Yousefi v. Wal-Mart Stores et al
Filing
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MEMORANDUM DECISION AND ORDER - granting 16 Motion for Summary Judgment. Signed by Magistrate Judge Dustin B. Pead on 7/12/2016. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SARA YOUSEFI p/k/a FATIMA
YOUSEFI,
MEMORANDUM DECISION & ORDER
Plaintiff,
vs.
Civil No: 2:15-cv-00135
WAL-MART STORES INC., STEPHEN
SCOTT SIMISTER,
Magistrate Judge Dustin B. Pead
Defendants.
On December 9, 2015, Defendants Wal-Mart Stores, Inc. (Wal-Mart), and Stephen Scott
Simister (Mr. Simister) (collectively Defendants), filed a motion for summary judgment seeking
dismissal of Plaintiff Sara, p/k/a Fatima Yousefi’s (Ms. Yousefi or Plaintiff) claims (ECF No.
16.) Oral argument on the motion was held on June 16, 2016 (ECF No. 24.) 1
Having considered the parties’ arguments, written memoranda and relevant legal
authorities, the court now rules as set forth herein and grants Defendants’ motion.
UNDISPUTED FACTS
1. Ms. Yousefi was born in Sanandaj, Iran. Deposition of Fatima Yousefi (Sep. 23, 2014)
(“Yousefi Depo.”) at 6:14-19. In March 2001, Ms. Yousefi immigrated to the United States
with her husband and three children. Yousefi Depo. at 6:20-24.
2. Wal-Mart employed Ms. Yousefi as a pharmacy technician from October 2007 through June
2012. Deposition of Fatima Yousefi (Sep. 23, 2014) (“Yousefi Depo.”) at 13:6-7, 16:2-5.
1
The parties in this case consented to United States Magistrate Judge Dustin B. Pead
conducting all proceedings, including entry of final judgment, with appeal to the United States
Court of Appeals for the Tenth Circuit. (ECF No. 9.) See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73
1
3. On the afternoon of May 29, 2012, Ms. Yousefi was working at the pharmacy prescription
drop-off station at a Wal-Mart store in Murray, Utah. Yousefi Depo. 21:4-6, 40:12-41:18;
Deposition of Mr. Simister (Sep. 17, 2014) (“Simister Depo.”) at 79:9-23.
4. While Ms. Yousefi was at the drop-off station, she was approached by an older male
customer. Yousefi Depo. 41:17-20, 44:18-45:5. The customer had difficulty understanding
Ms. Yousefi and became frustrated. Yousefi Depo. 41:17-42:22.
5. During the interaction, the customer threw 2 his prescription paper and a check from his
checkbook toward Ms. Yousefi. Yousefi Depo. 42:5-22, 47:17-48:1 The customer threw the
check toward Ms. Yousefi to enable her to correct the customer’s address on file, which had
been previously entered incorrectly. Yousefi Depo. 42:5-22, 47:17-48:1. In addition, during
the interaction, the customer told Ms. Yousefi that: he did not understand her; she could not
speak English; she did not have enough education; she could not communicate with
customers; she was speaking in different languages; she should not be taking other people’s
jobs or opportunities; she should not be in the United States; she should go back to her
country; and her English was “garbage.” Yousefi Depo. at 42:23-43:14, 50:20-52:2, 73:1274:15.
6. Aside from the customer throwing his prescription paper and check toward Ms. Yousefi, Ms.
Yousefi did not remember the customer pointing his finger at her, raising his hands above his
shoulders, or making any other aggressive gestures with his hands during their conversation.
Yousefi Depo. at 47:12-48:15.
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Ms. Yousefi physically demonstrated the customer’s actions during her deposition. For
purposes of the record, her physical demonstration was described by her attorney as “with her
right hand, underhand with the palm facing her body, with her thumb and index finger, [Ms.
Yousefi] made a motion like the person had the check and prescription between her thumb and
her forefinger, palm forward, and flicking the wrist forward, throwing the check or prescription.”
Yousefi Depo. at 47:20-25, 48:1.
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7. Mr. Simister, the pharmacy manager, was working approximately ten to twelve feet away
from Ms. Yousefi at the time of the customer incident. Simister Depo. at 91:23-92:1. Mr.
