Crowley vs. Wal-Mart Stores, Inc., et al.

Filing 137

ORDER Granting in Part and Denying in Part Motion For Summary Judgment re 55 . "The court grants Defendant's motion for summary judgment, ECF No. 55 , in part and denies it in part. The motion is denied with respect to the di sparate treatment claim asserted under the ADA in Count II, and the retaliation claim asserted under the ADA in Count V. Summary judgment is granted in favor of Defendants with respect to all other claims." Signed by JUDGE SUSAN OKI MOLLWAY on 9/11/2018. (cib, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TERRANCE CROWLEY,

)
)
Plaintiff,
)
)
vs.
)
)
WAL-MART STORES, INC., a
)
Delaware Corporation;
)
REY ARMIJO; and
)
CHARLES SALBY,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 16-00293 SOM/RLP
ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
SUMMARY JUDGMENT

ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION.
Plaintiff Terrance Crowley managed a Wal-Mart store in

Hilo until, he says, he was fired because Wal-Mart wanted a
younger, nondisabled store manager to make the store as
profitable as it had been before a Target store opened nearby.
Defendants say that Crowley was terminated because of safety
concerns that went unaddressed.
In Counts I and II, Crowley asserts that he suffered an
adverse employment action in violation of the Age Discrimination
in Employment Act (“ADEA”) and the Americans with Disabilities
Act (“ADA”).

In Count III, Crowley asserts that he was

retaliated against in violation of the Family Medical Leave Act
(“FMLA”).

In Count IV, Crowley asserts that he suffered a

hostile work environment in violation of the ADEA and the ADA
(Count I also asserts a hostile work environment claim under the

ADEA).

Finally, in Count V, Crowley asserts retaliation in

violation of the ADA (and repeats the retaliation claim asserted
in Count III under the FMLA).

See ECF No. 1.

Defendants Wal-Mart Stores, Inc.,1 Rey Armijo, and
Charles Salby now move for summary judgment.
granted in part and denied in part.

That motion is

Crowley concedes that all

claims against Defendant Salby are time-barred, and the court
therefore grants summary judgment in favor of Salby with respect
to all claims asserted against him or arising out of his actions.
Crowley also concedes that his FMLA claims are factually
unsupported.

Accordingly, the court grants summary judgment in

favor of Defendants with respect to the FMLA claims asserted in
Counts III and V.

The court also grants summary judgment in

favor of Defendants with respect to the ADEA disparate treatment
claim asserted in Count I, but denies summary judgment with
respect to the ADA disparate treatment claim asserted in Count
II.

The court also grants summary judgment in favor of

Defendants with respect to the hostile work environment claims
asserted in Counts I and IV.

Finally, the court denies summary

judgment with respect to the ADA retaliation claim asserted in

1

Wal-Mart Stores, Inc., appears to have recently changed its
name to Walmart Inc. See
http://fortune.com/2017/12/06/walmart-stores-name/;
https://www.nasdaq.com/article/wal-mart-stores-to-walmart-whats-b
ehind-the-name-change-cm888265. This order refers to Wal-Mart,
the name at the time of the actions in this matter.
2

Count V.

To summarize, only the ADA disparate treatment claim

asserted in Count II and the ADA retaliation claim asserted in
Count V remain for adjudication.
II.

SUMMARY JUDGMENT STANDARD.
Under Rule 56 of the Federal Rules of Civil Procedure,

summary judgment shall be granted when “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.”
P. 56(a).

Fed. R. Civ.

See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134

(9th Cir. 2000).

The movants must support their position

concerning whether a material fact is genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c).

One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential

3

element at trial.

See id. at 323.

A moving party without the

ultimate burden of persuasion at trial--usually, but not always,
the defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).

“When the moving party has carried its burden

under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).
The nonmoving party may not rely on the mere
allegations in the pleadings and instead must set forth specific
facts showing that there is a genuine issue for trial.
Elec. Serv., 809 F.2d at 630.

T.W.

At least some “‘significant

probative evidence tending to support the complaint’” must be
produced.

Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.

Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134
(“A scintilla of evidence or evidence that is merely colorable or
4

not significantly probative does not present a genuine issue of
material fact.”).

“[I]f the factual context makes the non-moving

party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”

Cal. Arch’l Bldg.

Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
587).

Accord Addisu, 198 F.3d at 1134 (“There must be enough

doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
In adjudicating summary judgment motions, the court
must view all evidence and inferences in the light most favorable
to the nonmoving party.

T.W. Elec. Serv., 809 F.2d at 631.

Inferences may be drawn from underlying facts not in dispute, as
well as from disputed facts that the judge is required to resolve
in favor of the nonmoving party.

