Burns v. Wal-Mart Stores, Inc.
MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 4/7/2017: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies Wal-Mart's motion for summary judgment [dkt. no. 34] only on Burns 039;s claim that she received lower pay while working as an associate and while in the MIT program due to her gender. The Court otherwise grants Wal-Mart's motion for summary judgment. The case is set for a status hearing on April 13, 2017 at 9:30 a.m. to discuss the possibility of settlement. (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
LONNITTA REID, Administrator of
the Estate of INETTA BURNS,
WAL-MART STORES, INC.,
Case No. 15 C 6163
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Inetta Burns filed suit against her employer, Wal-Mart Stores, Inc., alleging that
the company and its employees discriminated against her based on her sex in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). Burns recently
passed away, and the administrator of her estate has substituted as the plaintiff in this
case. The Court will nonetheless refer to the claims in this case as Burns's claims.
Burns's complaint includes only one count, but it appears to base her claim on
three allegedly discriminatory actions or courses of conduct: disparate pay, failure to
transfer, and failure to promote. Thus the Court will consider Burns to have made three
separate claims. Wal-Mart has moved for summary judgment on all three claims. For
the reasons stated below, the Court declines to enter summary judgment in Wal-Mart's
favor on Burns's claim of disparate pay but otherwise grants Wal-Mart's motion.
Burns lived in Chicago Heights, Illinois during the events relevant to this case.
She had an associate's degree in computer information systems and worked as a
manager at K-Mart for 15 years. In 2004, Burns learned that Wal-Mart was opening a
store in Glenwood, Illinois, five blocks from her home in Chicago Heights. According to
Burns, she began contacting managers at Wal-Mart, including district manager Lance
Buser, specifically to express interest in a management position at the new store.
Burns was hired directly into Wal-Mart's management in training (MIT) program.
The MIT program lasts between six and eight weeks and provides on-the-job training.
Burns says that while in the program, she become close with other trainees, including
Jesus Valdez and Gewargis Tammo. According to Burns, the two men sometimes
talked about their pay in front of her, and she learned that they received a higher salary
than she did. She completed the MIT program and, in January 2005, was officially hired
as an assistant manager at the Wal-Mart in Matteson, Illinois. Following an accident
during her first few weeks at work, she was given a transfer to the store in Bradley,
Illinois. During this time, Burns earned $1,230.77 bi-weekly working as an assistant
Around May 2005, Burns reached out to Buser to request a transfer to the store
in Glenwood. Burns states that Buser first told her to contact the person he thought was
the current district manager, Chad Doneth. Buser later informed her that she needed to
speak with J.D. Hacker, the new district manager. Burns contacted Hacker, who told
her that she could not work in the Glenwood store because it is against company policy
to have new assistant managers work in new stores. Hacker testified during his
deposition in this case that the alleged policy is more of a preference and that it is not
unheard of to put new managers in new stores.
Burns continued to work at the Bradley store, where, she alleges, she was
treated differently from male managers. Specifically, she states that she and the other
female manager were required to unload the delivery trucks, while the male managers
were given easier tasks. Burns states that because of this treatment—and the denial of
her transfer request—she stepped down as assistant manager. By this time, the
Glenwood store had opened, so she applied for the assistant manager position there.
Instead, she was hired as a sales associate, a lower level position. When Burns began
working at the Glenwood store, she discovered that Tammo was working in the Tire
Lube Express (TLE) department of that store as an assistant manager.
According to Burns, in 2009 she applied for a promotion to the position of support
manager. She passed an online management assessment through Wal-Mart's Career
Preference computer system and then indicated that she was interested in the support
manager position. Burns alleges that Wal-Mart instead gave the position to a male
Burns also alleges that, while working at the Glenwood store, she learned that
female Wal-Mart employees were consistently paid less than male employees. She
says she learned that while working as assistant managers, she, Tammo, and Valdez
each earned the same amount ($1,230.77 per pay period), despite the fact that Tammo
and Valdez both worked in the TLE department, which provides a lower salary.
According to Burns, she was also paid less than similarly situated male employees
while working as a sales associate. Douglas Gugudan began at the Glenwood store as
a sales associate in 2005 and earned $10 per hour, whereas Burns initially earned
$8.75. Richard Straton also worked as a sales associate at the Glenwood store around
the same time. He was allegedly hired at $9.10 per hour and was soon given a raise to
$9.65. Finally, Burns states that she earned less than William Kendrick, another MIT
trainee and assistant manager. Kendrick entered the MIT program three years before
Burns and earned $17.75 as a trainee. Burns earned between $11.10 and $14.43.
