Howe v. Sears, Roebuck & Co.

990 F. Supp. 2d 913, 2014 WL 37297, 2014 U.S. Dist. LEXIS 355
CourtDistrict Court, W.D. Wisconsin
DecidedJanuary 3, 2014
DocketNo. 12-cv-902-bbc
StatusPublished
Cited by3 cases

This text of 990 F. Supp. 2d 913 (Howe v. Sears, Roebuck & Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howe v. Sears, Roebuck & Co., 990 F. Supp. 2d 913, 2014 WL 37297, 2014 U.S. Dist. LEXIS 355 (W.D. Wis. 2014).

Opinion

OPINION AND ORDER

BARBARA B. CRABB, District Judge.

Plaintiff Lindsay Howe brings this civil action against her former employer defendant Sears, Roebuck and Co., contending that she was terminated in violation of 42 U.S.C. § 1981 because she reported acts of racial discrimination in the workplace. Defendant denies that plaintiff engaged in a legally protected activity and asserts that she was terminated for violating a company policy and then lying about it.

I conclude that plaintiff has adduced evidence that is minimally sufficient to defeat defendant’s motion for summary judgment. Although it is not clear at this stage whether plaintiff can show that she “participated in an investigation,” she did take steps to oppose alleged acts of racial discrimination. It is a close question whether she can show that her supervisor harbored animosity toward her because of her opposition to racial discrimination and that he so influenced the actual decision makers that they would not have terminated plaintiff but for his statements. From the present record, it seems unlikely that plaintiff can make this showing, but defendant has not demonstrated that she cannot, so I will allow the case to go forward on these claims.

Plaintiff raises another claim that she suffered an adverse employment action when her supervisor reassigned some of her managerial duties to Will Knutson, but she does not develop this argument and she also concedes that Knutson’s then-recent promotion might explain the reassignment of duties. Her failure to develop the argument means that she has forfeited it. I will grant summary judgment for defendant on this ground. In addition, I will not consider plaintiffs undeveloped argument that she can prove she was the subject of employment discrimination through the “indirect method of proof,” which requires plaintiff to show that she had an adequate employment record and was treated less favorably than other similarly situated employees.

One preliminary matter relates to certain documents produced by defendant during discovery. Defendant disputes several of plaintiffs proposed findings of fact on the ground that plaintiff has supported them with citations to documents that in defendant’s view have not been properly authenticated. Dft.’s Resp. to plt.’s PFOF ## 1, 2, 18, 21, 22, 23, 40, dkt. # 48. The disputed documents were attached as exhibits to a declaration filed by plaintiffs [917]*917attorney and include such things as defendant’s anti-diserimination/anti-harassment company policy, dkt. # 40, exh. # 1; and emails exchanged among plaintiffs supervisors, dkt. # 40, exh. ## 4-5. It appears that plaintiff received these documents from defendant during discovery because the documents pertain to inter-company matters and are Bates-stamped.

It would be unproductive to exclude this sort of evidence from consideration at this juncture simply because the other side calls it “unauthenticated.” Kasten v. Saint-Gobain Performance Plastics Corp., 556 F.Supp.2d 941, 948 (W.D.Wis.2008) (defendant’s authenticity challenge “disingenuous” in part because defendant had produced documents at issue during discovery). Defendant adds that some of the documents contain inadmissible hearsay, but it did not expand on this point, so I will not consider it.

From the parties’ proposed findings of fact, I find that the following facts are undisputed.

UNDISPUTED FACTS

A. Plaintiff’s Employment ivith Defendant

Defendant hired plaintiff in June 2004 as a customer service associate in its Janesville, Wisconsin Auto Center store. In March 2007, defendant promoted plaintiff to assistant manager of the Madison West Auto Center in Madison, Wisconsin, a salaried position. Jerry Schultz, the Auto Center manager, was plaintiffs immediate supervisor while she was assistant manager. A store manager and a district manager also supervised plaintiff.

Plaintiffs job was to oversee 10 to 15 automotive technicians. Among other duties, she was expected to educate the technicians on defendant’s anti-discrimination policy and to investigate and report violations of this policy to her managers or to the human resources department. Under company policy, all of defendant’s employees are directed to “take immediate action” upon learning of violations of the anti-discrimination policy.

B. Plaintiff’s Reports about Discrimination

In January or February 2010, plaintiff overheard one of the technicians she supervised, Will Knutson, making racially discriminatory comments to another technician, Alex Lopez. (Defendant does not deny that the actual statements amounted to racial discrimination or that it was reasonable for plaintiff to believe they demonstrated actual racial bias.) Plaintiff reprimanded Knutson and reported the incident to her supervisor, Schultz, and to McKenzie Schneider, a human resources employee at the Madison store. The following day, which was her day off, plaintiff called the Sears human resources hotline to report the incident. After being told that she would have to report the incident to her local human resources personnel before any further action could take place, plaintiff called the hotline that same day to report the incident again, this time anonymously. After plaintiff complained to Schultz about Knutson, Schultz reassigned some of plaintiffs supervisory duties to Knutson, who had been promoted recently, and assigned plaintiff other tasks, such as printing signs and completing additional paperwork.

In April or May of 2010 and in July 2010, plaintiff overheard Knutson making more racially discriminatory comments to Lopez. Plaintiff reported these incidents to Schultz and to Schneider in the human resources department. At Schneider’s direction, plaintiff emailed David Tucker, Schultz’s supervisor, to tell him about the comments. In June 2010, Lopez filed a complaint of discrimination with the Madi[918]*918son Equal Opportunities Commission, in which he complained, among other things, of being subjected to verbal harassment in the form of name calling and derogatory comments about his Mexican heritage. Dkt. #40-2. In August 2010, defendant asked plaintiff to prepare a written statement about the July 2010 incident, which she did. In September 2010, plaintiff heard Knutson making discriminatory remarks to Lopez again. She emailed both Tucker and defendant’s human resources department about the incident.

C. Plaintiffs Violation of Company Policy and Termination

On September 19, 2010, plaintiff allowed Brady Quam, a technician she supervised, to use the Auto Center as a place to install the tires he had bought for his personal vehicle. In doing so, plaintiff violated defendant’s written policy that forbids technicians from working on their own cars in the workplace. A technician may bring in his own car to be worked on, but the technician must pay for the work, which must be performed by a different technician, and a work order must be generated. Plaintiff assisted Quam with the installation at a time when Quam was not “punched in” on his timecard, another violation of company policy. Later that day, plaintiff created a work order for the installation that listed another technician, Alex Lopez, as the person who had worked on Quam’s vehicle. Plaintiff invoiced only one minute of work for the tire installation, a process that typically takes at least 20 minutes.

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Cite This Page — Counsel Stack

Bluebook (online)
990 F. Supp. 2d 913, 2014 WL 37297, 2014 U.S. Dist. LEXIS 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howe-v-sears-roebuck-co-wiwd-2014.