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Donaleski v. Wal-Mart Stores

May 8, 2009

JAMES DONALESKI, PLAINTIFF,
v.
WAL-MART STORES, INC., AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANT.



ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court on Defendant Wal-Mart Stores, Inc.'s ("Wal-Mart") motion for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure.*fn1

Plaintiff James Donaleski ("Donaleski") opposes the motion. For the reasons set forth below, Defendant's motion is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1995, Wal-Mart hired Plaintiff James Donaleski as an hourly associate to unload trucks containing freight. Def's Mot. for Summary Judgment, Doc. # 22, ("Def's Mot.") at 2:15-16. On or about November 27, 1995, Donaleski informed Wal-Mart of his sex offense conviction and incarceration. Pl's Opposition, Doc. # 37, ("Pl's Opp.") at 2:10-14. Managers at Wal-Mart allowed him to take a leave of absence for his incarceration. Pl's Opp. at 2:12-13. Donaleski returned to work for Wal-Mart after he had been convicted and served his time for the sex offenses. Id. at 2:13-14.

At the end of 2006, Donaleski was working as a salaried Assistant Manager at the Wal-Mart store in Rancho Cordova, California. Def's Mot. at 2:16-17. On or about December 18, 2006, Yelena Lopushkova, an hourly sales floor associate at the Rancho Cordova Wal-Mart store, informed a co-worker that her sister, a non-employee, recognized Donaleski from a photograph on a sex offender registry website. Id. at 3:12-14. After independent research on the internet, Lopushkova discovered that Plaintiff was listed on California Megan's Law Website ("Website"). Id. at 3:15-19. That information came to the attention of Store Manager George Rodriguez. Id. at 3:19-20. Rodriquez, in turn, informed the Market Human Resource Manager, Linda Fermin. Id. at 3:20-21.

Fermin sought the guidance of in-house counsel, who referred her to Michal Montgomery of Wal-Mart's Analytical Research Center in the Global Security Division. Def's Mot. at 3:23-25. On December 20, 2006, Fermin wrote to Montgomery that an hourly associate reported Plaintiff was on the "Megan's Law List as being an offender." Id. at 3:26; 4:1. Montgomery forwarded Fermin specific instructions and a protocol for investigation of sex offenses committed by a current employee. Id. at 4:7-8. Montgomery asked Fermin to obtain a written statement from Plaintiff, and noted for investigations in California, that one should not consult the state sex offender registry. Id. at 4:9-10. Fermin, complying with Montgomery's instructions and Wal-Mart's general protocol, did not review the Website or consult the registry. Id. at 4:12-13.

In January 2007 at Montgomery's request, Fermin asked Donaleski to write a statement on Wal-Mart's form called an "Associate Statement." Id. at 4:17-18. In the written statement, Donaleski disclosed that he had been originally charged with three separate counts of Penal Code §288(A) in 1995. Def's Mot. at 4:25-26. Donaleski also disclosed that he was arrested on November 22, 1995 for a "lewd or lascivious act involving children under the age of 14 with the intent of arousing, or gratifying the lust or passions or sexual desire." Id. at 4:26-28. Donaleski wrote that he received a suspended criminal sentence, as well as three years of probation, and was incarcerated for 42 days. Id. at 5:9-10. It is undisputed that in January 2007 Plaintiff informed Wal-Mart in his statements that he had been convicted of two felony counts of "lewd and lascivious acts with a minor" involving his two 13 year-old stepdaughters. Id. at 5:17-19.

Plaintiff's statements were forwarded to the Wal-Mart investigative Home Office Committee ("Committee"). Def's Mot. at 6:1-7. The Committee, comprised of three senior human resource professionals, reviewed and investigated Plaintiff's written statements during the Committee's meeting in April 2007. Id. While the Committee reviewed Plaintiff's statements, the members did not ask, nor were they aware that Plaintiff is displayed on the Website. Id. at 6:11-12. Based solely on Plaintiff's self-disclosed criminal history, the Committee voted to terminate Plaintiff at the April 2007 meeting. Id. at 6:16-20.

On April 6, 2007, Michal Montgomery informed Market Human Resource Manager Fermin that Plaintiff was discharged and instructed Fermin to notify Plaintiff. Id. at 6:21-22. Fermin notified Donaleski of his discharge and provided him with an exit interview. Id. at 6:23-24.

On January 2, 2008, Plaintiff commenced an employment action in the Superior Court of the State of California in and for the County of San Joaquin against Wal-Mart. Doc. # 2, Exh. A. On January 29, 2008, this action was properly removed to the United States District Court for the Eastern District of California pursuant to 28 U.S.C. § 1441(b). Doc. # 2. Plaintiff Donaleski claims Wal-Mart violated California Penal Code § 290.46 et seq. by utilizing information about his sex offender status listed on the Website for "purposes relating to employment," contrary to the statutory language. Donaleski seeks to recover a civil penalty, as well as statutory, general, economic, and special damages in excess of $75,000. In his second cause of action, Donaleksi contends Wal-Mart is liable for negligence because of his employment termination. Donaleski was an at-will employee. Def's Mot. at 1:6.

Currently before the Court is Wal-Mart's motion for summary judgment. Doc. # 22. Wal-Mart argues that it did not rely on Plaintiff's presence on the Website as a reason for discharging Donaleski and further that it is not liable for negligence with respect to Plaintiff's employment or termination. Wal-Mart also argues that Donaleski is not entitled to any compensatory damages, or that any conduct warrants a civil penalty or statutory damages. Plaintiff opposes the motion. Doc. # 37.

II. OPINION

A. Legal Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The purpose of summary judgment "is to isolate and dispose of ...


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