Daniels v. Wal-Mart Associates, Inc., et al

Filing 41

Judge Richard G. Stearns: ORDER entered granting 22 Motion for Summary Judgment. (Zierk, Marsha)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 19-11357-RGS
NANCY DANIELS
v.
WAL-MART ASSOCIATES, INC., and
GLORIA TAYLOR
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
February 18, 2021
STEARNS, D.J.
In March of 2018, defendant Wal-Mart Associates, Inc. (Walmart)
terminated plaintiff Nancy Daniels after issuing her several written warnings
regarding her intemperate behavior towards customers and other associates.
Daniels contends that defendant Gloria Taylor, a Walmart Human Resources
Manager and one of her supervisors, issued her unwarranted discipline, gave
her an unfair evaluation, assigned her an untenable work schedule, and
refused to accommodate her medical conditions. After being terminated,
Daniels, on June 19, 2019, filed this lawsuit. Daniels asserts claims under
the Family and Medical Leave Act (FMLA); a failure to accommodate her
disabilities (cancer, anxiety, and depression); wrongful termination based on

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age and disability discrimination; and retaliation under state and federal
law. 1
Defendants move for summary judgment asserting that Daniels’s
federal and state discrimination claims “are unfounded” as, early in 2018,
the essential working hours of Daniels’s training coordinator position were
modified to incorporate night and weekend shifts to enable her to train
associates who worked those shifts.

Further, defendants contend that

Daniels “never requested an accommodation that was reasonable,” and,
notwithstanding, Walmart “complied with its accommodation obligations”
by suggesting Daniels apply for a position with a Monday to Friday/ 7 a.m.
to 4:00 p.m. schedule. Defs.’ Reply at 2.
BACKGROUND
The relevant facts, viewed in the light most favorable to Daniels as the
nonmoving party, are as follows. 2 Daniels joined Walmart on March 19,

Specifically, Daniels’s Complaint alleges violations of the Family
Medical Leave Act (FMLA), 29 U.S.C. § 2615; the Americans with Disabilities
Act (ADA), 42 U.S.C. § 12112; the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621; and the Massachusetts Fair Employment Practices
Act, Mass. Gen. Laws ch. 151B § 1 et seq. Counts I through VIII are brought
against Walmart. Daniels includes Taylor in Count IX, her Mass. Gen. Laws
ch. 151B retaliation claim, and asserts Count X (Chapter 151B coercion,
intimidation, and threats) and Count XI (aiding and abetting violations of
Chapter 151B) exclusively against Taylor.
1

2

Daniels does not dispute or cursorily dismisses most of defendants’
2

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1995, working in the layaway department of its Bellingham, Massachusetts
store. On June 15, 2003, Daniels was promoted to the position of training
coordinator. While she performed intermittent duties as a cashier, site-tostore facilitator, 3 customer service representative, and substitute for
vacationing department managers, the focus of Daniels’s position
(approximately 4/5 of her time), was on hiring, 4 conducting new-hire

ninety-two paragraphs of uncontested facts.
Compare Defendants’
Statement of Undisputed Material Facts (Defs.’ SUMF) (Dkt. # 24), with Pl.’s
Response to Defs.’ SUMF (Pl.’s Resp.) at 3 (Dkt. # 33). The court will treat
the challenged paragraphs as admitted except to the extent they are actually
contradicted by a substantive paragraph in Plaintiff’s Response which
properly cites to supporting evidence in the record. See Mehic v. DanaFarber Cancer Inst., Inc., 2018 WL 4189706, at *2-3 (D. Mass. Aug. 31,
2018) (noting that L.R. 56.1 “requires the non-moving party to provide
citations to the record, i.e., ‘affidavits, depositions, or other documentation,’
with page references” to support any contention that there exists a genuine
issue of material fact and that the court may “deem admitted the facts in
defendants’ corresponding L[.]R. 56.1 paragraph when the response
paragraph either does not provide an adequate citation to the record or
controvert defendant’s corresponding L[.]R. 56.1 paragraph.”).
“Site-to-store” is Walmart’s on-line ordering option through which
customers can choose to pick up items at the store to avoid shipping time
and charges. When acting as a site-to-store clerk, Daniels would retrieve the
requested item from the inventory and prepare it for customer pick up.
3

As part of the hiring process, Daniels “reviewed applications, called
on reference checks, called associates to book appointments, [and]
conducted parts of the interview. And then called them to – sent them on
drug screens, ran background checks on them and would call them for
orientation.” Daniels Dep. at 54.
4

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orientations (4 to 8 hours), and training compliance – ensuring that
employee and new hire associates completed and abided with training
protocols. 5 See Daniels Dep. at 42-43; Taylor Dep. at 67-69. Most of the
events that underly Daniels’s claims happened during the time that she
reported to Judy Grayko, the assistant Bellingham store manager, Gloria
(Denise) Taylor, the Human Resources manager, and David Rappa, the store
manager. 6
In November of 2014, Daniels was diagnosed with cancer. She had
surgery in January of 2015 and, after submitting the requisite medical
documentation to Sedgwick Claims Management Services (Sedgwick), she
took two weeks of FMLA leave (January 8 to 15, 2015) to recover. 7 Also in

Daniels describes the trainings as ongoing – new hires had a battery
of trainings; certain Walmart positions required quarterly or annual retrainings; and employees transferring to new positions also were assigned
trainings. Daniels’s position also required that she verify all hiring
paperwork and ensure that training modules once assigned were completed.
Daniels testified that Walmart’s policies regarding leaves of absence and
accommodations were subjects of the employee trainings. Id. at 51-53.
5

Danielle Croteau was the assistant store manager, and therefore
Daniels’s direct supervisor, at the time she began her cancer treatments.
Judy Grayko became the assistant store manager in April of 2016.
6

7 Walmart states that with respect to

requests for leaves of absence, “for
reasons protected by law” (such as the FMLA), Walmart delegates approvals
to Sedgwick as a third-party provider. See Defs.’ SUMF ¶¶ 6, 7. Daniels
contends that Walmart did not follow the same policy with respect to leaves
sought under the ADA. See Pl.’s Resp. to Defs.’ SUMF ¶ 6.
4

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January of 2015, Daniels applied to Sedgwick for “intermittent leave[s] of
absence” starting in February of 2015 to undergo radiation treatments.
Sedgwick approved both leave requests. Daniels underwent daily radiation
treatments for approximately six weeks (February 10 to March 18, 2015).
Compl. ¶¶ 25-26. Daniels scheduled her radiation treatments at 3:30 in the
afternoon so that she could complete her 7:00 a.m. to 3:00 p.m. shift. She
also undertook oral chemotherapy as part of a clinical drug trial, and in May
of 2017, was prescribed “a ten-year program of cancer treatment
medications.” Id. ¶¶ 27-28.
Work Schedule/Reasonable Accommodation
Daniels states that her “cancer condition and necessary treatment
seriously impacted her ability to eat, sleep, think, concentrate, walk and work
. . . .” Id. ¶ 30. “[S]uffering from severe fatigue and a chronic low blood
count, [s]he often had brain fog . . . especially in the evenings.” Id. ¶ 29.
Daniels also endured “neuropathy in her extremities, hot flashes, eating
difficulties, lowered immune system defenses[,] . . . headaches,” and joint
aches. Id. In addition, Daniels suffered from panic attacks, anxiety, and
depression which interfered with her ability to think clearly, focus, and

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remember. 8 Because of the side effects of her treatment, Daniels “informed
her supervisors that she could not work nights or weekends . . . and needed
two days off in a row to recover from the fatigue working caused [her].” 9 Id.
¶ 34.
Taylor testified that during most of Daniels’s tenure as a training
coordinator, she functioned as “the personnel coordinator’s assistant.”
Taylor Dep. at 63. But in 2017, the two positions became more independent.