Id.

When “direct evidence”

produced by the moving party conflicts with “direct evidence”
produced by the party opposing summary judgment, “the judge must
assume the truth of the evidence set forth by the nonmoving party
with respect to that fact.”
III.

Id.

BACKGROUND.
Crowley was 63 years old when the Complaint in this

action was filed in 2016, meaning that he was older than 40 at
all relevant times.

See Answer ¶ 6 (admitting that Crowley was
5

63 when the Complaint was filed in 2016).
Crowley injured his left ankle.

While in the Navy,

See Crowley Decl. ¶ 2, ECF No.

62-2, PageID # 475-76 (indicating that Crowley had “multiple
service-connected operations on [his] left ankle); Crowley Depo.,
ECF No. 56-7, PageID # 281 (indicating that Crowley had been in
the Navy).

In 1996, he was hired by Wal-Mart.

Terrance Crowley, ECF No. 56-7, PageID # 281.

See Deposition of
Then, in 2005, he

was promoted to the position of Hilo Wal-Mart store manager.
Id., PageID # 282.
In July 2011, a Target store opened near the Hilo WalMart, after which sales at the Hilo Wal-Mart declined about 15%.
See Declaration of Terrance Crowley ¶ 18, ECF No. 62-2, PageID
# 481.

Crowley says the declining sales resulted in a lower

budget for the Hilo Wal-Mart, and employees were asked to do more
in fewer hours.

According to Crowley, employee morale suffered,

as reflected in subsequent Associate Engagement Surveys that did
not rate employee satisfaction or the store highly.

Id. ¶¶ 19-

23, PageID #s 481-83.
Crowley took FMLA leave in 2010, 2011, and 2012 for
three surgeries on his ankle.

He says Wal-Mart Market Manager

Brian Halsey pressured him to return to work early from each of
these surgeries.

See Concise Statement of Facts ¶ 6; Response to

Concise Statement of Facts, ECF No. 62, PageID # 450 (admitting
paragraph 6 of Concise Statement of Facts).

6

In March 2013, Defendant Rey Armijo replaced Halsey as
the Market Manager for Wal-Mart and as Crowley’s direct
supervisor.

See Declaration of Rey Armijo ¶ 2, ECF No. 56-3,

PageID 267.

Crowley says that Armijo, upon seeing Crowley

walking with a cane and boot, asked on several occasions whether
Crowley was still able to run the store.
No 56-7, PageID # 290.

See Crowley Depo., ECF

Being able to walk around the store was

an essential function of Crowley’s store manager job.
Crowley Depo., ECF No 56-7, PageID #s 292-93.

See

Although Crowley

indicates that Armijo also made comments about Crowley’s age and
his need to be away from work given the surgeries, Crowley does
not provide the precise comments, when they were made, or the
context in which they were made.

See, e.g., Crowley Decl. ¶ 17,

ECF No. 62-2, PageID # 481.
According to Rachel Wall, Wal-Mart’s Regional Director,
each store conducts annual Associate Engagement Surveys.

When a

store receives “poor” results, it is designated as a “red store”
that may be subject to a “grass roots” meeting at which
management visits the store to determine the “root causes” of the
“poor” rating.

Wall says that, in July 2014, based on multiple

years of “poor” ratings, she recommended that the Hilo Wal-Mart
store have a “grass roots” meeting to determine why it was rated
so poorly.

See Declaration of Rachel Wall ¶ 2, ECF No. 56-4,

7

PageID # 270.

Wall says she began forming the “grass roots” team

on July 16, 2014.

Id. ¶ 5, PageID # 271.

On July 29, 2014, Armijo gave Crowley his “third
coaching” regarding store manager deficiencies and set a “30-day
clock” in which Crowley was to correct the deficiencies or
potentially be terminated.

See Crowley Decl. ¶ 31, ECF No. 62-2,

PageID # 484. Crowley responded by telling Armijo that he would
be filing a formal complaint of workplace discrimination against
him for “discriminatory comments and actions concerning
[Crowley’s] age and physical problems over the course of the . .
. [last] 18 months that [Armijo] had been the Hawaii Market
Manager and [Crowley’s] direct Supervisor.”
# 485.

Id. ¶ 32, PageID

The precise comments and actions are not identified in

the record.

Id.

On July 30, 2014, Wall sent Rosemarie Cacho an e-mail,
stating that, because of the Hilo store’s Associate Engagement
Survey results, a 5-day “formal engagement visit” would occur on
the last week in August 2014 or the first week in September 2014.
See ECF No. 56-11, PageID # 382.

On August 11, 2014, Wall e-

mailed Cacho, Lester Stoker, and Jerod Strong, indicating that
the “grass roots” visit to the Hilo store would occur from August
24 through August 26, 2014.