Simister overheard the customer tell Ms. Yousefi that he did not understand her and that her
communication was “garbage.” Simister Depo. at 91:12-22. 3
8. During the interaction, Ms. Yousefi did not ask her co-workers or Mr. Simister for assistance
in dealing with the frustrated customer. Yousefi Depo. at 49:1-22; 66:25-67:17.
Additionally, Mr. Simister did not intervene while Ms. Yousefi was interacting with the
customer. Simister Depo. at 97:17-98:1.
9. Ms. Yousefi’s interaction with the customer lasted about ten minutes. Yousefi Depo. at 47:711, 48:16-18.
10. After her interaction with the customer was over, Ms. Yousefi discussed the incident with
Mr. Simister. Simister Depo. at 97:17-98:1; Yousefi Depo. at 52:3-12. Ms. Yousefi asked
Mr. Simister why he did not intervene on her behalf, and informed Mr. Simister that she
planned on clocking-out and confronting the customer. Yousefi Depo. at 52:3-17. Mr.
Simister explicitly told Ms. Yousefi not to confront the customer. Yousefi Depo. at 52:1318, 53:22-54:2.
11. After her conversation with Mr. Simister, Ms. Yousefi clocked-out and began waiting for her
youngest daughter, who was supposed to meet Ms. Yousefi at the store. Yousefi Depo. at
54:8-11. 4
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For purposes of this motion, Defendants do not dispute that Mr. Simister overheard the entire
conversation between Ms. Yousefi and the customer. As detailed further below, even assuming
that Mr. Simister overheard the entire conversation between Ms. Yousefi and the customer, Ms.
Yousefi does not have an actionable claim against Defendants.
4
This fact is not disputed by Defendants solely for the purposes of this Motion.
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12. While Ms. Yousefi was waiting for her daughter to arrive, the customer interrupted Ms.
Yousefi’s conversation with another Wal-Mart associate and asked Ms. Yousefi “What?
What you want with me? Do you have any question for me?” with a loud voice. Yousefi
Depo. at 54:21-55:2. Nina, the Wal-Mart associate Ms. Yousefi was speaking with, informed
the customer that she and Ms. Yousefi were not talking about him. Yousefi Depo. at 55:2-5. 5
13. Thereafter, Ms. Yousefi approached the customer while he was leaving the store. Yousefi
Depo. at 59:1-15. While Ms. Yousefi and the customer were in the parking lot, Ms. Yousefi
told the customer, “Sir, I think you were very unfair and racist person.” Yousefi Depo. at
59:1-60:10; Mora Depo. at 43:8-15.
14. After the confrontation in the parking lot, the customer returned to the pharmacy to report the
incident to Mr. Simister. Simister Depo. 95:11-96:9.
15. Wal-Mart conducted a formal investigation into Ms. Yousefi’s interactions with the
customer. Deposition of Tim Rombach (Aug. 13, 2015) (“Rombach Depo.”) at 12:24-14:5.
16. Thereafter, Ms. Yousefi’s employment with Wal-Mart was terminated for insubordination
and for being aggressive and harassing toward a customer. Rombach Depo. at 62:25-63:22.
SUMMARY JUDGMENT STANDARD
“Summary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to
secure the just, speedy and inexpensive determination of every action.’” Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1). The summary judgment rule
allows courts “to isolate and dispose of factually unsupported claims or defenses.” Id. at 323-24.
5
This fact is not disputed by Defendants solely for the purposes of this Motion.
4
Summary judgment is appropriate where “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). A genuine dispute regarding a material fact only exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
“In determining whether summary judgment is appropriate, the court must ‘view the
evidence and draw all reasonable inferences therefrom in the light most favorable to the party
opposing summary judgment.’” Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199,
1204 (10th Cir. 2011) (quoting Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1146 (10th Cir.
2007). However, “[o]nly disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Hardy v. S.F.
Phosphates Ltd. Co., 185 F.3d 1076, 1079 (10th Cir. 1999) (internal quotation omitted).
DISCUSSION
Ms. Yousefi’s Complaint alleges three claims: (1) Defendants maintained a hostile work
environment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); (2) racial
discrimination or harassment in violation of Title VII; and (3) retaliation in violation of Title VII.
