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Dinolfo v. Home Depot U.S.A., Inc.

United States District Court, N.D. Mississippi, Oxford Division

March 28, 2018



          Michael P. Mills U.S. DISTRICT COURT JUDGE

         This cause comes before the court on the motion of defendant Home Depot U.S.A., Inc. for summary judgment, pursuant to Fed.R.Civ.P. 56. Plaintiff Ronnie Dinolfo has responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, concludes that the motion is not well taken and should be denied.

         This is a Title VII and Americans With Disabilities Act (“ADA”) retaliation case arising out of plaintiff's February 11, 2016 termination as an assistant manager at Home Depot's Horn Lake department store. Plaintiff first began working for Home Depot as a sales associate in 1997, and the parties disagree regarding how effective an employee he was. Plaintiff insists that he was a good employee, and he buttresses this statement with testimony from his store manager that he was one of the best assistant mangers he ever had. Defendant notes, however, that plaintiff had received a number of negative performance evaluations throughout his time at the company, culminating with his receiving a final warning and then being terminated after he had a dispute with a subordinate. However, plaintiff's termination came only five months after he had threatened to file a charge of discrimination with the EEOC, based on allegedly discriminatory remarks made by Norma Kinkead, the manager at the Olive Branch store where plaintiff worked until shortly before his termination. Plaintiff alleges that he confronted Kinkead about her remarks, thereby incurring her animosity, which he alleges led to Home Depot's initial refusal (later countermanded) to pay him an expected mid-year bonus in 2015.

         Shortly thereafter, plaintiff threatened to file an EEOC complaint, and in September 2015, Home Depot transferred plaintiff to its Horn Lake store, ostensibly to separate him from Kinkead and to give him a “fresh start.” [Defendant's brief at 11]. However, plaintiff contends that the decision to fire him had already been made even before the transfer, and he alleges that the performance-based reasons cited in support of his eventual termination were merely a pretext for unlawful retaliation. For its part, Home Depot contends that plaintiff had two serious performance lapses at the Horn Lake store, including by failing to properly secure the store at closing time and for disciplining an employee under his supervision in an unfair and disrespectful manner. Defendant has presently moved for summary judgment, arguing that no genuine issue of fact exists regarding its liability and that it is entitled to judgment as a matter of law.


         In alleging unlawful retaliation, plaintiff argues that he was fired 1) for opposing remarks by Kinkead which expressed discriminatory animus contrary to Title VII and the ADA and 2) for threatening to file an EEOC complaint arising out of these remarks and the allegedly related decision to initially deny him a bonus. Title VII prohibits discrimination against an employee on the ground that “he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The ADA similarly provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203. The Fifth Circuit “applies the same analysis to ADA and Title VII retaliation claims, ” as well as to 42 U.S.C. § 1981 claims. Stringer v. Mound Bayou Public School District, 2016 WL 183701, *13 (N.D. Miss. Jan. 14, 2016), citing Grubic v. City of Waco, 262 Fed.Appx. 665, 666 n.6 (5th Cir. 2008).

         To prevail on his retaliation claim, Plaintiff must first establish a prima facie case. “In order to make a prima facie case, a plaintiff must show ‘(1) he participated in an activity protected by Title VII [or the ADA]; (2) his employer took an adverse employment action against him; and (3) a causal connection exists between the protected activity and the adverse employment action.” Stringer, *13, citing McCoy v. City of Shreveport, 492 F.3d 551, 557; see also Brandon v. Sage Corp., 808 F.3d 266, 270 (5th Cir. 2015). If the plaintiff makes a prima facie case, the burden then shifts to the employer to proffer a legitimate rationale for the underlying employment action. Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th Cir. 2008). If such a reason is provided, the plaintiff then bears the burden of proving that the employer's reason is a pretext for the actual retaliatory reason. Id. The plaintiff at all times retains the ultimate burden to prove that intentional retaliation was the “but for” cause of the adverse employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013) (Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened motivating factor causation test); Seamn v. CSPH, Inc., 179 F.3d 297 (5th Cir. 1999) (“But-for” standard also applies in ADA retaliation cases.)