Daniels claims that these conditions were exacerbated by Walmart’s
mistreatment. Compl. ¶ 35. As an example, Daniels states that in the spring
of 2015, Taylor approached her with a complaint that had been made to
Walmart’s Ethics Hotline (a venue for Walmart employees to voice concerns)
that store manager Rappa “was treating [Daniels] as a ‘favorite’ for, among
other things, letting her leave at 3 p.m.” Id. ¶ 36. Daniels “explained [to
Taylor] that she was on intermittent leave of absence for her cancer
treatments.”8 Id. Daniels contends that once Taylor was “alerted that [her]
disabilities require[d] ongoing accommodation, [Taylor’s] treatment of
[Daniels] changed drastically for the negative.” Id. ¶ 44.
8

Walmart states that it requires all employee requests for
accommodations to be submitted to the Accommodations Service Center
(ASC) at Walmart’s home office (an employee-completed questionnaire
along with any supporting medical documentation). Defs.’ SUMF ¶ 4; Taylor
Decl. at Ex. 5 (Walmart’s Accommodation in Employment (Medical-Related)
Policy). Other than minor modifications (Walmart uses the example of
providing a stool for a cashier), Walmart managers are not authorized to
grant or deny accommodation requests. Defs.’ SUMF ¶ 5. When an associate
requests an accommodation, the store’s personnel coordinator or training
coordinator can assist in sending the associate’s paperwork to the ASC,
“[b]ut with Walmart, . . . the onus is on the employee to file the
accommodation with the Accommodation Service Center.” Taylor Dep. at
59. The same is true of any appeal of the ASC’s decision. Id. at 56-57.
9

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The personnel coordinator focused on recruiting, arranging interviews, and
enrolling employees for benefits, including “signing up for benefits, . . . open
enrollment[,] . . . [and educating employees] on any changes in benefits.” Id.
at 64. The principal duty of the training coordinator “was the onus . . . to do
orientations and computer-based learning.” Id. at 67-68. Taylor stated that
the Bellingham store was consistently understaffed, and there was a “big
push to hire more part-timers.” As most part-timer employees worked
evenings or weekends, the work schedule of the training coordinator was
altered to add one evening and one weekend shift. Taylor announced the
schedule change in a group meeting of personnel and training
coordinators. 10 Id. at 79. The training coordinators received a handout
regarding the schedule change and a “mock evaluation” regarding their new
job expectations.

Id. at 109.

The training coordinators also received

bulletins regarding the schedule change in Walmart’s One Best Way notices
(its store operations web site guidelines for employees).
Daniels complains that, while her evaluations had always been
completed by a manager in the Bellingham store, in August of 2017, Taylor

Taylor added that she gave the training coordinators some time “to
change some things around personally to start working the new schedule.”
Taylor Dep. at 80.
10

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inserted herself into the process. 11 Taylor testified that she did so as part of
a “mock” evaluation designed by regional Human Resources (HR) to enable
the training coordinators to “understand . . . exactly what they were tasked
to do in [their new] position.” Taylor Dep at 155. During the evaluation,
Taylor reviewed Daniels’s accomplishments (94.44% training completion
rate; “Nancy is very structured and organized”) and offered improvement
suggestions (“[s]hould add . . . coaching by walking around”; “[s]hould
inform associates of their assessment needs and keep ASM informed of their
process”; and “should expand her availability to interact with evening and
weekend associates”). Daniels remembers only that Taylor “was pushing the
nights and weekend thing.” Daniels Dep. at 142-143, 146-147. Daniels
disagreed that interacting with associates working nights and weekends “was
necessary to the function of her job.” 12 However, she testified that “it wasn’t

Daniels states that she was not due for an evaluation. Rappa agreed
that it was unusual for HR to be involved but that the review was not an
annual employee evaluation, but rather an exercise “specifically for the
training coordinator.” Rappa Dep. at 92. Rappa recollected that HR had
done similar reviews of other coordinators. Branchaud testified that,
because of the changes in the positions, Taylor did a review of “all the
personnel coordinators and all the training coordinators [at] six months.”
Branchaud Dep. at 46.
11

Daniels bases this contention on her insistence that coaching by
walking around “was not [her] sole responsibility. All assistant managers
were task[ed] with that as was the store manager and the department
managers.” Daniels Dep. at 190.
12

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up to [her] to decide that anyway.” Id. at 147. Rappa testified that “there was
value in asking training coordinators to work alternate shifts to be available
to all associates.” Some associates “wouldn’t come in until the evenings or
the weekends so . . . their ability to cross paths and train was limited.” Rappa
Dep. at 67-68.
For her part, Taylor testified that in August of 2017, Debra Yssa, an HR
manager, informed her that, because Walmart was focused on hiring more
minors and part-time associates to cover the over-night and weekend shifts,
the training coordinators would be required to work at least one evening and
weekend shift each week to orient and train these new employees. See Taylor
Dep. at 70, 72, 75-76.

HR also asked Taylor “to conduct a special

performance assessment of all Training Coordinators in her market.” Defs.’
SUMF ¶ 57; Taylor Dep. at 162-163. Taylor states that during the August 11,
2017 review, she told Daniels that she needed to be available to work “third
shift and weekend hours” starting in January of 2018. Instead of working
Monday through Friday, 7:00 a.m. to 4:00 p.m., Daniels would be required
to work 11:00 a.m. to 8:00 p.m. on Tuesdays and 7:00 a.m. to 4:00 p.m. on
Saturdays, with Thursdays and Sundays off.
When Daniels complained to Grayko about the schedule change, citing
her persistent drug-related fatigue, she states that Grayko responded that
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“these hours are set in stone. You have to work these hours if you want this
position.” Daniels Dep. at 178. Nevertheless, between January and March
5, 2018 (with reminders from Daniels), Grayko continued to except Daniels
from the new schedule start date.
At some point after the mandated new start date, Taylor “was speaking
with Paula [Branchaud] and somehow the conversation came up that
[Daniels] was still working 7 to 4.” Taylor Dep. at 80. Taylor called Rappa
to tell him that “the other training coordinators are working the new
schedule, and to be fair and consistent.” Id. at 80. Rappa replied that
Daniels “was refusing to do it.” Id. at 79. Taylor gave Rappa a deadline for
Daniels to begin the new schedule but suggested that, if she did not want to
work the new schedule, she should apply for a department manager position.
Rappa responded that Daniels “didn’t want to do that.” Id. at 81.
Grayko testified that she also suggested to Daniels that she look at
other positions at Walmart that did not require night and weekend hours,
notifying her that a position was available as the intimate apparel
department manager. 13 Grayko Dep. at 132-133; Daniels Dep. at 201-202.

