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Dominick v. Wal-Mart Stores, Inc.

United States District Court, D. Arizona

March 16, 2015

Edward J. Dominick, Plaintiff,
Wal-Mart Stores, Inc., Defendant.


JAMES A. TEILBORG, Senior District Judge.

Pending before the Court is Defendant Wal-Mart Stores, Inc.'s ("Wal-Mart") Motion for Summary Judgment. (Doc. 30). Wal-Mart has filed a statement of facts supporting its motion for summary judgment. (Doc. 31). Plaintiff, Edward J. Dominick, has filed a response in opposition to Wal-Mart's motion for summary judgment (Doc. 32) and a statement of facts in opposition to Wal-Mart's motion for summary judgment (Doc. 33). Wal-Mart has also filed a reply in support of its motion for summary judgment. (Doc. 36). The Court now rules on the motion.

I. Factual Background

Plaintiff claims Wal-Mart discriminated against him because of his age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. ยง 621, et seq. (Doc. 1). On October 10, 2007, Plaintiff was hired by Wal-Mart as an overnight stocker in Cottonwood, Arizona. (Doc. 33 at 2). Plaintiff generally worked from 10:00 p.m. to 6:00 a.m. each shift. ( Id. ) Wal-Mart assigned Plaintiff to the cereal aisle in the grocery side of the store throughout most of his early tenure with the company. ( Id. at 2). Plaintiff was later re-assigned to other aisles in the store. ( Id. at 6). Plaintiff's primary duties included stocking shelves, zoning his assigned aisles, assisting customers, and maintaining a clean and presentable work environment. ( Id. ) For several years, Plaintiff was considered a "Solid Performer" and an employee who "Exceeds Expectations." ( Id. at 11). During the relevant portions of Plaintiff's employment, Plaintiff had several managers, including Heather Vance, Jennifer Forest and Renita Cruz. ( Id. at 19).

During the course of Plaintiff's employment, Wal-Mart had in place a Coaching for Improvement Policy ("Coaching Policy"). ( Id. at 3). Under the Coaching Policy, store employees would be "Coached" when their behavior "fail[ed] to meet the reasonable expectations and standards set for all associates in the same or similar position or if [the employee's] conduct violates a company policy or interferes or creates a risk of interfering with the safe, orderly and efficient operation of our business." (Doc. 31-1 at 97). During the relevant portion of Plaintiff's employment, the Coaching Policy consisted of four levels: First Written Coaching, Second Written Coaching, Third Written Coaching, and Termination. (Doc. 33 at 3).[1] Under the Coaching Policy, each Coaching remained active for twelve months. ( Id. ). Consequently, if an employee engaged in unacceptable behavior (conduct or job performance) to justify another coaching within twelve months after receiving a Third Written Coaching, the employee would be subject to termination. ( Id. at 4).

Sometime during Plaintiff's employment, Wal-Mart implemented a new automated assignment system that electronically generated "stocking" times for employees based on the employees' assigned aisles and the amount of merchandise delivered to the store. ( Id. ). When an employee clocked in for each shift, he would receive his work assignment and an estimated "time to complete" each task from the hub station. ( Id. ) The time for each task was set to default settings in Wal-Mart's work assignment computer system. ( Id. ). The station also provided employees with electronically assigned "picking"[2] times based on the quantity of sales of that item. ( Id. at 5). The system allows Wal-Mart managers to, at their discretion, adjust the electronically assigned times. ( Id. )

On September 20, 2012, Plaintiff received his First Written Coaching for productivity. ( Id. at 5). The Coaching, issued by Ms. Forest, stated that on September 18, 2012, Plaintiff "had one hour and 45 minutes for stocking" and "30 minutes for his picks" but "was just finishing up around 5am." (Doc. 31-1 at 87). The Coaching also stated that on September 19, 2012, Plaintiff had "1 hour and 45 minutes for stocking and fifteen minutes for picks" but "[a]t 4:30 [a.m.] he still had to [finish stocking]." ( Id. ) As mentioned, Plaintiff generally started his overnight shift at 10:00 p.m. and ended at 6:00 a.m. (Doc. 33 at 2). Plaintiff avers that during his Coaching meeting with Ms. Forest, he told her he believed this Coaching was discriminatory. ( Id. at 12).

