United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
OKI MOLLWAY UNITED STATES DISTRICT JUDGE.
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.
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.
Wal-Mart Stores, Inc.,  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
SUMMARY JUDGMENT STANDARD.
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).
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.
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
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.”).
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.”
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.
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.
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).
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
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.
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.
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.
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. ¶
35, PageID # 485-86. Crowley says that Armijo was ...