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Sherman v. Walmart

United States District Court, E.D. Wisconsin

May 16, 2019

JAMES SHERMAN, Plaintiff,
v.
WALMART, Defendant.

          DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE.

         James Sherman, an African-American, files this lawsuit against his former employer, Walmart, alleging that he was wrongfully terminated on the basis of race and subjected to a racially hostile work environment in violation of federal and state law. (Second Am. Compl., Docket # 8.) Walmart has filed a motion for summary judgment. (Docket # 23.) For the reasons below, the motion will be granted.

         UNDISPUTED FACTS

         Sherman is proceeding pro se, and Walmart properly included the notice to pro se parties pursuant to Civil L.R. 56(a)(1) (E.D. Wis.) that an opposing party's materials must be submitted within 30 days, and that Walmart's factual assertions would be accepted as true unless Sherman submitted his own affidavit, declaration, or other admissible documentary evidence contradicting the factual assertion. (Docket # 23 at 5-6.) Sherman failed to file a memorandum by the deadline of March 18, 2019. On April 18, 2019, I ordered Sherman to show cause for his failure to respond, and warned that failure to show good cause would result in dismissal of this action with prejudice. (Docket # 32.) On April 26, 2019, Sherman filed a memorandum in response to both the show cause order and the summary judgment motion. (Docket # 33.) He stated that he had been traveling for a new job for the previous two months. (Id.) He did not include responses to Walmart's proposed findings of fact, any additional facts, or any other materials to support his memorandum. His memorandum does not cite to evidence in the record to support contrary facts he alleges.

         I will excuse the untimeliness of Sherman's response because Sherman is proceeding pro se and I see no prejudice to Walmart by the one-month delay. However, because Sherman does not adequately contest or provide evidence to controvert Walmart's proposed findings of fact, Walmart's proposed findings of fact (Docket #25) are deemed admitted for purposes of this motion. Civil L.R. 56(b)(4). See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) ("A district court is not required to wade through improper denials and legal argument in search of a genuinely disputed fact. And a mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material") (internal quotations and citations omitted).

         Sherman began working at Walmart in 2001. (PFOF ¶ 3.) Sherman worked at Walmart for fifteen years, working his way up from being an hourly supervisor to a Store Manager. (PFOF ¶¶ 4-5.) He was trained on Walmart's Global Statement of Ethics and its Discrimination & Harassment Prevention Policies. (PFOF ¶¶ 1-2, 6.) In April of 2013, Sherman received his First Written Coaching as a Store Manager because he bought a round of alcoholic drinks for his subordinates who attended a Walmart-sponsored charity event with him and accompanied them to a bar after the event. (PFOF ¶ 7.)

         Sherman became the Store Manager at Store 2828 in Milwaukee in April 2015. (PFOF ¶ 8.) As the Store Manager, it was Sherman's responsibility to make sure that the store was operating pursuant to Walmart's guidelines and met its revenue goals. (PFOF ¶ 9.) Sherman led a team of subordinate managers, including Co-Managers and Assistant Store Managers, as well as hourly Associates. (PFOF ¶ 10.) Sherman made hiring and firing decisions as well as coaching decisions. (PFOF ¶ 11.) One of the main responsibilities of a Store Manager is to conduct what are called "4 x 4 tours" of the store every day, walking up and down the store's aisles to verify that each four-foot section of shelves are in order, items are stocked and priced correctly, and the area is clean. (PFOF ¶¶ 17-20.)

         As a Store Manager, Sherman reported to a Market Manager whose job is to hold the Store Manager accountable for the operation of the store. (PFOF ¶ 13.) For most of the time that Sherman was the Store Manager at Store 2828, he reported to Market Manager Tonia Logan. (PFOF ¶ 14.) Logan, in turn, reported to Regional Manager Todd Peterson. (PFOF ¶ 15.) Both Logan and Peterson would visit Store 2828 and tour the store in order to point out areas that needed improvement. (PFOF ¶ 16.) Logan performed walk-throughs of all seven of the stores for which she was responsible at least weekly. (PFOF ¶ 30.) Logan would meet with the Store Managers and subordinate managers, walk through the store with them, and point out areas that required improvement. (PFOF ¶ 31.) Logan would provide documentation of her walk-through to the Store Manager, consisting of notes of what she expected to be corrected or improved by the time of the next walk-through. (PFOF ¶ 32.) Oftentimes, Sherman ignored Logan's walk-through comments or would walk away from Logan, and other times he would not attend the walk-through at all. (PFOF ¶ 33.)