Following Plaintiff's First Written Coaching, Wal-Mart assigned him to work in other various aisles, such as automotive and hardware. ( Id. at 6). Soon thereafter, on March 6, 2013, Wal-Mart issued Plaintiff his Second Written Coaching for productivity. ( Id. at 7). This Coaching, again issued by Ms. Forest, stated that on March 5, 2013, Plaintiff was assigned "to work Aisle 8/9 which was 2 hours and fifteen [minutes] with a half hour of picks" and "Aisle 16/17 which was a half hour with 35 minutes of picks." (Doc. 31-1 at 88). According to the Coaching, Plaintiff "spent all night in Aisle 8 [and] never went over to help the other associates in cereal to stock or zone." ( Id. ) The Coaching went on to note that Plaintiff "was given until the end of February to learn Aisle 8" and "was expected to be able to get through both aisles and have both of them zoned." ( Id. ) In the "Action Plan" section of the Coaching document, which is required for all second and third level Coachings, Plaintiff did not state that he felt the Coaching was discriminatory. ( Id. ) Nor did Plaintiff inform his managers that he believed the Coaching was discriminatory during the Coaching meeting itself. (Doc. 33-2 at 124-25).

On April 20, 2013, Wal-Mart issued Plaintiff his Third Written Coaching for productivity. (Doc. 33 at 8). This Coaching was issued by Ms. Vance. (Doc. 31-1 at 89). The Coaching described that on April 19, 2013, Plaintiff "only had two L carts[3] of cereal and one L cart of picks" and told Ms. Vance that "he would be done by break or shortly after" but "was only on his second L cart" forty-five minutes after break. ( Id. ) Thus, Plaintiff "had been on the clock for three hours... and had only processed two L carts of freight." ( Id. ) As with his previous Coaching, Plaintiff did not express that he thought the Coaching was discriminatory in the Coaching document's "Action Plan" or during the Coaching meeting itself. (Doc. 33-2 at 124-25).

On May 22, 2013, about eight months after Plaintiff's First Written Coaching was issued, Wal-Mart terminated Plaintiff. (Doc. 33 at 10). Wal-Mart documented that the official reason for Plaintiff's termination was "Inability to Perform Job." ( Id. ) Wal-Mart's Exit Interview form, signed by Ms. Vance, noted that Plaintiff "has been coached for his job performance throughout the year" but "is still continually unable to meet the stocking times allotted." ( Id. at 11). The Exit Interview form also stated that on May 21, 2013, Plaintiff required "well over 4 hours to complete two hours' worth of stocking time in the automotive dept. [and] had an hour and fifteen minutes worth of stocking time in the hardware dept[.] afterward [which] took him the rest of his shift to complete." ( Id. ) During Plaintiff's termination meeting, Wal-Mart told Plaintiff he was being discharged for job performance. ( Id. at 11-12). At no time did Wal-Mart mention that Plaintiff's termination had anything to do with Plaintiff's age. ( Id. )

II. Discussion

In his Complaint, Plaintiff alleges Wal-Mart discriminated against him because of his age in violation of the ADEA. (Doc. 1). In its motion for summary judgment, Wal-Mart argues that Plaintiff cannot establish a prima facie case of age discrimination and that there is no genuine dispute over the fact that Plaintiff was terminated for legitimate, nondiscriminatory reasons. (Doc. 30 at 2). For these reasons, Wal-Mart contends that it is entitled to summary judgment pursuant to Federal Rule of Civil Procedure 56. ( Id. )

A. Summary Judgment

Summary judgment is appropriate when "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 party asserting that a fact cannot be or is genuinely disputed must support that assertion by "citing to particular parts of materials in the record, " including depositions, affidavits, interrogatory answers or other materials, or by "showing that 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." Id. 56(c)(1). Thus, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Initially, the movant bears the burden of pointing out to the Court the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the non-movant to establish the existence of material fact. Id. A material fact is any factual issue that might affect the outcome of the case under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts" by "com[ing] forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)). A dispute about a fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Liberty Lobby, Inc., 477 U.S. at 248. The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48. However, in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004).

At the summary judgment stage, the trial judge's function is to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Liberty Lobby, Inc., 477 U.S. at 249-50. If the evidence is merely ...

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