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Murray v. Walmart Stores Inc.

United States District Court, D. Maine

December 6, 2019

DAVID E. MURRAY, Plaintiff
WALMART STORES INC., et al., Defendant



         This is 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.[1] 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.

         Murray 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.

         Procedural History

         This 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 No. 12).

         In 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).

         Murray's 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.

         Next, 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).

         With 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).

         Murray 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).

         Walmart 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).

         The 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.[2]

         Undisputed Facts

         Here is 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).

         Murray 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).

         Murray's 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.

         Murray 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).

         In 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.

         Murray 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).[3]

         In 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).


         Murray 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.

         Walmart seeks summary judgment on all of Murray's claims.

         1. Legal Standard

         On 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).

         Under 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).

         Even 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.”).

         I 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.

         2. Retaliation

         Murray 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 them separately.

         A. Title VII

         Title 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 animus.” Id.[4]

         i. Step One: Prima Facie Case

         At step 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.

         (a) Protected Conduct

         Walmart 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).

         The record demonstrates that Murray engaged in protected conduct on at least three occasions.

         In a 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.[5] Murray also claimed that Busby said Murray was “too old to be shoveling snow, ” called Murray “Bill Clinton and Slick Willie, ”[6] 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 ...

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