Each of these claims is addressed herein.
Ms. Yousefi’s Hostile Work Environment Claim Fails as a Matter of Law.
To establish a prima facie case of hostile work environment based upon race
discrimination or harassment, a plaintiff must establish that “‘under the totality of the
circumstances (1) the harassment was pervasive or severe enough to alter the terms, conditions,
or privilege of employment, and (2) the harassment was racial or stemmed from racial animus.’”
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Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th Cir. 1998) (quoting Bolden v. PRC, Inc., 43
F.3d 545, 551 (10th Cir. 1994).
A showing of pervasiveness requires more than a few isolated incidents of racial
enmity. . . . A plaintiff must produce evidence to show that the workplace was
permeated with discriminatory intimidation, ridicule, and insult . . . sufficiently
severe or pervasive to alter the conditions of [her] employment and create an
abusive working environment.
Bloomer v. United Parcel Service, Inc., 94 Fed.Appx. 820, 825 (10th Cir. 2004) (citations and
internal quotations omitted). “The plaintiff must show more than a few isolated incidents of
racial enmity . . . there must be a steady barrage of opprobrious racial comments.” Bolden, 43
F.3d at 551 (internal quotations omitted).
A single incident is generally insufficient to create a hostile work environment, unless it
is “extremely serious.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Factors to be
considered in deciding whether a work environment was hostile as a matter of law include “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
In this case, the undisputed facts do not support the existence of a hostile work
environment based upon pervasive harassing or discriminating comments or conduct. Ms.
Yousefi’s claim relies solely upon a single incident with the customer. Ms. Yousefi’s interaction
with the customer was of brief duration and, although offensive and unfortunate, the customer’s
actions do not constitute the type of “steady barrage of opprobrious racial comments” that is
necessary to support a finding of pervasiveness. See Bolden, 43 F.3d at 551.
Additionally, the customer’s behavior was not sufficiently severe to create a hostile work
environment. While the Court in no way condones the customer’s boorish and offensive
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conduct, the conduct during this single incident was not severe enough to give rise to a viable
cause of action under Title VII. See Cooper v. American Airlines, Inc., 213 Fed.Appx. 714, 71516 (10th Cir. 2007) (finding that a single incident where an employee attempted to wrestle flyers
away from the plaintiff, began “bumping and humping” the plaintiff’s leg, and made “African
gibberish” noises at the plaintiff, while other employees chanted derogatory racial slurs did not
create a hostile work environment).
Here, the customer did not physically threaten or touch Ms. Yousefi, did not use any
profanity or racial slurs, and the interaction was an isolated incident of brief duration. Even
when all facts are considered in the light most favorable to Ms. Yousefi, the customer incident is
insufficient to support a hostile work environment claim under Title VII and Defendants are
entitled to judgment as a matter of law.
Ms. Yousefi’s Racial Discrimination or Harassment Claim Against Defendants,
Based on the Customer’s Actions, Fails as a Matter of Law.
Under Title VII, an employer may only be responsible for racial discrimination or
harassment based upon the acts of a customer where all of the following elements are met: (1)
the customer’s actions are determined to be racially discriminatory or harassing, which requires
that there be a steady bombardment of derisive racial comments as opposed to a few isolated
instances of racial enmity; (2) the employer knows or should have known of the conduct, and (3)
the employer fails to take immediate and appropriate corrective action. See Bolden, 43 F.3d at
551; Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001) (quoting 29 C.F.R. §
1604.11(e). A negligence standard is applied in determining whether an employer should have
known of harassing conduct. Turnbull, 255 F.3d at 1244 (citing Lockard v. Pizza Hut, Inc., 162
F.3d 1062, 1074 (10th Cir. 1998)).
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As discussed above, the interaction between Ms. Yousefi and the customer was an
isolated incident of brief duration. Even when viewed in the light most favorable to Ms.
