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Dyer v. Wal-Mart Stores, Inc.

United States District Court, E.D. Michigan, Northern Division

May 19, 2017



          THOMAS L. LUDINGTON, United States District Judge

         On July 1, 2016 Plaintiff Isabelita Dyer filed a complaint against Defendant Wal-Mart Stores, Inc, alleging that Defendant wrongfully terminated her employment. See Compl. ECF No. 1. Plaintiff claims that Defendant Wal-Mart terminated her from her position as a Deli Department Manager after she requested - but did not take - leave pursuant to the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2611, et seq.. She also alleges that she was terminated from her position because of her national origin in violation of Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 200-e2(a), and Michigan's Elliott-Larsen Civil Rights Act (“ELCRA”), Michigan Compiled Law 37.2202(1)(a). After the close of discovery, on February 23, 2017, Defendant moved for summary judgment as to each of Plaintiff's claims. See Mot. Summ. J., ECF No. 6. For the reasons stated below, Defendant's motion will be granted.


         Plaintiff Isabelita Dyer was born and raised in the City of Villareal in Samar, Philippines. See Dyer Dep. 10, ECF No. 6-2. After moving to the United States, in 2002 Plaintiff began working for a Sam's Club location in Virginia Beach, Virginia. Id. at 15-16. Upon moving to Michigan in 2005, she transferred to a Sam's Club location in Saginaw, Michigan. Id. at 24-25; ECF No. 9-3. Plaintiff then transferred from Sam's Club to a Wal-Mart store located on Brockway Road in Saginaw, Michigan, on September 16, 2006. See Job Offer, ECF No. 9-4. Plaintiff initially worked as a bakery packager and cake decorator. See Dyer Dep. 26-27. However, in 2009 she was assigned to the position of Deli Department Manager. Id. at 27. Throughout her time as a Deli Manager, Plaintiff Dyer received largely solid performance reviews, but was regularly advised to work on training and building relationships with the associates in her area. See ECF No. 9-5.


         In September of 2014, Brenda Ortega became the manager of all “Fresh” areas in the Brockway Wal-Mart, which meant that she became Plaintiff's supervisor. See Ortega Dep. 5-6, ECF No. 6-14. Plaintiff Dyer believed that Ms. Ortega treated her disrespectfully. In support of this assertion, Plaintiff claims that Ms. Ortega regularly informed Plaintiff that she had trouble understanding her, and made comments such as, “[s]low down Lita. I can't understand you because of your accent, ” or “[s]low down Lita. Take a deep breath. I can't understand you.” See Dyer Dep. 37. Plaintiff concedes that she often spoke quickly. Id.

         On September 26, 2014 Ms. Ortega issued Plaintiff a First Written Coaching under Wal-Mart's “Coaching for Improvement” disciplinary policy.[1] The basis for the Coaching was stated as follows: “Isabelita has had some conversations with associates that have not been interpreted as being spoken to with respect. This has occurred on several different occasions with different associates.” See First Coaching, ECF No. 6-7. Plaintiff was advised to treat her associates with respect, and warned that further disrespectful behavior could lead to “Second Written up to and including Termination.” Id.

         Plaintiff Dyer received a Second Written Coaching from Ms. Ortega on February 1, 2015, after Ms. Ortega discovered expired meat product in the deli. See Second Coaching, ECF No. 6-7. Some of the relevant sell-by dates had recently passed, but Ms. Ortega discovered Prima Deli Forest Ham in the meat case with a sell-by date of January 1, 2015, or a month before the Coaching was issued. Id. The Coaching advised Plaintiff to check expiration dates on a daily basis, first thing in the morning. Id. It also warned Plaintiff that the next level of action would be a “Third Written up to and including Termination.” Id. Plaintiff does not dispute that expired product was discovered. Instead, Plaintiff argues that she had delegated the task of checking for expired food, as Ms. Ortega allowed her to do, and therefore was not responsible for the violations. See Dyer Dep. 60-61. Plaintiff concedes, however, that she was still responsible for double checking the work of her subordinates in order to ensure that they completed their assignments. Id. at 62.


         In April of 2014, Plaintiff informed Ms. Ortega that she would need to take FMLA leave in order to care for her husband while he recovered from surgery. See Ortega Dep. 16-17. Ms. Ortega referred Plaintiff to the personnel department. Id. On April 10, 2015 Plaintiff's request was referred to Defendant's third party claims administrator, Sedgwick. See ECF No. 9-11. That same day, April 10, 2015, Sedgwick sent Plaintiff a letter stating that it had received her request to take leave under the FMLA from April 17, 2015 to July 8, 2015. See ECF No. 9-13. The letter informed Plaintiff that her request was conditionally approved, but that a final decision could not be made until Plaintiff proved that she met certain eligibility requirements and provided medical documentation in support of her request. Id. The supporting documentation was due by April 30, 2015. Id.

