-GWF Stone v. Lowe's HIW, Inc., No. 2:2010cv01254 - Document 24 (D. Nev. 2011)

Court Description: ORDER Granting 18 Motion for Summary Judgment. Signed by Chief Judge Robert C. Jones on 5/9/11. (Copies have been distributed pursuant to the NEF - MMM)

Download PDF
-GWF Stone v. Lowe's HIW, Inc. Doc. 24 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 RENATA STONE, 9 Plaintiff, 10 vs. 11 LOWE’S HIW, INC. et al., 12 Defendants. 13 14 ) ) ) ) ) ) ) ) ) ) 2:10-cv-01254-RCJ-GWF ORDER This case arises out of an employee’s termination, ostensibly for using vulgar and 15 abusive language in the workplace. Plaintiff alleges she was fired for having filed a worker’s 16 compensation claim. The remaining Defendant has moved for summary judgment. For the 17 reasons given herein, the Court grants the motion. 18 I. 19 FACTS AND PROCEDURAL HISTORY Plaintiff Renata “Renee” Stone worked for Defendant Lowe’s HIW, Inc. (“Lowe’s”) at 20 one of its Las Vegas, Nevada stores from 2004 until Lowe’s fired her on April 12, 2010. (See 21 Compl. ¶¶ 4–6, June 15, 2010, ECF No. 1, at 15). Lowe’s gave the following reason in Stone’s 22 termination notice: “In the course of the investigation it [sic] been discovered that Ms. Stone has 23 used profanity toward fellow employees. This behavior is inconsistent with the expectations of a 24 Lowes employee as is outlined in Policy 316. Policy 316 states that vulgarity, abusive language, 25 and profanity are prohibited.” (Id. ¶ 7). Stone alleges this was not the true reason she was fired. Dockets.Justia.com 1 (See id. ¶ 8). Stone believes she was fired in unlawful retaliation for her having filed for and 2 received benefits under the Nevada Industrial Insurance Act after suffering a lower back injury at 3 work in June 2009. (See id. ¶ 10–10(a)). After approximately two months of absence due to 4 related medical treatment in November and December 2009, Stone had returned to work with no 5 restrictions, but two weeks after she received payment for the final settlement of her workplace 6 injury on March 29, 2010, Lowe’s fired her. (Id. ¶ 10(c)–(f)). 7 Plaintiff sued Lowe’s and Lowe’s Companies, Inc. in state court on a single claim of 8 wrongful discharge, seeking back pay, front pay, lost benefits, and other intangible damages, as 9 well as punitive damages and attorney’s fees and costs. (See id. ¶¶ 13–15). Plaintiff stipulated to 10 the dismissal of Lowe’s Companies, Inc. without prejudice. (See S. & O., Aug. 11, 2010, ECF 11 No. 11). Lowe’s has moved for summary judgment. 12 II. 13 LEGAL STANDARDS A court must grant summary judgment when “the movant shows that there is no genuine 14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 15 Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson 16 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if 17 there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See 18 id. A principal purpose of summary judgment is “to isolate and dispose of factually unsupported 19 claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). In determining summary 20 judgment, a court uses a burden-shifting scheme: 21 22 23 When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case. 24 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) 25 (citations and internal quotation marks omitted). In contrast, when the nonmoving party bears Page 2 of 8 1 the burden of proving the claim or defense, the moving party can meet its burden in two ways: 2 (1) by presenting evidence to negate an essential element of the nonmoving party’s case; or (2) 3 by demonstrating that the nonmoving party failed to make a showing sufficient to establish an 4 element essential to that party’s case on which that party will bear the burden of proof at trial. 5 See Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its initial burden, 6 summary judgment must be denied and the court need not consider the nonmoving party’s 7 evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970). 8 9 If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio 10 Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing 11 party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 12 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 13 versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 14 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment 15 by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. 16 List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions 17 and allegations of the pleadings and set forth specific facts by producing competent evidence that 18 shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. 19 At the summary judgment stage, a court’s function is not to weigh the evidence and 20 determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477 21 U.S. at 249. The evidence of the nonmovant is “to be believed, and all justifiable inferences are 22 to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely 23 colorable or is not significantly probative, summary judgment may be granted. See id. at 249–50. 