Id., PageID # 384.

While at a Wal-Mart conference in Denver, Colorado,
from August 12 to 14, 2014, Crowley met with Wal-mart Regional

8

Director Chad Donath.

Crowley says that Donath listened to his

complaints about Wal-Mart management, then said that he would
send a team to the Hilo store to examine every aspect of its
operations, that he had “dealt with people like you before,” and
that he would fire Crowley if the team found a single deficiency
in the store.

Id. ¶ 35, PageID # 485-86.

Crowley says that

Armijo was standing about ten feet away, within earshot of
Crowley’s conversation with Donath.

See Crowley Depo., ECF No.

56-7, PageID # 285.
Wall and other “red store” team members made their
“grass roots” visit to the Hilo store in late August 2014.
Declaration of Rachel Wall ¶ 8, ECF No. 56-4, PageID # 271.
During that time, Crowley was out on personal leave, preparing
for his fourth ankle surgery.
62-2, PageID # 486.

See Crowley Decl. ¶ 36, ECF No.

Crowley characterizes the “grass roots”

visit as an attempt to identify complaints about his performance
as store manager.

Id.

Wall says that, based on concerns raised during the
“grass roots” visit about the condition of the power lifting
equipment and procedures for documenting servicing and the
condition of the equipment, she recommended to Donath that WalMart do a follow-up investigation into the power lifting
equipment issues.

Donath approved Wall’s recommendation.

Decl. ¶ 9, ECF No. 56-4, PageID # 272.

9

Wall

Crowley had another ankle surgery in 2014, taking off
from August 27, 2014, to October 27, 2014, to recover.
Crowley Decl. ¶ 5, ECF No. 62-2, PageID # 477.

See

Jerod Strong, a

shift manager at the Kapolei Wal-Mart store, was the acting store
manager while Crowley was out.

Id.

In September 2014, Strong and Cacho, Wal-Mart’s Market
HR manager, conducted the follow-up investigation.

See

Declaration of Jerod Strong ¶ 2, ECF No. 56-6, PageID # 278.
They interviewed employees who indicated that a Nissan forklift
had had bald tires that caused it to slip on wet ground.

See ECF

No. 56-14, PageID # 393 (Klint Kapeliela, an overnight associate,
mentioning a concern that bald tires on forklifts caused the
forklifts to slip on wet ground); id., PageID # 395 (Reynold
Acosta, another associate, expressing the same concern, saying
that the forklifts spun out when their tires were on wet
surfaces); id. (Linda Yoshida, overnight Support Manager,
describing the Nissan forklift as being “in horrible condition”
and noting that its tires were “really balled,” that it skidded
on rainy days, and that it had not been “tagged out” or taken out
of service earlier).

On September 5, 2014, four new tires were

ordered for the Nissan forklift.

Id., PageID # 397.

Strong says

he and Cacho determined that there were several violations by the
Hilo Wal-Mart management team with respect to the power lifting
equipment.

See Strong Decl. ¶ 3, ECF No. 56-6, PageID # 279.
10

According to Todd Stokes, Wal-Mart’s Regional HR
Director, Cacho updated him on the investigation.

See

Declaration of Todd Stokes ¶ 3, ECF No. 56-5, PageID # 274.
Stokes concluded that there were “serious” power lifting
equipment violations at the Hilo store, including an unsafe
forklift that was not removed from service until Strong and Cacho
directed the overnight manager to do that.
# 275.

Id. ¶ 4, PageID

Stokes says he consulted with Jane Billings, Wal-Mart’s

Senior Safety Manager for the West Division, and concluded that
the safety issues warranted firing Crowley, unless Crowley could
adequately explain what had happened.

Id.

Stokes says that he

recommended to Donath, to Kim Sentovich, Wal-mart’s Divisional
Senior Vice President, and to Lee Swietlikowski of Wal-Mart’s
Divisional HR Department that Crowley, three shift leaders, and
two assistant store managers be fired, unless Crowley could
adequately explain the power lifting equipment violations.
PageID #s 275-76.

Id.,

Donath, Sentovich, and Swietlikowski approved

Stoke’s recommendation but decided to wait until Crowley had
returned from leave to interview him.

Id., PageID # 276.

Sentovich says that Donath made no attempt to sway her into
terminating Crowley.

See Declaration of Kim Sentovich ¶ 3, ECF

No. 60, PageID # 434.
Crowley was scheduled to return to work on October 27,
2014.

The day before that, Crowley was told to report to

11

management offices on Oahu, a plane flight away from the Hilo
store on the Big Island.
PageID # 493.

