Boumekpor v. Walmart

Filing 61

Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER on Defendant's 54 MOTION for Summary Judgment. For the above-stated reasons, Defendant's motion for summary judgment (Dkt. No. 54 ) is GRANTED. See attached Memo & Order for complete details. (Rivera, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DONNE K. BOUMEKPOR,
Plaintiff,

v.

WAL-MART STORES EAST, LP,
Defendant.

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Civil No. 3:18-CV-30093-KAR

MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(Dkt No. 54)

ROBERTSON, U.S.M.J.
Donne K. Boumekpor (“Plaintiff”) brings this action pro se against Wal-Mart Stores
East, LP (“Defendant”) alleging race discrimination and worker’s compensation retaliation.1
Presently before the court is Defendant’s motion for summary judgment (Dkt. No. 54). The
parties have consented to this court’s jurisdiction. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73
(Dkt. No. 10). For the following reasons, Defendant’s motion for summary judgment is
GRANTED.
I.

STANDARD OF REVIEW
Summary judgment is appropriate if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “An issue is ‘genuine’ when a rational factfinder could resolve it either direction.” Mu v.
Omni Hotels Mgmt. Corp., 882 F.3d 1, 5 (1st Cir.), rev. denied, 885 F.3d 52 (1st Cir. 2018)

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Plaintiff also brought a claim for disability discrimination, but this court previously dismissed it
for failure to exhaust administrative remedies (Dkt. No. 22).
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(citing Borges ex rel. S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 4 (1st Cir. 2010)). “A fact is
‘material’ when its (non)existence could change a case's outcome. Id. (citing Borges, 605 F.3d at
5). The record is viewed in favor of the nonmoving party, and reasonable inferences are drawn
in the nonmoving party’s favor. See Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d 411,
417 (1st Cir. 2017) (citing Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 68 (1st Cir.
2015)).
Local Rule 56.1 requires a moving party to “include a concise statement of the material
facts of record as to which the moving party contends there is no genuine issue to be tried” with
citations to the record. L.R. 56.1. In response, the non-moving party must set out his own
statement with citations to the record showing that “there exists a genuine issue to be tried.” Id.
Unless the non-moving party’s statement controverts the moving party’s statement, the moving
party’s facts are “admitted by [the] opposing part[y].” Id. See also Aegis Sec. Ins. Co. v. M.E.
Smith, Inc., 404 F. Supp. 3d 352, 353 (D. Mass. 2019) (citing Fid. & Guar. Ins. Co. v. Boustris,
Civil Action No. 08–cv–11198–RGS, 2010 WL 4183879, at *3 (D. Mass. 2010) (deeming the
movant’s Local Rule 56.1 statement admitted where the opposing party failed to controvert it as
required by the rule). This is true even where the non-moving party is proceeding pro se. Torres
v. Skil Corp., No. CIV.A. 11-11232-MBB, 2013 WL 3105815, at *2 (D. Mass. June 17, 2013)
(applying the rule in a case brought by a pro se plaintiff).
II.

FACTUAL BACKGROUND
Because Plaintiff failed to submit a separate statement of disputed facts pursuant to Local

Rule 56.1, the court deems Defendant’s Local Rule 56.1 statement admitted, and the following
facts are derived therefrom.

