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Crowley v. Wal-Mart Stores, Inc.

United States District Court, D. Hawaii

September 11, 2018

WAL-MART STORES, INC., a Delaware Corporation; REY ARMIJO; and CHARLES SALBY, Defendants.




         Plaintiff Terrance Crowley managed a Wal-Mart store in Hilo until, he says, he was fired because Wal-Mart wanted a younger, nondisabled store manager to make the store as profitable as it had been before a Target store opened nearby. Defendants say that Crowley was terminated because of safety concerns that went unaddressed.

         In Counts I and II, Crowley asserts that he suffered an adverse employment action in violation of the Age Discrimination in Employment Act (“ADEA”) and the Americans with Disabilities Act (“ADA”). In Count III, Crowley asserts that he was retaliated against in violation of the Family Medical Leave Act (“FMLA”). In Count IV, Crowley asserts that he suffered a hostile work environment in violation of the ADEA and the ADA (Count I also asserts a hostile work environment claim under the ADEA). Finally, in Count V, Crowley asserts retaliation in violation of the ADA (and repeats the retaliation claim asserted in Count III under the FMLA). See ECF No. 1.

         Defendants Wal-Mart Stores, Inc., [1] Rey Armijo, and Charles Salby now move for summary judgment. That motion is granted in part and denied in part. Crowley concedes that all claims against Defendant Salby are time-barred, and the court therefore grants summary judgment in favor of Salby with respect to all claims asserted against him or arising out of his actions. Crowley also concedes that his FMLA claims are factually unsupported. Accordingly, the court grants summary judgment in favor of Defendants with respect to the FMLA claims asserted in Counts III and V. The court also grants summary judgment in favor of Defendants with respect to the ADEA disparate treatment claim asserted in Count I, but denies summary judgment with respect to the ADA disparate treatment claim asserted in Count II. The court also grants summary judgment in favor of Defendants with respect to the hostile work environment claims asserted in Counts I and IV. Finally, the court denies summary judgment with respect to the ADA retaliation claim asserted in Count V. To summarize, only the ADA disparate treatment claim asserted in Count II and the ADA retaliation claim asserted in Count V remain for adjudication.


         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted when “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). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The movants must support their position concerning whether a material fact is genuinely disputed by either “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials”; or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See Id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

         The burden initially falls on the moving party to identify for the court those “portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted).

         The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., 809 F.2d at 630. At least some “‘significant probative evidence tending to support the complaint'” must be produced. Id. (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134 (“A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.”). “[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial.” Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). Accord Addisu, 198 F.3d at 1134 (“There must be enough doubt for a ‘reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion.”).

         In adjudicating summary judgment motions, the court must view all evidence and inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When “direct evidence” produced by the moving party conflicts with “direct evidence” produced by the party opposing summary judgment, “the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.” Id.


         Crowley was 63 years old when the Complaint in this action was filed in 2016, meaning that he was older than 40 at all relevant times. See Answer ¶ 6 (admitting that Crowley was 63 when the Complaint was filed in 2016). While in the Navy, Crowley injured his left ankle. See Crowley Decl. ¶ 2, ECF No. 62-2, PageID # 475-76 (indicating that Crowley had “multiple service-connected operations on [his] left ankle); Crowley Depo., ECF No. 56-7, PageID # 281 (indicating that Crowley had been in the Navy). In 1996, he was hired by Wal-Mart. See Deposition of Terrance Crowley, ECF No. 56-7, PageID # 281. Then, in 2005, he was promoted to the position of Hilo Wal-Mart store manager. Id., PageID # 282.

         In July 2011, a Target store opened near the Hilo Wal-Mart, after which sales at the Hilo Wal-Mart declined about 15%. See Declaration of Terrance Crowley ¶ 18, ECF No. 62-2, PageID # 481. Crowley says the declining sales resulted in a lower budget for the Hilo Wal-Mart, and employees were asked to do more in fewer hours. According to Crowley, employee morale suffered, as reflected in subsequent Associate Engagement Surveys that did not rate employee satisfaction or the store highly. Id. ¶¶ 19-23, PageID #s 481-83.

         Crowley took FMLA leave in 2010, 2011, and 2012 for three surgeries on his ankle. He says Wal-Mart Market Manager Brian Halsey pressured him to return to work early from each of these surgeries. See Concise Statement of Facts ¶ 6; Response to Concise Statement of Facts, ECF No. 62, PageID # 450 (admitting paragraph 6 of Concise Statement of Facts).

         In March 2013, Defendant Rey Armijo replaced Halsey as the Market Manager for Wal-Mart and as Crowley's direct supervisor. See Declaration of Rey Armijo ¶ 2, ECF No. 56-3, PageID 267. Crowley says that Armijo, upon seeing Crowley walking with a cane and boot, asked on several occasions whether Crowley was still able to run the store. See Crowley Depo., ECF No. 56-7, PageID # 290. Being able to walk around the store was an essential function of Crowley's store manager job. See Crowley Depo., ECF No. 56-7, PageID #s 292-93. Although Crowley indicates that Armijo also made comments about Crowley's age and his need to be away from work given the surgeries, Crowley does not provide the precise comments, when they were made, or the context in which they were made. See, e.g., Crowley Decl. ¶ 17, ECF No. 62-2, PageID # 481.

         According to Rachel Wall, Wal-Mart's Regional Director, each store conducts annual Associate Engagement Surveys. When a store receives “poor” results, it is designated as a “red store” that may be subject to a “grass roots” meeting at which management visits the store to determine the “root causes” of the “poor” rating. Wall says that, in July 2014, based on multiple years of “poor” ratings, she recommended that the Hilo Wal-Mart store have a “grass roots” meeting to determine why it was rated so poorly. See Declaration of Rachel Wall ¶ 2, ECF No. 56-4, PageID # 270. Wall says she began forming the “grass roots” team on July 16, 2014. Id. ¶ 5, PageID # 271.

         On July 29, 2014, Armijo gave Crowley his “third coaching” regarding store manager deficiencies and set a “30-day clock” in which Crowley was to correct the deficiencies or potentially be terminated. See Crowley Decl. ¶ 31, ECF No. 62-2, PageID # 484. Crowley responded by telling Armijo that he would be filing a formal complaint of workplace discrimination against him for “discriminatory comments and actions concerning [Crowley's] age and physical problems over the course of the . . . [last] 18 months that [Armijo] had been the Hawaii Market Manager and [Crowley's] direct Supervisor.” Id. ¶ 32, PageID # 485. The precise comments and actions are not identified in the record. Id.

         On July 30, 2014, Wall sent Rosemarie Cacho an e-mail, stating that, because of the Hilo store's Associate Engagement Survey results, a 5-day “formal engagement visit” would occur on the last week in August 2014 or the first week in September 2014. See ECF No. 56-11, PageID # 382. On August 11, 2014, Wall e-mailed Cacho, Lester Stoker, and Jerod Strong, indicating that the “grass roots” visit to the Hilo store would occur from August 24 through August 26, 2014. Id., PageID # 384.

         While at a Wal-Mart conference in Denver, Colorado, from August 12 to 14, 2014, Crowley met with Wal-mart Regional Director Chad Donath. Crowley says that Donath listened to his complaints about Wal-Mart management, then said that he would send a team to the Hilo store to examine every aspect of its operations, that he had “dealt with people like you before, ” and that he would fire Crowley if the team found a single deficiency in the store. Id. ΒΆ 35, PageID # 485-86. Crowley says that Armijo was ...

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