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Robertson v. The Home Depot, Inc.

United States District Court, M.D. Louisiana

March 22, 2017




         This matter comes before the Court on Home Depot's Motion for Summary Judgment (Doc. 24) filed by Defendant The Home Depot U.S.A., Inc. Plaintiff Lawrence Robertson opposes the motion. (Doc. 52-2)[1] Defendant has filed a reply. (Doc. 44.) Oral argument is not necessary. Having carefully considered the law, the facts in the record, and the arguments and submissions of the parties, the Court finds that Defendant's motion should be granted in its entirety, and all of Plaintiff's claims should be dismissed with prejudice.

         I. Relevant Factual Background A. Preliminary Note

         Preliminarily, the Court notes that almost all of the facts in this section are taken from the Defendant's Statement of Uncontested Facts. (Doc. 24-1.) There are four main reasons for this.

         First, as the Court explained in its February 17, 2017, Ruling and Order, Plaintiff did not file a statement of contested facts, in violation of Local Civil Rule 56(b). (Doc. 74 at 2-3.) The problem was exacerbated when the Court gave the Plaintiff an opportunity to re-file those exhibits-and only those exhibits-that had previously been filed, so that Plaintiff could clean up the record. (See Doc. 48.) Contrary to the Court's order, Plaintiff filed, among other previously unfiled things, an untimely statement of contested facts. To make matters even worse, Plaintiff misrepresented to the Court that it was an “amended and supplemental” one when no prior statement of contested facts had been filed. (Doc. 74 at 13-14.) Considering the Plaintiff's violation of the local rules and Court order as well as his misrepresentations, the Court struck Plaintiff's untimely statement of contested facts and deemed Defendant's Statement of Uncontested Facts admitted for purposes of the motion. (Doc. 74 at 13-14.)

         Second, most of Plaintiff's exhibits that were filed into the record have been stricken. Because, in violation of the Court's prior order (Doc. 48), the Plaintiff filed exhibits on June 6, 2016, that had not been previously filed into the record (see Doc. 74 at 12-16), a large number of exhibits were stricken. (See Doc. 78, striking Docs. 54-5, 54-7 (page 4 only), 54-8, 54-11, 55-1, 55-2, 55-3, 55-4, 55-5, 55-6, 56-1, 56-2, & 56-4).) Plaintiff's audio recordings (Docs. 40-1-4) were later stricken from the record pursuant to Fed.R.Civ.P. 37(c)(1). (See Doc. 77.) Thus, Plaintiff had little evidence remaining in the record to oppose Defendant's motion.

         Third, most of Plaintiff's remaining exhibits in the record (Docs. 54-1, 54-2, 54-3, 54-4, 54-6, 54-7 (pages 1-3), 54-9, 54-10, and 40-8) consist of unauthenticated documents. These cannot be considered for the instant motion. As this Court has stated:

“To be considered by the court, ‘documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.'. . . A document which lacks a proper foundation to authenticate it cannot be used to support a motion for summary judgment.” Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc ., 896 F.2d 1542 (9th Cir. 1989). See also Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547 (5th Cir. 1987) (“Unsworn documents are . . . not appropriate for consideration [on motion for summary judgment]”); Moffett v. Jones County, 2009 WL 1515119 (S.D.Miss., June 1, 2009) (“The records are not certified . . . nor sworn in any way, thus they are inadmissible”); Rizzuto v. Allstate Ins. Co., 2009 WL 1158677 (E.D. La., April 27, 2009) (same); 10A Charles Alan Wright, et al., Federal Practice & Procedure § 2722 (3rd ed.1998).

Hall v. Johnson, No. 12-99, 2013 WL 870230, at *1 n. 1 (M.D. La. Mar. 7, 2013). Thus, because most of Plaintiff's remaining evidence has not been properly authenticated, these exhibits cannot support the Plaintiff's opposition. Nevertheless, the Court notes that many of these documents were submitted by Home Depot as well, so they have been considered anyway. (See Doc. 24-3 at 67-68, 70-71, 73-75, 77-78; Doc. 24-4 at 6-11.)

