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

United States District Court, S.D. California

March 22, 2017

JANE WHEELER, Plaintiff,
HOME DEPOT U.S.A., INC., Defendant.


          Hon. Cathy Ann Bencivengo United States District Judge.

         This matter is before this Court on Defendant's motion for summary judgment. On March 13, 2017, a hearing was held with regard to the motion. [Doc. No. 54.] Erin Hanson, Esq., and Kevin Mirch, Esq. appeared on behalf of Plaintiff Jane Wheeler. Anthony Sbardellati, Esq. appeared on behalf of Defendant Home Depot. For the reasons set forth below, the motion is granted.

         I. General Background

         Plaintiff was employed by Home Depot from 1994 until August 2014. [Deposition of Plaintiff Janet Wheeler [Doc. No. 41-5 (“Wheeler Depo.”), 22:16-24:18 and 32:1-25.] During her employment at Home Depot, Plaintiff worked as an assistant store manager (“ASM”), a co-manager and a Store Manager (“SM”). In 2005, Plaintiff was transferred to become the SM of the Chula Vista store, where she remained until 2012. [Id., 30:23-31:11.] ¶ 2012, Plaintiff was transferred to work as the SM of the Otay Mesa store, where she remained until she resigned in 2014. [Doc. No. 41-5, Wheeler Depo., 31:12-32:25, 239:17-240:11; Doc. No. 41-7.]

         In the First Amended Complaint (“FAC”), Plaintiff alleges Defendant constructively terminated her by discriminating against her based on age and gender, and retaliated against her for complaining about improper conduct in the workplace. Defendant seeks summary adjudication of each of the remaining claims in the FAC.[1]

         II. Statement of Facts

         In the last few months of her employment at Home Depot, Plaintiff received two progressive disciplinary notices from her District Operations Manager, Mr. Taylor, and five Manager's Notes from the Human Resources Manager, Ms. Korkow, with regard to poor store operations and appearances. [Doc. Nos. 41-31, 41-32; Doc. Nos. 41-22 - 41-27.][2]

         At 3:49 p.m. on August 25, 2014, Mr. Taylor sent an email to a listserv which included all eleven SMs in District 199 (the “August 25 email”). [Taylor Depo., 47:12-48:6, 119:1-120:23; Wheeler Depo., 227:18-228:19; Doc. No. 41-10.] In that email, Mr. Taylor wrote that Plaintiff's store had performed poorly over the prior six months and that she was not improving and was “at risk.” [Taylor Dep., 47:12-53:9; Doc. No. 41-10.] Mr. Taylor testified that he should have sent this email to his boss and [District Manager] Astorino, only, but he accidentally sent it to all the SMs in District 199. [Taylor Depo., 44:19-47:25 and 119:1-120:23.] As soon as he sent the August 25 email, Mr. Taylor received a call from another SM in District 199 who explained that it was sent to all SMs in the district. [Taylor Depo., 119:1-120:23.] Two minutes after the August 25 email was sent, Mr. Taylor sent another email asking all the SM's to immediately delete the August 25 email. [Doc. No. 41-11.] Approximately 14 minutes after sending the second email, Mr. Taylor sent a third email to the SMs, apologizing for any embarrassment and taking responsibility for sending the August 25 email. [Doc. No. 41-12.] After sending the emails, Mr. Taylor also called Plaintiff and apologized for sending it. [Taylor Depo., 119:1-120:23.] Mr. Taylor was later disciplined by his boss for circulating the August 25 email. [Astorino Depo, 116:12-118:11; Taylor Depo., 44:19-45:18.]

         Upon receipt of the August 25 email, Plaintiff forwarded it to the Human Resources Manager, Ms. Korkow, and requested a meeting to discuss the issue. [Wheeler Depo., 231:13-232:14; Doc. No. 41-13.] Ms. Korkow responded to Plaintiff that Mr. Taylor sending the August 25 email was a “huge mistake” and asked Plaintiff whether she could meet at a Starbucks on August 28, 2014 at 8:15 a.m. [Wheeler Depo., 234:8-238:12; Doc. No. 41-14.] The following is Plaintiff's testimony with regard to that meeting:

Q. Did you meet her?
A. I did.
Q. When?
A. The next day at 8:15.
Q. And was that - A. So the 27th.
Q. Maybe the 28th?
A. Oh, yeah, the next day after the 27th. I'm sorry. Yes, the 28th.
Q. You met her at 8:15 in the morning?
A. At 8:15 in the morning, at Starbucks inside the Target next to the Balboa Home Depot.
Q. How long did you meet with Courtney [Ms. Korkow]?
A. About 15 minutes, probably.
Q. Do you recall what you discussed?
A. Yes, I told her that - she had asked me, when we had met previously, to not quit and to think about it, to not leave. And I had told her on that previous occasion that I - I would take some time to think about it, but I didn't think that it would make any difference because if they had decided to terminate me, they were going to terminate me anyway. One way or another, it was going to happen, so why would I postpone it.
And she asked me if I knew anybody that could hire me, off the record. And, again, asked me to please take a couple of days at least to think about it.
And so this was our follow-up meeting, where I had asked her to bring me a copy of my file, and I let her know that I was for sure not coming back.
Q. So based on your testimony, it's my understanding that after Alex Taylor sent out that email to the entire team on August 25th that was not supposed to be sent to the entire team, you told Courtney that you felt like you wanted to quit, and then she asked you to take a few days to think about it; is that correct?
A. What I told her is I couldn't work for this company anymore. I couldn't work with Alex anymore. I couldn't work in a place that people would allow that anymore. And she asked me to think about it for a few days. And this is when I came back and told her that I had made the decision that I was not going to continue to work for Home Depot.
Q. And prior to this meeting, did Courtney urge you not to quit?
A. That is a - that is an interesting question, because she - she said, “We don't want you to quit.” But when I said that I was going to be fired if I didn't - that this was - there's, you know, no doubt in my mind that there was this target, and that they were going to find things wrong with me.
And I let her know that if I - if somebody told me I had to fire this person, no matter who it was, I could find something wrong. You can find ways to document anybody out of a job if it was a - something that they wanted to do, and therefore, it didn't make sense for me to - to wait.
Her response to that was no longer, “Please don't quit”; her response to that was, “Off the record, do you know anybody that would hire you in retail?” Q. Do you think it's possible she asked you that because she was personally concerned about your financial welfare? A. I think she was trying to give me a hint that I was right.
Q. But do you know that for a fact?
A. I don't know what is inside her head.
Q. Okay. So it is at least theoretically possible that she was concerned for you?
A. But even if she was concerned about me, I - to me, it just validated that she knew that I was right; that this was - that this was a moot point, to go back to work for the company. Because otherwise, she would have said, “I'm genuinely concerned for you, I will help you. Let “-“come back to work. I will be the HR manager that I should be, and I will help support you and get you the training, if that's what is needed, or help you understand what the circumstances are that are causing this. I will be there and be a partner to you and help you through it.” Instead, she said, “Go find another job.”
Q. Well, let me just ask you generally, because you did say that you were ...

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