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Shephard v. Wal-Mart Stores East LP

United States District Court, N.D. Indiana, Fort Wayne Division

June 17, 2015





Plaintiff Virginia Shephard, a female in her mid-fifties during the time period relevant to the present lawsuit, began working for defendant Wal-Mart Stores East, LP, in 1999. (DE # 26-2 at 14, Pl. Dep. 52:17-24.) After about a decade of service, plaintiff claims she experienced difficulties with store manager Hatem Ali. Specifically, plaintiff claims that for approximately one to two years (from 2008 or 2009 through April of 2010), Ali asked her questions about her divorce between ten and twenty times, and greeted her each day by putting his arm around her shoulder and asking her “How are you doing today? Whatcha going to be doing today?” (DE # 41-1 at 3; DE # 45-1 at 20-28, Pl. Dep. 163-171.) Plaintiff states that in April 2010, she told Ali that she was dating someone, so Ali would leave her alone. (DE # 42 at 3.) She claims that after she told Ali she was dating someone, Ali became hostile and negative. (Id.) Plaintiff claims that she complained to store co-manager Patrick Azzarello about Ali’s conduct at some point. (Id. at 4.)

Plaintiff also alleges that she experienced difficulties with a zone manager named Tammy Kleeberg. Plaintiff claims that at some point between April 2010 and September 2011, Kleeberg told plaintiff: “[W]e’re trying to get rid of old people like Deloris [another employee], then we’ll make more money.” (DE # 42 at 4; DE # 41-1 at 6.) Plaintiff further alleges that, at some unknown time, Kleeberg said that management was “trying to get rid of the old employees” and the “old people.” (DE # 42 at 4; DE # 41-1 at 6-7.) Plaintiff also alleges that, at another unknown time, plaintiff asked for an additional employee to assist with the work load in her department, and Kleeberg responded: “[W]hy don’t you just step down gracefully and take something easy, since you don’t have no help? I can’t get them to leave them here to help you. Just step down and take people greeter or cashier.” (DE # 42-4 at 4; DE # 41-1 at 6.) Plaintiff claims that she told John Wolf, the district manager above Ali, about Kleeberg’s comments. (DE # 41-1 at 2, 9.)

Plaintiff claims that she experienced a number of negative consequences on the job after her encounters with Ali and Kleeberg. Plaintiff states that she was issued a verbal coaching by an assistant manager on April 16, 2010. (Id. at 5) Additionally, plaintiff claims that in April 2010, defendant increased her workload by requiring her to handle the modulars in the pharmacy department (a job that was two years overdue for updating), plaintiff was scheduled to work every Saturday, plaintiff was required to work during and over breaks, in September 2010 she received a poor performance review purportedly addressing her performance in 2009, and in November 2010 she received a written coaching for misconduct relating to “integrity, ” in which defendant claimed that plaintiff had removed coupons from perfume boxes for her own personal gain. (Id. at 5-6, 12.) Plaintiff was disciplined with a “decision day” coaching on March 21, 2011, for alleged continued productivity problems and insubordination, and was terminated on March 22, 2011.[1] (Id. at 7.)

Plaintiff filed a charge of discrimination on June 6, 2010, alleging that she was subjected to a hostile work environment on the basis of sex and age in violation of her rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. (DE # 42 at 2.) After the EEOC issued a right to sue letter, plaintiff filed the present lawsuit making the same allegations. (DE # 1.) Defendant has moved for summary judgment. (DE # 24.) The motion and a related motion to strike (DE # 48) have been fully briefed by both sides and are ripe for ruling.


Defendant has moved for summary judgment. Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after adequate time for discovery, against a party “who fails 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary judgment is appropriate–in fact, is mandated–where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted).

The moving party bears the initial burden of demonstrating that these requirements have been met. Carmichael v. Village of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010). “[T]he 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 his burden, the non-moving party must identify specific facts establishing that there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003) (citing Celotex, 477 U.S. at 324). In doing so, the non-moving party cannot rest on the pleadings alone, but must present fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). In viewing the facts presented on a motion for summary judgment, the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Chmiel v. JC Penney Life Ins. Co., 158 F.3d 966 (7th Cir. 1998).


A. Defendant’s Motion to Strike

Defendant has moved to strike an exhibit filed by plaintiff. (DE # 48.) Specifically, defendant moves to strike a transcript purporting to represent the contents of various audio recordings of conversations with various co-workers, which were recorded surreptitiously by plaintiff. (Id.)

The court must strike this evidence for several reasons. First, the actual audio recordings were never submitted to the court, even after defendant pointed out this shortcoming in its motion to strike. “[I]t is the tape recording of the conversation that constitutes evidence of what was said, not the transcript.” Stringel v. Methodist Hosp. of Ind., Inc., 89 F.3d 415, 420 (7th Cir. 1996). Further, though a court can admit a transcript of an audio recording to assist a fact-finder in understanding the evidence before it, the court must ensure the authenticity of the tape recording itself. Id. (explaining a seven-factor test for authenticity, including consideration of “the competency of the operator, the fidelity of the recording equipment, the absence of material alterations in the relevant portions of the recording, and the identity of the speakers”). Also, “[t]he district court . . . bears an obligation to make sure in the first instance that the tape recording is, within reason, intelligible.” United States v. Howard, 80 F.3d 1194, 1198 (7th Cir. 1996).

The court is unable to complete these tasks without the audio recordings themselves. This is the stage at which plaintiff should have submitted them. Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 476 (7th Cir. 2010) (district court did not abuse discretion in declining to consider transcripts as evidence at summary judgment stage because audio recordings were not submitted to court, and “[s]ummary judgment proceedings provide the ‘put up or shut up’ moment in litigation”). Because plaintiff failed to submit the actual evidence – the tape recordings ...

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