United States District Court, D. Maine
DAVID E. MURRAY, Plaintiff
WALMART STORES INC., et al., Defendant
DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY
JUDGMENT AND THE PLAINTIFF'S OBJECTION TO ORDER ON MOTION
BROCK HORNBY UNITED STATES DISTRICT JUDGE
an employment discrimination case. The plaintiff-employee,
David E. Murray (Murray), alleges that his employer (the
defendants whom I refer to collectively as Walmart)
retaliated against him for engaging in protected activity and
discriminated against him on account of his age and
disability. He seeks relief under Title VII of the Civil
Rights Act of 1964, the Americans With Disabilities Act
(ADA), the Maine Whistleblowers' Protection Act (MWPA),
and the Maine Human Rights Act (MHRA). He also demands unpaid
wages and benefits under Maine labor law. Walmart filed a
motion for summary judgment on all claims; Murray requested
partial summary judgment on Walmart's failure-to-mitigate
defense. I Grant Walmart's motion for
summary judgment. That ruling Moots
Murray's motion for partial summary judgment.
also objects to the Magistrate Judge's order granting in
part and denying in part Walmart's motion to seal its
summary judgment papers and exhibits. I
Affirm the Magistrate Judge's order
because it is not clearly erroneous or contrary to law.
case has been pending over four years. Murray cycled through
two sets of lawyers before representing himself, requested
and received numerous extensions of time, and attempted
multiple amendments to his complaint. In August 2015, while
Murray was still a Walmart employee, his lawyers filed this
case in Maine Superior Court (Cumberland County).
See Complaint (ECF No. 1-1). Walmart removed it to
this court on November 24, 2015, asserting both federal
question and diversity of citizenship jurisdiction. 28 U.S.C.
§§ 1331, 1332; Defs.' Notice of Removal (ECF
No. 1). Walmart then answered the complaint and discovery
began. Defs.' Ans. (ECF No. 11); Scheduling Order (ECF
October 2016, Walmart fired Murray, prompting him to file an
amended complaint the following month that incorporated
allegations related to his termination. Report of Hearing and
Order (ECF No. 33); First Am. Compl. (ECF No. 36). As
discovery continued, Murray's lawyers terminated their
representation in May 2017, citing “professional
considerations” under Maine Rule of Professional
Conduct 1.16. Pl.'s Counsels' Mot. for Leave to
Withdraw (ECF No. 71). Murray missed a court-ordered deadline
for retaining new counsel, but he requested an extension and
explained that because of his medical conditions,
“there was no way that [he] could represent [him]self
Pro Se.” Pl.'s Mot. to Extend Time (ECF No. 74). He
successfully retained a new lawyer in early July 2017. Notice
of Appearance on Behalf of Murray (ECF No. 79).
new lawyer obtained multiple deadline extensions, one of them
because the parties were engaged in settlement negotiations
that they anticipated completing within 30 days. Joint Mot.
to Stay Proceedings (ECF No. 87). A month and a half later,
Murray's lawyer reported that the parties had been unable
to reach a settlement. On November 29, 2017, he requested to
withdraw his representation because of “[a]n
irretrievable breakdown in the attorney-client
relationship.” Mot. to Withdraw (ECF No. 91); Order re:
Status Conference (ECF No. 92). A Magistrate Judge gave
Murray 30 days to find successor counsel or choose to proceed
pro se. Order Granting Mot. to Withdraw (ECF No.
93). But Murray requested additional time, explaining that he
was having difficulty retaining new counsel and attaching
letters from his doctors in support of his claim that his
medical conditions precluded him from representing himself.
Pl.'s Mot. to Extend All Deadlines (ECF No. 94). On
February 7, 2018, the Magistrate Judge-noting that the case
by then was in its third year, following “numerous
extensions, ” and it was “thus unsurprising that
he has had difficulty retaining new counsel”-granted
Murray a further extension, allowing him a total of 90 days
to find a new lawyer after his prior counsel's
withdrawal. Order Granting in Part & Denying in Part Mot.
to Amend (ECF No. 100). As it turned out, Murray did not
secure new counsel.
proceeding pro se, Murray requested a settlement
conference. Letter Requesting Settlement Conf. (ECF No. 101).