Grayko testified that Daniels was worried that her coaching history
would preclude her from the position. Grayko told her that she “would look
into an exception for that because, if she’s not going to be able to work what
they’re asking – because it’s a company-wide change, it wasn’t a store-wide
change.” Grayko Dep. at 132. Grayko testified that she thought Daniels was
13

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Grayko testified that she also suggested to Daniels that “if she needed an
accommodation for something, that she could put in for that.” Grayko Dep.
at 133. Daniels has a different recollection, stating that when she offered to
obtain a doctor’s note, Grayko told her not to bother asking management for
an accommodation with respect to a no nights or weekends schedule because
“there’s no point because [Taylor’s] not going to bend.” Daniels Dep. at 169,
178, 183. Daniels claims that she repeatedly told management, including
Taylor, about her inability to work the new hours (to the point of feeling
“bullied”), 14 yet while they would not accommodate her, they accommodated
“other associates who had different needs, not even medical ones.” 15 Daniels
Dep. at 198.
Daniels admits that she never formally applied for an accommodation

“a good fit” as a department manager “because she had the skills already to
do that role and it would help her with having two days off in a row, because
it’s a Monday through Friday, 7 to 4 position.” Id. at 134. Rappa agreed that
Daniels would be successful as a department manager. Rappa Dep. at 65.
Daniels testified that Taylor sometimes was impatient with
employees. Daniels specified two meetings with Taylor, one private and one
during a training coordinator meeting, during which she felt Taylor was
“angry with her . . . pounced on [her] . . . [and] made [her] feel horrible.”
Daniels Dep. at 154-157.
14

The only example Daniels gives involves Casey Flynn, a department
manager who is a single mother. Daniels claims that Flynn’s schedule was
altered “around what she needed for her kids.” Daniels Dep. at 198-199.
15

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to ASC at Walmart’s home office or made any attempt to work the new
schedule. Daniels testified that she relied on Grayko’s insistence that the new
schedule was set in stone despite her managers’ knowledge of her medical
history.
In January of 2018, Daniels asked to take March 14 to 22, 2018, as
personal time off (PTO) in Walmart’s Global Time and Attendance System.
Daniels told Grayko that her request “was not [for] a vacation and that [she]
was going [to Florida] because [her] stepmother had been diagnosed with
Alzheimer’s and [her] father . . . was trying to deal with it . . . .” Daniels Dep.
at 219. Grayko denied the request “because it was too close to inventory.”
Id. at 220. Daniels complained to Rappa. After Rappa upheld Grayko’s
denial, Daniels noted that an exception based on PTO had been made for
Branchaud. Rappa agreed to “look into it and get back to [Daniels].” 16 Id.
He never did, and the PTO was not approved. Daniels did not apply through

Branchaud’s brother had been killed by a drunk driver. Walmart
granted her leave (the week prior to Daniels’s requested week) to travel to
Vermont to attend the criminal trial. But Rappa said that generally no one
was permitted leave in the weeks prior to inventory (mid-March): “[I]t takes
pretty much everyone in the building to get ready for it . . . . There may be
day-off requests within that time frame that are honored. But, generally,
anything more than a day or two would not be approved.” Rappa Dep. at
107-108.
16

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Sedgwick for FMLA leave for the Florida trip. 17
Discipline and Termination
Daniels’s managers testified that they often had issues with her
treatment of other store associates and that fellow employees felt bullied by
Daniels and had variously complained about her to Grayko, Branchaud, and
Rappa. See Grayko Dep. at 115-116, 140-145, 151-153, 176-177; Rappa Dep.
at 68-69; see also Branchaud Dep. at 72-77 (“Jessenia complained . . . Laura,
Casey, Tanya, Karen . . . Deb Richards . . . there were other associates and
department managers as well. . . . There’s quite a few.”). Grayko and Rappa
each spoke to Daniels about her “behavioral-type issues.” Defs.’ SUMF ¶ 38.
On January 2, 2017, Elizabeth Jordan, an assistant manager at the
Bellingham store, issued Daniels a First Written Coaching after Walmart
received a complaint from a customer that Daniels “had been disrespectful
to the customer and her mother.” 18 Id. ¶ 40. According to the citation,

When asked if she thought that the time off was appropriate for an
FMLA request, Daniels responded, “At the time I didn’t believe that it would
be.” Daniels Dep. at 222.
17

Walmart has a progressive discipline policy called Coaching for
Improvement. For disciplinary infractions, an associate would receive a First
Written Coaching followed by a Second and Third Written Coaching if there
were reoccurrences. Defs.’ SUMF ¶ 8; Taylor Decl. at Ex. 3. Coachings
expired if the associate incurs no more than one during any twelve-month
period. Rappa testified that, “generally speaking,” the employee would be
terminated after three written Coachings. Rappa Dep. at 51. While
18

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Daniels had told the customer that it “was not her problem” when the
customer asked for assistance. Id. ¶ 41. Daniels testified that this happened
while she was working site-to-store, and that the Walmart in Walpole had
sent the customer and her mother, who were attempting to purchase a
birthday present, to Bellingham, where the item was thought to be in stock.
Daniels said that she searched exhaustively for the item but was unable to
find it and the customer and her mother were very upset. Daniels denies that
she was “disrespectful or rude to them.” 19 Daniels Dep. at 138. While Daniels
disagreed with the Coaching, she did not resort to Walmart’s “Open Door” 20
process to object, contending that “[t]he Open Door policy exists on paper,
[however] [t]he majority of associates do not believe that it, in effect,

acknowledging the policy, Daniels maintains that management “could
exercise discretion in whether to issue discipline depending on the incident,
[and that] performance or behavior issues could sometimes be open to
interpretation.” Pl.’s Resp. to SUMF ¶ 8.
Daniels reported that Walmart reviewed a videotape of the
confrontation and “you could see that the customers were upset. There was
no audio on those videos, so they don’t know who said what. So they sided
with the customer.” Daniels Dep. at 140.
19

The “Open Door” provides a means for a Walmart employee to
appeal a disciplinary action. Walmart does not require that the appeal be
made to the manager responsible for the Coaching. The Open Door appeal
can be made to anyone in Walmart management. See Taylor Decl. at Ex. 1.
20