Yousefi, the incident does not constitute a “steady barrage of opprobrious racial comments”
necessary to support a cause of action for racial discrimination or harassment. Bolden, 43 F.3d
545 at 551. Further, even accepting that Mr. Simister was willfully ignorant of the customer’s
comments and his proximity to the interaction constitutes an aggravating factor, the customer’s
comments were isolated and not sufficiently pervasive or severe to constitute racial
discrimination or harassment. Accordingly, Defendants’ knowledge of the full extent of the
customer’s comments is immaterial. The customer’s conduct was insufficient to support a cause
of action for racial discrimination or harassment under Title VII and Defendants are entitled to
judgment as a matter of law. 6
Ms. Yousefi’s Retaliation Claim Fails as a Matter of Law.
“To state a prima facie case of retaliation, [the plaintiff] must show that: (1) she engaged
in a protected activity; (2) [the employer] took an action that a reasonable employee would have
found materially adverse 7; and (3) there exists a causal connection between the protected activity
and the adverse action.” Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th
Cir. 2006). If the prima facie case is made, the employer may respond with a “legitimate,
nonretaliatory reason for its termination decision.” Id. at 1172. To defeat summary judgment,
the plaintiff must then “show that there is a genuine dispute of material fact as to whether [the
employer’s] explanations for terminating her employment are pretextual.” Id. Based thereon,
the court addresses Ms. Yousefi’s retaliation claim.
6
The Court does not need to address the immediacy or appropriateness of the employer’s
corrective actions since it concludes the customer’s actions in question were not racially
discriminatory or harassing.
7
The parties do not dispute that Wal-Mart’s termination of Ms. Yousefi’s employment was a
materially adverse action.
8
1. Ms. Yousefi Did Not Engage in a Protected Activity.
Ms. Yousefi argues that her confrontation with the customer in Wal-Mart’s parking lot
was a protected activity under Title VII. Title VII makes it unlawful for an employer to
discriminate or retaliate against an employee because the employee “opposed any practice made
an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a); see also Petersen v.
Utah Dept. of Corrections, 301 F.3d 1182, 1188 (10th Cir. 2002) (“Opposition to an employer’s
conduct is protected by § 2000e-3(a) only if it is opposition to a ‘practice made an unlawful
employment practice by [Title VII].’”) (Emphasis added).
Ms. Yousefi cites to Williams v. City of Kansas City, Mo., 223 F.3d 749, 753 (8th Cir.
2000) to support her argument. 8 The facts at issue in Williams are inapposite to the instant
matter. In Williams, the plaintiff alleged that her supervisor sexually harassed her and then
retaliated against her after she asked him to leave her alone and let her do her job. Id. at 751-52.
Because the alleged harasser in Williams was the plaintiff’s supervisor, any alleged wrongful
8
Ms. Yousefi’s cited authorities do not support her claim that confronting a customer is a
protected activity. Moreover, Ms. Yousefi’s reliance on language from Matima v. Celli, 228
F.3d 68, 78 (2d Cir. 2000), approving “writing critical letters to customers” does not support her
argument. Matima, and the cases it is based upon, indicate that employees may write letters to
customers criticizing an employer’s unlawful employment practices, not letters criticizing the
customers’ own conduct. See EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1012-14 (9th
Cir. 1983) (employee’s letter to customer complaining about the employer’s unlawful
employment practices was a protected activity); Sumner v. U.S. Postal Service, 899 F.2d 203,
209 & fn. 4 (2d Cir. 1990). In addition, the EEOC Compliance Manual states that an employee’s
complaint must be about “alleged employment discrimination,” and the complaint only
constitutes protected opposition “if the individual explicitly or implicitly communicates a belief
that the practice constitutes unlawful employment discrimination.” EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, TRANS. NO. 915.003, EEOC COMPLIANCE MANUAL, SECTION 8:
RETALIATION, P. 8-4 (1998) (emphasis added); Crown Zellerbach Corp., 720 F.2d at 1013 (an
“employee’s statement cannot be ‘opposed to an unlawful employment practice’ unless it refers
to some practice by the employer that is allegedly unlawful”). In this instance, Ms. Yousefi
confronted the customer solely to discuss his offensive conduct; not to complain that Wal-Mart
or Mr. Simister were engaged in an unlawful employment practice.
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conduct of the supervisor could be attributed to defendant employer. As a result, the plaintiff’s
confrontation of the alleged harasser could be viewed as protected opposition to an unlawful
employment practice of the defendant employer.
Conversely, in this case, the alleged harasser was a Wal-Mart customer, not Ms.
