United States District Court, W.D. Louisiana, Lake Charles Division
T. TRIMBLE, JR. UNITED STATES DISTRICT JUDGE
the court is a "Motion for Summary Judgment" (R.
#53) filed by defendant, Wal-Mart Stores, Inc.
("Wal-Mart") wherein the mover seeks to dismiss
with prejudice Plaintiffs lawsuit alleging race and age
discrimination in violation of 42 U.S.C. § 2000e,
et seq. (Title VII) and the Age
Discrimination in Employment Act of 1967, as amended, 29
U.S.C. § 623, et seq. (ADEA).
Wilson Goodley, an African-American born on January 29, 1953,
was employed at Wal-Mart Store No. 469 in Lake Charles,
Louisiana from June 1986 until his discharge on February 10,
2015. The Store Manager, Keith Duplechin,
terminated Mr. Goodley due to long standing problems with
attendance and job performance.
statement of material facts, Wal-Mart lists the following
complaints Mr. Goodley made for past discrimination:
1997, after being disciplined for excessive absenteeism, Mr.
Goodley filed a complaint with the Louisiana Commission on
Human Rights; the charge was dismissed.
1997, after Mr. Goodly spoke out about alleged mistreatment
of Associates, Mr. Goodley complained he was the subject of
racially based retaliation.
August 20, 1997. Mr. Goodley complained of "abusive,
oppressive, cruel, harassment, and provocative method of
administering" manager's authority over Wal-Mart
September 10, 1997, Mr. Goodley authored a complaint letter
alleging he was harassed and discriminated against by members
of the management teams and such harassment was racially
motivated and intended for his "eventual
March 21, 2002, Mr. Goodley authored a letter to the Wal-Mart
Regional Vice President complaining that the management team
made unreasonable demands and created a hostile work
environment and that certain actions were based on racial
April 2002, Mr. Goodley was terminated for absenteeism. He
was later reinstated after producing a doctor's statement
reporting that he had been under a doctor's care. Mr.
Goodley claims the termination constituted race
March 11, 2004, Mr. Goodley filed a complaint against the
Support Manager alleging he was threatened with disciplinary
action for refusing to push shopping carts due to other
pending job responsibilities. Mr. Goodley believed the
manager's actions were based on racial
May 2012, Mr. Goodley authored a complaint to the Manager
about the Department Manager's assignment of tasks which
Mr. Goodley believed were out of racial animus.
majority of Associates and Managers throughout Mr.
Goodley's employment are and have been
African-American. Wal-Mart further provides a history of
Mr. Goodley's attendance problems through his Annual
his November 7, 1989 performance evaluation, Mr. Goodley
commented "I do need to be at work on time, because it
could create a problem and I will do so."
his May 1991 performance appraisal, Mr. Goodley's
"plan of action" was to improve his tardiness by
trying to avoid being late and missing too many
his May 1992 performance review, Mr. Goodley stated that he
needed improvement on arriving at work on time as
Mr. Goodley's 1994 Associate Self-Evaluation, he stated
that he intended to "try to be more consistent on
getting to work on time."
Goodley's 1997 performance review states that he
sometimes had a problem reporting to work on
Mr. Goodley's 1998 Associated Evaluation,
"attendance" and "punctuality" were areas
of needed improvement.
his 2008 performance review, Mr. Goodley stated that he
"will work on punctuality and
Mr. Goodley's 2010 performance evaluation, attendance was
identified as an area of opportunity.
Mr. Goodley's 2012 performance evaluation, attendance was
identified as an area of opportunity.
has submitted a history of Mr. Goodley's coaching for
improvement as follows:
December 12, 2003, Mr. Goodley received a First Written
Coaching as a result of having 23 unapproved absences in a
six month period.
March 29, 2005, Mr. Goodley received a First Written Coaching
for six (6) unexcused absences in one month.
April 29, 2006, Mr. Goodley received a First Written Coaching
after he "missed numerous scheduled days of work in a
six month rolling period."
