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Lovato v. Wal-Mart Stores, Inc.

United States District Court, N.D. Indiana, LaFayette Division

July 10, 2019




         This is a lawsuit alleging sex discrimination and retaliation in employment by defendant Wal-Mart Stores, Inc. Plaintiff Christella Lovato was a pharmacy student and while she was pursuing her degree worked as a “Pre-Grad Pharmacy Intern” at a Walmart in Lafayette, Indiana. Lovato alleges that after she broke off a short-lived relationship with another pharmacy intern, her life at Walmart became a living hell. She alleges she was sexually harassed by her former paramour and that Walmart did nothing to stop it, generally turning a blind eye. She says that she was unfairly treated by management who favored him over her in matters of scheduling, and when she complained, management told her she was “full of drama.” Then when she sought legal protection against her harasser, she says that her superiors retaliated against her by offering her a Hobson's choice: take a transfer to a distant store or be fired. When she refused the transfer, Walmart made good on its promise and sacked her.

         Unsurprisingly, Walmart sees things differently. As such, and now that discovery has closed, it has moved for summary judgment on all of Lovato's claims. As discussed below, while I agree with Walmart in several respects, their effort to win this lawsuit without having a jury decide key factual issues cannot succeed in full. There is simply too much conflicting testimony and controverted evidence which, when viewed in the light most favorable to Ms. Lovato, cannot be resolved without a jury. Accordingly, I will grant in part and deny in part Walmart's Motion for Summary Judgment.


         Let's start, as usual, with the facts, recounted in the light most favorable to Lovato, the non-moving party. In October 2012, Lovato was enrolled as a pharmacy student at Purdue University in West Lafayette, Indiana. At that time, she began working at a Walmart store in Lafayette Indiana as a “Pre Grad Pharmacy Intern.” The following February, Lovato had a baby, which reduced her availability to work to some extent. She continued working as a pharmacy intern for approximately two years without any apparent incident or difficulty in scheduling around Lovato's school schedule (which all such pharmacy interns had) and her specific childcare needs. [See Jenkins Dep. at 46-47, 94-97.]

         In July 2014, Lovato briefly dated and had a consensual sexual relationship with a co-worker named Matthew Westenfeld who, like Lovato, was a pharmacy student at Purdue. [Westenfeld Dep. at 8-9, 24-26, 46.] According to Lovato, the relationship ended the same month it began because she felt that Westenfeld was only interested in sex. Shortly thereafter, Lovato experienced symptoms she thought were a sexually transmitted infection and she texted Westenfeld that he should be tested. Lovato says she thought Westenfeld had given her an STI. Westenfeld denied having an STI and told Lovato as much. [Lovato Dep. at 141-43, 147.] In truth, neither gave the other any infection, but that wasn't the end of the matter.

         In August 2014, another Walmart employee complained to management about Lovato, Westenfeld and another intern, who were all discussing sex while on the job. An investigation ensued, but no employees were transferred or disciplined. Lovato and Westenfeld continued to work together for several months, seemingly without issue, but by February 2015, the relationship deteriorated even further.

         In February 2015, Lovato and Westenfeld exchanged a series of text messages. Westenfeld testified that what precipitated the text messages was him getting an STI test (which came back negative) after another pharmacy student told him that Lovato had been telling people he gave her an STI. The two traded juvenile barbs over text, accusing one another of various indiscretions, each saying the other was harassing them, and calling one another “trash.” Neither party comes out looking particularly good in the exchange. At one point, Westenfeld told Lovato that she was “nothing but drama and everyone knows it.” [DE 60-1 (Sealed) at 166-171.] Two days later, Lovato filed a harassment complaint against Westenfeld with their university. The school sent Westenfeld a letter telling him that for everyone's safety, he should have no contact with Lovato while the complaint was under investigation. [Id. at 162-163.] Lovato also brought the complaint and letter to Walmart's attention.

         After receiving the information from Lovato, Walmart's Pharmacy Manager Deb Jenkins initiated an investigation into the matter. [Lovato Dep. at 202-204.] Jenkins learned the text messages occurred outside of work and that they were the result of the pair's prior sexual relationship which had ended months before. Both Lovato and Westenfeld requested that they not be scheduled to work at the same time in their store's pharmacy. Since both were in school still and working part time, Jenkins (who was responsible for scheduling the pharmacy interns) was able to arrange their schedules so that they did not overlap. [See Jenkins Dep. at 27-36.]

         When the school year ended, both Lovato and Westenfeld requested to work full time. Lovato indicated that while she wanted to work 40 hours a week, her continuing childcare needs made it so that she could not be scheduled to work nights or weekends. She also reiterated that she could not work overlapping shifts with Westenfeld. According to Walmart, this presented a scheduling puzzle which could not be solved; there were simply not enough hours during the week that the pharmacy was open so that both Westenfeld and Lovato could work 40 hours a week without any overlap unless Lovato worked nights or weekends. But Jenkins, sympathetic to each intern's desire to work full time, called around to other area stores and was able to place Lovato in various open shifts at those stores, at least for the time being. But in Lovato's view, Jenkins was favoring Westenfeld, allowing him to work full time at a single store, while Lovato was having to work at multiple stores to have full time work. [Lovato Dep. at 191:8-24.]