Crowley Decl. ¶ 50, ECF No. 62-2,

Crowley says that he told the person contacting

him that his doctor had told him to work no more than four hours
a day, after which he was to return home and elevate his foot.
Id.

On October 27, 2014, Crowley met with Cacho and Armijo.

¶ 51.

Id.

Armijo says that Crowley was generally unaware of the

issues with the power lifting equipment and that Crowley had
personally failed to verify compliance with company policy.

See

Armijo Decl. ¶ 4, ECF No. 56-3, PageID # 268.
Cacho and Armijo spoke with Stokes after their
interview with Crowley.

Based on that conversation, Stokes

directed Cacho and Armijo to fire Crowley.

Id. ¶ 5.

Armijo then notified Crowley that he was fired.

Id.

Cacho and
Crowley

says the trip took more than 14 hours, much longer than the
doctor-recommended four-hour period.
No. 62-2, PageID # 494.

See Crowley Decl. ¶ 54, ECF

Crowley’s understanding is that Cacho

and Armijo traveled to Hilo the following day to fire the other
managers.

Id. ¶ 55, PageID # 495.
Crowley’s position in this litigation is that the

forklifts had to be used outside on the wet surfaces because the
Hilo store lacked sufficient storage and kept merchandise outside
in shipping containers.

Crowley says the Nissan forklift had

solid rubber tires that were only replaced when there was uneven

12

wear or when the rubber was “worn down so far that the metal rims
begin[] to show.”

Crowley says that the tires were not replaced

simply because they were bald.2
62-2, PageID # 489.

Crowley Decl. ¶¶ 42-43, ECF No.

Crowley does not indicate when the forklift

tires were supposed to be replaced.

He says that he is not

certified to perform safety checks on power lifting equipment.
Id. ¶ 48, PageID # 492; Crowley Depo., ECF No. 56-7, PageID # 297
(“I myself was not certified on any of that equipment, so it
wouldn’t be that I was an expert.”).

Crowley admits that, unless

there was something obvious like a flat tire, he relied on
someone else to determine whether a part needed fixing or
replacing.

See Crowley Depo., ECF No. 56-7, PageID # 297.
On December 23, 2014, Crowley filed a Charge of

Discrimination with the U.S. Equal Employment Opportunity
Commission.

See ECF No. 56-9, PageID 307.

2

Crowley attaches to his Opposition what purports to be the
Declaration of Joni Y. Uemura, but the document is not signed
under penalty of perjury. See ECF No. 62-1. Uemura says that
the forklift had solid rubber tires and would therefore not be
unsafe without tread, as the tires were not at risk of going
flat. Id. ¶ 7, PageID # 474. Even if the court considers this
statement, it does not address whether bald tires were a safety
issue on wet ground.
13

IV.

ANALYSIS.
A.

Summary Judgment is Granted in Favor of Defendants
With Respect to the Disparate Treatment Claim
Asserted Under the ADEA in Count I But Denied With
Respect to the Disparate Treatment Claim Asserted
Under the ADA in Count II.

In Count I, Crowley asserts he suffered disparate
treatment in violation of the ADEA, and in Count II asserts
disparate treatment under the ADA.

The court grants summary

judgment in favor of Defendants with respect to Crowley’s
disparate treatment claim under the ADEA in Count I, but denies
it with respect to the disparate treatment claim under the ADA in
Count II.
The ADEA, 29 U.S.C. § 623, prohibits discrimination
based on age.

Specifically, the ADEA makes it “unlawful for an

employer . . . to fail or refuse to hire or to discharge any
individual [who is at least 40 years old] . . . because of such
individual’s age.”

29 U.S.C. § 623(a)(1); 29 U.S.C. § 631(a)

(“The prohibitions in this chapter shall be limited to
individuals who are at least 40 years of age”).

The ADA

prohibits discrimination against qualified individuals on the
basis of their disabilities.

42 U.S.C. § 12112(a) (“No covered

entity shall discriminate against a qualified individual on the
basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
14

privileges of employment.”).
are regarded as disabled.

The ADA also protects persons who

See 42 U.S.C. § 12101(1)(C); 29 C.F.R.

§ 1630.2(l).
A plaintiff asserting disparate treatment may prove
that claim in two ways.

A plaintiff may prove disparate

treatment by producing direct or circumstantial evidence
demonstrating that a discriminatory reason more likely than not
motivated the employer.

See Surrell v. Cal. Water Serv. Co., 518

F.3d 1097, 1105 (9th Cir. 2008).

Crowley fails to raise a

genuine issue of fact by pointing to direct or circumstantial
evidence of age discrimination; he simply alleges that Armijo
made “comments related to my age.”
62-2, PageID # 481.

