United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
Pro se plaintiff Sharif Hamzah brings this suit against his former employer, defendant Woodman’s Food Market Inc. (“Woodman’s”), under Title VII, 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, claiming a hostile work environment and unlawful termination. More particularly, Hamzah claims that Woodman’s repeatedly discriminated against him on the basis of his age, race, color or ethnicity. Hamzah also claims that he was fired in retaliation for filing internal complaints about this discrimination. Before the court now are the parties’ cross-motions for summary judgment. (Dkt. ##33, 43). After a review of the parties’ respective, proposed findings of undisputed facts, the court finds that Hamzah failed to meet his burden of showing a hostile work environment or retaliation. For the reasons explained below, however, the court finds that Hamzah has presented enough evidence to avoid summary judgment on his unlawful termination claims.
UNDISPUTED FACTS [*]
Sharif Hamzah is Native/African American. At 43 years of age, he was hired as a “utility clerk ” at the “Madison West” Woodman’s on September 2, 2008. Hamzah’s responsibilities included assisting customers, as well as retrieving shopping carts in the parking lot and front end of the store.
As a utility clerk, Hamzah worked under Woodman’s employees Jacob Bemis, a parcel/carts supervisor, and Gabriel Oruruo, the front-end supervisor. Oruruo is African American. The store manager, Dale Martinson, supervised all employees at the Woodman’s Madison West. In his capacity as store manager, Martinson had the ability to hire, fire, discipline and promote employees.
B. Employee manual
On the date of his hire, Hamzah received a copy of Woodman’s General Policies Manual, which he acknowledged by his signature. The manual describes standards of conduct to which Woodman’s employees are expected to adhere, including a “Work and Safety Rules” section. That section organizes rule violations under two categories. “Group 1” violations, which include being insubordinate to a supervisor, are the most serious and provide cause for immediate dismissal. “Group 2” violations are considered less serious and do not carry a risk of termination, unless an employee has received more than five disciplinary notices for a Group 2 violation over a twelve-month period. (Policies Manual (dkt. #38-1) 8.)
C. Customer complaints and written warnings
While Hamzah disputes the underlying accusations upon which they are based, he acknowledges receiving multiple written warnings for customer complaints and rule violations during his period of employment by Woodman’s.
1. Group 1 Violations
During late 2010 and mid-2011, Hamzah received three notices for Group 1 violations, each of which were issued for insubordination. The first notice, dated November 2, 2010, was issued after Supervisor Bemis claimed that Hamzah refused his commands to assist customers at “parcel.” (An area where employees help customers load groceries into their cars.) The second notice was issued on May 12, 2011, and came after Hamzah allegedly refused Bemis’s instructions to retrieve carts from the parking lot, responding, “I don’t want to work that hard.”
According to defendant, Bemis then reported Hamzah’s conduct to Oruruo, who ordered Hamzah to either retrieve carts or work “at the drive-up” or, alternatively, punch out and go home. After Hamzah refused these instructions, Oruruo told Hamzah to go speak to Martinson. Martinson then gave Hamzah the Group 1 notice and warned him that he would be fired if he had any more issues with supervisors or if a customer filed another complaint about him.
The third notice, defendant maintains, was the last straw. Defendant alleges that on July 28, 2011, Hamzah replied, “no!” after Bemis told him to stop putting carts into the cart tunnel. Defendant adds that Hamzah also repeatedly interrupted Bemis while he tried to explain why he wanted Hamzah to stop moving carts to the tunnel. At that point, Bemis went inside the store to report Hamzah’s conduct to Oruruo and Martinson. Martinson then immediately issued Hamzah a termination notice, citing the November 2, May 12 and July 28 Group 1 violations as the reasons for firing Hamzah.
As with the other disciplinary notices, Hamzah denies the factual accuracy of defendant’s record of the events on July 28, but he concedes that Martinson did not consult further with Bemis or Oruruo about his decision to fire Hamzah.
2. Group 2 Violations
In addition, Hamzah received multiple Group 2 violations between 2008 and early 2011. On December 3, 2008, a customer filed a complaint with Woodman’s, claiming that Hamzah got upset when her daughter brushed snow from her car onto an area of the parking lot from which Hamzah was trying to clear snow. In March of 2009, Hamzah received a second written notice for a Group 2 violation after a customer reported that Hamzah struck him with a string of carts that Hamzah was retrieving from the parking lot. After he received another Group 2 notice for loitering during work hours on November 22, 2009, Store Manager Martinson met with Hamzah to discuss his behavior. Hamzah later ...