CREA CONSTRUCTION, INC. v. WAL-MART STORES, INC.
OPINION AND ORDER - For the foregoing reasons, the court GRANTS Walmart's motion for summary judgment [Doc. No. 38]. The clerk shall enter judgment accordingly. Signed by Judge Robert L. Miller, Jr on 3/31/2021. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
CREA CONSTRUCTION, INC.,
WAL-MART STORES, INC.,
Cause No. 1:19-CV-2284 RLM-TAB
OPINION AND ORDER
CREA Construction, Inc., an African-American owned general contractor,
brought suit against Wal-Mart Stores, Inc. under 42 U.S.C. § 1981 alleging that
Wal-Mart discriminated and retaliated against it based on race when it placed
CREA on bid hold and removed it from Wal-Mart’s construction program. Walmart
moved for summary judgment, contending that the applicable four-year statute
of limitations bars CREA’s claims and that CREA hasn’t provided any evidence of
discrimination or retaliation.1 For the following reasons, the court grants
Summary judgment is appropriate when the pleadings, discovery materials,
disclosures, and affidavits demonstrate no genuine issue of material fact, such
that the movant is entitled to judgment as a matter of law. Protective Life Ins. Co.
v. Hansen, 632 F.3d 388, 391-392 (7th Cir. 2011). The court construes the
Wal-Mart Stores, Inc. reportedly changed its legal name to Walmart, Inc. On
February 1, 2018 [Doc. No. 39 at 1, n.1].
evidence and all inferences that reasonably can be drawn from the evidence in the
light most favorable to CREA, as the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). Walmart bears the burden of informing the court
of the basis for its motion, and presenting evidence demonstrating the absence of
any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). If it meets that burden, CREA can’t rest upon the allegations in the
pleadings, but must “point to evidence that can be put in admissible form at trial,
and that, if believed by the fact-finder, could support judgment in [its] favor.” Marr
v. Bank of America, N,A., 662 F.3d 963, 966 (7th Cir. 2011); see also Hastings
Mut. Ins. Co. v. LaFollette, No. 1:07-cv-1085, 2009 WL 348769, at *2 (S.D. Ind.
Feb. 6, 2009) (“It is not the duty of the court to scour the record in search of
evidence to defeat a motion for summary judgment; rather, the nonmoving party
bears the responsibility of identifying the evidence upon which he relies.”).
Summary judgment is “not a dress rehearsal or practice run; it is the put up or
shut up moment in a lawsuit, when a party must show what evidence it has that
would convince a trier of fact to accept its version of events”. Hammel v. Eau Galle
Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005).
CREA doesn’t dispute the facts asserted in Sections A-D of Walmart’s
statement of undisputed material facts [Doc. No. 39 at p. 2-6] relating to
Walmart’s Supplier Inclusion Initiative, CREA, CREA’s history with Walmart and
the award of the Indianapolis store remodeling project on December 23, 2014, so
the court adopts those facts and incorporates them by reference. The following
facts relate to CREA’s performance during the project and Walmart’s response
thereto and are viewed in the light most favorable to CREA.
Rea Johnson, a Black female, owns and operated CREA. Walmart awarded
the remodeling contract to CREA in December 2014 and CREA completed its work
on May 8, 2015. Under the contract, Ms. Johnson was to serve as CREA’s daytime
job supervisor. From February 5, 2015 to mid-April 2015, Walmart’s Director of
Construction, Efrain Vasques, received complaints from Walmart’s construction
manager (David Green), project manager (Brand Hanson), and store manager
(Lindsey Maclean), about CREA’s performance and Ms. Johnson’s lack of
communication and unavailability. Mr. Vasquez and/or Mr. Green met with Ms.
Johnson in person or by phone multiple times in February and March 2015 to
discuss and resolve those issues.
On March 13, 2015, after receiving a report that Ms. Johnson frequently
wasn’t present at the job site and wasn’t communicating with the store planning
team, Mr. Vasquez told Walmart’s Senior Director of New Store Construction,
Mark Caspermeyer, of the recurring issues with CREA’s performance. Mr.