         Fourth, it appears as though Plaintiff has submitted a thirty-eight page part of his deposition that was not struck. (Doc. 56-3.)[2] However, Plaintiff's memorandum in support does not provide a single citation to the record for any portion of this part of the deposition. (See Doc. 51-2)[3] Without specific citations to the record, the Court will not consider this exhibit. As the Fifth Circuit has explained:

When evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court. See Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 916 (5th Cir. 1992), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992). “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.” Ragas, 136 F.3d at 458; [Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir. 1996)]; Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994); Skotak, 953 F.2d at 916 n. 7; see also Nissho-Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (it is not necessary “that the entire record in the case . . . be searched and found bereft of a genuine issue of material fact before summary judgment may be properly entered”); cf. U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”). Because [Plaintiff] did not identify any evidence of damages in his summary judgment response, the evidence was not properly before the district court and will not be considered here.

Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). The same reasoning applies here and leads the Court generally to disregard the portions of Plaintiffs' deposition that have not been stricken.

         For these reasons, most of the facts before the Court come from the Defendant's Statement of Uncontested Facts, all of which have been deemed admitted. The Court will now proceed with a recitation of those facts.

         B. Plaintiff's Employment History at Home Depot

         Plaintiff, an African-American male, began working for Home Depot in the Baton Rouge area as a sales associate in approximately 2002. (Doc. 24-1 at 1.) After about a year, Plaintiff left Home Depot to work at another retailer. (Doc. 24-1 at 1.)

         Plaintiff reapplied at Home Depot in 2005, following his termination by another retailer. (Doc. 24-1 at 1.) Plaintiff was rehired by Home Depot, this time as a Department Supervisor. (Doc. 24-1 at 1.)

         In February 2006, Plaintiff was promoted to a Salaried Assistant Store Manager position at Home Depot's North Baton Rouge store on Airline Highway. (Doc. 24-1 at 2.) Plaintiff then transferred to Home Depot's Baton Rouge store on Coursey Boulevard. (Doc. 24-1 at 2.)

         Next, Plaintiff transferred to Home Depot's Denham Springs store before ultimately returning to Home Depot's North Baton Rouge store on Airline Highway in 2011. (Doc. 24-1 at 2.) When Plaintiff transferred back to the North Baton Rouge store in August 2011, a Store Manager was not in place. (Doc. 24-1 at 2.)

         Shortly after Plaintiff arrived at the North Baton Rouge store, David Gibson became Store Manager of that store and therefore became Plaintiff's direct supervisor. (Doc. 24-1 at 2.)

         David Gibson is an African-American male born on June 30, 1964, or nearly ten years before Plaintiff's, who was born on November 12, 1973. (Doc. 24-1 at 2.)

         C. Plaintiff and David Gibson

         1. Plaintiff's Thoughts as to Why the Relationship Went South

         Plaintiff alleges that a few months after Mr. Gibson became the Store Manager of the North Baton Rouge store, their relationship started going downhill. (Doc. 24-1 at 2.) Specifically, Plaintiff alleges that one morning when he was responsible for opening the North Baton Rouge store, there was a rainstorm which caused signs outside to blow over and tree branches to fall. (Doc. 24-1 at 2.) Plaintiff said he did not send any employees outside to clean up the front of the store during the storm. (Doc. 24-1 at 2.)

         Plaintiff alleges that later that day when the weather calmed down, Mr. Gibson drove up to the front of the store and saw that “the front [was] kind of in disarray.” (Doc. 24-1 at 3.) Plaintiff alleges that when he met Mr. Gibson outside, Mr. Gibson started to “curse” during the conversation with Plaintiff because of the condition of the front of the store. (Doc. 24-1 at 3.) Plaintiff testified “[a]nd I stopped him in his tracks. Don't disrespect - don't curse me when you are having a conversation with me. If you want to talk to me, you respect me as a man, and I'll give you respect as a man. Don't curse me. Actually talk to me. Don't do it.” (Doc. 24-1 at 3.)

         Plaintiff testified that from that point “I think it just went down the line from there. You know, but he's not going to talk to me any kind of way, and I'm going to sit back and let you do it.” (Doc. 24-1 at 3.) Plaintiff testified that after this occurred, Mr. Gibson stopped doing store walks with Plaintiff through his departments to offer advice and suggestions and stopped assigning Plaintiff specific days when he could concentrate on completing specific tasks in his departments. (Doc. 24-1 at 3.) Plaintiff also testified that after this incident with Mr. Gibson, Mr. Gibson might see Plaintiff standing in an aisle and would not speak to him and would walk the other way. (Doc. 24-1 at 3.)