         When the hodgepodge scheduling efforts proved unworkable, Jenkins ran the issue up the command chain at Walmart and discussed the issue with Market Health and Wellness Director Kari Preston. Lovato says this occurred only after she told Jenkins how unfair the current arrangement was to her. In any event, after conferring with Robin Landrum, a Human Resources Manager at Walmart, Preston told Jenkins that Lovato and Westenfeld would need to be scheduled together and that Jenkins should stop scheduling Lovato to work at other stores in greater Lafayette area. On April 30, 2015, Preston met with Lovato personally to discuss the issue. She told Lovato that she needed to expand her availability if she wanted to pursue a career as a Walmart pharmacist. Lovato also says that Preston asked her why she was causing so many problems. Lovato explained her history with Westenfeld, the text message exchanges from February 2015, and the “no contact letter” Purdue had sent Westenfeld. She also requested a transfer to another store in the area. Preston told her she would investigate the matter but that in the meantime Lovato should work on expanding her availability. [See Preston Aff. at ¶¶ 6-12.]

         Several weeks later, Preston, Jenkins and Lovato had another meeting to discuss the situation. During this conversation, Lovato reiterated her scheduling limitations, both because of her childcare needs and her desire not to work alongside Westenfeld. The three also discussed the no contact letter. Preston explained to Lovato that she could not be scheduled full time given these limitations and Lovato was given a choice between continuing full time and working evenings and weekends and overlapping with Westenfeld or not working full time. Lovato states, without citation to record evidence, that the choice was made under threat of termination and thus under duress. Lovato explained that she wanted to work full time and thus she would seek childcare and work overlapping shifts with Westenfeld. [Id. at ¶ 7.] Jenkins further offered to have her own mother assist by babysitting Lovato's child when possible. Jenkins then met with Westenfeld and informed him that he and Lovato would be working some overlapping shifts. [Jenkins Dep. at 40-41.]

         After this meeting, but before the new schedule took effect, Lovato also reached out to Robin Landrum, the human resources manager, to explain the situation and ask about the possibility of transferring stores. Lovato also states that Preston testified that the assignment and number of pharmacy interns at individual stores is within Preston's discretion and that budget concerns were not at issue when placing pharmacy interns. Effectively, Lovato says that Preston had full authority, if she wanted, to place Lovato in the store Lovato wished to be transferred to (which was within the Lafayette-area near where Lovato attended school at Purdue in West Lafayette). [Preston Dep. at 62-63.] But at this time, Lovato was not offered to transfer to another store in the Lafayette-area.

         Beginning in June 2015 and into early July 2015, Lovato's new schedule took effect. She worked 11 overlapping shifts with Westenfeld over approximately three weeks. When Westenfeld and Lovato had overlapping shifts, Lovato testified that Westenfeld took the opportunity to harass her and make working with him unbearable. She says that during these shifts he touched and groped her buttocks multiple times as he passed by her in the pharmacy. Lovato testified that she felt these actions were meant to harass an intimidate her. She also testified that he would slam pill bottles on counters which made her feel threatened. She further testified that while she was working at her computer (signed in via her credentials), Westenfeld would come up to her, push her aside and access the computer using Lovato's credentials (in violation of Walmart policy). These shifts all occurred after Lovato had obtained her “no contact” letter from Purdue, shown it to her supervisors, and specifically complained to them about Westenfeld. [Lovato Dep. at 192-93, 222-23.] Westenfeld denies the allegations of groping Lovato's buttocks and testified that he only used the computer while logged in with her credentials because of an unspecified “urgent issue” involving a customer.

         On June 19, 2015, Lovato brought these allegations to the human resources manager Robin Landrum. Landrum investigated but with no witnesses or video footage and Westenfeld's denial, Landrum could not corroborate Lovato's version of the events. A few days later, during another overlapping shift, Lovato and other employees in the pharmacy department observed Westenfeld and another employee aggressively flirting with one another, messaging one another, and “getting handsy.” [Lovato Dep. at 231.] Eventually another co-worker told them to cut it out, but Westenfeld apparently continued to behave “aggressively.” [Id.] Lovato testified that after this incident, she thought things would not change and she decided to take legal action against Westenfeld and seek an ex parte order of protection against him.

         Lovato obtained the order of protection on July 7, 2015. The following day she emailed Landrum informing her of the order and that she did not want to work with Westenfeld again. Landrum informed Preston and Jenkins of the order of protection and that Westenfeld and Lovato should not be scheduled to work any longer in compliance with the court's order.

         Around this time, and based on a lead from Landrum, Lovato applied for a pharmacy job at Sam's Club (a subsidiary of Walmart). Lovato interviewed but did not get the job with Sam's Club. After she did not get the job at Sam's Club, on August 10, 2019, Lovato was given the option to transfer to another store. But not to the other store in the Lafayette area that she had previously requested. Instead, she was offered a position at a Walmart in Frankfort, Indiana, approximately 25 miles from where she had been working. [Preston Aff. at ¶¶ 12-16.] Preston testified that the Frankfort store was in most need of an intern and that is why Lovato was offered a spot only there. [Id.] The Lafayette-area stores apparently had between six and eight interns at this time, but the Frankfort store only had two. After approximately two weeks consideration (Lovato was with her ...

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