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works.” 21 Daniels Dep. at 138.
Daniels received a Second Written Coaching on August 7, 2017, from
Grayko after Daniels took an associate off a scheduled shift without obtaining
management approval. Defs.’ SUMF ¶ 44. Daniels asserts that it was her
prerogative to change associates’ schedules – something that she and
Branchaud, as training and personnel coordinators, had routinely done
(although Branchaud testified that it could be done “[o]nly with management
approval”). 22 Daniels Dep. at 162-163; Branchaud Dep. at 88, 89-92. Grayko
expressed her displeasure with Daniels for acting without management
approval and admonished her from doing it again. While Grayko testified

Daniels further complained that, “Management always backs each
other up, so there’s market team, and kind of like hitting your head up
against a wall. It doesn’t get you anywhere.” Id. at 138-139. Rappa testified
that the Open Door process occasionally resulted in the reversal of
disciplinary citations. Rappa gave an example of Debra Cortez, whose
termination was overturned through her Open Door appeal. Rappa Dep. at
52-53.
21

Daniels explained that sales associate (Debra Richards) had told her
that she was mistakenly assigned an additional Saturday (she was scheduled
to work one per month) and asked Daniels to make an adjustment. Daniels
said that she relieved Richards from the shift in response to her complaint
and covered it with another associate. Branchaud testified that Richards’s
initial leave request had been “denied and [that] she [Richards] went to
Nancy and Nancy changed it. And the manager was upset that it was changed
after it was denied.” Branchaud Dep. at 90-91. When asked how she knew
that Richards’s request had been denied, Branchaud responded that, “when
people put in for a day’s off, there’s a screen, and you can see. You can pull
up the person’s name and see that it was denied.” Id. at 92.
22

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that Rappa had told Branchaud and Daniels that their unilateral authority to
impose shift changes had been rescinded (Branchaud confirms this); Daniels
claims that it was the first she had heard of the new policy. Daniels Dep. at
164; Branchaud Dep. at 88-89. Again, Daniels did not appeal the Coaching
through the Open Door process.
On November 20, 2017, Daniels received a Third Written Coaching
from Grayko, again based on a customer complaint. Defs.’ SUMF ¶ 46. On
this occasion, a customer stated that she had witnessed Daniels “being rude
and yelling at a Department Manager who was trying to assist [her].” Id. ¶
47. Grayko testified that she warned Daniels about being more respectful
with associates and customers. Daniels testified that at this point, she
believed that both Grayko and Rappa “wanted [her] gone,” and “they didn’t
follow company procedure and do an investigation and ask all sides of the
story” before writing her up. 23 Daniels Dep. at 211. Daniels suffered a panic
attack during her meeting with Grayko “because [she] realized now that they
were going to fire me, that that’s what they were gunning for.” Id. Grayko,
however, testified:
[T]hat was not the case. Nobody wanted to get rid of her. You
Daniels testified that management had a pattern of “get[ting] rid of
associates when they want to.” Daniels Dep at 211. However, when asked for
specific instances – e.g., names of managers and associates – Daniels was
unable to recall any. Id. at 211-212.
23

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have to understand, in a store like that where we had so much
trouble hiring and she was so knowledgeable and there were so
many places that we could utilize her, it was . . . the last thing we
wanted to do was get rid of her.
Grayko Dep. at 185. Grayko also testified that this was the first occasion on
which that Daniels revealed that her inflexibility with regard to her personal
schedule stemmed from her cancer treatment and the side effects of her
chemotherapy. Id. at 210-213. 24
The boiling point was reached on March 2, 2018, when Walmart
associate Laura Vieira approached assistant manager Danielle Croteau and
complained about Daniels’s behavior towards her and other associates
during their respite in the break room. See Vieira Dep. at 57-59. Croteau
asked Vieira and three other associates, Casey Flynn, Tanya Franceschi, and
Stephanie Dufault, to provide written statements about the incident. 25 Id. at
60-61; Daniels Dep. Ex. 15. All four complained that Daniels had been

According to Grayko, when she reported this conversation to Rappa,
he stated that he was unaware that Daniels was still being treated for cancer.
Id. at 209.
24

Taylor testified that it was Walmart’s practice to interview
complainants and the alleged offender to get all sides of the story – “to have
an opportunity to speak.” Taylor Dep. at 105-106. Daniels testified that
Walmart associates Nancy Deragon and Bryce (unknown last name) were in
the break room and disagreed with Vieira, Franceschi, Flynn, and Dufault’s
versions of the events. Daniels’ Dep. at 239, 298. Daniels, however, has
offered no sworn statements to the contrary from these witnesses.
25

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inappropriate and brusque with them during the break. 26 Rappa testified

26

Flynn wrote in her statement:

Around 9:30 many associates were in the break room on break
when Nancy came in to the break room right up to the table I was
sitting at telling associates Laura in Pets, Bryce and Stephanie
that they need to go and get their returns or she was going to go
to Dave and tell [illegible] . . . positive/professional manner. . . .
[it was] extremely rude and unethical considering [illegible] were
all in the middle of their breakfast.
Daniels Dep. 232-234, Ex. 15.
Franceschi’s statement read:
Nancy came into break room where we were [illegible] taking our
15-minute break. She came up to our table and she told Bryce,
Laura, and Stephanie that they had to go up and get their returns
immediately after break or she would have to tell Dave who didn’t
go up. She said Dave told her to report to him who did not go up
and they only three that had not gone up. She seemed angry and
said it in a not-so-nice tone. Kind of rude.
Id.
Vieira wrote in her statement:
During my first break of the day on the breakroom, the -- Nancy
came up to me and ordered me to get my [illegible] done, also
threatening to tell the store manager if something didn’t. She
was extremely rude and not professional. [illegible] She turned
her back, not giving time for anyone to answer, also talking over
me when I tried. [illegible] and quite humiliated, considering,
again, I was at the break room.”
Id. 234-235, Ex. 15. Vieira testified that during this incident, she felt Daniels
“was very rude, very disrespectful, completely unprofessional. Unethical,
too, because I was on my break. . . . She was being very stern, like very harsh,
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that it was a Walmart policy that associates on break should not be disturbed
with work-related matters. Rappa Dep. at 72, 126-128. Daniels testified that
she knew of no such policy – that she had called people over the intercom
multiple times during breaks and all the associates, other than these four,
had dutifully retrieved their returns. Pl.’s Resp. to Walmart’s SUMF ¶ 86.
Rappa testified that he had not told Daniels to instruct the four
associates to retrieve the returned merchandise during their break. Rappa
then met with Taylor who agreed that discipline was warranted and, because
Daniels had already received three behavior-related Coachings during the
year, termination was the likely next step. 27 Grayko was directed to complete

curt. . . . Not even my mom talks to me like that.” Vieira Dep. at 48, 59.
Dufault wrote in her statement:
While I was on break, Nancy came up to the table rudely and told
Laura, Bryce, and I that we needed to get our returns, and if not
she said Dave told her she was to inform him on who did not get
them, and walked away before I could talk.
Daniels’ Dep. 237, Ex. 15.
Taylor testified that Grayko and Rappa had the discretion to fire
Daniels and that she would have as a matter of course followed their
recommendation had they chosen not to do so. Grayko testified that while
Daniels’s termination was not reflexive, “there’s already been a significant
amount of incidents that have happened with [Daniels] for the same type of
things, it was determined by Dave and Denise that we needed to proceed with
a termination.” Grayko Dep. at 194. Rappa also agreed that, “based on
[Daniels’s] history and her coachings and . . . the way things played out in the
27