         2. Plaintiff's 2012 Yearly Evaluation

         Plaintiff alleges that Mr. Gibson's “personal” attack against him continued with Plaintiff's fiscal year 2012 Performance and Development Summary, or yearly evaluation. (Doc. 24-1 at 3.) Plaintiff refused to sign the evaluation. (Doc. 24-1 at 4.) Plaintiff alleges it was contradictory. (Doc. 24-1 at 4.) Plaintiff also had issues with the following statements in the review:

Arrogant: Self confident is a great attribute but it can be seen as Arrogant. Lawrence needs to be more approachable and warm to customers and associates, think about his response to customers and associates.
Arrogant: Self confidence gives off a sense of cold and aloof, makes others feel inferior.

(Doc. 24-1 at 4.) Plaintiff felt as though this was a “personal attack because it has nothing to do with my work ethics or my performance.” (Doc. 24-1 at 4.) Plaintiff also felt he should have been marked as a “Top Performer” rather than a “Valued Associate” because “[o]nce again, I continued to be one of the best[.]” (Doc. 24-1 at 4.)

         Plaintiff admitted his fiscal year 2012 review was for the first full year that he and Mr. Gibson worked together. (Doc. 24-1 at 4.) Plaintiff also admitted that his review was Mr. Gibson's opinion, even if Plaintiff himself disagreed with it. (Doc. 24-1 at 4.) Further, in Plaintiff's fiscal year 2012 review, Mr. Gibson noted that he believed Plaintiff would be ready for a Store Manager position “within 1 year if he works on the develop[ment].” (Doc. 24-1 at 4.) The review also contains other positive comments, such as “[k]nows how business works; knowledgeable in current and possible future policies, practices and trends. Is aware of how strategies and tactics work in the marketplace.” (Doc. 24-1 at 4.)

         3. Plaintiff's July 24, 2013, Disciplinary Notice

         Plaintiff alleges that Mr. Gibson continued his personal attack against him on or around July 24, 2013, when Mr. Gibson issued Plaintiff a discipline notice. (Doc. 24-1 at 4.) That Progressive Discipline Notice referred to certain performance deficiencies noted by Mr. Gibson, including:

. During week 21/22 receiving associate Lenny went out on an LOA. Lawrence did not react to the situation from a leadership perspective to ensure the receiving DH had the required help to perform his daily duties as well as breakdown pallets of freight which caused a congestion of freight in receiving.
. Lawrence has not displayed the necessary engagement with the day and night Receiving DS's.
. Lawrence's engagement with the Inventory process was substandard. There was a perceived lack of sense of urgency and insufficient follow up on the overhead checklist.
. The Front end score card has been below company standards for the last 3 weeks and Lawrence has not implemented a plan of action to course correct the situation.
. Lawrence has failed to consistently ensure all Will Calls have specific locations and required notes in the system by setting expectations and following up with his team to ensure compliance.
. The Book and Physical report was not worked in over a month leading up to inventory. (Doc. 24-1 at 5.) The discipline notice also outlined steps Plaintiff had to take to improve his performance. (Doc. 24-1 at 5.)

         Plaintiff alleges that Mr. Gibson allowed three associates to take a weekend off which he alleges led to the shortage of staffing in the receiving department. (Doc. 24-1 at 5.) Plaintiff also denied that the “Front End score card” was below company standards. (Doc. 24-1 at 5.) Plaintiff refused to sign the discipline notice acknowledging that he received it. (Doc. 24-1 at 5.)

         Plaintiff once again alleged that the discipline notice was “personal” in nature. (Doc. 24-1 at 6.) Plaintiff testified that he believed it went back to Mr. Gibson being threatened by his (Plaintiff's) standing within the company. (Doc. 24-1 at 6.)