         Store 2828 was in bad shape when Sherman took it over in April of 2015, and initially Peterson believed that Sherman was working on the issues and moving it in a better direction. (PFOF ¶ 21.) Store 2828 was a Complex Store, which means that a variety of factors make it more challenging and/or expensive to operate. (PFOF ¶ 22.) It was Peterson's impression that Sherman seemed to think that if his sales were good, he was performing well, even though he was falling behind in terms of Walmart's processes. (PFOF ¶ 23.) Peterson observed that Store 2828 regularly had gaps on its shelves, pallets on the sales floor, and the backroom was clogged with inventory, but Sherman did not correct those problems. (PFOF ¶ 24.) In addition, Peterson observed that Sherman was not consistent in performing the required 4x4 tours. (PFOF ¶ 25.)

         On March 13, 2016, Peterson conducted a visit of Store 2828, after which he sent an email to Sherman noting that he observed that the store was in "rough shape with a lot of issues revolving around very basic operational standards (Zoning, outs, registers backed up, pallets of freight on the floor, associates out of dress code and not practicing the 10 ft rule, shopping carts of returns and trash spread throughout the sales floor, empty sidecounters, etc.)." (PFOF ¶ 26.) Peterson included in the email that he asked Logan to urgently react and that he hoped Sherman would do the same. (PFOF ¶ 28.) In a separate email to Logan, Peterson sent photographs documenting the poor condition of Store 2828. (PFOF ¶ 29.)

         On May 23, 2016, Logan issued a First Written Coaching to Sherman for not completing store tours pursuant to Walmart's guidelines or providing guidance to and setting expectations for his management team. (PFOF ¶ 34, 36.) Logan directed Sherman to correct these deficiencies and provide Logan notes documenting the corrections made. (PFOF ¶ 35.) On July 22, 2016, Logan issued a Second Written Coaching to Sherman for not completing store tours pursuant to Walmart's guidelines. (PFOF ¶ 38.) Sherman's Second Written Coaching also coached Sherman for not following Walmart/Regional direction with his scheduling by arriving late to work on two occasions without notifying the Market team. (PFOF ¶ 39.) On October 3, 2016, Logan issued a Third Written Coaching to Sherman, again for not completing store tours in accordance with Walmart's guidelines. (PFOF ¶ 41.) Sherman was not terminated, demoted, or suspended for any of these Written Coachings and they had no effect on his pay or benefits. (PFOF ¶¶ 37, 40, 42.)

         Sherman disagreed with all three Written Coachings and believes Logan issued them because he was speaking up about her being inconsistent and unfair, and that she treated him differently because he called her out on her inadequacies. (PFOF ¶ 43.) Sherman believes Logan created a hostile work environment at Store 2828 by not being an effective communicator. (PFOF ¶ 44.) Sherman contends that the entirety of Store 2828-including Caucasian Associates and members of management-suffered emotional distress due to Logan's management style. (PFOF ¶ 45.)

         Sherman's 2016 performance evaluation was downgraded from "Role Model" to "Exceeds Expectations" in light of his non-financial performance issues noted by both Peterson and Logan. (PFOF ¶ 46.) Notwithstanding Sherman's non-financial performance issues, because Store 2828 was performing well financially, Peterson did not feel that Sherman could be given less than an "Exceeds Expectations" ranking because 50% of the performance rating was based solely on financial metrics. (PFOF ¶ 47.)

         Peterson, Regional Human Resources Manager Ramon Malavet, and Sherman met in January 2016 at Sherman's request. (PFOF ¶ 48.) At that meeting, Sherman complained about Logan's management style. (PFOF ¶ 49.) Sherman did not claim, however, that he was being discriminated against because of his race. (PFOF ¶ 50.) Following the meeting, Malavet spoke with Logan about Sherman's concerns, and Peterson interviewed Store 2828's Co-Managers. (PFOF ¶ 51.) On February 5, 2016, Malavet and Peterson let Sherman known that the investigation did not reveal any ...


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