After Kendrick left the program, he earned $1,846.15 bi-weekly in his first job as an
assistant manager; Burns earned $1,230.77. While working as an assistant manager in
the Bradley store in 2004, Kendrick earned $1,884.62 bi-weekly.
In May 2012, Burns filed a charge of discrimination with the EEOC alleging that
Wal-Mart discriminated against her because of her sex. She received a right to sue
letter in December 2014. She then filed this suit.
Wal-Mart has moved for summary judgment on Burns's claim of sex
discrimination. As indicated earlier, Wal-Mart contends that the single count in Burns's
complaint identifies three courses of conduct that Burns alleges were discriminatory: (1)
the difference in earnings between Burns and other male employees; (2) the denial of
her request to transfer to the Glenwood store: and (3) the denial of her application for
promotion to support manager. Wal-Mart argues that Burns has failed—in any of these
instances—to point to similarly situated male employees who received more favorable
treatment. The company also argues that denial of a transfer request does not qualify
as an actionable adverse employment action under Title VII. Wal-Mart has also moved
to strike facts set out by Burns in her statement of material facts, arguing that she has
not complied with Local Rule 56.1. In addition, Wal-Mart has moved to strike certain
exhibits that Burns offers in response to its motion, arguing that Burns has not
authenticated the exhibits. The Court considers the latter two motions first.
Motions to strike facts and exhibits
Wal-Mart firsts asks the Court to strike certain facts asserted by Burns in her
response to Wal-Mart's statement of facts and in her own statement of facts. Wal-Mart
argues that a number of Burns's statements violate requirements of Local Rule 56.1
because they are non-responsive, lack citation to admissible evidence, or improperly
include additional facts. District courts have discretion in determining whether to strictly
enforce the requirements of Local Rule 56.1. Stevo v. Frasor, 662 F.3d 880, 886–87
(7th Cir. 2011). The Court declines to strike any of the facts Burns presents.
Wal-Mart also asks the Court to strike a number of exhibits that Burns has used
in opposing Wal-Mart's motion. The company argues that Burns has not authenticated
the documents and therefore that they are inadmissible for consideration on summary
judgment. The fact that these are Wal-Mart records that the company produced in
discovery is, for present purposes at least, sufficient to authenticate them. United
States v. Brown, 688 F.2d 1112, 1116 (7th Cir. 1982). The exhibits that Wal-Mart
challenges are documents that it turned over to Burns during discovery. See Decl. of
Janet M. Olawsky in Opp'n to Def.'s Mot. for Summ. J., dkt. no. 41 (indicating that the
challenged exhibits have Bates numbers beginning with "WAL-MART"). Further, there
is a reasonable basis for believing that these documents will ultimately be admissible as
business records. The Court therefore finds that they have been sufficiently
authenticated to be relied upon at the summary judgment stage.
Motion for summary judgment
When reviewing a motion for summary judgment, the Court examines the record
in the light most favorable to the non-moving party and makes all reasonable inferences
in her favor. Coleman v. Donahoe, 667 F.3d 835, 842 (7th Cir. 2012). Summary
judgment is appropriate when there is no genuine dispute of material fact and the
moving party is entitled to judgment as a matter of law. Poullard v. McDonald, 829 F.3d
844, 852 (7th Cir. 2016).
Title VII prohibits an employer from discriminating "against any individual with
respect to [her] compensation, terms, conditions, or privileges of employment" based on
the individual's sex. 42 U.S.C. § 2000e-2(a)(1). Generally, a plaintiff must show that
"(1) she is a member of a protected class, (2) she performed reasonably on the job in
accord with her employer's legitimate expectations, (3) despite her reasonable
performance, she was subjected to an adverse employment action, and (4) similarly
situated employees outside of her protected class were treated more favorably by the
employer." See Davis v. Bd. of Trs. of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th
Wal-Mart presents its arguments on summary judgment using the framework
previously employed by the Seventh Circuit to evaluate discrimination claims, which
distinguished between direct evidence and indirect evidence. Recently, however, the
Seventh Circuit has indicated that district courts are "to stop separating direct from
indirect evidence and proceeding as if they were subject to different legal standards."