Crowley Decl. ¶ 17, ECF No.

Without the factual detail of what was said,

the court cannot infer discrimination; not all references to age
reflect discrimination. The only specific comments about
Crowley’s age identified by Crowley concern Salby’s alleged
statement to Crowley in 2012 that “old people like you have a
difficult time understanding new concepts, technology, like
computers.” Id., PageID # 283.

This comment cannot support

Crowley’s ADEA claim because Salby transferred to a different
position with Wal-Mart in March 2013 and played no role in what
happened to Crowley thereafter.
2, PageID # 265.

See Salby Decl. ¶ 2, ECF No. 56-

Indeed, Crowley conceded at the hearing that

his claim against Salby was time-barred.

15

The second way to establish disparate treatment is
under the burden-shifting analysis set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), discussed in detail later in
this order.

With respect to the disparate treatment claim under

the ADEA, Crowley simply fails to raise an inference that he was
discriminated against because of his age.

His reference to non-

specific comments about age is insufficient to raise an issue of
fact as to age discrimination or to demonstrate a pretext for
discrimination.

The court therefore grants Defendants summary

judgment with respect to the ADEA disparate treatment claim
asserted in Count I.
Crowley fares better with respect to his ADA disparate
treatment (termination) claim.

He points to Armijo’s comments

about whether he was physically able to perform his job as store
manager.

Such comments, combined with Armijo’s role in

terminating Crowley, are circumstantial evidence that Armijo may
have discriminated against Crowley based on his disability.
Defendants argue that asking a person about his or her
ability to do his or her job does not relate to a disability.
But the Ninth Circuit requires very little direct evidence to
defeat a summary judgment motion in a discrimination case.

See

EEOC v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009) (internal
citation omitted).

The Ninth Circuit “has ‘repeatedly held that

a single discriminatory comment by a plaintiff's supervisor or

16

decisionmaker is sufficient to preclude summary judgment for the
employer.’”

Nguyen v. Qualcomm, Inc., 501 Fed. Appx. 691, 693–94

(9th Cir. 2012) (quoting Dominguez–Curry v. Nev. Transp. Dep't,
424 F.3d 1027, 1039 (9th Cir. 2005)).

Whether Armijo’s comments

about Crowley’s ability to do his job were discriminatory is left
for the trier of fact.

At this point, they suffice to permit the

issue to go to the jury, which could determine that those
comments indicated a disability animus based on the tone or
context in which they were made.

Summary judgment is therefore

denied with respect to Crowley’s disparate treatment claim under
the ADA asserted in Count II.
Even under the burden-shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Defendants
would not be entitled to summary judgment on that ADA claim.

The

McDonell Douglas burden-shifting analysis requires Crowley to put
forth evidence that: (1) he is “disabled” within the meaning of
the statute; (2) he is a “qualified individual” (that is, he is
able to perform the essential functions of his job, with or
without reasonable accommodations); and (3) he suffered an
adverse employment action “because of” his disability.

See

Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir.
2001).

“At the summary judgment stage, the requisite degree of

proof necessary to establish a prima facie case is minimal and
does not even need to rise to the level of a preponderance of the

17

evidence.” Lyons v. England, 307 F.3d 1092, 1112 (9th Cir. 2002)
(alterations, quotation marks, and citation omitted)).
In relevant part, the ADA defines “disability” as “a
physical or mental impairment that substantially limits one or
more of the major life activities” or as “being regarded as
having such an impairment.”

42 U.S.C. § 12102(2)(A) & (C).

Major life activities include “[c]aring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking,
standing, sitting, reaching, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking,
communicating, interacting with others, and working.”

29 C.F.R.

§ 1630.2(i).
The ADA defines “qualified individual with a
disability” as “an individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds
or desires.” 42 U.S.C. § 12111(8).
Crowley makes the minimal showing necessary to
establish a prima facie case of ADA disparate treatment.

There

is no dispute that he walked with a cane with his foot in a boot.
At a minimum, Crowley raises an issue of fact as to whether he
was capable of performing the essential functions of his job,
which included walking around the Hilo Wal-Mart store.

Crowley

says that Armijo, upon seeing Crowley walking with a cane and

18

boot, asked on several occasions whether Crowley was able to run
the store.

See Crowley Depo., ECF No 56-7, PageID # 290.

Armijo, who participated in the termination of Crowley, may have
regarded Crowley as disabled.

See 42 U.S.C. § 12102(1)(C) (for

purposes of ADA, disability includes being regarded as disabled);
29 C.F.R. § 1630.2 (g)(1) and (l) (same).
Under the McDonell Douglas burden-shifting analysis,
the burden shifts to Wal-Mart to demonstrate a legitimate,
nondiscriminatory reason for terminating Crowley.