The parties met with a Magistrate Judge for two days,
followed by two additional meetings by phone and one more in
person. See Minute Entries re: Confs. (ECF Nos. 106,
107, 109, 112 & 117). They were unable to reach a
settlement. At a conference in July 2018, a different
Magistrate Judge denied Murray's request for additional
time to secure a lawyer, and he set remaining pretrial
deadlines. Order re: Non-Final Pretrial Conf. (ECF No. 123).
the failure of the settlement conferences, the parties
resumed discovery and motion practice. Denying an additional
request from Murray for another stay while he continued to
look for counsel, a Magistrate Judge noted that, as of August
24, 2018, “the parties jointly or separately requested
and were granted 22 extensions. Six of those extensions
stemmed from Murray's search for successor counsel. . . .
This court has made every reasonable attempt to accommodate
Murray's efforts to find first one successor counsel and
then another.” Mem. Dec. & Order on Mots. at 2, 5
(ECF No. 129). I denied Murray's objection to the
Magistrate Judge's order, explaining that the Court had
already been “very accommodating in allowing numerous
extensions of deadlines” and that Murray had failed to
give any indication that his condition was “likely to
improve in the foreseeable future” or that he had
“a plan for engaging counsel following his lack of
success so far.” Order Denying Obj. to Mem. Dec. &
Order at 2 (ECF No. 155).
filed a second amended complaint on September 26, 2018,
adding factual allegations and state law claims for unpaid
salary, paid time off, and executive compensation benefits.
See Second Am. Compl. (ECF No. 159). On the same
day, he moved to file a third amended complaint. Mot. to
Amend Am. Compl. (ECF No. 160). The Magistrate Judge denied
that motion, concluding that Murray did not demonstrate good
cause for his substantial delay in seeking to amend his
complaint further and, to the extent he did have good cause,
the claim he proposed was futile. Mem. Dec. & Order on
Mot. to Amend (ECF No. 181).
filed its motion for summary judgment and supporting
statement of material facts on April 29, 2019. Redacted Mot.
for Summ. J. (ECF No. 196); Redacted Stmt. of Facts (ECF No.
197). Murray requested additional time for filing his
response to the summary judgment motion, which the Magistrate
Judge granted. Pl.'s Mot. to Extend Time (ECF No. 202);
Order Granting Mot. to Extend Time (ECF No. 207). A day
later, Murray filed a motion to stay all deadlines and, three
weeks after that, submitted another motion for an extension.
Mot. to Stay (ECF No. 211); Mot. to Extend Time (ECF No.
215). The Magistrate Judge ultimately granted Murray a
further extension on July 12, 2019. Order Granting Mot. to
Extend Time (ECF No. 222). But the day before, Murray filed a
motion for partial summary judgment on Walmart's
affirmative defense of failure to mitigate damages. Mot. for
Partial Summ. J. & associated filings (ECF Nos. 224-27).
Then, on the same day that the Magistrate Judge granted his
motion for an extension, Murray filed a partial response to
Walmart's statement of facts along with a statement of
additional facts. Response to Stmt. of Facts with Stmt. of
Add'l Facts (ECF No. 228). Murray's response
addressed Walmart's facts numbered 1 through 173 but did
not address facts 174 through 274. See id. Since he
submitted his filings the day before and the same day as the
Magistrate Judge granted his request for more time, the
Magistrate Judge gave Murray the option of withdrawing those
filings and submitting his responses by the newly extended
deadline or foregoing the extended deadline and standing by
his existing responses. Order re: Resp. to Mot. for Summ. J.
(ECF No. 231). Murray chose to stick with what he had already
filed. Pl.'s Status Report at 4-5 (ECF No. 232).
parties proceeded to submit replies and responses to the
cross motions for summary judgment and accompanying
statements of facts, although Murray has never filed a brief
in opposition to Walmart's motion for summary judgment
(despite submitting a partial response to Walmart's
Statement of Material Facts) or a response to Walmart's
facts numbered 174 through 274. See Defs.' Reply
in Support of Mot. for Summ. J. (ECF No. 233); Defs.'
Reply to Stmt. of Add'l Facts (ECF No. 234); Defs.'
Opp. to Mot. for Partial Summ. J. & accompanying exhibits
(ECF Nos. 235 & 236); Pl.'s Reply in Support of Mot.
for Partial Summ. J. (ECF No. 239); Pl.'s Response to
Defs.' Stmt. of Facts & accompanying exhibits (ECF
Nos. 240 & 241). The cross-motions for summary judgment
are now fully briefed and ready for decision.
a broad outline of the facts in this case. I provide further
details in the appropriate sections of the legal analysis.