See id. at 224 (internal quotations omitted) (citing Ortiz v. Werner Enters., Inc., 834 F.3d
760, 765 (7th Cir. 2016)). The test is simply whether the evidence—taken as a whole—
"would permit a reasonable factfinder to conclude that the plaintiff's . . . sex . . . caused
the discharge or other adverse employment action." Davis, 846 F.3d at 224. This test
permits, but does not require, use of the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as a means of organizing and
assessing circumstantial evidence. Davis, 846 F.3d at 224.
Burns first claims that Wal-Mart discriminated against her by repeatedly paying
her a lower salary than her male counterparts. She points to five employees—Tammo,
Valdez, Gugudan, Kendrick, and Straton—each of whom allegedly earned more money
while working in the same position as Burns. Wal-Mart concedes that Burns is a
member of a protected class and that she met the company's legitimate job
expectations. Def.'s Mem. in Supp. of Mot. for Summ. J. at 6. The company argues,
however, that she was not paid less than any similarly situated male employees. It
contends that none of the male employees Burns references in her response is a
suitable comparator for a disparate pay claim. The company further argues that Burns
should be precluded from bringing a claim based on these comparators because she
failed to identify them in her complaint.
Burns's failure to identify specific employees as comparators in her complaint
does not preclude her from later identifying them as comparators in response to a
motion for summary judgment. Wal-Mart cites no persuasive authority, and the Court is
aware of none, that imposes this onerous a pleading requirement in an employment
discrimination case. Nor does the Court see a basis to preclude Burns from making this
argument on the ground that he did not identify these employees in her Rule 26(a)(1)
disclosure, which are likewise made early on in litigation, prior to discovery. A contrary
rule would doom many, if not most employment discrimination cases based on
comparative evidence, as it is unusual for a plaintiff to have any ability to identify by
name similarly situated members of a non-protected class until conducting discovery. 1
Tammo and Valdez
Burns first points to Tammo and Valdez, two male employees who worked as
TLE assistant managers and received the same salary that Burns received as a store
assistant manager. Burns argues that TLE assistant managers (who supervise only a
particular department, not the entire store) are supposed to earn a lower salary than
store-wide assistant managers and therefore the fact that all three employees earned
the same salary reflects disparate treatment.
Wal-Mart first argues that Burns is not similarly situated to Tammo and Valdez
because they did not share a supervisor and thus different individuals determined their
salaries. The Seventh Circuit has indicated that employees with different "decisionmaking personnel" may not be similarly situated, as this raises the possibility that the
difference in the decision-maker—and not discrimination—explains any disparate
treatment. Cox v. Bhd. of Locomotive Eng'rs & Trainmen, 579 F. App'x 505, 508 (7th
Cir. 2014). Burns concedes in her statement of facts that Wal-Mart gives store
managers discretion in determining employee pay. Pl.'s Resp. to Def.'s Statement of
Undisputed Material Facts (SUMF) & Statement of Additional Facts (SAF) ¶ 35. Store
managers rate employees based on their performance and use this score to determine
pay based on a company scale. Id. Though Burns, Tammo, and Valdez were receiving
In addition, Rule 26(a)(1) requires disclosure of persons with information that a party
may use to support its claims. See Fed. R. Civ. P. 26(a)(1)(A)(i). There is no
requirement that a plaintiff in an employment discrimination case use the alleged
comparator as a witness; the evidence of comparability may come from other sources.
the same salary for allegedly unequal work, Burns worked at the store in Bradley,
Illinois, whereas the two men worked at the store in Glenwood, Illinois. Burns has not
offered any evidence that the same person determined the salaries of all three. In fact,
the evidence indicates the opposite. Because Burns worked at a different store from
Tammo and Valdez, she would have had a different manager determine her pay. The
Court concludes that no reasonable jury could find Tammo and Valdez to be suitable
comparators for Burns's claim of disparate pay.
Burns also identifies Gugudan, a male employee who worked as a sales
associate at the Glenwood store during the same time period as Burns. Burns alleges
that Wal-Mart paid him $1.30 more per hour than she was paid for the same job. WalMart again argues that Gugudan and Burns are not similarly situated, this time pointing
to the fact that Gugudan had five more years of experience at Wal-Mart than Burns.