Wal-Mart

easily satisfies this burden, saying that, as the Hilo store
manager, Crowley was responsible for the safety of the store’s
employees and that, by having employees drive forklifts with bald
tires on wet ground, a safety risk was created.

Wal-Mart

therefore argues that it was justified in terminating Crowley and
others.
The burden thus shifts back to Crowley to demonstrate
that the proffered legitimate, nondiscriminatory reason was a
pretext for discrimination.
to pretext.

Crowley raises an issue of fact as

Whether Armijo’s comments about Crowley’s ability to

do his job indicate discriminatory animus is for the jury to
decide.

The Ninth Circuit says that when a potentially bigoted

comment is not a “stray remark,” even when an employer has a
legitimate, nondiscriminatory reason for taking an adverse
employment action, the plaintiff “will necessarily have raised a

19

genuine issue of material fact with respect to the legitimacy of
bona fides of the employer’s articulated reason for its
employment decision.”

Cordova v. State Farm Ins. Cos., 124 F.3d

1145, 1149 (9th Cir. 1997) (quotation marks and citation
omitted).

Thus, even though Wal-Mart has demonstrated a

legitimate nondiscriminatory safety reason for having terminated
Crowley and others based on the bald tires of the Nissan
forklift, it is for the jury to decide whether that reason was
pretextual given Armijo’s participation in Crowley’s termination.
Armijo says that he and Cacho interviewed Crowley with
respect to the power lifting equipment issues.

Armijo then

related to Stokes what was discussed in that interview.

Based on

that relation of information, Stokes decided to terminate
Crowley, and Armijo and Cacho carried out that decision.
Armijo Decl. ¶¶ 3-5, ECF No. 56-3, PageID #s 267-68.

See

While the

evidence of pretext is hardly overwhelming, a jury might well
decide that Armijo sought to have Stokes terminate Crowley
because Armijo believed Crowley was too disabled to revive the
Hilo Wal-Mart store, and that terminating Crowley because of
issues with power lifting equipment was simply a pretext for
disability discrimination.

20

B.

Summary Judgment is Granted in Favor of Defendants
With Respect to the Hostile Work Environment
Claims Asserted Under the ADEA and the ADA.

In Count IV, Crowley asserts that he suffered a hostile
work environment claim in violation of the ADEA and the ADA
(Count I also asserts a hostile work environment claim under the
ADEA).

Summary judgment is granted in favor of Defendants with

respect to these claims.
Hostile work environment claims have been recognized
under the ADEA.

See Sischo–Nownejad v. Merced Cmty. Coll. Dist.,

934 F.2d 1104, 1109 (9th Cir.1991) (noting that a hostile work
environment claim was cognizable under the ADEA).

But it is not

clear whether the Ninth Circuit recognizes a hostile work
environment claim under the ADA.

See Brown v. City of Tucson,

336 F.3d 1181, 1190 (9th Cir. 2003) (declining to decide whether
a hostile work environment claim exists under the ADA).

In any

event, a hostile work environment claim exists when there is
severe or pervasive and unwelcome verbal or physical harassment
because of a plaintiff’s membership in a protected class.

See

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986).
To be actionable, the environment must be both objectively and
subjectively offensive.
When determining whether an environment was
sufficiently hostile or abusive, courts examine all of the
circumstances, including the frequency of the discriminatory
21

conduct, its severity, whether it was physically threatening or
humiliating, and whether it unreasonably interfered with an
employee’s work performance.

See Faragher v. City of Boca Raton,

524 U.S. 775, 787-88 (1998).

Simple teasing, offhand comments,

and isolated incidents (unless extremely serious) do not amount
to discriminatory changes in the terms and conditions of
employment.

Id. at 788; McGinest v. GTE Serv. Corp., 360 F.3d

1103, 1113 (9th Cir. 2004) (“Simply causing an employee offense
based on an isolated comment is not sufficient to create
actionable harassment”).
Under the ADA, plaintiffs must exhaust administrative
remedies by filing a charge of discrimination with the EEOC
within 180 or 300 days of the alleged unlawful employment
practice.

