Holbert v. Wal-Mart Associates Inc. et al

Filing 46

Memorandum Opinion and Order granting 36 MOTION for Summary Judgment. Separate judgment will be entered. Signed by District Judge Tom S. Lee on 8/18/11 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

PATRICIA A. HOLBERT

PLAINTIFF

VS.

CIVIL ACTION NO. 3:09CV509TSL-MTP

WAL-MART ASSOCIATES, INC.,
HARRY HORTON, EDDIE ROBINSON,
GARY HILL AND LILLIE TAYLOR

DEFENDANT

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendants
Wal-Mart Associates, Inc. (Wal-Mart), Harry Horton, Eddie
Robinson, Gary Hill and Lily Taylor for summary judgment pursuant
to Rule 56(c) of the Rules of Civil Procedure.

Plaintiff Patricia

Holbert has responded to the motion, and the court, having
considered the memoranda of authorities, together with
attachments, submitted by the parties, concludes that the motion
is well taken and should be granted.
Plaintiff, proceeding pro se, filed her complaint in this
cause against Wal-Mart, her former employer, and against certain
individuals who served as her managers during her employment,
alleging putative claims of retaliation in violation of Title VII,
42 U.S.C. § 2000e–3(a); age discrimination in violation of the Age
Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621
et seq.; “identity theft”; defamation; and interference with her

participation in an ERISA retirement plan.

Defendants seek

dismissal of each of these claims.
According to plaintiff’s complaint, she began her employment
with Wal-Mart in 2006 at the Wal-Mart store in Clinton,
Mississippi.
later.

She was fired in May 2006, but reinstated a week

She was terminated a second time in February 2008, but

that termination was promptly rescinded.

Then, in July 2008,

following a leave of absence, plaintiff was transferred to a store
in Jackson, Mississippi, where she worked until she was finally
terminated in November 2008 following an incident in which she
directed a cashier to complete an EBT1 transaction for Holbert’s
daughter when the EBT card was not physically present and
instructed the cashier to enter Holbert’s Associate Discount
number when the discount card was not present, all of which was in
clear violation of Wal-Mart policies.

On December 28, 2008,

plaintiff filed a charge of discrimination with the EEOC, alleging
that she had been terminated because of her age and because of
retaliation.

The EEOC issued a right to sue letter on May 29,

2009.

1

According to the Mississippi Department of Human Services’
website, “EBT or Electronic Benefit Transfer is an electronic
method to disperse government benefits such as Supplemental
Nutrition Assistance Program (SNAP), using debit card technology
and retail Point-Of-Sale (POS) terminals.”
Www.mdhs.state.ms.us/ebtretfaq.htm.

2

Although far from clear, plaintiff’s ADEA claim appears to be
based on allegations that her first and third/final terminations
were on account of her age.

As Wal-Mart correctly notes,

plaintiff is foreclosed from pursuing any claim with respect to
the first termination as she did not file a timely charge of
discrimination with respect to that termination.

Her only EEOC

charge was filed in December 2008, more than two years after the
May 2006 termination.

See Garrett v. Judson Indep. School Dist.,

299 Fed. Appx. 337, 343, 2008 WL 4851317, 6 (5th Cir. 2008) (“A
plaintiff suing for age discrimination must file a timely
administrative charge with the EEOC as a precondition to filing
her lawsuit.”); 29 U.S.C. § 626(d) (“No civil action may be
commenced ... until 60 days after a charge alleging unlawful
discrimination has been filed with the [EEOC].

Such a charge

shall be filed ... within 180 days after the alleged unlawful
practice occurred ...”).
With reference to the November 2008 termination, Wal-Mart
contends summary judgment is in order since it has articulated a
legitimate, nondiscriminatory reason for her termination, i.e.,
plaintiff’s clear violation of company policy, and plaintiff
cannot establish that this reason was a pretext for age
discrimination.

See Martin v. Waring Investments Inc., 323 Fed.

Appx. 313, 316, 2009 WL 1043808, 2 (5th Cir. 2009) (“To demonstrate
pretext, [plaintiff] must show that [defendant’s] legitimate,
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nondiscriminatory reason is not true, but is instead a pretext of
discrimination.”).

Plaintiff has offered no evidence to challenge

defendant’s proffered reason for her termination, and in fact, has
not ever responded to defendant’s arguments in support of summary
judgment on this claim.2

Accordingly, summary judgment will be

granted on plaintiff’s claim for age discrimination.3
Plaintiff’s retaliation claim has its origin in a certain
e-mail communication to a Wal-mart superior complaining of certain
actions of her store manager which she considered were “stupid.”
Specifically, in September 2008, plaintiff sent an e-mail to one
Bobby Shumpert4, complaining that her store manager Eddie
Robinson’s decision to send associates out into the rain at 2:00
a.m. to pull buggies when there were only a few customers shopping
in the store was “stupid.”

