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

United States District Court, D. New Hampshire

May 3, 2018

Barbara J. Stringer
Home Depot U.S.A., Inc.[1]

          M. Amy Carlin, Esq.

          Jeffrey S. Siegel, Esq.

          Barbara J. Stringer, pro se


          Joseph A. DiClerico, Jr. United States District Judge

         Barbara J. Stringer, who is now proceeding pro se, brought claims against her former employer, Home Depot, arising from the treatment she received during her employment and the circumstances of her termination. Home Depot moves for summary judgment on the ground that Stringer cannot prove her claims. Stringer objects to summary judgment.

         Standard of Review

          The purpose of summary judgment is to determine whether a trial is necessary. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[2]Fed. R. Civ. P. 56(a). "A genuine issue of material fact only exists if a reasonable factfinder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, could resolve the dispute in that party's favor." Town of Westport v. Monsanto Co., 877 F.3d 58, 64-65 (1st Cir. 2017) (internal quotation marks omitted); Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015) .

         "On issues where the movant does not have the burden of proof at trial, the movant can succeed on summary judgment by showing 'that there is an absence of evidence to support the nonmoving party's case.'" OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Canada, 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If the moving party provides evidence to show that the nonmoving party cannot prove a claim, the burden shifts to the nonmoving party to show that there is at least a genuine and material factual dispute that precludes summary judgment. Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013) .

         In this district, "[a] memorandum in support of a summary judgment motion shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the moving party contends there is no genuine issue to be tried." LR 56.1(a). "A memorandum in opposition to a summary judgment motion shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to require a trial." LR 56.1(b). Importantly, "[a]11 properly supported material facts set forth in the moving party's factual statement may be deemed admitted unless properly opposed by the adverse party." Id.

         In the conclusion section of her objection, Stringer asks the court to grant "summary or default judgment" in her favor.[3]"Objections to pending motions and affirmative motions for relief shall not be combined in one filing." LR 7.1(a)(1). Therefore, to the extent Stringer intended to move for summary judgment in her objection, that request cannot be considered.


          A. Employment Background

         Home Depot hired Stringer as a cashier in 1993. She was promoted to the position of assistant store manager ("ASM") in 2000. At the end of 2008, she was transferred to the Home Depot store in Londonderry, New Hampshire, as an ASM.

         In December of 2009, Stringer became an operations ASM. An operations ASM is responsible for increasing sales and store profitability, along with managing expenses, lessening "shrink", insuring good customer service, keeping merchandise in stock, and maintaining the store's appearance. In addition to storewide responsibilities, an operations ASM has direct responsibility for the cashiers, the receiving and freight areas, and the service desk. An operations ASM also addresses customer service issues, opens and closes the store, and acts as the Manager on Duty when scheduled to do so.

         Peter Tavano became store manager at the Londonderry Home Depot in August of 2011. Tavano had worked for Home Depot since 1992. Tavano noticed that Stringer had deficiencies in basic skills for an ASM that he thought she would have mastered after eleven years in that position. Stringer believes that her job performance was good because she went to work and did what she was supposed to do.

         Specifically, Tavano found that Stringer was not able to communicate her expectations and work lists to the department heads who were under her supervision and was not disciplining or holding accountable employees who did not fulfill their responsibilities. Tavano states in his declaration that from the time he arrived in 2011 to March of 2012 he had numerous verbal discussions with Stringer about her performance. He focused on her communications issues and her unwillingness to discipline associates for policy and process violations.

         On March 19, 2012, Tavano gave Stringer a Performance Discipline Notice ("PDN") because she authorized a markdown in the price of generators that caused a loss of $4, 200. She signed the PDN the same day, acknowledging that she had received it. Three days later, on March 21, Tavano gave Stringer her annual Performance and Development Summary for 2011, rating her as a "Valued Associate" and "Well-Positioned" and conducted a review meeting with her.