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On October 23, 2004, Defendant hired Plaintiff as a stock person at Store No. 5278 in
Chicopee, Massachusetts (Dkt. No. 56 at ¶ 1). Three years later, Plaintiff became an Overnight
Maintenance Associate (Dkt. No. 56 at ¶ 2). On October 5, 2013, Plaintiff was injured in an
automobile accident while traveling from the Chicopee store to another Walmart store located in
Northampton, Massachusetts (Dkt. No. 56 at ¶¶ 3-4). Following the accident, Plaintiff took a
worker’s compensation leave of absence until December 2013 (Dkt. No. 56 at ¶ 4). Plaintiff
pursued legal action against the other driver in the accident, which was resolved by arbitration in
July 2015 (Dkt. No. 56 at ¶ 5). On January 25, 2016, Plaintiff approached Store Manger Katrina
Ward asking whether Walmart would further compensate him for the accident (Dkt. No. 56 at ¶
6). Ward responded to Plaintiff on February 16, 2016, telling him “that Walmart had nothing to
do with the accident and they would not get involved in any way” (Dkt. No. 56 at ¶ 6).
During the summer of 2016, Plaintiff was asked to clean the bathroom two nights in a
row (Dkt. No. 56 at ¶ 9). When Plaintiff asked Co-Manager Mike Nichols why he got this
assignment, Nichols explained to him that the team was short-handed – normally four to six
Maintenance Associates were scheduled to work, but during that shift there were only three –
and the Maintenance Associates had to make it through that shift as best they could (Dkt. No. 56
at ¶¶ 9-11).
In August and September 2016, Asset Protection Associate Hector Viruet became
suspicious that Plaintiff was stealing (Dkt. No. 56 at ¶ 16). On several occasions, Viruet
observed Plaintiff enter the Electronics Department to shop following his shift, select compact
discs (“CDs”), and place them in the child seat of his grocery cart (Dkt. No. 56 at ¶¶ 13, 15).
Plaintiff would then enter an area where cameras were not present and later emerge without the
CDs (Dkt. No. 56 at ¶¶ 14-15). Pursuant to Walmart practice, Viruet reported the suspicious

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conduct to Asset Protection Manager Sara Bernat (Dkt. No. 56 at ¶ 17). Bernat, also pursuant to
Walmart practice, asked Viruet to watch Plaintiff on September 4, 2016 using the store’s
pan/tilt/zoom (“PTZ”) cameras, which allow users to adjust the camera view in real time (Dkt.
No. 56 at ¶ 18).
On September 4, 2016, Plaintiff went shopping in the Chicopee Store, and Viruet directed
a PTZ camera on him while he was shopping in one of the grocery aisles (Dkt. No. 56 at ¶¶ 1920). Viruet observed Plaintiff remove two cans of meat (or a similar product) off the shelf and
place them in the child seat of a shopping cart on top of what appeared to be a stack of white
papers (Dkt. No. 56 at ¶ 21-22, 25, 27). Thereafter, Viruet observed Plaintiff place the cans into
a backpack located immediately below the child seat (Dkt. No. 56 at ¶¶ 28, 32, 37). When
Plaintiff went to check out, he placed a bag of oranges and a bottle of juice on the checkout
counter, for which he proceeded to pay (Dkt. No. 56 at ¶¶ 43-44). Plaintiff did not remove
anything from the backpack, and he exited the store without paying for the two cans of meat
(Dkt. No. 56 at ¶¶ 45-46). Bernat reviewed the video footage of Plaintiff that Viruet captured
and concluded that Plaintiff had stolen from the store (Dkt. No. 56 at ¶ 47).
Two days later, on September 6, 2016, Bernat interviewed Plaintiff, who denied ever
taking merchandise without paying for it (Dkt. No. 56 at ¶¶ 48-50). Regarding September 4,
2016 in particular, Plaintiff claimed that he had returned the canned meat to the shelf (Dkt. No.
56 at ¶ 52). Bernat suspended Plaintiff pending the results of an investigation in accordance with
instruction from Asset Protection Manager Mike Geloso (Dkt. No. 56 at ¶¶ 54-55). Bernat
consulted Geloso regarding the findings of the investigation, and the decision was made to
terminate Plaintiff’s employment (Dkt. No. 56 at ¶ 56). Neither Ward nor Nichols was involved
in the decision to terminate Plaintiff (Dkt. No. 56 at ¶ 62). On September 17, 2016, Bernat filed

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a police report and sent a certified letter to Plaintiff notifying him of his termination effective
September 19, 2016 (Dkt. No. 56 at ¶¶ 58, 60). Bernat was unaware that Plaintiff had previously
filed a workers’ compensation claim (Dkt. No. 56 at ¶ 59).
Between March 2012 and August 2018, the employment of sixteen Associates working at
the store at which Plaintiff worked was terminated for theft in some form (Dkt. No. 56 at ¶ 63).
Of those sixteen, five were Caucasian, five Black, and six Hispanic (Dkt. No. 56 at ¶ 64). Within
this group, the employment of three Associates other than Plaintiff, all of whom were Caucasian,
was terminated for stealing food (Dkt. No. 56 at ¶¶ 65-66).
III.