When the facts are properly disputed, I take Murray's
version since he is the nonmoving party. See
Santiago-Ramos v. Centennial P.R. Wireless Corp., 217
F.3d 46, 50 (1st Cir. 2000).
began working for Walmart in October 1993. Defs.' Stmt.
of Material Facts (SMF) ¶ 1 (ECF No. 198-2); Pl.'s
Resp. to SMF (Resp.) ¶ 1 (ECF No. 228). From February
2006 until he began a leave of absence in January 2015,
Murray was a market manager, charged with overseeing eight to
ten stores (the exact number changed as Walmart conducted
internal realignments on occasion) in Central Maine and New
Hampshire. Pl.'s Stmt. of Add'l Material Facts (SAMF)
¶ 276 (ECF No. 228). Murray was responsible for as many
as 3, 300 Walmart employees and more than $500 million in
annual sales. Pl.'s Ans. to Interrogs. at 18 (ECF No.
198-3); Defs.' SMF ¶¶ 5-6; Pl.'s Resp.
¶¶ 5-6. As a market manager, Murray had to be on
the road almost every day to travel from store to store,
checking on the stores' performance and meeting with
Walmart personnel. He worked seventy to eighty hours each
week. Pl.'s Ans. to Interrogs. at 7. In a typical month,
he spent only a couple of days in his own office. Murray Dep.
at 177:7-18 (ECF No. 198-5).
neighboring market managers play important roles in his
claims against the company. In the territory to the north of
Murray's market, Alan Heinbaugh was the market manager.
Defs.' SMF ¶¶ 25-27; Pl.'s Resp.
¶¶ 25-27. Kevin Robinson oversaw the market to the
south. Defs.' SMF ¶¶ 28-30; Pl.'s Resp.
¶¶ 28-30. Each of the three markets had its own set
of stores, which the market managers ran without help from
their neighboring managers. Murray Dep. at 181:13-16. The
three men did not supervise one another or influence each
other's salaries or annual reviews. Id. at
181:5-12. Instead, they reported to a regional manager, Paul
Busby, who oversaw several markets in the region. Defs.'
SMF ¶¶ 31-32; Pl.'s Resp. ¶¶ 31-32.
made his first formal claim of wrongdoing in September 2013
when he submitted a complaint to Walmart's internal
ethics team. See Sept. 29, 2013, email from Murray
(ECF 198-10). As detailed further below, Murray claimed that
he felt harassed and undermined by Heinbaugh and that Busby
had failed to act when alerted to Murray's complaints.
Id. at 2. Murray made largely the same claims in an
eleven-page document he submitted to Walmart leadership in
October 2013. Oct. 11, 2013, email from Murray (ECF 198-11).
January 2014, Murray sent a note to a Walmart investigator
alleging that Heinbaugh and Robinson created a hostile work
environment through repeated offensive sexual and racial
comments about others in the workplace. Message addressed to
“Brandie” at 1-2 (ECF No. 198-12); see
Murray Dep. at 118:12-17 (ECF No. 198-5) (explaining Brandie
Patton was “a Wal-Mart global investigator”). In
June 2014, Murray filed a Charge of Discrimination with the
Maine Human Rights Commission and the federal Equal
Employment Opportunity Commission that made the same claims.
Charge of Discrimination at 3-4 (ECF 198-8). He claimed that
Walmart inadequately investigated his allegations and that
his supervisors and coworkers were retaliating against him
by, among other things, responding more slowly to his
messages and requests. Id. at 5-13.
took a leave of absence for medical reasons beginning on
January 20, 2015, citing several physical and mental health
conditions. Request for Leave of Absence, Edwards Dep. Ex. 3
(ECF No. 198-22). Murray stated that he would return to work
April 7, 2015, unless circumstances changed. Id.
Unfortunately, his health apparently worsened; Murray filed
requests to extend his leave of absence to May 26, 2015, then
to April 5, 2016, then to October 5, 2016, then to March 22,
2017, each time including statements from his doctor
attesting to his increasingly long list of conditions.