         4. The Berda Cage Issue

         More than a week before Plaintiff's counseling of July 24, 2013, Mr. Gibson initiated a call with Home Depot's Associate Advice and Counsel Group (“AACG”)[4] regarding a possible integrity issue with one of the hourly associates at the North Baton Rouge store, Berda Cage. (Doc. 24-1 at 6.) Mr. Gibson noted to the AACG that Ms. Cage had an unusual amount of bad time “punches” from February 2013 through July 2013. (Doc. 24-1 at 6.)

         Mr. Gibson was made aware of this abnormality by the District Human Resources Manager, Kevin Kydd, and contacted the AACG for advice as to how to handle the issue. (Doc. 24-1 at 6.) The AACG initiated an investigation of its own, and learned that Ms. Cage would often arrive at work when the store was busy, and would start helping customers before she punched in for work. (Doc. 24-1 at 6.) The AACG also learned that Ms. Cage had been informed by the bookkeeper of the North Baton Rouge store about the excessive missed time punches and that she needed to make sure to punch in when she arrived at work. (Doc. 24-1 at 6.)

         Plaintiff was interviewed regarding Ms. Cage's missed punches. (Doc. 24-1 at 6.) In that interview and in a follow-up email sent by Plaintiff on July 25, 2013 to an AACG representative, Plaintiff confirmed that Ms. Cage would often report to work and before clocking in, would see the Home Depot service desk backed up and would begin working before clocking in. (Doc. 24-1 at 7.)

         On July 27, 2013, the AACG recommended that Ms. Cage be counseled for “working off the clock.” (Doc. 24-1 at 7.)

         On the same day, the AACG also recommended that Plaintiff be counseled for “ ‘ . . . directing, allowing, suggesting or asking an associate to work off the clock.' The OASM (Plaintiff) knew the DH was working off the clock as evidenced by his interview and written statement.” (Doc. 24-1 at 7.) The AACG relayed this recommendation to Mr. Kidd. (Doc. 24-1 at 7.) However, before Plaintiff could be counseled, he went on vacation and then on a leave of absence. (Doc. 24-1 at 7.)

         D. Plaintiff's Pre-Leave Email

         Around the time of the Berda Cage investigation and Plaintiff's July 25, 2013 email regarding Ms. Cage, Plaintiff went on vacation. (Doc. 24-1 at 7.) He returned to work for one day and then went on FMLA leave for “stress behind work” and due to his mother's poor health. (Doc. 24-1 at 7.)

         On July 31, 2013, before Plaintiff went on FMLA leave, he sent an email to Frank Blake (Home Depot's CEO at the time), Marvin Ellison (Home Depot's COO at the time) and Ann Marie Campbell (a Home Depot Divisional President at the time). (Doc. 24-1 at 7.) In that email, Plaintiff alleges that the Store Manager, David Gibson, and the District Team had “personal vendettas” against him. (Doc. 24-1 at 8; Doc. 24-3 at 70.) Plaintiff referred to the alleged cursing incident with Mr. Gibson outlined above. (Doc. 24-1 at 8.) Plaintiff stated in the email that “from that point everything became personal.” (Doc. 24-1 at 8; Doc. 24-3 at 70.) Plaintiff then referenced his annual review, and stated “[w]hen I received my review, it was based off of personal feelings versus being based off of my store performance and the District Team had a major impact on the review as well.” (Doc. 24-1 at 8; Doc. 24-3 at 70.)

         Plaintiff also complained about the discipline notice he received on July 24, 2013. (Doc. 24-1 at 8.) Plaintiff asked that the discipline counseling be removed, that his review be rewritten “without any personal attacks” and that he be allowed to transfer stores, alleging that there was no growth for him at the North Baton Rouge store. (Doc. 24-1 at 8; Doc. 24-3 at 71.) This was the first time Plaintiff asked for a transfer from the North Baton Rouge store. (Doc. 24-1 at 8.)

         As admitted by Plaintiff, he did not mention anywhere in this email that he felt he was being mistreated on the basis of his race, age or gender. (Doc. 24-1 at 8.) Plaintiff testified that he “didn't feel a need to” mention that he felt he was being mistreated on the basis of his race, age or gender. (Doc. 24-1 at 8.)

         Plaintiff testified that he was contacted by Ms. Campbell and was told Home Depot was investigating the allegations. (Doc. 24-1 at 8.)

         E. Plaintiff's FMLA Leave and Return from FMLA Leave1. ...

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