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a termination form. She and Croteau informed Daniels of her termination
on March 5, 2018. 28 Grayko Dep. 231-232.
Walmart states that any disciplinary decision – including Coachings
and terminations – may be submitted for review to any level of management.
Defs.’ SUMF ¶ 10. It is undisputed that Daniels did not seek a review.
Daniels rather filed a charge of discrimination with the Massachusetts
Commission Against Discrimination (MCAD) on November 1, 2018, and
then filed this lawsuit on June 19, 2019.
DISCUSSION
Summary judgment is appropriate where “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “An issue is only ‘genuine’ if there is sufficient
evidence to permit a reasonable jury to resolve the point in the nonmoving

end . . . that there really was no other option. She had kind of exhausted the
coaching process.” Id. at 69.
Daniels testified that Branchaud posted Daniels’s position internally
in February of 2018, prior to her termination. After discovering the posting,
Daniels approached Branchaud, who said that she had posted Daniels’s
position at management’s direction – that Daniels “couldn’t/wouldn’t work
that schedule . . . and that they . . . talked to her about other positions.”
Branchaud Dep. at 65. After Daniels was terminated, Alexandra Swarr was
hired to fill the position, working one night each week and three Saturdays a
month. Rappa Dep. at 131; Taylor Dep. at 72. Within the year, the training
coordinator position at Walmart was eliminated. Rappa Dep. at 78.
28

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party’s favor.” Petsch-Schmid v. Bos. Edison Co., 914 F. Supp. 697, 702 (D.
Mass. 1996), citing NASCO, Inc. v. Pub. Storage, Inc., 29 F.3d 28, 32 (1st Cir.
1994). A court evaluating a motion for summary judgment “must look at the
record in the light most favorable to the party opposing the motion and must
indulge all inferences favorable to that party.” Stepanischen v. Merchs.
Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir. 1983).

Summary

judgment is appropriate when a party “fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
Violations of the FMLA - COUNTS I and II
In these counts, Daniels asserts that Walmart interfered with her right
to take FMLA leave (and then retaliated against her when she did) by
“complaining about her use of leave, discouraging her from taking leave,
issuing her unwarranted discipline and removing her from her position.”
Compl. ¶¶ 79, 85.

The FMLA establishes two distinct sets of rights:

“prescriptive” rights creating substantive entitlements and “proscriptive”
rights providing protection for their exercise. Colburn v. Parker Hannifin,
429 F.3d 325, 330 (1st Cir. 2005). Prohibited acts are set out at 29 U.S.C. §
2615. They include both acts of “interference” and acts of “discrimination”
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(which at times overlap). Colburn, 429 F.3d at 330. And while the FMLA
“makes no reference to ‘retaliation,’ [the First Circuit] has recognized such a
cause of action in the statute and specifically the interpretive regulation.” Id.,
citing 29 C.F.R. § 825.220(c).
With respect to an interference with substantive rights claim, Daniels
need show only an entitlement to leave; no showing of the employer’s intent
is required. Id. at 331-332. However, to establish entitlement, she must
demonstrate by a preponderance of the evidence that: (1) she was an “eligible
employee” under the FMLA; (2) that Walmart is a “covered employer”; (3)
that she gave adequate notice of her request for the protected leave; and (4)
the leave was necessitated by reasons covered by the Act. See Furtado v.
Standard Parking Corp., 820 F. Supp. 2d 261, 280 (D. Mass. 2011), citing
Goelzer v. Sheboygan Cnty., Wis., 604 F.3d 987, 993 (7th Cir. 2010).
Walmart asserts that Daniels fails to meet these requirements because
she made no request for FMLA leave prior to the expiration of the limitations
period. 29 A Walmart associate is required to submit an FMLA request

As a rule, a cause of action arising from an alleged violation of the
FMLA must be brought within a two-year statute of limitation, which runs
from “the last event constituting the alleged violation for which the action is
brought.” 29 U.S.C. § 2617(c)(1). When there is an alleged willful violation,
“the FMLA limitations period is increased from two years to three.”
Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 33 (1st Cir. 2003), citing 29
U.S.C. § 2617(c)(2).
29

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through Walmart’s third-party administrator Sedgwick. It is undisputed that
Daniels had previously applied for and had been granted two FMLA leaves
by Sedgwick. Daniels admits that she did not request FMLA leave after 2015
and further admits that, at the time, she did not believe that her time-off
request to accompany her mother to Florida in 2018 was for an FMLAcovered purpose.

Daniels thus has no actionable claim that Walmart

interfered with her FMLA rights.

See Carrero-Ojeda v. Autoridad de

Energia Electrica, 755 F.3d 711, 722-723 (1st Cir. 2014) (“[T]he FMLA does
not protect an employee from discharge for any reason while she is on leave—
rather, as we discussed in the retaliation context, it protects her only from
discharge because she requests or takes FMLA leave.”).
To make out a prima facie FMLA discrimination claim, Daniels must
show that (1) she availed herself of a protected right under the FMLA; (2) she
was adversely affected by an employment decision; and (3) there is a causal
connection between the employee’s protected activity and the employer’s
adverse employment action. Hodgens v. Gen. Dynamics Corp., 144 F.3d 151,
161 (1st Cir. 1998). As Daniels never applied for FMLA leave in 2018, and the
reason she requested vacation was admittedly not FMLA-covered, she did
not avail herself of a protected right under the FMLA, and it follows that
there can be no retaliation claim. See Ameen v. Amphenol Printed Circuits,
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Inc., 777 F.3d 63, 70 (1st Cir. 2015) (no retaliation claim where employer was
not aware of a request for FMLA leave); Morris v. Family Dollar Stores of
Ohio, Inc., 320 Fed. App’x 330, 338 (6th Cir. 2009) (no retaliation claim
where there was no FMLA qualifying reason for taking the time off).
Handicap Discrimination - Counts III and IV under the ADA;
Counts VIII and IX under Mass. Gen. Laws ch. 151B, § 4(16) and §
4(4) 30
Daniels asserts that Walmart knew that she was disabled, refused her
an accommodation (not working nights or weekends), and then retaliated
against her by “trying to force her to change her schedule, issuing her
unwarranted discipline,” and then terminating her. Compl. ¶ 101. Under the
ADA, an employer is compelled to make reasonable accommodations for
known physical or mental limitations of an otherwise qualified individual
who is an applicant or employee, unless the employer can demonstrate that
the accommodation would impose an undue hardship.
12112(b)(5)(A).

