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Swells v. Sam's Club

United States District Court, D. New Jersey

July 25, 2017

SAM'S CLUB, Defendant.


          KEVIN MCNULTY United States District Judge.

         Pro se plaintiff Chantel Sivells sues her former employer, Sam's Club, [1]for violations of Title VII of the Civil Rights Act of 1964 and for defamation. Sivells, who is female and African-American, alleges that Sam's Club treated men and Hispanics preferentially, and that she was fired for complaining about it. She adds that Sam's supervisors defamed her in the process. Sam's Club has moved for summary judgment. The record paints a picture of a conscientious employee who worked hard and took her job seriously. It also suggests that at least some of Sivells's grievances may be real and substantial. Title VII, however, is a remedy for discrimination, not a salve for workplace tensions and disputes. Because there is insufficient evidence of discriminatory animus, and because the defamation claim is both defective and beyond the statute of limitations, I will grant the motion of Sam's Club for summary judgment and dismiss the complaint.


         A. Facts[2]

         On March 29, 2011, Sam's Club hired Sivells, an African-American woman, as a part-time cashier. Later that year, in October 2011, she shifted to a position as a part-time gas station attendant. In February 2013, she was made a full-time gas station attendant. (DSF ¶¶ 1, 3, 6; Dep. 122:23-25)

         Sam's gas station attendants typically work in four overlapping shifts. One employee opens the station; that "opening" shift begins before 6:00 am and ends early in the afternoon, sometime between 1:30 to 2:30 pm. A second employee arrives at around 7:00 am and leaves around 3:00 or 3:30 pm. A third arrives at 9:00 am and leaves between 5:00 or 5:30 pm. The last two employees close the station; that "closing" shift starts between 1:30 pm and 2:00 pm and concludes around 9:30 pm. (Dep. 25-29)

         Sivells preferred the opening shift, although she was available for others. Typically, she was scheduled for the opening shift between two and four times a week. Gas station attendants were permitted to trade shifts with each other if they didn't like their assigned shifts. From June 1, 2013 to November 25, 2013, Sivells worked a total of 123 shifts. Of that total, 83, or about over two thirds, were opening shifts. (DSF ¶¶ 4, 7, 35; Dep. 134:23-135:13, 146:6-22)

         While employed at Sam's, Sivells felt she was excluded from a clique of female employees, which she calls the "Social Group." Members included "Myra" (Hispanic), "Brittany" (white), "Natalie" (Hispanic), "Tamika" (African-American), and "Carmina" (Hispanic). The Social Group "felt as if they were better than everybody else" and "were untouchable." They didn't like Sivells; Sivells didn't like certain things about them, including their "gossip."[3] Some members of the Social Group, such as Brittany and Carmina, were managers. Others, such as Myra, were supervisors.[4] (Dep. 48:7-16, 51:23-53:15, 62-10:-63:25)

         Sivells says that her outsider status negatively affected her shift assignments. After a gas station employee named "Waleska" (Hispanic female) left Sam's, her opening shifts went "up for grabs." Sivells told Brittany, Carmina, and another manager, "Lafina" (African-American female), that she would like Waleska's shifts. Although two male gas stations attendants didn't even want those shifts, management nevertheless split them up among all the gas station attendants.[5] In another instance, "Quadere" (African-American male) was given opening shifts because he was friends with Brittany, even though Sivells was more senior and Quadere was guilty of "stealing company time."(Dep. 124, 126:3-8, 127, 133:3-6; 159:7-161:12)

         Sivells also claims that the Social Group was responsible for her having to work through lunch and breaks. On a number of occasions, the gas station attendant(s) scheduled to work the shift following that of Sivells did not show up. When this happened, Sivells would ask for reinforcements, but management "would say they wouldn't have anyone" available to help. So she was forced to "stay[] at the gas station pumping every single car that came in" for "eight hours, six hours, seven hours." Management's inadequate response to her plight, says Sivells, is traceable to the Social Group's personal dislike of her. Out of a total of 492 shifts that Sivells worked as a gas station attendant, this happened seven or eight times. (DSF ¶ 44, Dep. 30:14-31:21, 43:20-25, 45:2-18, 53:6-54:6)