DISCUSSION
A. Race Discrimination
Plaintiff claims that Defendant terminated his employment because of his race, which is

unlawful under Title VII. See 42 U.S.C.A. § 2000e-2 (providing that an employer may not
“discharge any individual . . . because of such individual’s race”). Because Plaintiff has no
direct evidence of discrimination, the court applies the three-step framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973), to Plaintiff’s claim. Ray v.
Ropes & Gray LLP, 799 F.3d 99, 113 (1st Cir. 2015) (citing Udo v. Tomes, 54 F.3d 9, 12 (1st
Cir.1995)). Under that framework, a plaintiff first must establish a prima facie case by showing
that: “‘(1) he is a member of a protected class; (2) he was qualified for the job; (3) the employer
took an adverse employment action against him; and (4) the position remained open or was filled
by a person with similar qualifications.’” Id. (quoting Cham v. Station Operators, Inc., 685 F.3d
87, 93 (1st Cir. 2012)). If the plaintiff makes this initial showing, the court moves to the second
step at which the burden of production shifts to the defendant to establish “a legitimate,
nondiscriminatory justification for the adverse employment action.” Id. (citing Cham, 685 F.3d

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at 94). If the defendant meets its burden of production, the court moves to the third and final
step where “‘the McDonnell Douglas framework “disappears” and the sole remaining issue is
“discrimination vel non.”’” Id. (quoting Cham, 685 F.3d at 94). “At step three, to avoid
summary judgment, [a plaintiff] must ‘show by a preponderance of the evidence that [the
defendant’s] proffered reason is pretextual and that the actual reason for the adverse employment
action is discriminatory.’” Theidon v. Harvard Univ., 948 F.3d 477, 496 (1st Cir. 2020) (quoting
Johnson v. Univ. of P.R., 714 F.3d 48, 54 (1st Cir. 2013). In other words, “[the plaintiff] ‘must
offer “some minimally sufficient evidence, direct or indirect, both of pretext and of [the
defendant’s] discriminatory animus.”’” Id. at 497 (quoting Pearson v. Mass. Bay Transp. Auth.,
723 F.3d 36, 40 (1st Cir. 2013) (emphasis in original)).
Defendant does not contest that Plaintiff can establish his prima facie case for purposes of
its motion for summary judgment. Defendant advances Plaintiff’s theft of two cans of meat from
the Chicopee store on September 4, 2016 as the legitimate, non-discriminatory justification for
the termination of Plaintiff’s employment, and, thus, has met its burden at step two. See, e.g.,
Trent v. ADT Sec. Servs., Inc., No. CIV.A. 11-11912-RGS, 2013 WL 4512052, at *4 (D. Mass.
Aug. 22, 2013) (finding that theft by the plaintiff qualifies as a legitimate non-discriminatory
reason for the termination of plaintiff’s employment). Therefore, the burden shifts back to
Plaintiff to show both that Defendant’s articulated reason is pretextual and that discrimination
was the real reason for the termination of his employment.
“‘Pretext can be shown by such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.’” Gomez-Gonzalez v. Rural

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Opportunities, Inc., 626 F.3d 654, 662–63 (1st Cir. 2010) (quoting Morgan v. Hilti, Inc., 108
F.3d 1319, 1323 (10th Cir.1997)). “[I]n assessing pretext, a court’s focus must be on the
perception of the decisionmaker, that is, whether the employer believed its stated reason to be
credible.” Theidon, 948 F.3d at 497 (quoting Vélez v. Thermo King de P.R., Inc., 585 F.3d 441,
452 (1st Cir. 2009)). Plaintiff has not proffered any evidence to cast doubt on Defendant’s stated
belief that Plaintiff stole two cans of meat from the Chicopee store.2 Plaintiff advances two
reasons for finding that his theft of the canned meat was a pretext for discrimination. First,
Plaintiff points to Defendant’s Asset Protection Case Record, which lists the items stolen as two
“PR W&W ICON PENCIL[s],” rather than two cans of meat. The court is not convinced that
this discrepancy establishes pretext. As an initial matter, the narrative section of the same
document describes Plaintiff being captured on PTZ selecting and concealing two cans of SPAM
meat, not two pencils. In addition, Bernat explained in her affidavit that the identification of the
two pencils as the stolen items represented an error in the preparation of the report. Second,
Plaintiff complains that Defendant made no attempt to apprehend him in the act and only
interviewed him two days later, on September 6, 2016. However, Plaintiff did not work again
until September 6, 2016, so the fact that Defendant waited two days to interview him does not
support an inference of pretext. Because Plaintiff did not present any countervailing evidence,
but rather, relies on unsupported speculation, he has not raised a genuine issue of material fact
with respect to pretext. See id. at 496 (“‘Nevertheless, “[e]ven in cases where elusive concepts
such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving

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Plaintiff complains that he was never shown the video evidence, but he has not put forth any
evidence that it was false. Defendant submitted the video evidence in support of its summary
judgment motion and the court has viewed it. The video evidence does not appear contrived.
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party rests merely upon conclusory allegations, improbable inferences, and unsupported
speculation.”’”) (quoting Coll v. PB Diagnostic Sys., Inc., 50 F.3d 1115, 1121 (1st Cir. 1995)).
In addition, Plaintiff fails to create a genuine issue of material fact that the real reason for
the termination of his employment was discriminatory. “The same evidence used to show
pretext can support a finding of discriminatory animus if it enables a factfinder ‘reasonably
to infer that unlawful discrimination was a determinative factor in the adverse employment
action.’” Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 6 (1st
Cir. 2000) (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 56 (1st Cir.1999), cert. denied,
528 U.S. 1161 (2000)). Plaintiff’s arguments regarding the identification of the items stolen as
two pencils in the Asset Protection Case Record and the delay in interviewing him fail to create a
genuine issue of material fact regarding discrimination for the same reason they fail to create
such an issue as to pretext.
Another way for a plaintiff to demonstrate discriminatory animus is to show that “‘others
similarly situated to him in all relevant respects were treated differently by the employer.’” Ray,
799 F.3d at 114 (quoting Kosereis v. R. I., 331 F.3d 207, 214 (1st Cir.2003)). Plaintiff argues
that he was treated differently in that he was asked to clean bathrooms by Co-Manager Mike
Nichols two days in a row. However, as Nichols explained to Plaintiff, the team was shorthanded, and the Maintenance Associates had to make it through the shift as best they could.
Plaintiff has not introduced any evidence that his race played any role in Nichols’ treatment of
him. Moreover, Plaintiff has not pointed to any evidence that Nichols played a role in the
decision to terminate Plaintiff’s employment. Plaintiff also argues that he was subjected to
enhanced video surveillance in that, in addition to September 4, 2016, he was under surveillance
on August 20, 24, 28, and 31, and September 2 and 3, 2016. Defendant’s decision to monitor

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Plaintiff’s behavior is explained by Viruet’s suspicion, formed in August and September 2016,
that Plaintiff was stealing based on Plaintiff’s suspicious behavior involving the CDs. Plaintiff
has not shown that his race was a factor in Defendant’s decision to initiate targeted video
surveillance of him.
“[Plaintiff’s] ‘subjective belief of discrimination is not sufficient to withstand summary
judgment.’” Henderson v. Mass. Bay Transp. Auth., 384 F. Supp. 3d 199, 207 (D. Mass. 2019)
(quoting Tyree v. Foxx, 835 F.3d 35, 42 (1st Cir. 2016)). Plaintiff’s case ultimately founders
because it is supported only by speculation, and Defendant is entitled to summary judgment on
Plaintiff’s race discrimination claim.
B. Workers’ Compensation Retaliation
Plaintiff also claims that Defendant terminated his employment in retaliation for his
pursuing a workers’ compensation claim related to his October 2013 car accident. Massachusetts
General Laws ch. 152, § 75B(2) makes it unlawful for an employer to “discharge, refuse to hire
or in any other manner discriminate against an employee because the employee has exercised a
right afforded by [the Workers’ Compensation Act], or who has testified or in any manner
cooperated with an inquiry or proceeding pursuant to this [Act], unless the employee knowingly
participated in a fraudulent proceeding.” To make out a prima facie case of retaliation, “an
employee must demonstrate that (1) the employee engaged in an activity protected by the Act;
(2) the employer was aware of the protected activity; (3) the employer thereafter engaged in an
adverse employment action; and (4) but for the employee's engagement in the protected activity,
the employer would not have taken the adverse employment action against the employee.”
Gauthier v. Sunhealth Specialty Servs., Inc., 555 F. Supp. 2d 227, 245 (D. Mass. 2008) (citing
Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 177 n.5 (1st Cir.2003)). Defendant argues that