Shumpert apparently forwarded the

2

Regarding the ADEA claim, plaintiff does briefly mention
that Wal-Mart failed to provide adequate discovery and suggests
that the court should compel discovery. However, she has made no
request that the court continue its consideration of the motion.
Were the court to construe this as a request for a continuance
under Rule 56(f), it would be deemed insufficient. See Access
Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 719 (5th Cir.
1999) (“To obtain a continuance of a motion for summary judgment,
a party must specifically explain both why it is currently unable
to present evidence creating a genuine issue of material fact and
how a continuance would enable the party to present such
evidence.” (citation and internal quotation marks omitted).
3

Plaintiff has contended she should not have been
terminated for the offense because other cashiers who completed
EBT transactions without a card being physically present were not
terminated. She offered no evidence to support this assertion.
4

Neither party has identified Shumpert’s title.
4

e-mail to Robinson, who took personal offense at being called
“stupid” and replied to Shumpert that “We should not be subjected
to this type of disrespect.

What can we do to get this matter

addressed going forward?”

Shumpert responded, “It’s only an opion

[sic] not much we can do.”

According to plaintiff, the animosity

which arose as a result of this incident “is the causal connection
that motivated Robinson to terminate plaintiff at the next
available (but not valid) opportunity.”

Plaintiff contends her

termination two months later was in retaliation for her having
made this complaint about Robinson.

She purports to believe that

because she complained pursuant to Wal-Mart’s “Open Door” policy
and thereafter participated in the “investigation” of her
complaint concerning Robinson, then her activity was “protected”
under Title VII and the proper subject of a retaliation complaint.
Her position is patently without merit.
“Title VII protects employees from retaliation for engaging
in an activity protected by Title VII.”

Dixon v. Moore Wallace,

Inc., 236 Fed. Appx. 936, 937, 2007 WL 1686973, 1 (5th Cir. 2007).
To prove her claim of retaliation under Title VII, plaintiff must
first establish a prima facie case of retaliation by showing
(1) that she engaged in activity protected by Title VII, (2) that
an adverse employment action occurred, and (3) that a causal link
existed between the protected activity and the adverse employment
action.

See Evans v. City of Houston, 246 F.3d 344, 352 (5th Cir.

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2001).

“An employee has engaged in protected activity when she

has (1) opposed any practice made an unlawful employment practice
by Title VII or (2) made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under Title VII.”

Thompson v. Somervell County, Tex., No.

11–50016, 2011 WL 2623571, *2 (5th Cir. July 1, 2011).

Plaintiff’s

complaining about Robinson’s decision to send employees into the
rain at 2:00 a.m. to gather buggies was not an activity protected
by Title VII, as her complaint (and her participation in the
ensuing investigation) did not relate in any way to any employment
practice made unlawful by Title VII.

Title VII does not extend

protection for complaints about perceived poor management
practices, where those practices do not involve race, color,
religion, sex or national original discrimination.
Title VII does not protect opposition to all forms of
unscrupulous conduct. Instead, Title VII protects only
opposition to discrimination based on “race, color,
religion, sex, or national origin.” Magic words are not
required, but protected opposition must at least alert
an employer to the employee's reasonable belief that
unlawful discrimination is at issue.
Brown v. United Parcel Serv., Inc., 406 F. App'x 837, 840 (5th
Cir. 2010)(citations omitted) (emphasis added).

See also Wynn v.

Miss. Dept. of Human Servs., Civ. Act. No. 3:09CV717DPJ–FKB, 2011
WL 3423142, 5 (S.D. Miss. Aug. 4, 2011) (“General grievances about
workplace inequities or even harassment are not protected

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conduct.”).

Defendants are entitled to summary judgment on this

claim.
Defendants argue that summary judgment is appropriate as to
plaintiff’s putative identity theft claim because such a cause of
action is not recognized in Mississippi, and even if it were,
plaintiff cannot prove that she suffered any injury on account of
the alleged identity theft.

On February 1, 2008, plaintiff

submitted to Wal-Mart a request for leave of absence for the
purpose of attending college; that same evening, her store manager
purported to terminate her employment following a complaint by two
of her co-workers that plaintiff had used profanity to them.
Unbeknownst to plaintiff, her termination was promptly rescinded,
since the manager lacked authority to terminate her; and on
February 4, 2008, her leave of absence was approved.

Plaintiff,

ostensibly unaware of the approval of her leave of absence and
rescission of her termination, filed a claim for unemployment
benefits and in the course of proceedings before the Mississippi
Employment Security Commission, Wal-Mart produced a February 2,
2008 document entitled “Personnel Manager’s Leave of Absence Check
List” which was purportedly signed by plaintiff and which Wal-mart
contended showed that plaintiff knew her leave had been approved
and that she had not been fired.

Plaintiff denied signing the

document, and contends herein that someone with Wal-Mart forged
her signature on the document and thereby committed identity

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theft, which initially caused the MESC to deny her claim for
unemployment benefits.
Defendants submit, and plaintiff apparently concedes, that no
cause of action for “identity theft” is recognized under
Mississippi law.