The fact that two employees share a job title is insufficient by itself to support an
inference that they are suitable comparators. Tank v. T-Mobile USA, Inc., 758 F.3d
800, 810 (7th Cir. 2014). Typically there must also be evidence that the employees
"were subject to the same standards and compensation scheme, or had comparable
experience, education, or qualifications." Id. Gugudan's employment records reflect
that he began working for Wal-Mart as a sales associate in 2000, five years before
Burns began the MIT training program. See Pl.'s Resp. to Def.'s SUMF & SAF, Ex. L
(Gugudan Records). Further, Daniel Ketcham, a Wal-Mart district manager, testified
during his deposition that hourly employees receive annual pay increases based on
their performance reviews. Pl.'s Resp. to Def.'s SUMF & SAF, Ex. F (Ketcham Dep.) at
14:24–15:9. This testimony is uncontradicted. Thus Gugudan's salary around August
2005—the time when Burns began working as a sales associate—likely reflected five
years of annual pay increases. Burns only began working at Wal-Mart in January of
2005 and thus had not yet received any reviews or salary increases. No reasonable
factfinder could conclude that Burns and Gugudan were similarly situated for the
purposes of Burns's pay discrimination claim.
Burns next identifies as a comparator Kendrick, a male employee who went
through the MIT program three years before her and became an assistant manager.
Employment records show that Kendrick and Burns both worked as assistant managers
at Wal-Mart store number 1497 around June 2005. See id., Ex. N (Kendrick Records);
Def.'s Statement of Material Facts (SOMF), Ex. 9 (Burns Records). At the time,
Kendrick earned $1,884.62 bi-weekly, and Burns earned $1,230.77. See Kendrick
Records; Burns Records. But again, the evidence shows that Burns and Kendrick did
not have comparable levels of experience. Kendrick began Wal-Mart's MIT training
program in March 2002 and held at least one other assistant manager position before
moving to store number 1497. Kendrick Records. Therefore Kendrick had almost two
more years of experience working as an assistant manager than Burns did at the time
that they worked at the same store. As with Gugudan, Kendrick worked at Wal-Mart
long enough to receive annual pay increases before Burns began as an assistant
manager. No reasonable factfinder could conclude that the two were similarly situated
for purposes of a disparate pay claim.
Burns next argues that she received less pay than Kendrick when they each first
left the MIT program, even though neither had any prior experience as an assistant
manager. At Kendrick's first assistant manager job out of the trainee program, he
earned $1,846.15 bi-weekly working at store number 1256. See Kendrick Records. At
Burns's first assistant manager position, she earned $1,230.77 bi-weekly working at
store number 1497. See Burns Records. Thus Burns did receive a significantly lower
salary than Kendrick at a time when experience alone cannot explain the difference.
The problem, again, is that Burns has conceded that Wal-Mart gives store managers
discretion in determining employee pay. Pl.'s Resp. to Def.'s SUMF & SAF ¶ 35.
Kendrick and Burns began working as assistant managers at different stores, and Burns
has offered no evidence that the same managers determined their pay or that assistant
managers are paid pursuant to any sort of standardized pay schedule. As discussed
above, these factors indicate that the two employees are not suitable comparators,
because there is not a basis for a reasonable inference that the pay discrepancy is the
result of discriminatory intent. Cox, 579 F. App'x at 508. No reasonable factfinder could
conclude that Kendrick and Burns were similarly situated during their first assistant
manager positions for the purposes of Burns's disparate pay claim.
Finally, Burns contends that Kendrick earned more money while in the MIT
program. Kendrick earned $17.75 per hour as a trainee, while Burns earned between
$11.10 and $14.43. Kendrick Records; Burns Records. Wal-Mart again argues that
Burns has not presented any evidence suggesting that the same individual determined
their pay while in the program. See Def.'s Reply Mem. in Supp. of its Mot. for Summ. J.
at 4. But Ketcham testified during his deposition that the company provides guidelines
for hourly pay rates and does not permit managers to exercise discretion in determining
hourly pay. Ketcham Dep. at 13:18–25. Wal-Mart has not presented any evidence
suggesting that the hourly salaries that Kendrick and Burns earned while in the MIT
program were determined at the discretion of a particular manager. Thus the fact that
Burns has not shown that the same employee determined their hourly MIT pay is beside
the point. A reasonable factfinder could conclude that Kendrick and Burns were
similarly situated while working in the MIT program.
Wal-Mart argues that even if Burns and Kendrick were similarly situated, the
company has provided a legitimate, non-discriminatory reason for the difference in their
pay. Def.'s Reply Mem. in Supp. of its Mot. for Summ. J. at 6. The company states that
a different decision-maker determined Kendrick's pay and that Kendrick had more
experience working at Wal-Mart. In determining whether a reason is pretextual, the
court must determine "whether the employer honestly believed the reasons it has
offered to explain the discharge." Coleman, 667 F.3d at 852. The plaintiff must identify
weaknesses or inconsistences in the employer's asserted reason such "that a
reasonable person could find it unworthy of credence." Id.