June 17, 2008, Mr. Goodley received a First Written Coaching
for 20 unapproved absences and eight tardies during the
pertinent time period.
August 25, 2009, Mr. Goodley received a First Written
Coaching for 19 absences within a 6 month rolling period at
which time Mr. Goodley was aware that seven (7) in the six
month rolling period should have resulted in
September 9, 2011, Mr. Goodley was observed to have 14 points
assessed for attendance related issues; Wal-mart's policy
allowed three (3) points in six (6) months.
submits summary judgment evidence of Mr. Goodley's job
performance problems as follows:
Wal-Mart used a computerized time management system to
monitor productivity of overnight stockers.
Goodley acknowledged that he consistently had problems
meeting benchmark performance levels set by the computerized
time management system.
While working as a full-time night stocker, Mr. Goodley also
operated a clothing store and worked 30to35 hours a week
duringthe day. He was often so tired he frequently slept
during breaks while working as a night stocker.
Manager Duplechin spoke to Mr. Goodley on more than one
occasion about his job performance issues which Mr. Duplechin
opined were accentuated by Mr. Goodley's full time work
during the day and full-time night shift.
Duplechin offered Mr. Goodley a maintenance position that did
not utilize the computer based time management system, but
Mr. Goodley refused the offer.
January 3, 2015, the overnight Co-Manager authored an email
sent to Mr. Duplechin regarding attendance and performance
issues, one of which involved Mr. Goodley and the fact that
he was on his third coaching for "attendance/job
performance issues." The email reported that Mr.
Goodley's performance was "still below
expectations" and that he continued to have attendance
submits summary judgment evidence as to Mr. Goodley's
coachings/progressive discipline which led to his termination
July 20, 2013, Mr. Goodley was issued a First Written
Coaching due to "Attendance/Punctuality problems."
He was advised that the next level of action would be a
"Second Written up to and including Termination" if
Goodley's attendance/punctuality problems
February 5, 2014, Mr. Goodley received a Second Written
Coaching for "Attendance/Punctuality" wherein it
was noted that Mr. Goodley had five (5) tardies and four (4)
absences in the preceding six (6) months.
March 30, 2014, Mr. Goodley received a Third Written Coaching
due to "Job Performance" because African-American
Assistant Manager Simmons observed that Mr. Goodley had been
unable to complete tasks on several occasions and that an
increase in productivity was needed.
Between August 11, 2014 and February 10, 2015, Mr. Goodley
had ten (10) unapproved absences and five (5) unapproved
February 2015, Mr. Duplechin made the decision to terminate
Mr. Goodley based on (a) chronic attendance problems that
were unabated, (b) unimproved job performance, and (c) Mr.
Goodley had been issued a Third Written
his Exit Interview, Mr. Goodley was eligible for rehire by
Wal-Mart, and even though he was aware that he was eligible
for rehire, he has never reapplied for employment with
also provides ratios of black to white stockers during the
pertinent time periods as follows:
February 15, 2015 (at the time of Mr. Goodley's
termination), 74% of the stockers were either
African-American or minority, and 25.7% were
February 10, 2016, 88% of the stockers were African-American
and minority, whereas 12% were Caucasian.
February 10, 2016, 80% of the stockers were African-American
and minority, whereas 20% were Caucasian.
Goodley was not replaced by a specific new hire, and he is
not aware if he was replaced by a white
February 18, 2015, three (3) night stockers were hired; two
(2) were African-American and one (1) was Caucasian. From
February 11, 2015 to December 31, 2015, in accordance with
Wal-Mart's practice of hiring on a regular and continuing
basis, of the eleven newly hired stockers, nine were
lawsuit, Mr. Goodley attempts to establish racial
discrimination based on white associates who allegedly
received more favorable treatment than Mr. Goodley. Wal-Mart
has submitted evidence of certain Wal-Mart employees that Mr.
Goodley relies upon to establish discrimination.
a 53 year-old white co-worker who Mr. Goodley alleges had
absenteeism which exceeded Mr. Goodley's absences. Mr.