Caspermeyer told Mr. Vasqueez on March 17, 2015, that Walmart needed to end
its relationship with CREA. No one told CREA at that point.
On March 31, 2015, Mr. Hanson contacted Mr. Vasquez to report paint
damage to the store’s deli caused by a CREA subcontractor. Mr. Vasques reported
the issue to Mr. Caspermeyer.
Mr. Vasquez received more complaints from Store Panning Manager Dee
Bumgardner on April 8 about the lack of daytime representation from CREA at the
job site, and resulting delays in installation of the self-checkout machines.
Mr. Vasquez eventually hired another contractor, William Nichols (a white
male Wagner Development employee), to supplement Ms. Johnson’s day
supervisor role and to serve as the main communication liaison between CREA
and the Walmart construction team, store planning team, and store management
through the completion of the project. When Ms. Johnson was told of the decision
to hire Mr. Nichols on April 14, 2015, she felt humiliated and told Mr. Vasquez
that she believed it was racially discriminatory.
Justin Bolton, CREA’s night supervisor, called Ms. Johnson on April 19,
2015 to inform her he was quitting. Mr. Bolton stated during his deposition that
of the 400 projects he’d worked on for Walmart, “this was the worst [he’d] ever
At some point before April 23, 2015, Mr. Caspermeyer informed Mr. Vasquez
that CREA wasn’t to be placed on any future projects in Indiana, Ohio, and
Michigan. On April 23, 2015, Ms. Johnson sent the following email to Scott Wood,
Walmart’s Contract Manager:
Subject: Bid Hold
Are we on bid hold? There have been a lot of remodels that we are
not bidding. Please advise.
[Doc. No. 40-2 at p. 22-23]. Ms. Johnson stated during her deposition that:
I wanted to know what was going on because I’m seeing all these
bids, and I’m not on the bid list...I’m privy to [the list] – that
information because I was a subcontractor before. So I know what’s
going on...[T]he GCs send me bid invites [so I can see that they’re
bidding on it, but I’m not].
[Doc. No. 43-2 at p. 74-75].
Scott Wood forwarded Ms. Johnson’s email to Efrain Vasquez on April 23,
2015, asked how Mr. Vasquez wanted him to respond, and said that “Mark had
me place her on hold until there is a compliance and performance eval gut we
were asked not to inform them.” [Doc. No. 40-2 at p. 22]. Mr. Vasquez responded:
“Mark plans to have a call with her but not sure when. He did state that she is not
to be placed on any of our Indiana/Ohio/Michigan bids.” Id. Mr. Wood’s replied,
“I knew not to include her but this is her second time asking. I’ll let it sit for now
I guess.” Id..
CREA completed the project on schedule on May 8, 2015, was paid for its
services, and wasn’t sanctioned for any damages resulting from the March 30-31
paint over-spray incident or for any other shortcoming.
On May 18, 2015, Ms. Johnson asked Mark Caspermeyer for a meeting to
discuss the project. The meeting occurred on June 22, 2015 via a conference call
during which Mr. Caspermeyer discussed Walmart’s issues with CREA’s
performance and confirmed that CREA was on “bid hold” status.
Walmart contends that the four-year statute of limitations applicable to §
1981 claims, see Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004);
Dandy v. United Parcel Service, Inc., 388 F.3d 263, 269 (7th Cir. 2004), bars
CREA’s claims because the alleged discriminatory and retaliatory acts (the
complaints about CREA’s performance during the remodel project, the hiring of
the communication liaison, and CREA’s placement on bid hold) occurred in
February, March, and April, 2015, CREA knew about each of those actions by May
23, 2015, and didn’t file it’s complaint until June 7, 2019.
CREA alleges that it was the victim of “continuing violations” that didn’t
“culminate in a “harmful violation” until June 22, 2015, when Mark Caspermeyer
confirmed that CREA was on bid hold. Citing Jones v. Merchants Nat’l Bank &
Trust Co. of Indianapolis, 42 F.3d 1054, 1058 (7th Cir. 1994) (“plaintiff may
recover for acts barred by the statue of limitations if [it] can show a ‘continuing
To effectively toll the statute of limitations, “there must be a present
violation to complain about, not just the persisting effects of past discrimination.”