         Heather Houle, the district manager, and Frances Cianci, the district human resources manager, also attended the review meeting with Stringer. Tavano reviewed his concerns about her performance: that she did not adequately hold accountable the people who reported to her, that she was not proactive and lacked a sense of urgency, and that she should manage processes before being asked to do so.[4] Tavano identified three areas for development: broadening her understanding of the business beyond her own function, developing the people who reported to her to get work done, and improving the quality of her decisions instead of using quick solutions or conclusions before analysis.

         Tavano also noted that Stringer had only an average understanding of operational control of the store with respect to profit and loss. Home Depot issues a monthly profit and loss statement that ASMs have access to for review. The profit and loss statement shows the profitability of the particular store, what is improving revenue, and what is hindering revenue. Tavano believed that an effective ASM would review the profit and loss statement at least weekly. He directed Stringer to study the annual profit and loss report, to spend time with the people who report to her for an in depth career discussion, to spend time with her "DOM", and to provide a follow-up report by the end of the first quarter. She did not submit a follow-up report to TavaNo. After the performance review, Stringer met with Houle and Cianci and complained that Tavano was being tough on her. She did not complain that she was treated differently from other employees or that Tavano's toughness was because she was female.

         When Houle asked Stringer about her goals, she said that she hoped to be a store manager in five years. Houle told her that she would have to demonstrate adequate performance as an operations ASM before she would be considered for promotion. Houle also said that Tavano had given her feedback and that Stringer had many things to work on to show that she could meet Home Depot's standards.

         Houle was not surprised that Stringer's performance was substandard because Houle had previously worked with her. During that time, Houle found that Stringer did the least amount of work necessary, that she did not comply with suggestions for improvement, and that she never invested time in improving her own performance or the performance of employees whom she supervised.

         On August 29, 2012, Tavano issued another PDN to Stringer for poor job performance. Tavano noted problems with the cashiers under her supervision and that Stringer had no plan to deal with the problems. Tavano told her that she had two weeks to develop a plan for herself and for her team in order to monitor and change behavior and that any further violations of the "Standards of Performance" would result in additional disciplinary action or termination. She signed the PDN on August 29, 2012.

         Stringer had her mid-year review with Tavano and Heather Houle on September 4, 2012. Tavano noted that Stringer had made no progress since her March performance review. Tavano met with her again in November of 2012 to discuss her performance and to follow up on her midyear review. Tavano reported the meeting to Cianci in an email, saying that he continued to try to coach Stringer on communication, leadership, and accountability. Tavano was frustrated by Stringer's need for guidance on the profit and loss information because he thought she should have known that area.

         At the same time, Tavano promoted a female employee, Renee Hough, to the position of ASM. Stringer believed that Tavano favored Hough over her and noted that Tavano treated Hough with respect.

         On November 30, 2012, Stringer was part of a "District Business Walk" ("Walk") when Heather Houle visited the store and conducted an organized tour with the store manager and some ASMs to discuss certain issues.[5] The Walk had been scheduled for two months, and the ASMs were notified about what to expect and what topics would be covered.

         Stringer stated in her EEOC charge that Houle assigned her to the cabinetry area and that Tavano remarked to another ASM with a laugh: "How do you think she'll do?" When Houle asked Stringer about the store's profit and loss, she had no answers although it was her responsibility to have that information. Houle conducted a review after the Walk, identifying numerous issues in Stringer's assigned area.

         After the Walk, Stringer approached Houle and asked what operational issues were identified during the Walk. Houle responded that both she and Tavano had had discussions with her about her performance and that based on those discussions Stringer knew what she needed to do to improve to an acceptable performance level.

         On December 5, 2012, Stringer received a third PDN, which was a final warning about her performance. Tavano noted that during the Walk several issues concerning Stringer's performance had been raised, some of which were repeat issues that had not been addressed by her. Tavano said that she had to present an action plan that was sustainable and measurable. Stringer signed the PDN that day.