Requests for Leave of Absence, Edwards Dep. Exs. 4-7 (ECF
Nos. 198-23, 24, 25, 26). On April 16, 2015, Walmart told
Murray that his protected medical leave had expired (he had
previously used some of his protected Family and Medical
Leave Act time in 2013 and 2014, Murray Dep. at 242:9-18 (ECF
No. 198-5)), and that it would begin looking for a
replacement to fill Murray's position. Email from David
Minsky, Busby Decl. Ex. J at 3-4 (ECF No. 199-17). Murray
asked to be permitted to continue as market manager, perhaps
by working part-time or remotely, but Walmart said that his
job was “business critical” and it needed someone
working full-time who could travel to the various stores in
person. Id. at 2-3; Tr. of call 1660, Albert Decl.
Ex. N at 3-4 (ECF No. 200-24).
August 2015, Murray filed this lawsuit. Walmart fired Murray
in October 2016. It gave two reasons: Murray's requests
for ongoing leave with no reasonably anticipated return date,
and Walmart's learning that Murray had recorded more than
100 phone calls with Walmart employees related to Walmart
business, without the other call participants' consent.
Morris Termination Letter (ECF No. 228-4); see
Murray Dep. at 138:6-25, 169:19-170:23. A Walmart official
notified Murray on October 4, 2016, that he was fired, but
his termination was not entered into Walmart's payroll
system until January 23, 2017. McChristian Decl. ¶¶
2-3 (ECF No. 200-7); see also Murray Dep. (second)
at 6:20-22 (ECF No. 198-15).
brings retaliation, discrimination, and wage claims. He says
that Walmart retaliated against him for reporting what he
believed was discrimination and a hostile work environment in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq.; the Americans With
Disabilities Act (ADA), 42 U.S.C. § 12101 et
seq.; Section 1981, 42 U.S.C. § 1981; the Maine
Human Rights Act (MHRA), 5 M.R.S.A. § 4551 et
seq.; and the Maine Whistleblowers' Protection Act
(MWPA), 26 M.R.S.A. § 831 et seq. He claims
that Walmart discriminated against him on the basis of his
age and disability, violating the ADA, the MHRA, and Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
He also says that Walmart failed to pay him what he was owed
within two weeks of his request that it do so, in violation
of 26 M.R.S.A. § 626.
seeks summary judgment on all of Murray's claims.
Walmart's motion for summary judgment, I consider the
undisputed facts. Where facts are disputed, I take the
version most favorable to Murray as the non-moving party.
See Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 50 (1st Cir. 2000).
this District's local rules, if a party does not file a
written objection to his opponent's motion, he is
“deemed to have waived objection.” Local Rule
7(b). In the context of summary judgment, that means that if
the moving party's statement of fact is supported by
record citations and not properly controverted, I take the
statement as undisputed. Local Rule 56(f). Murray did not
file a memorandum opposing Walmart's motion for summary
judgment, and he did not respond to more than a third of
Walmart's statements of fact. See Pl.'s
Resp. ¶¶ 174-274 (blank responses). “Pro
se litigants are not excused from complying with the
Federal Rules of Civil Procedure or the Local Rules of this
district, ” Philbrick v. Maine Dept. of Health and
Human Servs., 616 F.Supp.2d 123, 126 n.3 (D. Me. 2009),
and Murray has demonstrated that he is aware of these rules
by, among other things, responding to Walmart's first 173
statements of fact. Judges reviewing summary judgment motions
“must be able to rely on procedural rules so as to
avoid becoming the lawyer for the unrepresented plaintiff or
devoting an excessive portion of their time to such
cases.” Clarke v. Blais, 473 F.Supp.2d 124,
129 (D. Me. 2007).
so, “in certain cases, the Court has approached summary
judgment disputes involving a pro se party with some
leniency.” Tinkham v. Perry, 2015 WL 2092513,
at *2 (D. Me. May 5, 2015). In this case, Murray has asserted
that he was unable to comply with the rules because of his
physical and mental health limitations. Murray Aff. ¶ 4
(ECF No. 224-1). Therefore, despite Murray's
noncompliance with the summary judgment rules, I have not
automatically accepted Walmart's arguments and properly
supported statements of fact, but rather have reviewed the
broader record to satisfy myself that it supports what
Walmart asserts. See Szillery v. Career Sys. Dev.
Corp., 2008 WL 2789492, at *2 (D. Me. Jul. 17, 2008)
(“[E]ven if the pro se plaintiff fails to
respond to the statements of material fact, the court is
still required to inquire whether the moving party has met
its burden to demonstrate undisputed facts entitling it to
summary judgment as a matter of law.”); Fed.R.Civ.P.