42 U.S.C. §

Walmart does not dispute (for present purposes) that

Daniels is disabled. Daniels nonetheless bears the burden of showing: (1)

Because the parties do not suggest that the federal and state law
claims should be treated differently in any material respect, and because it is
the practice of the Massachusetts Supreme Judicial Court “to apply Federal
case law construing the Federal anti-discrimination statutes in interpreting
G.L. ch. 151B,” Ponte v. Steelcase Inc., 741 F.3d 310, 319 n.9 (1st Cir. 2014),
quoting Wheatley v. Am. Tel. & Tel. Co., 418 Mass. 394, 397 (1994), the court
will analyze the state and federal claims together.
30

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that her requested accommodation was reasonable (even at the summary
judgment stage, see Echevarria v. AstraZeneca Pharm. LP, 856 F.3d 119,
128 (1st Cir. 2017)); (2) “that she possesses the requisite skill, experience,
education and other job-related requirements for [her] position”; and (3)
“that she is able to perform the essential functions of the position with or
without reasonable accommodation.” Mulloy v. Acushnet Co., 460 F.3d 141,
147 (1st Cir. 2006). “To satisfy that burden, ‘a plaintiff needs to show not
only that (1) the proposed accommodation would enable her to perform the
essential functions of her job, but also that, (2) at least on the face of things,
it is feasible for the employer under the circumstances.’” Id. at 127, citing
Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001) (additional
citations omitted).
With regard to notice, Daniels argues both sides of the coin: first, that
all of her managers knew that she required an accommodation regarding her
schedule so that a formal accommodation request would have been
redundant; and second, that an application would have been futile because
Grayko told her that the redefinition of the training coordinator position had
“set in stone” the requirement that she work an evening and weekend shift.
“For an employee’s actions to constitute a request for accommodation, they
must make the employer aware that the employee is entitled to and needs
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accommodation.” Miceli v. JetBlue Airways Corp., 914 F.3d 73, 82 (1st Cir.
2019), quoting Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632, 649
n.21 (2004).

Companies the size of Walmart are permitted to require

“specific avenues for relaying requests for accommodations,” a protection for
both the employee and the employer. See Miceli, 914 F.3d at 82-83. A
company may also insist that its procedure be followed. See Vitti v. Macy’s
Inc., 758 Fed. App’x 153, 157-158 (2d Cir. 2018) (plaintiff failed to establish
a denial of a reasonable accommodation because she never completed Macy’s
requisite paperwork requesting one).
Daniels did complete the proper documentation requesting two weeks
of FMLA leave in January of 2015 to recover from her cancer surgery, as well
as a second application for an “intermittent leave of absence” to undergo
radiation treatments from February 10 to March 18, 2015. Compl. ¶¶ 25-26.
Walmart (Sedgwick) granted the FMLA leave requests, but Daniels never
applied for an ADA accommodation regarding her work schedule. Daniels
argues that Grayko and Rappa knew that she experienced fatigue from
cancer treatment and that Grayko had witnessed her experiencing a panic
attack (which Grayko reported to Rappa and Taylor). 31 But Daniels also

Daniels alleges that she informed her supervisors that she could not
work nights or weekends and needed two consecutive days off as an
“accommodation for her cancer symptoms and treatments.” Compl. ¶ 33.
31

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knew (by virtue of her role as a training coordinator and as a result of her
own employee training) that her immediate managers did not have the
authority to approve an accommodation and that only a formal request with
supporting medical documentation submitted to the ASC could achieve that
result.
Daniels also fails to offer evidence that she can perform the job of
training coordinator with the accommodation she sought – that is, a 7:00
a.m. to 4:00 p.m., no weekends, work schedule. Walmart and Taylor provide
ample evidence that an essential element of the revised training coordinator
position was to work an evening and weekend shift to train employees who
only worked those shifts. See Sepúlveda-Vargas v. Caribbean Rests., LLC,
888 F.3d 549, 553 (1st Cir. 2018) (working prescribed shifts was an essential

When she made this disclosure is a matter of dispute. Both Grayko (who
began working at Bellingham in April of 2016) and Rappa testified that they
were unaware that Daniels was undergoing cancer treatment until January
of 2018, when Daniels told Grayko in a meeting in that she was unable to
work the new training coordinator schedule because she was “tired from the
medication . . . that she was still taking medication for [cancer].” Grayko
Dep. at 210-211 (“I wasn’t aware until then that there was even a cancer issue
going on.”). Grayko testified that she told Rappa and “he was flabbergasted
because he had no idea that it was a current thing; he only knew about it in
the past.” Id. at 213. The dispute, however, is not material as neither Grayko
nor Rappa had the authority to grant Daniels FMLA leave or a job
accommodation.
.
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function of the job); Laurin v. Providence Hosp., 150 F.3d 52, 59 (1st Cir.
1998) (working night shifts held to be an essential function). Taylor testified
that all training coordinators without exception were required to work
evening and weekend hours. 32 While Daniels asserts that Branchaud (a
personnel coordinator) was not required to work a night and weekend shift
and that Walmart accommodated Casey Flynn (a department manager) by
giving her work a schedule compatible with her childcare responsibilities,
neither Branchaud nor Flynn was a training coordinator with job
responsibilities comparable to Daniels.
Even if Daniels could show that she had requested a reasonable
accommodation, once Grayko learned about Daniels’s ongoing cancer
treatment, she suggested that she transfer to a department manager’s
position where she could largely keep her desired hours and where there
would be less interaction with associates (even alerting her to an opening in
intimate apparel). See EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127, 132
(1st Cir. 2014) (“The interactive process involves an informal dialogue
between the employee and the employer in which the two parties discuss the
issues affecting the employee and potential reasonable accommodations that

32 Swarr, the employee hired to

fill Daniels’s position, worked one night
each week and three Saturdays a month. Rappa Dep. at 131; Taylor Dep. at
72.
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might address those issues.”). Despite Grayko’s suggestion, Daniels never
formally applied for a department manager position prior to her termination.
Cf. Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 91 (1st Cir. 2012)
(affirming summary judgment on an accommodation claim because “the
employer did raise the possibility of offering [employee] a transfer to another
open position, but [employee] declined to pursue that option”).
Daniels asserts that Walmart’s change in her work schedule, the
disciplinary coachings, and her termination were all taken in retaliation for
her requesting ADA accommodation. To establish a prima facie case of
retaliation, a plaintiff must “show that (1) she undertook protected conduct;
(2) she suffered an adverse employment action; and (3) the two were causally
linked.” Cherkaoui v. City of Quincy, 877 F.3d 14, 28 (1st Cir. 2017), quoting
Noviello v. City of Bos., 398 F.3d 76, 88, (1st Cir. 2005). Because Daniels
never did request an accommodation, the retaliation claim falls under its
own weight. An employer can hardly retaliate for something that never
occurred. Because Daniels did not engage in protected conduct, she cannot
establish a prima facie case of retaliation.
Assuming for the sake of argument, as Walmart apparently does, that
a prima facie case could be shown, under the familiar burden-shifting
formula, Walmart is required to come forward with evidence to “rebut the
29