         In the court's view, the summary judgment inquiry in this case is a quite straightforward one. This is because this court has only a single retaliation claim by plaintiff to consider, and, even as to that claim, defendant has conceded important elements of it. That is, defendant acknowledges that plaintiff has established fact issues regarding whether he engaged in activity which is protected under Title VII and/or the ADA, but it maintains that no such fact issues exist regarding whether it terminated plaintiff in retaliation for engaging in that activity. Specifically, defendant writes in its brief that:

For purposes of this Motion for Summary Judgment only, Home Depot concedes that Plaintiff engaged in protected activity under Title VII and/or the ADA. However, Plaintiff cannot show a causal connection between his alleged protected activity and his termination from Home Depot. The first instance of the alleged protected activity at issue in this case took place in July of 2015, when Plaintiff met with Mr. Turner and Mr. Cogdell and complained that Ms. Kinkead said an employee was too fat to be working at Home Depot and that Ms. Kinkead called another Home Depot employee an alcoholic. In September of 2015, while the AACG was investigating Plaintiff's previous July of 2015 complaint, Plaintiff complained to the AACG that Ms. Kinkead made a racial statement regarding a white employee. Also in September of 2015, Plaintiff complained regarding his annual evaluation and that he would not be receiving a bonus because of his annual evaluation. Plaintiff further alleged that he threatened to file an EEOC charge for Home Depot's “unethical behavior” and for withholding his bonus because of his annual evaluation. Plaintiff did not relate his threat to go to the EEOC to any protected characteristic or any protected activity, only to Home Depot's “unethical behavior.”

[Defendant's brief at 18-19].

         Having conceded that fact issues exist regarding whether plaintiff engaged in protected activity, [1] defendant is left to argue that no genuine issues of material fact exist regarding whether his firing was the result of his having engaged in that activity. In arguing this point, defendant writes in its brief that:

Simply put, Plaintiff has no evidence of a causal connection between his protected activity and his termination. Plaintiff may allege that the temporal proximity between his protected activity and his termination is enough to establish a prima facie case of retaliation. However, even if Plaintiff's vague threat to file a charge with the EEOC is considered protected activity under the law, this occurred in September of 2015. Home Depot terminated Plaintiff on February 11, 2016. The United States Supreme Court has held that “cases that accept mere temporal proximity… as sufficient evidence of causality to establish a prima facie case uniformly hold that temporal proximity must be “very close.'” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508 (2001). The temporal proximity between Plaintiff's latest, putative protected activity and his termination was around five months. The Fifth Circuit has found that a five-month lapse, by itself, does not support an inference of a causal link. Stroud v. BMC Software, Inc., 2008 WL 2325639 (5th Cir. June 6, 2008).

[Defendant's brief at 19-20].

         Defendant thus argues that there is an insufficiently close temporal proximity between plaintiff having engaged in protective activity and his subsequent firing. In the court's view, defendant's argument considerably understates both the closeness of plaintiff's temporal proximity evidence and also his quite strong proof that the reasons given for firing him were pretextual. In so stating, this court would first observe that, in the context of a nineteen-year career working for Home Depot, a five-month proximity between plaintiff's protected activity and his firing seems rather close. Nevertheless, even assuming that such a period is insufficient as a matter of law under Fifth Circuit precedent, the fact remains that plaintiff has potentially strong evidence that Home Depot had already reached a decision to fire him even before February 11, 2016. Considered in this light, this court believes that plaintiff's temporal proximity proof is much closer than five months.

         Some of Dinolfo's strongest proof in this context is the deposition testimony of Drew Gentry, who was the manager of the Horn Lake store where plaintiff worked when he was fired. Gentry figures prominently in defendant's own description of the final decision to terminate plaintiff, characterizing him as the individual who accepted the investigators' recommendation to fire him, in consultation with district manager Joel Cogdell and senior human resources managers. [Defendant's brief at 15]. It is thus quite significant that Dinolfo is able to present very strong proof that not only did Gentry consider plaintiff to be an exemplary employee, but that he was aware of a strong impetus from upper management to fire him even before he arrived at the store.

         In his deposition, Gentry testified that, when plaintiff was transferred to the Horn Lake Home Depot, he was told by Kinkead that Home Depot district manager Cogdell had told her “that she needed to fire Ron or he was going to fire her.” [ Gentry depo. at 11]. Both of these alleged statements appear to constitute non-hearsay admissions by a party opponent.[2] In the court's view, this testimony casts doubt upon defendant's suggestion that plaintiff was being transferred to Horn Lake simply to separate him from Kinkead and that he was being given a “fresh start” at the store. Rather, Gentry's testimony suggests that plaintiff's job was already in severe jeopardy at the time he was transferred to the Horn Lake store, which clearly serves to strengthen his temporal proximity argument. This conclusion is strengthened by Gentry's testimony that Cogdell told him to “tone down” evaluations he wrote about plaintiff which were deemed overly effusive in praising his work:

A. Yes, sir. Yeah, I let Ron know what a good job he was doing in emails and texts. I think I had some good notes in his file also. Ron did a very good job for me as an assistant manager.
Q. Isn't it true that Joel told you to tone ...

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