Id. (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1971)). If CREA
knew, “ or with the exercise of reasonable diligence would have known after each
act that it was discriminatory and had harmed [it], [it] may not sit back and
accumulate all the discriminatory acts and sue on all within the statutory period
applicable to the last one.” Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279,
282 (7th Cir. 1993).
CREA bases its argument on the belief that no harm actually occurred until
Walmart confirmed that CREA was on bid hold. But the decision to hire a
communication liaison, to place CREA on bid hold, and to terminate Walmart’s
relationship with CREA were made in March and April 2015; and Ms. Johnson
knew of Walmart’s actions and the negative impact they would have on CREA’s
revenue stream and believed Walmart’s actions were racially motivated on or
before she emailed Mr. Wood on April 23, 2015. CREA waited more than four
years to file its complaint, and hasn’t presented any viable basis for tolling the
But Ms. Johnson testified that, based on her conversations with Walmart
personnel, Walmart uses its “bid hold” in either of two ways. In most instances,
she explains, Walmart places what is meant to be a temporary hold on a
contractor’s right to bid on projects, to get the contractor to finish any ongoing job
and meet with Walmart higher-ups about how past problems can be prevented.
If the meeting is mutually beneficial, Walmart reinstates the contractor’s right to
bid on projects.
What Walmart did to CREA is different. Walmart didn’t confirm that CREA
was on bid hold until after the project on the Indianapolis store was completed
and CREA had been paid. There was no meeting with Walmart executives at
corporate headquarters. And the bid hold apparently remains in place today,
almost six years later. A reasonable fact-finder could credit Ms. Johnson’s
testimony about what is usually done when a bid hold is imposed and find that
Walmart had imposed a bid hold that was out of the ordinary, and further find
that Ms. Johnson and CREA didn’t learn of the permanent nature of its bid hold
until after June 8, 2015, making its complaint timely.
Walmart, accordingly, isn’t entitled to dismissal on statute of limitation
But on the merits of its claim, CREA hasn’t shown that but for Ms.
Johnson’s race it wouldn’t have been placed on bid hold.
When, as here, direct evidence of discrimination isn’t available, the
McDonnell Douglas burden-shifting framework may be applied to § 1981 claims.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Oliver v. Joint
Logistics Managers, Inc., 893 F.3d 408 (7th Cir. 2018); Humphries v. CBOCS
West, Inc., 474 F.3d 387 (7th Cir. 2007). To establish a prima facie case of
discrimination under McDonnell Douglas, CREA must show that: (1) it (or in this
case its principal, Ms. Johnson) is a member of a protected class; (2) its job
performance met Walmart’s legitimate expectations; (3) it suffered an adverse
employment action; and (4) another similarly situated contractor who wasn’t in
the protected class was treated better. Khowaja v. Sessions, 893 F.3d 1010, 10141015 (7th Cir. 2018). If CREA makes a prima facie showing, the burden of
production shifts to Walmart to provide a legitimate, nondiscriminatory reason for
the adverse employment action. If Walmart makes the requisite showing, the
burden shifts back to CREA to present evidence establishing a genuine dispute as
to whether those reasons were a pretext for discrimination. Smith v. Chicago
Transit Auth., 806 F.3d 900, 905 (7th Cir. 2015). But “[u]nder McDonnell
Douglas’s terms ... only the burden of production ever shifts to the defendant,
never the burden of persuasion.” Comcast Corp. v. National Association of African
American-Owned Media, 140 S.Ct. 1009, 1019 (2020). The ultimate burden
remains with the plaintiff to “ prove that but for race, it would not have suffered
the loss of a legally protected right.” Id..