Plaintiff, however, citing a case decided under

California law, contends the claim is cognizable as one for
“conversion of intangible property.”

See Lowry v. Metropolitan

Transit Bd. MTBS, No. 09cv882 BTM (WVG), 2010 WL 1571216 (S.D.
Cal. Apr. 16, 2010) (construing pro se plaintiff’s claim for
“identity theft” as a claim for conversion of intangible property
but finding that the plaintiff failed to demonstrate that he had
suffered any damage).

However, such a claim is not viable under

Mississippi law.
As Judge Louis Guirola recently observed,
The Mississippi Supreme Court has held that “to make out
a conversion, there must be proof of a wrongful
possession, or the exercise of a dominion in exclusion
or the defiance of the owner's right, or of an
unauthorized and injurious use, or of a wrongful
detention after demand.” Wilson v. Gen. Motors
Acceptance Corp., 883 So. 2d 56, 68 (¶ 50)(Miss.2004)
(quoting Smith v. Franklin Custodian Funds, Inc., 726
So. 2d 144, 149 (Miss. 1998)). The only court to
address the issue of whether intangibles can be
converted under Mississippi law has explained: “The
reported cases in Mississippi reflect the view that an
action for conversion is available for wrongful
interference with tangible items of personal property
and those ‘intangible rights that are customarily merged
in, or identified with some document.’“ DirecTV, Inc.
v. Hubbard, No. 2:03CV261-P-D, 2005 WL 1994489 at *4
(N.D.Miss. Aug. 17, 2005) (quoting 5 Jeffrey Jackson and
Mary Miller, Mississippi Practice Series Encyclopedia of
Mississippi Law § 41:88 (2001)). In Hubbard, the Court
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held that satellite transmissions are not tangible and
therefore cannot be the subject of a conversion.
Hubbard, 2005 WL 1994489 at *4.
Blades v. Countrywide Home Loans, Inc., Civil Action No.
1:06CV1000-LG-JMR, 2007 WL 2746678, *4 (S.D. Miss., Sept. 18,
2007).

As plaintiff has not alleged interference with tangible

personal property or with an intangible right which has merged in
or identified with some document, the court concludes that she has
not stated a valid claim for conversion under Mississippi law.5
To establish a defamation claim, an ordinary plaintiff must
show: “(1) a false and defamatory statement concerning the
plaintiff; (2) an unprivileged publication to a third party;
(3) fault amounting at least to negligence on the part of the
publisher; and (4) either actionability of the statement
irrespective of special harm or the existence of special harm
caused by the publication.”

Simmons Law Group, P.A. v. Corporate

Mgmt., Inc., 42 So. 3d 511, 517 (Miss. 2010).

Plaintiff’s

defamation claim appears to be based, in part, on certain rude
treatment she received from store manager Eddie Robinson in front
of other associates and her being escorted from the store after
her termination in November 2008 like she “was a criminal.”
However, a defamation claim will not lie for mere rudeness or
5

Even if such a claim were recognized under Mississippi
law, defendants have demonstrated that plaintiff cannot establish
any damage resulting from any alleged forgery of her signature on
the leave of absence check list form. Plaintiff ultimately was
approved for unemployment benefits, and was not otherwise “out”
any money from the alleged misappropriation of her signature.
9

mistreatment; thus, as there is no allegation that Robinson made a
false and defamatory statement concerning the plaintiff, or that
she was accused of criminal conduct, plaintiff cannot establish a
claim of defamation based on these allegations.
Her claim appears based, in further part, on alleged false
testimony by defendant Lily Taylor during a MESC hearing.
However, as defendants note, “Taylor enjoyed a qualified privilege
because any statement made by an employer against an employee when
the statement in question affects the employee's employment is
protected by a qualified privilege. [Taylor’s] statements are
privileged ‘absent bad faith or malice if the communications are
limited to those persons who have a legitimate and direct interest
in the subject matter.’”

Raiola v. Chevron U.S.A., Inc., 872 So.

2d 79, 85 (Miss. Ct. App. 2004) (quoting Young v. Jackson, 572 So.
2d 378, 383 (Miss. 1990)).

As plaintiff has offered no evidence

of malice, summary judgment is proper on this claim.6
Plaintiff alleges defendants discharged her to keep her from
becoming vested in Wal-Mart’s 401(4) plan.

Pursuant to 29 U.S.C.

§ 1140, it is “unlawful for any person to discharge ... a
participant or beneficiary [in an ERISA plan] for the purpose of
interfering with the attainment of any right to which such
participant may become entitled under the plan....”

Defendant

submits, and plaintiff does not deny, that plaintiff has no
6

Plaintiff has not responded to defendant’s motion as it
pertains to the defamation claim.
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evidence to show that she was terminated solely to prevent her
from fully vesting in a 401(k) plan (in which she had $2,500 in
assets).

This claim will be dismissed.

Based on the foregoing, it is ordered that defendants’ motion
for summary judgment is granted.
A separate judgment will be entered in accordance with Rule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this the 18th day of August, 2011.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

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