         In a September 30, 2013 email, Sivells alerted a corporate human resources manager, Jennifer Logan (African-American female), that "me and my coworkers [were being left] outside alone for hours." She also identified a number of other management failures, including "not properly staffing the gas station, " "overlooking the schedules to make sure all shifts are thoroughly covered, " excluding gas station attendants from "incentives for good performance, " and failing to recognize and appreciate the gas station attendants' contributions to the Sam's team. The email essentially complains about mismanagement and working conditions; it contains no allegation of race, color, or gender-based discrimination. (9/30/2016 Email)

         On November 25, 2013, Sam's Club terminated Sivells for "gross misconduct." That morning, Asset Protection Manager Harold Hurtado inspected the gas station and observed debris in the underground gas tanks.[6]Hurtado asked Sivells, who had opened the station, why she had indicated on the "Fuel Attendant Opening Checklist" that the tanks were clean. Sivells explained that she first completed the checklist when she arrived in the morning and then performed the required tasks, such as cleaning the tanks, during the course of her shift.[7] That, Hurtado admonished, "was not the right way to do it, " to which Sivells retorted: "Whatever. I already signed the damned paper." As Hurtado walked away, Sivells swore at him.[8] For swearing and being disrespectful to management, Sivells was fired. (Hurtado Stmt.; Borahona Stmt.; Exit Interview)

         Two or three months after the "swearing" dismissal, in February 2014, Sivells was reinstated. The following month, however, she took a leave of absence. After a year-long absence, on March 25, 2015, she resigned from Sam's, citing personal and health issues. (DSF ¶¶ 68-73)

         Sivells now lives in Virginia. She sells insurance and works at a Food Lion supermarket.[9]

         B. Procedural History

         On January 29, 2014, Sivells filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"). On September 11, 2014, the EEOC issued a right-to-sue letter. On December 8, 2014, Sivells filed this action. (ECF No. 1)

         On September 30, 2015, Sam's Club moved to dismiss the complaint. Although the standard short-form complaint contained few concrete factual averments of discrimination, I denied the motion. As a pro se litigant, Sivells was entitled to some leeway, and the documents submitted in connection with the complaint persuaded me that there was "enough here to warrant at least some discovery." (ECF Nos. 16, 21)

         In October 2016, discovery closed. Sam's Club filed a motion for summary judgment on January 13, 2017. The motion is now fully briefed and ripe for decision. (ECF Nos. 35, 38-40)


         A. Standard of Review

         Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted "if 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 also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 (1986). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof ... the burden on the moving party may be discharged by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.

         Once the moving party has met that threshold burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which nonmoving party must rely to support its assertion that genuine issues of material fact exist). "[U]nsupported allegations ... and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) ("A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial."). If the nonmoving party has failed "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, ... there can be 'no genuine issue of material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).

         If a party fails to address the other party's properly supported assertion of fact, the court may consider "grant[ing] summary judgment if the motion and supporting materials-including the facts considered undisputed- show that the movant is entitled to it. . . ." Fed.R.Civ.P. 56(e). Local Civil Rule 56.1(a) deems a movant's statement of material facts undisputed where a party does not respond or file a counterstatement. L. Civ. R. 56(a). Sivells has not responded to Sam's statement of material facts. A failure to dispute a party's statement of material facts, however, "is not alone a sufficient basis for the entry of a summary judgment." See Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990) (holding that even where a local rule deeming unopposed motions to be conceded, the court was still required to analyze the movant's summary judgment motion under the standard prescribed by Fed.R.Civ.P. 56(e)).

         Because Sivells is a pro se litigant, as well as the nonmoving party, I have construed her pleadings and filings liberally. See, e.g., Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009) (citing Haines v. Kerner, 404 U.S. 519, 520-521 (1972); Gibbs v. Roman, 116 F.3d 83, 86 n. 6 (3d Cir. 1997)). Sivells's papers are unsupported by sworn affidavits, but she has submitted voluminous (and unpaginated) exhibits. Some of these documents are clearly directed to the merits of the summary judgment motion, and others less clearly so. I nevertheless have considered them all. For purposes of this motion, I have credited her factual contentions as if they had been contained in sworn affidavits and insofar as they have record support.

         B. ...

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