No reasonable trier could find on this record that CREA was meeting
Walmart’s legitimate expectations. Ms. Johnson tried to serve as daytime
superintendent as well as project manager. CREA’s contract called for two
separate positions, and Walmart people on the scene met with Ms. Johnson to
point out that problem. The store manager couldn’t find Ms. Johnson to get
dumpsters emptied, and the Walmart construction manager couldn’t find her to
find out where the paint was stored when he couldn’t find where the contract said
it should be stored. In March, the construction manager told the regional site
manager that Ms. Johnson simply wasn’t present at the store/work site very often
during the day. At times, she was unable to provide status updates to the store
In late March, several Walmart construction officials met with Ms. Johnson
to address the problems Walmart perceived. A follow-up email detailed Walmart’s
expectations in fifteen areas that had been discussed.
A few days later, store employees reported a paint sprayover in the deli by
an unsupervised CREA sub-contractor. Paint “dust” had gotten on the
merchandise and the fixtures. A store employee discovered and reported the
problem on May 31, 2015 at a time Ms. Johnson wasn’t on site. Walmart had to
close the deli for eight hours while the area was cleaned up. Walmart told Ms.
Johnson that the lost merchandise, supplies, and deli business cost Walmart
More complaints arose a week later from the store management that Ms.
Johnson hadn’t been at the job site much; they said self-checkout machines
hadn’t been installed because Ms. Johnson wasn’t there to accept delivery of the
needed electrical supplies.
At this point, construction team manager Efrain Vasquez decided things
couldn’t go on that way and got permission to hire Bill Nichols of Wagner
Development, Inc. as a communication liaison. Mr. Vasquez didn’t consult Ms.
Johnson or anyone else from CREA before doing so. It appears that Mr. Nichols
eventually became CREA’s only representative at the daily meetings. Mr. Nichols
reported to Walmart that CREA hadn’t completed extra work it had agreed to do
beyond the contract, and Walmart hired (and paid) Mr. Nichols’s employer to do
that work. About this time, CREA’s night superintendent quit.
In May, Ms. Johnson requested a meeting about the bid hold. After that
meeting, she was given a list of areas in which Walmart said CREA’s performance
had been deficient.
Ms. Johnson denies that things were that bad. She reports missing three
days from work in all. She says she might have been hard to find from time to
time because she was walking around the site. But no reasonable factfinder could
decide that undetected presence of the project manager and daytime
superintendent amounted to meeting Walmart’s reasonable expectations. CREA
hasn’t made out a prima facie case of discrimination, and so cannot survive
Walmart’s summary judgment motion under the burden-shifting approach.
An employment discrimination plaintiff can still “survive summary judgment
by creating triable issues as to whether discrimination motivated the adverse
employment action ....” Dixon v. County of Racine, 2010 WL 2384590 at *5 (E.D.
Wis. 2010) (internal quotation marks omitted) (quoting Nagle v. Village of Calumet
Park, 554 F.3d 1106, 1114 (7th Cir. 2009). CREA hasn’t done so. None of its
evidence, direct or circumstantial, would support an inference of intentional
discrimination based on race. That might be because she believes she “was the
victim of a more subtle, unconscious type of discrimination, which [Ms. Johnson]
characterized as ‘indirect’ racial animus.” [Doc. No. 42 at p. 17]. Her theory
reflects more recent discoveries about the operation of the human mind in such
areas as implicit bias, but it doesn’t reflect the law as it is today. Under today’s
law, § 1981 only reaches purposeful, not unconscious, discrimination. General
Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 389-391 (1982); see
also Gray v. Entergy Operation, Inc., 240 F.3d 1074 (5th Cir. 2000);
Collins-Pearcy v. Mediterranean Shipping Co. (USA), Inc., 698 F.Supp.2d 730, 741
(S.D. Tex. 2010) ("A disparate impact claim is not legally viable under § 1981.
Section 1981 requires proof of intentional discrimination."). The law might change
as science learns more. But today, without evidence that would support a finding
of intentional discrimination based on race, CREA’s claim must fail.
For the foregoing reasons, the court GRANTS
Walmart’s motion for
summary judgment [Doc. No. 38]. The clerk shall enter judgment accordingly.
March 31, 2021
/s/ Robert L. Miller, Jr.
Judge, United States District Court
Distribution to all electronically
registered counsel of record
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