Goodley alleges that A.M. was not disciplined or
terminated. A.M. was employed as a sales associate
from January 3, 2010 through January 12, 2014. (A.M. was bom
in 1965). A.M. was terminated on January 12, 2014 and her
discharge is identified as "Assignment
Completed." A.M. was rehired as a grocery stocker on
March 23, 2014. On August 31, 2014, A.M. was given a
"Second Written Coaching for
"Attendance/Punctuality. On January 3, 2015, Mr.
Duplechin received an email from Ms. Loerwald indicating that
A.M. had "19 absences with no coachings - includes 11 no
shows. Not including time or requested for LOA - need to
submits undisputed summary judgment evidence that from July
14, 2014 through January 13, 2015, many of A.M. absences
should not have been counted as "occurrences"
because A.M. was on an intermittent leave of absence and from
October 10, 2014 through November 29, 2014, A.M. was on
personal leave.Consequently, when A.M. received her
first coaching in January 2015, shortly after Loerwald's
email, A.M. had between seven (7) and thirteen absences in
over thirteen months.
January 7, 2015, A.M. received a First Written Coaching for
"Attendance/Punctuality" and on April 3, 2015 A.M.
received a Second Written Coaching for
"Attendance/Punctuality". On June 10, 2015 A.M.
received a Third Written Coaching for
"Attendance/Punctuality" and was advised that the
next level of action would be termination. On August 23,
2015, A.M. was terminated due to excessive absences and
is a Caucasian stocker who was born in 1957, just four (4)
years younger than Mr. Goodley. R.W.B. worked for
Wal-Mart for 12 years and was terminated on February 6, 2012
due to job performance issues. R.W.B. was eligible for rehire
and was rehired on July 17, 2012 as a stocker. From August
2004 until April 2015, R.W.B. worked as a Maintenance
Associate in a different department than Mr. Goodley with a
different supervisor. Consequently, because R.W.B. was not
a night stocker in January 2015, Ms. Loerwald would not have
reviewed his attendance records to prepare her January 3,
September 12, 2013, R.W.B. received a First Written coaching
for Respect for the Individual. On October 6, 2013,
R.W.B. received a Second Written coaching for meal break
violations. On May 1, 2014, R.W.B. received a Third
written coaching for Poor Customer Service. Neither
Duplechin nor Loerwald were aware that R.W.B. had any
(born in 1987) is a white night stocker who Mr. Goodley
alleges had excessive absences but was not
terminated. W.M. was terminated on June 15, 2009
after three (3) days of unreported absences.W.M. was
rehired on March 28, 2010 as a stocker. From December
15, 2013 until November 29, 2015, W.M. worked as a sales
associate in the dairy/frozen foods department. On November
29, 2015, W.M. became a night stocker; he received a First
Written Coaching for "Attendance/Punctuality" on
July 12, 2010 and a Second Written Coaching on August
28, 2010. W.M. received a Third Written Coaching
for "job performance" on November 28, 2010 which
was cancelled following a complaint made by W.M. pursuant to
Wal-Mart's "Open Door" policy.
April 13, 2011, W.M. received a Third Written Coaching for
"Attendance/Punctuality". On May 4, 2012, W.M.
received a First Written Coaching for
"Attendant/punctuality" which expired on May 5,
2013. On November 28, 2012, W.M. received a
Second Written coaching for "Job Performance" which
expired on November 28, 2013. On May 9, 2015, W.M. received
a First Written Coaching for
"Attendance/Punctuality." On January 29, 2016, W.M.
received a Second Written Coaching for "Job
Performance" which expired on January 28,
performed a different job, in a different department with a
different supervisor and did not become a night stocker until
nine (9) months after Mr. Goodley's termination.
Goodley alleges that B.B. (born in 1983) had excessive
absenteeism but was not disciplined or
terminated. From August 11, 2013 through November 3,
2013, B.B. was employed as a Food Sales ASC and from November
3, 2013 through May 31, 2015, B.B. was employed as a support
manager. Mr. Goodley asserts that someone told
him that B.B. falsified attendance ...