Brian et al v. Wal-Mart Stores, Inc. et al

Filing 57

MEMORANDUM DECISION AND ORDER denying 31 Motion for Summary Judgment; finding as moot 47 Motion to Strike. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOHN D. BRIAN, individually;
WILLIAM L. GOODMAN, individually;
and DEBODEEP SANJU
CHOUDHURY, individually,

Case No. 4:14-cv-00139-BLW

MEMORANDUM DECISION AND
ORDER

Plaintiffs,
vs.
WAL-MART STORES, INC., a
Delaware corporation; and
ROBERT PEARSON, individually,
Defendants.

INTRODUCTION
The Court has before it a motion to strike and a motion for summary judgment,
both filed by defendant Wal-Mart. The motions are fully briefed and at issue. For the
reasons explained below, the Court will deny the motion for summary judgment and
deem moot the motion to strike.
BACKGROUND
This case began with three plaintiffs, but only two remain: John Brian and
William Goodman. They are former Wal-Mart employees who claim to be victims of
discrimination and retaliation for engaging in protected activity. They have sued WalMart and its Store Manager Robert Pearson. Brian brings a claim under Title VII for

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racial discrimination, and both Brian and Goodman bring claims for violation of the
Family Medical Leave Act (FMLA).
Brian began working for Wal-Mart in November 2002, and was fired in 2011. He
claims that he was mistreated and eventually fired by his supervisor, Store Manager
Robert Pearson, for being Hispanic and for taking leave under the FMLA.
Goodman began working for Wal-Mart in 2000. He claims that he was eventually forced
to resign after Pearson constantly humiliated him for taking leave under the FMLA.
ANALYSIS
Wal-Mart’s Motion for Summary Judgment – Brian
Wal-Mart seeks to dismiss Brian’s claims of racial discrimination and violation of
the FMLA. But this motion encounters a serious obstacle in the form of statements
reflecting discriminatory animus attributed to defendant Robert Pearson, the Wal-Mart
Store Manager who supervised Brian and made the decision to fire him.
Turning first to the racial discrimination claim, Brian has at least raised an
inference that Pearson knew he was Hispanic because Pearson discussed this very point
with Wal-Mart Store Manager Todd Van Valkenburg. See Van Valkenburg Deposition,
(Dkt. No. 45-5), at p. 9.1 Pearson referred to Brian as a “brown turd[] that needed to be
flushed,” id. at p. 9, and would refer to nonwhite employees “in a derogatory way” based
on their race. See Van Valkenburg Deposition, supra, at pp. 8-9. Specifically, Pearson

1

Van Valkenburg was a Wal-Mart Store Manager and thus his comments can be attributed to
Wal-Mart under Rule of Evidence 802(d)(2)(D).
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called an African-American employee “a poor old nigger looking for a paycheck.” Id. at
p. 12. And, in referring to Native Americans, Pearson remarked that it was “too bad that
they weren’t from India . . . because they have a red dot on their forehead and it would be
a much easier target to hit.” Id. at p. 18. When Pearson had to use the restroom he would
say that he “had to go drop off the Obama babies and flush them down to China.” Id. at
p. 16.
Wal-Mart responds that even if these comments raise questions about racial
animus, there is no evidence connecting the comments with Brian’s firing. While there
may be no direct evidence, a reasonable juror could find that Pearson’s callous comments
at least raise an inference that he was racially motived in firing Brian. The Ninth Circuit
has held that “very little evidence is necessary to raise a genuine issue of fact regarding
an employer’s motive; any indication of discriminatory motive may suffice to raise a
question that can only be resolved by a fact-finder.” McGinest v. GTE Service Corp, 360
F.3d 1103, 1124 (9th Cir. 2004). Uncertainty at the summary judgment stage “must be
resolved in favor of the plaintiff.” Id. Brian has submitted enough evidence to create
questions of fact concerning whether he was fired due to his race.
Wal-Mart responds that it terminated Brian for a legitimate reason – poor work
performance. While Brian received multiple disciplinary notices during his employment,
it is undisputed that Wal-Mart rated him a “solid performer” in 2009 and 2010. See WalMart SOF (Dkt. No. 31-2) at ¶ 4. Store Manager Van Valkenburg testified that in 2011,
the year when Brian was terminated, Brian was again rated a “solid performer.” Van
Valkenburg Deposition, supra at p. 38.
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This evidence creates genuine issues of fact over Brian’s work performance and at
least raises a question whether Wal-Mart’s justification for the firing was pretextual.
Finally, Wal-Mart argues summary judgment is proper because it replaced Brian with a
Hispanic employee. While this fact is relevant to the racial animus issue, it does not
compel the Court, as a matter of law, to ignore Pearson’s conduct. E.g., Stewart v.
United States, 2000 WL 1705657, at *12 (N.D. Cal. Oct. 10, 2000) (holding that while
hiring person of same race is relevant to employer’s motive, it is not determinative).
Construing all facts in Brian’s favor, the Court finds genuine issues of material
fact surround whether Wal-Mart terminated Brian because of his race. The Court will
therefore deny summary judgment for Wal-Mart on this claim. The Court finds similar
questions over whether Brian was fired in retaliation for complaining about racial
discrimination and will deny summary judgment on that claim as well.
The Court turns next to Brian’s claim that he was fired in retaliation for taking
leave under the FMLA. Wal-Mart argues that Brian has failed to come forward with
evidence to support this claim.
To prevail under the FMLA, Brian must “prove by a preponderance of the
evidence that [his] taking of FMLA-protected leave constituted a negative factor in the
decision to terminate [him].” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125
(9th Cir. 2001); 29 C.F.R. § 825.220(c). This can be shown by direct or circumstantial
evidence, or both. Id. To withstand a defendant’s summary judgment motion, the
plaintiff must show there is a genuine issue of material fact as to whether the defendant
considered FMLA leave when deciding to terminate the plaintiff. Id.
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Wal-Mart contends Brian’s FMLA leave did not contribute to its decision to
terminate him. Indeed, Wal-Mart emphasizes that it had already initiated a course of
disciplining Brian before he took FMLA leave, and the “next logical progression” was
termination.
Yet the record contains evidence that raises questions of fact on this issue.
Manager Todd Van Valkenburg testified that Pearson had made a “standard threat” that
“someone who took FMLA didn’t deserve to be a manager.” See Von Valkenburg
Deposition (Dkt. No. 45-5) at p. 41. Pearson directed Van Valkenburg to fire Brian, and
told Van Valkenburg, “[y]ou’re going to be terminating him [Brian] for job
performance.” Id. at p. 38. Van Valkenburg resisted, stating that he had not worked with
Brian for months, and that Brian’s latest review showed that he was a solid performer.
Id. Van Valkenburg suggested that Pearson or another manager who had worked with
Brian should do the firing. Id. at pp. 38-39. Pearson rejected that idea, stating that “No,
you’re going to be the one doing the termination. We don’t want to look like – we don’t
want it to look like we’re retaliating against him. He thinks we’re picking on him. We
don’t want him to get the impression we’re retaliating. We want you to do it.” Id. at p.
39.
This evidence creates questions of fact over whether Pearson directed Van
Valkenburg to fire Brian in retaliation for Brian’s taking FMLA leave. Thus, the Court
declines to grant summary judgment on the FMLA retaliation claim.
Wal-Mart Motion for Summary Judgment – Goodman