See 42 U.S.C. § 12117(a) (“The powers, remedies, and

procedures set forth in sections 2000e-4, 2000e-5, 2000e-6,
2000e-8, and 2000e-9 of this title shall be the powers, remedies,
and procedures this subchapter provides to the Commission, to the
Attorney General, or to any person alleging discrimination on the
basis of disability in violation of any provision of this
chapter, or regulations promulgated under section 12116 of this
title, concerning employment.”); 42 U.S.C.A. § 2000e-5 (charge
must be filed within 180 days of unlawful practice, but is
extended to 300 days when a person initially institutes
proceedings with a state or local agency); Stiefel v. Bechtel

22

Corp., 624 F.3d 1240, 1243-44 (9th Cir. 2010) (administrative
exhaustion required under ADA); Ramirez v. Reeve-Woods Eye Ctr.,
2014 WL 2807638, at *4 (E.D. Cal. June 20, 2014) (“exhaustion of
administrative remedies is required under the ADA”).
Similarly, the ADEA requires exhaustion of claims by
nonfederal employees within 180 or 300 days of an alleged
unlawful practice, depending on whether the state has an age
discrimination law and an agency to grant relief from
discrimination.

See 29 U.S.C. § 626(d)(1); Limongelli v.

Postmaster General of United States, 707 F.2d 368, 372 (9th Cir.
1983)(per curiam) (“This incident was not encompassed in his
earlier EEOC charge.

He did not exhaust his administrative

remedies under ADEA and therefore cannot look to the courts for
relief.”); but see 29 U.S.C. § 633a (Nondiscrimination on account
of age in Federal Government employment); Kennedy v. Columbus
Mfg., Inc., 2017 WL 4680079, at *2 (N.D. Cal. Oct. 18, 2017) (“To
file suit for a Title VII, ADA, or ADEA claim, a plaintiff must
first timely file a charge of employment discrimination with the
EEOC.”).
Crowley filed his charge with the EEOC on December 23,
2014, making claims that arose more than 300 days before that
date (February 26, 2014) time-barred unless Crowley demonstrates
a continuing violation.

See Douglas v. Cal. Dep't of Youth

Auth., 271 F.3d 812, 822 (9th Cir.), amended, 271 F.3d 910 (9th
23

Cir. 2001) (“The continuing violations doctrine extends the
accrual of a claim if a continuing system of discrimination
violates an individual’s rights up to a point in time that falls
within the applicable limitations period.” (quotation marks and
citation omitted)).

Crowley does not assert that claims based on

actions taken before February 26, 2014, are timely given a
continuing violation.
As conceded by Crowley, his ADEA hostile work
environment claim is time-barred to the extent it is based on
Salby’s 2012 comments that “old people like you have a difficult
time understanding new concepts, technology, like computers.”
Even had a timely claim been asserted based on Salby’s comments,
those comments are isolated and, under the circumstances,
insufficient to establish a hostile work environment.

See

Faragher, 524 U.S. at 788 (noting that isolated comments are
insufficient to support a hostile work environment claim).

The

very nature of a hostile work environment requires a pervasive
atmosphere, not a single remark that does not alter the
conditions of employment.

See Steiner v. Showboat Operating Co.,

25 F.3d 1459, 1463 (9th Cir. 1994) (requiring comments to be
sufficiently severe or pervasive to alter the conditions of
employment and create an abusive working environment).
At the hearing on the motion, Crowley indicated that
his hostile work environment claim was based only on Armijo’s

24

comments.

Crowley says that Armijo asked on several occasions

whether Crowley was able to run the store after Armijo saw
Crowley walking with a cane and a boot.
No 56-7, PageID # 290.

See Crowley Depo., ECF

Crowley additionally says that Armijo

made comments about Crowley’s age and need to be off of work
because of surgeries.

Crowley did not provide further detail

regarding the comments or when they were made.

See, e.g.,

Crowley Decl. ¶ 17, ECF No. 62-2, PageID # 481.
Even if these comments were timely raised with the
EEOC, Crowley fails to show that they created a hostile work
environment.

These comments, without more, fail to demonstrate a

working environment that involves severe and pervasive
harassment.

Crowley does not show that the comments were so

numerous or of such a nature that they changed the conditions of
his employment and created an abusive working environment.

See

Fuller v. Idaho Dep't of Corr., 865 F.3d 1154, 1161 (9th Cir.
2017).

Nor does Crowley show that a reasonable person in his

position would have found the working environment created by
Armijo’s alleged comments to be objectively unreasonable.

Id.

The record in this case does not indicate that the occasions on
which Armijo allegedly questioned Crowley about whether he was
able to run the store given the nature of his ankle injury, even
combined with alleged comments about Crowley’s surgeries, were so
frequent or so severe as to have been abusive.

25

There is no

evidence that they objectively polluted Crowley’s workplace,
making it more difficult for him to do his job, to take pride in
his work, or to desire to stay on in his position.

See Davis v.

Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008) (“A working
environment is abusive if hostile conduct pollutes the victim’s
workplace, making it more difficult for her to do her job, to
take pride in her work, and to desire to stay on in her
position.” (quotation marks and citation omitted)).
Summary judgment is therefore granted in favor of
Defendants with respect to the hostile work environment claims.
C.