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presumption created by the prima facie case by articulating a legitimate,
nondiscriminatory reason for its [employment] decision.” Id. If Walmart
proffers a legitimate, nondiscriminatory reason for its action, “the burden of
production shifts back to the plaintiff employee, requiring the employee to
provide evidence that ‘the employer’s articulated justification [for the
termination] is not true but a pretext.’” Bulwer v. Mount Auburn Hosp., 473
Mass. 672, 681 (2016) (footnote omitted), quoting Blare, 419 Mass. at 443.
“In other words, a plaintiff must show that the adverse action would not have
occurred in the absence of the protected activity.” Soni v. Wespiser, 404 F.
Supp. 3d 323, 332 (D. Mass. 2019). In addition, “[t]o defeat summary
judgment in a retaliation case, ‘a plaintiff must point to some evidence of
retaliation by a pertinent decisionmaker.’” Sánchez-Rodríguez v. AT&T
Mobility P.R., Inc., 673 F.3d 1, 15 (1st Cir. 2012), quoting Randlett v. Shalala,
118 F.3d 857, 862 (1st Cir. 1997).
In its justification of Daniels’s termination, Walmart points to the
following. When Walmart associate Vieira approached assistant manager
Danielle Croteau on March 2, 2018, and complained about Daniels’s
behavior in the break room, Daniels had accumulated three instances of
formalized discipline (Coachings) in the prior 13 months. Croteau directed
Vieira to provide a written statement – three other associates provided
30

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corroborating statements reporting that Daniels had been “extremely rude”,
“angry,” and “not professional.” See supra n.26. Vieira wrote that she felt
“exposed and quite humiliated.” Id.

Under Walmart’s established and

consistent personnel policy, the next progressive disciplinary step was
termination. 33 Rappa testified that “based on [Daniels’s] history and her
coachings and . . . the way things played out in the end . . . there really was
no other option. She had kind of exhausted the coaching process.” Rappa
Dep. at 69.
As evidence that Walmart’s justification for her termination was a
pretext for discrimination, Daniels counters that the break room incident did
not occur as the four associates reported (that they “were friends . . . and
possibly biased”).

Pl.’s Counterstatement of Undisputed Material Facts

(CUMF) at 31 [Dkt #33]. She complains that neither Croteau, in reporting
the incident to Rappa, nor Rappa, after reviewing the associates’ statements,
asked her for her version of the events. Instead Rappa allegedly directed
Grayko to draft the termination forms. But Daniels must do more than
“merely to impugn the veracity of [Walmart’s] justification.” Ray v. Ropes &

Branchaud was asked, “Did you ever see any exceptions being made
to the rule that, you know, there’s three coachings and then termination?”
She responded, “No, that’s how the system worked.” Branchaud Dep. at 54.
33

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Gray LLP, 799 F.3d 99, 113 (1st Cir. 2015), quoting Azimi v. Jordan’s Meats,
Inc., 456 F.3d 228, 246 (1st Cir. 2006). “[T]he employer’s desire to retaliate
against the employee must be shown to be a determinative factor in its
decision to take adverse action.” Psy-Ed Corp. v. Klein, 459 Mass. 697, 707
(2011). The associates’ complaints were consistent with Daniels’s reputation
at the Bellingham store, 34 her prior behavior towards other associates, and
her prior disciplinary record. Nothing in the law required Walmart to reject
the associates’ statements and choose Daniels’s version of the events over
theirs. See Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62, 70 (1st Cir.
2008) (“[I]t is the decisionmaker’s reasonable belief that guides the inquiry,
not whether the employee was or was not guilty of the suspected
misconduct.”); Bennett v. St. Gobain Corp., 507 F.3d 23, 31-32 (1st Cir.
2008) (same); Dorman v. Norton Co., 64 Mass. App. Ct. 1, 9 (2005)
(“[T]here is no evidence here that the defendants discharged the plaintiff on
the basis of a report that they knew to be false.”). 35

There is ample evidence of Daniels’s discourteous and at times
intemperate work behavior. See Grayko Dep. at 115-116, 140-145, 151-153,
176-177; Rappa Dep. at 68-69; see also Branchaud Dep. at 72-77 (“Jessenia
complained . . . Laura, Casey, Tanya, Karen . . . Deb Richards . . . there were
other associates and department managers as well. . . . There’s quite a few.”);
Viera Dep. at 40-42. Grayko and Rappa each had informally spoken to
Daniels regarding her “behavioral-type issues.” Defs.’ SUMF ¶ 38.
34

35

“[C]ourts, in employment discrimination cases, may not act as ‘super
32

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Age Discrimination - Counts V and VI - under the ADEA; Count VII
and IX - under Mass. Gen. Laws ch. 151B, § 4(1B) and § 4(4)
In Counts V and VI, Daniels asserts that Walmart treated her
differently than other similarly situated employees and then retaliated
against her because of her age (58). 36 Similar to her ADA retaliation claims,
Daniels asserts that the retaliation came in the form of “changing her
schedule, harassing her, issuing her unwarranted discipline and terminating
her employment.” Compl. ¶ 121. In a wrongful termination case under the
ADEA, the plaintiff must establish “that h[er] years were the determinative
factor in h[er] discharge, that is, that [s]he would not have been fired but for
h[er] age.” Greenberg v. Union Camp Corp., 48 F.3d 22, 26 (1st Cir. 1995);

personnel departments,’ substituting their judicial judgments for the
business judgments of employers.” Bennett, 507 F.3d at 32; see Sullivan v.
Liberty Mut. Ins. Co., 444 Mass. 34, 57 (2005) (same). “In the absence of any
evidence that an employer’s decision was pretextual or motivated by
discriminatory intent, a court has no right to supersede that decision.”
Bennett, 507 F.3d at 32.
Daniels filed her charge of discrimination “on or about November 1,
2018,” see Compl. ¶ 11, therefore the limitations period for her
discrimination claims is 300 days previous, that is, January 5, 2018. See
Kuznarowis v. Tobey Hosp., 320 F. Supp. 3d 307, 311 (D. Mass. 2018).
Similar incidents may be considered as “background evidence” if the prior
actions are of “the same type of discriminatory act or practice [that] has been
timely challenged.” Rathbun v. Autozone, Inc., 361 F.3d 62, 76 (1st Cir.
2004) (emphasis added), citing United Air Lines, Inc. v. Evans, 431 U.S. 553,
558 (1977).
36

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see also Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
Under the McDonnell Douglas framework, which has been adapted for
analyzing cases under the ADEA, a plaintiff must establish a prima facie case
by showing that (1) she was over 40 years of age, (2) she suffered an adverse
job action, (3) her job responsibilities were assumed by another person,
demonstrating the employer’s continuing need for an individual of the
plaintiff’s skills, and (4) she was qualified for the position that she held and
was performing well enough to rule out the possibility that the adverse job
action was for inadequate job performance.