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Plaintiff cannot meet the second or fourth element – that the employer was aware of the
protected activity or that there was a causal, but-for link between the protected activity and the
termination of his employment.
Defendant’s argument regarding the knowledge element is premised on the notion that
the plaintiff “must show that the retaliator knew about [his] protected activity – after all, one
cannot have been motivated to retaliate by something he was unaware of.” Medina-Rivera v.
MVM, Inc., 713 F.3d 132, 139 (1st Cir. 2013) (citing Lewis v. Gillette, Co., 22 F.3d 22, 24–25
(1st Cir.1994)). According to Defendant, it is indisputable that Bernat had no knowledge that
Plaintiff sought workers’ compensation benefits in 2013. Indeed, Bernat avers that she was
unaware prior to this litigation that Plaintiff had filed a workers’ compensation claim at any point
during his employment with Defendant. The problem with Defendant’s argument is that the
summary judgment record does not establish that Bernat was the decisionmaker. Bernat’s
affidavit simply states, “I consulted with Geloso regarding the findings of the investigation, and
the decision was made to terminate Boumekpor’s employment.” She does not identify herself as
the decisionmaker, leaving open the possibility that it was Geloso or someone else at Walmart
who decided to terminate Plaintiff’s employment and the decisionmaker(s) might have had
knowledge of Plaintiff’s workers’ compensation claim.
Nevertheless, Defendant is correct that Plaintiff’s claim fails on the element of causation.
Plaintiff can establish this element of his prima facie case through direct or circumstantial
evidence, DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008), as corrected (July 10, 2008)
(citing Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 335 (1st Cir. 2005)),
and, in particular, “temporal proximity alone can suffice to ‘meet the relatively light burden of
establishing a prima facie case of retaliation.’” Id. (citing Mariani–Colon v. Dep't of Homeland

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Sec. ex rel. Chertoff, 511 F.3d 216, 224 (1st Cir. 2007)). However, “‘[t]he cases that accept
mere temporal proximity between an employer’s knowledge of protected activity and an adverse
employment action as sufficient evidence of causality to establish a prima facie case uniformly
hold that the temporal proximity must be “very close.”’” Calero-Cerezo v. U.S. Dep’t of Justice,
355 F.3d 6, 25 (1st Cir. 2004) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273–
74 (2001)). A three-year gap, quite simply, is too long to raise an inference of retaliation. See,
e.g., Quattrucci v. Mass. Gen. Hosp., No. CV 17-11250-GAO, 2020 WL 1323111, at *2 (D.
Mass. Mar. 20, 2020) (holding that a five- or six-month gap is too attenuated to meet the
plausibility standard) (citing Calero-Cerezo, 355 F.3d at 25 (noting that “[t]hree and four month
periods have been held insufficient to establish a causal connection based
on temporal proximity”)). Other than the undisputed fact of his absence from October through
December 2013 for a work-related injury, Plaintiff has pointed to no evidence, direct or
circumstantial, that Defendant might have engaged in retaliation when it terminated Plaintiff’s
employment in September 2016. Thus, Defendant is entitled to summary judgment on
Plaintiff’s workers’ compensation retaliation claim.
IV.

CONCLUSION
For the above-stated reasons, Defendant’s motion for summary judgment (Dkt. No. 54) is

GRANTED.
It is so ordered.
/s/ Katherine A. Robertson_____
KATHERINE A. ROBERTSON
United States Magistrate Judge
DATED: August 7, 2020

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