Summary Judgment is Granted in Favor
With Respect to the FMLA retaliation
Asserted in Counts III and V, but is
Respect to the ADA Retaliation Claim
Count V.

of Defendants
Claim
Denied With
Asserted in

Counts III and V assert that Defendants violated the
FMLA and ADA by retaliating against Crowley for having complained
with respect to his FMLA and ADA rights.

At the hearing on the

motion, Crowley conceded that his FMLA claim was not supported by
the evidence.

Accordingly, summary judgment is granted in favor

of Defendants with respect to the FMLA retaliation claims
asserted in Counts III and V.
Crowley’s ADA retaliation claim in Count V falls under
42 U.S.C. § 12203(a), which prohibits discrimination “against any
individual because such individual has opposed any act or
practice made unlawful by this chapter” and under § 12203(b),
26

which prohibits interference with the exercise of ADA rights
through retaliation for the exercise of such rights.

Defendants

move for summary judgment with respect to the ADA retaliation
claim, arguing that Crowley cannot demonstrate a prima facie case
of retaliation under the ADA.
To establish a prima facie case of retaliation under
the ADA, an employee must show that he or she (1) engaged in a
protected activity; and (2) suffered an adverse employment
action; and that (3) there was a causal link between the two.
See Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir.
2004) (setting forth the elements of a prima facie claim of
retaliation under ADA); Barnett v. U.S. Air, Inc., 228 F.3d 1105,
1121 (9th Cir. 2000) (en banc) (“[W]e join our sister circuits in
adopting the Title VII retaliation framework for ADA retaliation
claims.”), vacated on other grounds, U.S. Airways, Inc. v.
Barnett, 535 U.S. 391, 122 (2002).
To prove the causation element of an ADA retaliation
claim, a plaintiff must show that but for the plaintiff’s
exercise of rights, the plaintiff would not have suffered an
adverse employment action.

Univ. of Texas Sw. Med. Ctr. v.

Nassar, 570 U.S. 338, 352 (2013) (noting that Title VII’s
prohibition against retaliation uses the same language as the
ADEA’s prohibition against age discrimination, and holding that
“but for” causation is required for retaliation claims under
27

Title VII); Egan v. Delaware River Port Auth., 851 F.3d 263, 272
(3d Cir. 2017) (“In the ADEA and in Title VII’s anti-retaliation
provision, Congress chose language that made clear that a
plaintiff must prove “but-for” causation between the adverse
employment action and the protected characteristic”); T.B. ex
rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 473
(9th Cir. 2015) (applying “but for” causation to ADA retaliation
claims).

At the summary judgment stage, a plaintiff must

therefore show that a reasonable trier of fact could conclude by
a preponderance of the evidence that the plaintiff would not have
suffered an adverse employment action but for impermissible
retaliation.
In relevant part, the ADA prohibits discrimination
against qualified individuals with disabilities.
§ 12112(a).
disabled.
and (l).

42 U.S.C.

The ADA also protects persons who are regarded as
See 42 U.S.C. § 12102(1)(C); 29 C.F.R. § 1630.2(g)(1)

Crowley apparently complained to Donath with Armijo in

earshot that Armijo and his predecessor had wondered whether
Crowley was able to do his job given that he was walking with a
cane and had a boot on.

See Crowley Depo., ECF No. 56-7, PageID

# 285; Crowley Decl. ¶ 35, ECF No. 62-2, PageID #s 485-86.
Crowley had also earlier told Armijo that he would be filing a
formal complaint of workplace discrimination against Armijo for
“his discriminatory comments and actions concerning [Crowley’s]

28

age and physical problems over the course of the . . . [last] 18
months that he had been the Hawaii Market Manager and [Crowley’s]
direct Supervisor.”
# 485.

See Crowley Decl. ¶ 32, ECF No. 62-2, PageID

Because Donath and Armijo participated in the decision to

terminate Crowley, a jury might reasonably determine that Crowley
was being retaliated against for having complained of ADA
violations.

In other words, a question of fact exists as to

whether Crowley’s exercise of rights under the ADA was the but
for cause of his termination.
V.

CONCLUSION.
The court grants Defendant’s motion for summary

judgment, ECF No. 55, in part and denies it in part.

The motion

is denied with respect to the disparate treatment claim asserted
under the ADA in Count II, and the retaliation claim asserted
under the ADA in Count V.

Summary judgment is granted in favor

of Defendants with respect to all other claims.

29

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 11, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Crowley v. Wal-Mart Stores, Inc., et al., Civ. No. 16-00293 SOM/RLP; ORDER
GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

30