         On April 16, 2015 - the day before Plaintiff's FMLA leave was scheduled to begin - Ms. Ortega directed Plaintiff Dyer to train an associate named Victoria Schaefer to perform Plaintiff's job responsibilities. See Dyer Dep. 112. In response, Plaintiff informed Ms. Ortega that she would not require the FMLA leave as requested. Id. Nevertheless, Ms. Ortega instructed Plaintiff to continue to train Ms. Schaefer. Id. Plaintiff testified that it made sense to have somebody trained to perform her job responsibilities for when she had days off work. Id. at 112-13.

         After Plaintiff Dyer did not submit the required documentation, Sedgwick followed up by calling Plaintiff on May 8, 2015. Sedgwick's records reflect that a gentleman who answered the telephone stated that Plaintiff did not require any leave. See ECF No. 6-9 Pg. ID 243. In her deposition, Plaintiff confirmed that she ultimately did not require FMLA leave, and that her husband informed the caller from Sedgwick that she did not require the leave. See Dyer Dep. 109. Based on the phone call and on the fact that Plaintiff did not supply the required documentation, on May 8, 2015, Sedgwick denied Plaintiff's request for FMLA leave. See ECF No. 6-9 Pg. ID 250. In summary, Plaintiff did not take any leave under the FMLA, but did take a few days off under Wal-Mart's leave policy.


         A few weeks after Plaintiff returned from her leave, on May 12, 2015, Defendant received an anonymous complaint against Plaintiff via its Global Ethics hotline. See Barton Dec. ¶ 7, ECF No. 6-9; See also ECF No. 6-9 Pg. ID 215. The caller alleged that Plaintiff falsified expiration dates on food items by placing new stickers over old expired stickers, most recently over the weekend with tapioca pudding. The caller also alleged that Plaintiff cross contaminated food and did not wash her hands after her duties. Finally, the caller alleged that Plaintiff was rude to employees, had anger management issues, and practiced favoritism. Id. See also ECF No. 6-9 Pg. ID 235. The complaint identified three deli associates who were allegedly witnesses to these acts: Ms. Schaefer, Dawn Turner, and Sache' Young (together the “Deli Associates”). See Barton Dec. ¶ 8.

         Darrell Hudson, Co-Manager of the Brockway Road Wal-Mart location, was assigned to investigate the complaint. Id. at ¶ 9. He proceeded to conduct interviews of the Deli Associates and of Plaintiff's supervisor, Ms. Ortega, on May 14, 2015. ECF No. 6-9 Pg. ID 235. He also received written statements from the Deli Associates and Ms. Ortega. In her statement, Ms. Young alleged that Plaintiff treated her and her fellow associates with disrespect, and on one occasion mixed old expired macaroni with new macaroni. See ECF No. 6-9 Pg. ID 190. Ms. Schaefer claimed in her statement that Plaintiff had falsified the expiration dates of expired salads on May 13, 2015. Id. at Pg. ID 191-92. Ms. Turner's statement alleged that Plaintiff had been rude to a customer on May 12, 2015. Id. at Pg. ID 193-94. Finally, Ms. Ortega's statement alleged that Plaintiff had not properly checked the temperature of a chicken she was cooking on May 14, 2015. Id. Pg. ID 196-97.

         Plaintiff Dyer, for her part, denied all of the allegations against her. In her deposition, Plaintiff testified that she had received a warning from a fellow employee, Beatrice Brown, that the Deli Associates were conspiring to get her fired. Plaintiff's allegation is partially substantiated by the deposition testimony of Ms. Brown, who testified that Ms. Schaefer and an employee named Sue told her “they was going to make up a fake statement to get [Plaintiff] out of there.” See Brown Dep. 4, ECF No. 9-12. Specifically, Ms. Brown explained that while Plaintiff was taking her vacation time, “Victoria was telling me that they was trying to get together to get [Plaintiff] out of there; they wanted to see [Plaintiff] go. And her and Sue was going to write up a statement, a false statement to get her out.” Id. When asked if Victoria and Sue explained why they wanted Plaintiff to be fired, Brown testified that “they said that [Plaintiff] ...

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