United States District Court, D. New Hampshire
Barbara J. Stringer
Home Depot U.S.A., Inc.
Jeffrey S. Siegel, Esq.
Barbara J. Stringer, pro se
A. DiClerico, Jr. United States District Judge
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.
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."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) .
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) .
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.
conclusion section of her objection, Stringer asks the court
to grant "summary or default judgment" in her
favor."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.
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.
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.
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.
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.
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
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. 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.
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
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.
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.
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.
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.
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
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. The Walk had been scheduled for two
months, and the ASMs were notified about what to expect and
what topics would be covered.
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.
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.
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.
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 .
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.
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
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
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.
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
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.
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.
filed a charge of discrimination with the New Hampshire
Commission for Human Rights on April 3, 2013 (the "EEOC
charge"). 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. 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
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
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