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Wal-Mart seeks summary judgment on Goodman’s claim that Wal-Mart
constructively discharged him because he took FMLA leave. The parties were not able to
uncover any Ninth Circuit decisions concerning whether an employee may obtain relief
under the FMLA for constructive discharge. However, a decision by Judge Dale in this
District found that an employee could obtain relief under the FMLA for constructive
discharge, relying on the Fifth Circuit case of Hunt v. Rapides Healthcare Sys., LLC, 277
F.3d 757, 771-72 (5th Cir. 2001). Bushfield v. Donahoe, 912 F. Supp. 2d 944, 958 (D.
Idaho 2012). The Court finds Bushfield and Hunt persuasive and will adopt them here.
In the Ninth Circuit, constructive discharge requires a plaintiff to prove that his
workplace was so intolerable that a reasonable person in his position would have felt
compelled to resign. Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007). Working
conditions must deteriorate to the point that they become “sufficiently extraordinary and
egregious to overcome the normal motivation of a competent, diligent and reasonable
employee to remain on the job to earn a livelihood and to serve his or her employer.” Id.
(quoting Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000)). Several factors
may be considered: demotion; reduction in pay or responsibilities; reassignment to
menial or degrading work; badgering, harassment, or humiliation calculated to encourage
the employee’s resignation; or offers of early retirement that would make the employee
worse off whether the offer was accepted or not. Hunt, 277 F.3d at 771-72. A plaintiff
need not establish that his employer created the intolerable conditions with the intent to
cause the employee to resign. Poland, 494 F.3d at 1184 n.7.

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Construing all facts in Goodman’s favor, the Court finds genuine issues of
material fact preclude summary judgment for Wal-Mart on this claim. According to
Goodman, while he generally experienced positive treatment at Wal-Mart, working
conditions eventually became intolerable under Pearson after he began taking FMLA
leave. Goodman took FMLA leave on three separate occasions. He took it for the first
time in June of 2012 for a broken ankle. When he returned, Goodman was “called a
pussy,” apparently by Pearson although that is not clear from this testimony. Goodman
Deposition (Dkt. No. 45-4) at p. 23. Goodman did testify that just after he returned from
FMLA leave for his ankle, Pearson “went and stomped toward my foot like he was going
to step on me,” and “ridiculed and humiliated me in front of my peers and my
subordinates.” Id. at p. 23. Additionally, Pearson assigned Goodman to night shifts “a
year and a month earlier than [Goodman] was supposed to” receive that assignment. Id.
at p. 47.
Goodman next took FMLA leave in January 2013 for a ruptured spleen. When he
returned to work, Pearson again called him a “pussy” and “wuss” in front of other WalMart employees during meetings. Id. at p. 28. Moreover, Pearson continued staffing
Goodman with night shifts, and told other Wal-Mart employees that Goodman would be
stuck with the night shift “indefinitely.” Id. at p. 48.
By April 2013, Pearson’s treatment had caused Goodman to suffer stress and
anxiety. Id. at p. 25. Consequently, Pearson’s treatment prompted Goodman to take his
third stint of FMLA leave. But this time, Goodman did not return to Wal-Mart. Feeling
like Pearson had “harassed the heck out of me for taking LOA, calling me names, making
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me feel terrible in front of my subordinates and peers,” Goodman concluded that WalMart had become an “unbearable work environment” and submitted his resignation. Id.
at 27:20-23.
The Court cannot conclude as a matter of law that a reasonable person in
Goodman’s position would not have felt compelled to resign. Thus, the Court will deny
summary judgment for Wal-Mart on this claim.
Wal-Mart’s Motion to Strike
Wal-Mart seeks to strike plaintiffs’ expert report prepared by F. Timothy Trujillo.
The Court will deem the motion as moot because the Court did not rely on this report in
any manner while resolving the motion for summary judgment. Wal-Mart is free to raise
the motion again if this case proceeds to trial and Trujillo is a testifying witness.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to strike
(docket no. 47) is DEEMED MOOT.
IT IS FURTHER ORDERED, that the motion for summary judgment (docket no.
31) is DENIED.
DATED: March 28, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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