         After receiving the PDN and final warning, Stringer met with Fran Cianci, the district manager for human resources. Stringer expressed her dissatisfaction with the PDN and the Walk and blamed Tavano for her poor performance. She claimed that Tavano was not giving her information that she needed and was being unfair. Cianci told Stringer that she had access to the profit and loss reports and that it was her responsibility to read the reports .

         Stringer did not raise any issue of discrimination or discriminatory treatment during her meetings with Houle and Cianci. Houle and Cianci did not tell Tavano about Stringer's complaints about him. Tavano met with Stringer again on December 12, 2012, to discuss performance issues. Tavano noted that the action plan Stringer prepared was not specific or sustainable. On December 27, Tavano shopped in the store while he was on vacation and noticed a cashier sending text messages while she was working. Tavano told Stringer to document the incident and coach the cashiers. By January 21, 2013, Stringer had not provided any coaching to the cashiers to address the texting issue.

         Also in January, Tavano made a note that Stringer was unable to report on the performance of any of her cashiers. She had been told repeatedly that she was responsible for the accountability and execution of her associates. Tavano noted that Stringer's failure to have that information, particularly at performance review time, was totally unacceptable.

         On January 9, 2013, Tavano led an "Asset Protection Walk" through the store with Stringer and others. During the Walk, Tavano discussed asset protection issues with Stringer. Tavano overheard another ASM ask Stringer why she had left confidential documents open and accessible to all of the associates.

         An issue with customer service arose at the end of January of 2013. A customer filed a complaint with the corporate office about delay in servicing his generator. Store records showed that the customer called on December 13, and Stringer was told that the customer was upset about the delayed repair. Stringer did not enter notes about the status of the repair or her communications about the incident. When Tavano asked Stringer about the repair issue, she said that she called about the repair and was told it was in process. That was all she knew about it. Tavano found that the incident demonstrated Stringer's lack of urgency and managerial responsibility and, because she was on a final warning, decided to recommend that her employment be terminated.

         Tavano contacted Home Depot's Associate Advice and Counsel Group, comprised of human resource professionals at the Home Depot headquarters in Atlanta who resolve associate concerns and answer questions about company policy and procedures. Tavano gave the Group his recommendation for termination along with all of the performance information about Stringer for review. The Group reviewed the records and concurred with Tavano's recommendation that Stringer should be terminated.

         As is required when employment termination is recommended, Cianci as the district human resources manager, prepared an investigation review summary, which was given to Houle and Lisa Chiras, Regional Human Resources Director. The investigation review summary form includes a section for "Additional Concerns or Considerations" where Cianci listed: "Female over 40, African American Has brought to the SM's attention the potential of a medical condition (no supporting detail at this time)." The summary also listed Stringer's disciplinary incidents and described the performance review on December 5 and the customer service issue in January. Houle, Cianci, and Michael Hicks from the Group all agreed with Tavano's recommendation to terminate Stringer's employment.

         On February 19, 2013, Tavano told Stringer that her employment was terminated. In March of 2013, Tavano hired Reydel Veenstra, who is female, to replace Stringer.

         B. Procedural Background

         Stringer filed a charge of discrimination with the New Hampshire Commission for Human Rights on April 3, 2013 (the "EEOC charge").[6] Stringer, who was then represented by counsel, filed a complaint against Home Depot in state court on February 16, 2016. In Count I, she alleges that Tavano terminated her employment because of her sex, but she does not cite a legal theory to support Count I.[7] In Count II, she alleges that Home Depot retaliated against her by terminating her employment when she complained of discriminatory treatment, and provides no legal basis for that claim. In Count III, she alleges wrongful termination, a state law claim.

         Home Depot removed the case to this court on April 15, 2016. Stringer's counsel filed a notice of withdrawal on May 10, 2016, and Stringer filed a notice of pro se appearance on May 25.

         Discovery issues arose in the case, which were addressed by the magistrate judge. In response to a motion by Home Depot, the magistrate set a date for Stringer to depose Home Depot's witness ...

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