Yousefi’s supervisor. Given that Ms. Yousefi’s opposition was directed at the customer’s own
offensive conduct, it was not in opposition to an unlawful employment practice attributable to
Defendants and was not protected under Title VII. See Folkerson v. Circus Circus Enterprises,
Inc., 107 F.3d 754, 755 (9th Cir. 1997) (holding that to be considered a protected activity under
Title VII, “the opposition must be directed at an unlawful employment practice of an employer,
not an act of discrimination by a private individual”) (quoting Silver v. KCA, Inc., 586 F.2d 138,
141 (9th Cir. 1978) (“[N]ot every act by an employee in opposition to racial discrimination is
protected. The opposition must be directed at an unlawful employment practice of an employer,
not an act of discrimination by a private individual. . . .The specific evil at which Title VII was
directed was not the eradication of all discrimination by private individuals, undesirable though
that is, but the eradication of discrimination by employers against employees.”).
Since Ms. Yousefi’s confrontation of the customer was not a protected activity, she
cannot establish a prima facie claim of retaliation. Therefore, Defendants are entitled to
judgment as a matter of law as to Ms. Yousefi’s retaliation claim.
2. Wal-Mart Offered Legitimate, Non-Retaliatory Reasons for Termination.
Next, even assuming Ms. Yousefi’s confrontation was a protected activity under Title
VII, which the Court holds it was not, Wal-Mart has offered legitimate, non-retaliatory reasons
for its decision to terminate Ms. Yousefi’s employment. In this case, Wal-Mart conducted a
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formal investigation into the incident and terminated Ms. Yousefi’s employment for
insubordination and for being aggressive and harassing toward a customer.
Insubordination is a legitimate, non-discriminatory reason for terminating employment.
Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007); Matson v. St. John Health
System, Inc., 296 Fed.Appx. 630, 634 (10th Cir. 2008). Moreover, the Court finds that Wal-Mart
has a legitimate interest in preventing physical or verbal altercations between employees and
customers on its property. 9 Thus, the Court finds that Wal-Mart’s proffered reasons for Ms.
Yousefi’s termination are lawful, non-retaliatory reasons for termination.
3. Ms. Yousefi Fails to Offer Any Evidence of Pretext.
Finally, even if Ms. Yousefi established a prima facie case of retaliation, which she has
not, her claim for retaliation fails based upon her failure to offer any evidence to support the
claim that Wal-Mart’s proffered reasons for termination were pretextual. Once an employer
states a non-discriminatory reason for termination, the “burden then shifts back to the plaintiff to
present evidence such that a reasonable jury could conclude that the proffered nondiscriminatory
reason for the employment action is pretextual, that is, unworthy of belief.” Hardy, 185 F.3d at
1079-80 (internal quotation omitted) (emphasis added). “Mere conjecture that the employer’s
explanation is a pretext for intentional discrimination is an insufficient basis for denial of
summary judgment.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (quoting
Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988).
9
Importantly, Wal-Mart’s proffered reasons for termination are legitimate and nondiscriminatory even if they were based upon incomplete or inaccurate information. “The relevant
inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it
honestly believed those reasons and acted in good faith upon those beliefs.” Rivera v. City and
County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004) (quotation and alteration omitted); see
also Tran v. Trs. Of State Colls. In Colo., 355 F.3d 1263, 1268-69 (10th Cir. 2004) (employer’s
good faith belief “would not be pretextual even if the belief was later found to be erroneous”).
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Ms. Yousefi alleges that Wal-Mart’s proffered reasons for her termination are pretext.
However, Ms. Yousefi fails to offer any evidence to support such claim. In the context of a
motion for summary judgment, Ms. Yousefi’s failure to present any evidence that Wal-Mart’s
stated reasons for her termination were pretext for intentional discrimination is fatal to her
retaliation claim. Thus, Defendants are entitled to judgment on Ms. Yousefi’s retaliation claim
as a matter of law.
CONCLUSION
Based upon the forgoing, the Court grants Defendants’ Motion for Summary Judgment as
to each cause of action alleged in Plaintiff’s Complaint (ECF No. 16.)
SO ORDERED.
DATED: July 12, 2016.
_________________________________________
Dustin B. Pead
United States Magistrate Judge
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