Burns has met this standard. Because Ketcham testified that the company sets
specific guidelines for the wages of hourly employees—and the employment records
indicate that Burns and Kendrick were paid as hourly employees during the MIT
program—the fact that a different person may have determined their pay is beside the
point. A reasonable jury could also find that the explanation based on Kendrick's
experience is not credible. Kendrick's employment records show that his position in the
MIT training program was his first job with Wal-Mart. The same is true for Burns. Thus,
both Kendrick and Burns entered the MIT program without any prior experience at Wal-
Mart, and yet Kendrick received at least three dollars more per hour. Burns has
therefore provided evidence from which a reasonable factfinder could conclude that
Wal-Mart's proffered reasons for the difference in pay are pretextual.
Finally, Burns relies on a comparison of her pay with that of Straton, another
sales associate at the Glenwood store. Straton's employment records show that he
became a sales associate in 2005—around the same time as Burns—at an hourly rate
of $9.10. Pl.'s Resp. to Def.'s SUMF & SAF, Ex. M (Straton Records). Almost
immediately, Wal-Mart increased his pay to $9.65 per hour. Id. Burns began in the
same position earning $8.70. Burns Records.
Wal-Mart argues that two different managers hired Straton and Burns, meaning
that different decision-makers determined their pay rates. But as noted above, Ketcham
testified that the company provides guidelines for hourly pay rates for sales associates
and does not permit managers to exercise discretion in this area. Ketcham Dep. at
13:18–25. Therefore the fact that different managers hired Burns and Straton is beside
the point, given that any manager should have hired them at the same rate of pay.
Wal-Mart also argues that Burns has failed to present evidence that she and
Straton had a similar level of relevant experience. But again, Ketcham testified only that
hourly pay rates are based on "the position the associate was applying for," id. at
13:19–20; he did not indicate that the company takes any other factors into
consideration. Thus whether Straton had more retail experience than Burns does not
bear on whether the two received disparate pay. A reasonable factfinder could
conclude that the two are similarly situated for purposes of Burns's disparate pay claim.
For reasons described above, the Court denies Wal-Mart's motion for summary
judgment on Burns's claim of discrimination based on disparate pay but limits the claim
as described in this section
Denial of transfer request
Burns also claims that Wal-Mart discriminated against her when it denied her
request for a transfer to the Glenwood store. Wal-Mart argues first that the denial of a
transfer request does not qualify as an adverse employment action for purposes of a
discrimination claim. The company also argues that Tammo—Burns's proposed
comparator—is not similarly situated and therefore cannot provide the basis for a
It is not clear whether the denial of Burns's transfer request constitutes an
adverse employment action. The Seventh Circuit has indicated that a denial of a
transfer request may qualify if "the transfer would have resulted in higher pay or
benefits." Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1108 (7th Cir. 2012).
The court went on to suggest that "mere denial of a lateral transfer" to a position offering
"parallel pay, benefits, and responsibilities" would not constitute an adverse
employment action. Id. But Burns has indicated that she requested the transfer
because the Glenwood store was closer to her home and that a transfer would therefore
make it significantly easier to get back and forth to work. See Pl.'s Mem. in Opp'n to
Def.'s Mot. for Summ. J. at 2, 12 n.2. If a plaintiff could show that her employer
routinely granted transfer requests to other employees wishing to relocate closer to
home, but that she herself was forced to work at a location much farther away due to
her gender, the Court is inclined to believe that this could give rise to a claim under Title
VII. But the Court need not resolve that issue here, because it concludes that no
reasonable jury could find Tammo to be similarly situated to Burns for purposes of this
Burns argues that Tammo is similarly situated because they both completed the
MIT program at the same time, and yet Tammo was able to work at the Glenwood
location, whereas Burns was told that new managers could not work there because it
was a new store. But Burns has again failed to offer evidence from which a reasonable
factfinder could find that she and Tammo were similarly situated. Burns submitted her
transfer request to Hacker, who ultimately told her that Wal-Mart had a policy against
placing new managers in new stores. Pl.'s Resp. to Def.'s SUMF & SAF, Ex. A (Burns
Dep.) at 68:16–69:5. Tammo, on the other hand, was assigned to the Glenwood store
immediately after the MIT program. Burns has not provided any evidence that Hacker is
the one who placed Tammo in the store. Therefore the two are not suitable
comparators. The purpose of the similarly situated inquiry is "to eliminate confounding
variables, such as differing roles, performance histories, or decision-making personnel,
which helps isolate the critical independent variable"—here, sex. Cung Hnin v. TOA
(USA), LLC, 751 F.3d 449, 505 (7th Cir. 2014). If the same individual placed Tammo in
the Glenwood store and denied Burns's request, this would eliminate the variability in
decision-making personnel and isolate sex as the cause of the differential treatment.