Keisling v. Ser-Jobs for

Progress, Inc., 19 F.3d 755, 760 (1st Cir. 1994).
Again, for purposes of this motion, Walmart does not contest that
Daniels could establish a prima facie case of discrimination. Nonetheless,
“to avoid summary judgment [Daniels] must raise a genuine issue of material
fact that . . . (1) [Walmart’s] articulated reasons for its adverse actions were
pretextual, and (2) the real reason for the employer’s actions was
discriminatory animus.” Ropes & Gray, 799 F.3d at 113; see also Sullivan,
444 Mass. at 54-55 (plaintiff’s burden “to establish that the basis of
[employer’s] decision was unlawful discrimination by adducing evidence
that the reasons given by [employer] for its actions were mere pretexts to
hide such discrimination”). Taylor, it should be noted, was older than
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Daniels when the decision was made to terminate her. See Fairchild v.
Forma Sci., Inc., 147 F.3d 567, 572 (7th Cir. 1998) (“[T]hat the decision
maker is older than the terminated employee is certainly significant in
evaluating the evidence of discrimination.”). While the woman hired to take
Daniels’s place was younger, she was required to work evening and weekend
shifts as an essential component of the job. There is no doubt that Walmart’s
stated reasons for Daniels’s termination, that is, her disciplinary record and
her refusal to work the changes in schedule, satisfy Walmart’s relatively light
burden at the second McDonnell Douglas step.
As a result, Daniels must demonstrate that her age was the true reason
for the adverse job actions (a schedule change and termination). Daniels
claims that “Judy Grayko and Elizabeth, Assistant Manager stated in front of
her that Walmart tries to get rid of older people.” Pl.’s CUMF ¶ 98. But see
Fontaine v. Ebtec Corp., 415 Mass. 309, 314 n.7 (1993) (“[I]solated or
ambiguous remarks, tending to suggest animus based on age, are
insufficient, standing alone, to prove an employer’s discriminatory intent.”);
Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 450 (1996)
(same). Daniels also points to Walmart’s subsequent discharge of Rappa at
age 50 and its failure to hire Branchaud for its People Lead position, choosing
instead a woman in her twenties (both events occurred after the filing of
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Daniels’s Complaint). Rappa, however, testified that Walmart terminated
him because of his inability to staff the store “and as a result, operations
suffered. So that became [his] fault.” Rappa Dep. at 33. Branchaud testified
that Rappa told her that “they wanted somebody that Walmart could train
[into] Walmart. You have to work for Walmart to understand that. They
wanted somebody, an outsider, with no preconceived notions or ideas . . . .”
Branchaud Dep. at 41. Daniels finally cites Taylor’s testimony that she was
aware of three age discrimination claims filed with the MCAD against
Walmart during her ten years in HR (Taylor was typically the HR manager
for 11, but at times as many as 31 stores). Taylor Dep. at 14, 44-46; see
Goldstein v. Brigham & Women’s Faulkner Hosp., Inc., 80 F. Supp. 3d 317,
330 (D. Mass. 2015), quoting Conward v. Cambridge Sch. Comm., 171 F.3d
12, 20 (1st Cir. 1999) (“Where the plaintiff bears the burden of presenting
similarly situated employees as comparators, and where the defendant has
challenged that comparison with credible facts, the plaintiff must
demonstrate that ‘plaintiff’s case and the comparison cases . . . closely
resemble one another in relevant facts and circumstances.’”); see also
Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 131 n.6 (1997),
quoting Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994) (“The
plaintiff does not carry [her] burden of demonstrating pretext on a motion
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for summary judgment where [she] provides merely ‘sketchy evidence
lacking a sufficient foundation for a legally relevant comparison’ of allegedly
similarly situated employees.”). Here, Daniels offers no evidence that would
permit any comparative analysis between these asserted instances of age
discrimination and her termination. In sum, “[t]he employer’s reasons need
not be wise, so long as they are not discriminatory, and they are not a
pretext.” Espinal v. Nat’l Grid NE Holdings 2, LLC, 794 F. Supp. 2d 285,
292 (D. Mass. 2011), aff’d, 693 F.3d 31 (1st Cir. 2012), quoting Tardanico v.
Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996). At bottom, there
is no material evidence to support Daniels’s age-discrimination claim.
Coercion, Intimidation, Interference and Threats - COUNT X v.
Taylor - Violation of Mass. Gen. Laws ch. 151B, § 4(4A)
The Massachusetts Civil Rights Act (MCRA) reaches private conduct
and authorizes a private civil action against any person or persons, whether
or not acting under color of law, engaged in the violation of another’s rights
by means of threats, intimidation, or coercion. See Nolan v. CN8, 656 F.3d
71, 76 (1st Cir. 2011). Under Mass. Gen. Laws ch. 151B, § 4(4A), it is unlawful
“for any person to coerce, intimidate, threaten or interfere with another
person in the exercise or enjoyment of any right granted or protected by
[chapter 151B].” “Among the rights protected by Gen. Laws ch. 151B is the

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right to be free from discrimination in the terms, conditions, and privileges
of employment.” Lopez v. Com., 463 Mass. 696, 707 (2012).
Taylor maintains, and the court agrees, that “[t]here is no underlying
independent actionable right created by the Massachusetts Civil Rights Act”
because no facts are alleged that would satisfy the necessary element of
“threats, intimidation or coercion.” Therefore, a claim against Taylor cannot
lie. See Mouradian v. Gen. Elec. Co., 23 Mass. App. Ct. 538, 543 (1987).
COUNT XI – Violation of Mass. Gen. Laws ch. 151B, § 4(5) Aiding
and Abetting v. Taylor
Daniels claims that Taylor “aided, abetted, incited, compelled or
coerced the doing of acts forbidden under M.G.L. c. 151B.” Compl. ¶ 158.
Likewise, aiding and abetting requires the individual defendant committed
“(1) a wholly individual and distinct wrong . . . . separate and distinct from
the claim in main”; (2) that she “shared an intent to discriminate not unlike
that of the alleged principal offender”; and (3) that she “knew of his or her
supporting role in an enterprise designed to deprive [Plaintiff] of a right
guaranteed him or her under G.L. c. 151B.” Lopez, 463 Mass. at 713. An
aiding and abetting claim under § 4(5) is “entirely derivative” of an
underlying discrimination claim. Id. As the court has found no evidence to
support Daniels’s federal and state claims of discrimination or violation of
the FMLA, a claim for aiding and abetting also fails.
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ORDER
For the foregoing reasons, defendants’ motion for summary judgment
is ALLOWED. The Clerk will enter judgment for defendants on all counts
and close the case.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE

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