56(e)(4) advisory committee's note to 2010 amendment
(“[T]he court may seek to reassure itself by some
examination of the record before granting summary judgment
against a pro se litigant.”).
review Murray's contentions claim by claim, beginning
with his retaliation allegations, followed by his disability
discrimination claim, age discrimination claim, and finally
his claim for unpaid wages.
alleges illegal retaliation under both federal and state law,
claiming that Walmart retaliated against him for reporting
what he believed to be unlawful discrimination. The federal
and state statutes require different analyses, and I discuss
VII of the Civil Rights Act of 1964 makes it “unlawful
for employers to retaliate against persons who complain about
unlawfully discriminatory employment practices.”
Noviello v. City of Boston, 398 F.3d 76, 88 (1st
Cir. 2005); see 42 U.S.C. § 2000e-3(a). At the
summary judgment stage, claims of retaliation under Title VII
are evaluated using the McDonnell Douglas burden-
shifting framework. Theriault v. Genesis HealthCare
LLC, 890 F.3d 342, 350 (1st Cir. 2018); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804
(1973). The framework has three steps. First, the plaintiff
must “make out a ‘prima facie case'
which requires only ‘the production of admissible
evidence, which, if uncontradicted, would justify a legal
conclusion of [retaliation].'” Theriault,
890 F.3d at 350 (quoting Sanchez v. P.R. Oil Co., 37
F.3d 712, 719 (1st Cir. 1994)). If the plaintiff successfully
demonstrates this prima facie case, the burden
shifts to the defendant, who “must articulate a
legitimate, non-retaliatory reason for its employment
decision.” Valentin-Almeyda v. Mun. of
Aguadilla, 447 F.3d 85, 95 (1st Cir. 2006) (quoting
Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d
6, 26 (1st Cir. 2004)). Finally, if the defendant meets its
burden, “the plaintiff must now show that the proffered
legitimate reason is in fact a pretext and that the job
action was the result of the defendant's retaliatory
Step One: Prima Facie Case
one, then, the question is whether Murray can point to
sufficient evidence to make out a claim for retaliation.
“A retaliation claim requires a showing that (1) the
plaintiff engaged in protected conduct; (2) [he] was
subjected to an adverse employment action; and (3) there was
a causal connection between the first and second
elements.” Id. at 94. In his prima
facie case, Murray can successfully show that he engaged
in protected conduct and was subjected to an adverse
employment action. However, he has not produced evidence
showing a causal connection between the two. Without that
causal connection, Murray's Title VII claim fails at the
prima facie stage.
does not seem to dispute that Murray engaged in protected
conduct. Complaining to supervisors about perceived
discrimination counts as protected conduct, Benoit v.
Tech. Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003), and
so does filing a formal complaint, Noviello v. City of
Boston, 398 F.3d 76, 88 (1st Cir. 2005).
record demonstrates that Murray engaged in protected conduct
on at least three occasions.
January 2014 message addressed to a Walmart internal
investigator, Murray alleged that Heinbaugh, Robinson, and
Busby were engaged in “unlawfully discriminatory
actions.” Message Addressed to “Brandie” at
1-2 (ECF No. 198-12); see Murray Dep. at 118:12-17
(ECF No. 198-5) (explaining Brandie Patton was “a
Wal-Mart global investigator”). He alleged that
Heinbaugh and Robinson created a hostile work environment by
repeatedly making offensive sexual comments about women in
the workplace and, in Robinson's case, also making
racially offensive comments about President Obama and other
African Americans. Murray also claimed that Busby said Murray
was “too old to be shoveling snow, ” called
Murray “Bill Clinton and Slick Willie,
” and discussed, in front of other people,
what Murray described as an “ADA accommodation for
severe Sleep Apnea”-a private hotel room the company
provided him during a business trip so that he would not have
to share a room with another employee. Message Addressed to
“Brandie” at 3 (ECF No. 198-12). For a complaint
to constitute protected activity, any event it described
“need not be a Title VII violation so long as [the
complainant] had a reasonable belief that it was.”
Benoit, 331 F.3d at 175. Murray made clear in the
message that he believed the behavior he described
constituted unlawful discrimination based on race, sex, age,
and disability. Message ...