
“similarly situated to more leniently treated employees in ‘all
relevant
respects'
is
a
‘rigorous'
standard
at
the
pretext
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
Cir. 2009)).
Simmons acknowledged that the reason she was given
by Walmart for prohibiting a relationship with Ellison was that
if
anyone
from
his
group
thought
28
they
were
having
a
relationship, they would not feel comfortable coming to her with
an issue involving him.
(Doc. 23-12, p. 1).
Ellison testified
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
causal
connection
suspension
and
between
her
termination,
Open
she
Door
complaint
cannot
and
demonstrate
her
that
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.
23-12)
K.S.
(female)
is
also
“very
good
friends”
with
R.C.(male).
B.K.,
(male)Area
2
Manager,
plays
golf
with
D.H.,
(male) manager to whom he directly reports.
D.H.
(male)
also
plays
golf
with
hourly
supervisor
R.W. (female).
(Doc. 23-12).
Simmons directs the Court to more alleged relationships
within Walmart in her response to Walmart’s Motion for Summary
Judgment.
29
J.L.17 (male) inspected product created by the Optical
Lab,
including
wife.
products
initially
inspected
by
his
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.
(Doc.
25).
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
accused
of
having
violated policy.
a
romantic
relationship
that
After he demanded to see the policy
he was accused of violating, the matter was dropped.
17
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).
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).
19
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
positions.
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.
30
L.B. (female) at one time tried to get her husband
hired on in the Call Center.
(Doc. 25).
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
both
men
and
women.
Simmons’s case any.
following
his
Ellison’s
supervisor
does
not
help
In Ellison’s statement of October 7, 2010,
conversation
investigation, he states:
his
recollection
told
him
with
David
Scott
about
the
“It seems that around this time (when
there
was
a
problem
with
the
‘perception’ of a relationship between Ellison and Simmons) I
had
started
to
feel
that
Theresa
and
I
were
being
treated
differently than other managers in the facility and there were
restrictions being put on us and our friendship that was never a
31
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
investigation
of
her
complaints
of
mistreatment,
instead
focusing their attention on the relationship between Simmons and
Ellison.
The Court finds this argument unavailing.
An employer
“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).
shows
that
Walmart
Simmons’s grievances:
conducted
a
thorough
The record
investigation
of
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).
Retaliation
20
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).
32
Simmons contends that she had no disciplinary history with
Walmart until she made her “complaint of sex discrimination to
her
supervisor,
ultimately
Braun,”
and
terminated
discrimination.
disciplinary
she
because
Ellison
history
that
with
was
of
disciplined
complaints
her
contends
that
Walmart
until
and
of
he
also
Simmons
had
made
no
her
complaints of discrimination and that he was disciplined and
ultimately terminated because of the complaints made by Simmons
and his relationship with Simmons.
(Doc. 1).
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)
suffering
an
adverse
employment
action
and
(3)
a
causal
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
prima
facie
case,
the
burden
shifts
to
the
defendant
to
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
33
protected
conduct
is
time,
and
that
simply
is
not
enough,
particularly in light of the fact that Plaintiffs’ complaints to
management were about a myriad of indignities, none of which
were gender-based.
IV.
Conclusion
Accordingly, Defendant’s Motion for Summary Judgment (Doc.
17) is GRANTED and Plaintiffs’ Complaint (Doc. 1) is DISMISSED
WITH PREJUDICE.
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
34
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