But two different individuals made these decisions.
There is another confounding variable. Wal-Mart has provided evidence, which
is uncontradicted by Burns, that a TLE assistant manager, such as Tammo, has
significantly less responsibility than an assistant manager, such as Burns. Specifically,
assistant managers have authority over the entire store, whereas TLE assistant
managers only have authority over the TLE department. See Hacker Dep. at 16:23–
For these reasons, no reasonable factfinder could infer that she and Tammo are
comparable and thus that the denial of Burns's transfer request was due to her sex. For
this reason, the Court therefore grants summary judgment in favor of Wal-Mart on
Burns's claim based on a failure to transfer.
Failure to promote
Burns's final contention is that Wal-Mart discriminated against her in 2009 when it
denied her a promotion to the position of support manager and instead gave the
position to a male candidate. Wal-Mart argues that no reasonable jury could find that
Burns actually applied for the support manager position and that she has failed to
identify the male employee who allegedly received the promotion.
Burns has provided evidence from which a reasonable factfinder could conclude
that she applied for the position. She provides records of her activities in Wal-Mart's
Career Preferences system. See Pl.'s Resp. to Def.'s SUMF & SAF, Ex. J. These
records appear to indicate that in 2009 Burns repeatedly submitted requests for support
manager positions at different locations. See id. All of these requests were eventually
marked as "Closed – Associate transfered [sic]." Id. These records are sufficient to
support a reasonable inference that Burns applied for the support manager system
using Wal-Mart's internal system.
But Burns has not provided anything beyond her own vague testimony to support
her allegation that Wal-Mart promoted a male employee over her. She has not
identified the name of any male individual that she believes Wal-Mart hired as a support
manager during this time period. Her only evidence is her own testimony that she
overheard other employees say that a male was promoted to support manager. See
Burns Dep. at 97:12–99:6. That testimony, however, would be inadmissible hearsay.
Without more, Burns cannot show that Wal-Mart promoted a similarly situated male
employee to support manager. She cannot sustain a claim for discrimination on this
basis. See Arizanovska v. Wal-Mart Stores, Inc., 682 F.3d 698, 703 (7th Cir. 2012)
("The 'similarly-situated' inquiry is a 'flexible, common-sense one,' but it at least requires
that the plaintiff name a comparator outside her protected class." (internal citation
omitted)). The Court therefore grants summary judgment in favor of Wal-Mart on
Burns's claim of discrimination based on a failure to promote her to support manager.
Burns also appears to allege in her complaint that, while working as an assistant
manager, she was subject to harassment and discriminatory treatment by her store
manager and co-manager. Compl. ¶ 22. She mentions the incident again in her
statement of facts submitted in response to Wal-Mart's summary judgment motion,
stating that she and the other female employee were repeatedly required to unload the
delivery trucks while male employees were given easier tasks on the floor. Pl.'s Resp.
to Def.'s SUMF & SAF ¶ 22. But neither Burns nor Wal-Mart makes any reference to
these allegations in their respective summary judgment memoranda.
Assuming Burns is asserting a claim along these lines, she has failed to provide
sufficient evidence to support the claim. She has not identified the store manager or co-
manager who allegedly assigned harder tasks to the female employees. Nor has she
identified the male employees who received the easier assignments. Without this
information, no reasonable factfinder could conclude that the allegedly disparate work
assignments were the result of unlawful discrimination.
For the foregoing reasons, the Court denies Wal-Mart's motion for summary
judgment [dkt. no. 34] only on Burns's claim that she received lower pay while working
as an associate and while in the MIT program due to her gender. The Court otherwise
grants Wal-Mart's motion for summary judgment. The case is set for a status hearing
on April 13, 2017 at 9:30 a.m. to discuss the possibility of settlement.
MATTHEW F. KENNELLY
United States District Judge
Date: April 7, 2017
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