24 III. 25 ANALYSIS “Under Nevada law, the absence of a written contract gives rise to the presumption that employment is at will.” Brooks v. Hilton Casinos, Inc., 959 F.2d 757, 759 (9th Cir. 1992) (citing Page 3 of 8 1 Vancheri v. GNLV Corp., 777 P.2d 366, 368 (Nev. 1989)). As Plaintiff has not alleged a written 2 contract, for the purposes of the present motion the presumption of at-will employment applies. 3 At-will employment may be terminated without liability by either party at any time and for any 4 reason or no reason, Martin v. Sears-Roebuck & Co., 899 P.2d 551, 554 (Nev. 1995), with 5 limited exceptions based on “strong public policy,” see Hansen v. Harrah’s, 675 P.2d 394, 396 6 (Nev. 1984) (holding that an at-will employee can bring an action for retaliatory discharge when 7 fired in retaliation for filing a worker’s compensation claim). 8 9 Stone admitted at her deposition that she was an at-will employee. (See Stone Dep. 7, 10, 20, Sept. 15, 2010, ECF No. 18-1). Stone admitted having signed Lowe’s anti-discrimination 10 and anti-harassment policy. (See id. at 7–8). She also admitted that off-color jokes, teasing, 11 demeaning conduct, epithets, slurs, name calling, or obscene gestures could violate the policy. 12 (See id. at 14). She was also aware of Lowe’s policy of respect and inclusion towards people of 13 all backgrounds. (See id. at 14–16). She admitted that her performance standards included 14 compliance with standards of conduct. (See id. at 17). She admitted that she knew vulgarity, 15 abusive language, and profanity were prohibited and that harassment of coworkers would not be 16 tolerated. (See id. at 21–22). 17 Stone testified that she filed her latest worker’s compensation claim in November 2009. 18 (See id. at 24). She never spoke to her supervisor, Steve Cappendyck, regarding her claim. (Id.). 19 Stone implied that Lowe’s knew about the claim, because she testified that Lowe’s didn’t contest 20 it. (See id. at 84). She was on worker’s compensation for a year, and she signed a form accepting 21 a lump-sum settlement on or about March 22, 2010. (See id. at 25). Stone never told “Maggie,” 22 her human resources director, or anyone else the amount she received. (Id. at 25–26). 23 Stone did not learn until the day she was fired that her coworker Rita Watkins had 24 complained to Cappendyck about her. (Id. at 26). Stone denied having told Watkins that “her 25 fucking ass would be out of garden real fucking soon,” asking her “What the fuck are you doing here?,” or telling her that she “would fix the fucking schedule and [she] would have to come in Page 4 of 8 1 at 5:00 a.m.” (See id. at 31). She also denied ever having referred to Watkins as “asshole,” 2 “dumb fuck,” “a fucking dumb ass,” or “fucking asshole.” (See id. at 32–33). She denied having 3 ever used the word “fuck” at work, but later admitted it may have “occasionally . . . slipped.” 4 (See id. at 38). She denied having ever “been mean” to Watkins. (See id. at 41). She admitted 5 she had “probably” said “shit” in front of Wanita “Wendy” Mead. (See id.). 6 Stone admitted having replied to an email from Cappendyck on April 12, 2010, the day 7 she was fired, after an “initial conference that [they] had.” (See id. at 48–49). Stone had noted in 8 her email response that she may have slipped and used the “F” word or some other vulgar word, 9 but did not use the “F” word regularly and had never used it in front of a customer. (See id. at 10 49). Watkins and Mead were also at the conference. (See id. at 50). Stone admitted that she got 11 upset during the conference but denied using profanity during the conference itself. (See id. at 12 50–51). Stone noted at the conference that she believed Watkins was out to get her because of a 13 conflict the two had been having based on Watkins not performing her job properly. (See id. at 14 51). 15 Lucia Margarita “Maggie” Mejia testified that she was the human resources manager at 16 Lowe’s and knew about Stone’s worker’s compensation claim over her lower back injury. (See 17 Mejia Dep. 5, 8, 12–13, Jan. 5, 2011, ECF No. 18-2). Watkins had complained to Mejia in late 18 March about Stone’s alleged behavior towards Watkins. (See id. at 25–26). Mejia instructed 19 Watkins to inform Mejia’s boss, Cappendyck. (See id. at 26). 20 Stone need not show a genuine issue of material fact as to whether she violated Lowe’s 21 policies. This question is inapposite, because Lowe’s may fire an at-will employee for no reason 22 at all. The question is not whether Lowe’s fired Stone for no reason or for a bad reason, but 23 whether it fired her for a reason against the strong public policy of the state as interpreted by the 24 Nevada Supreme Court. Lowe’s bears the initial burden of showing, through admissible 25 evidence, a lack of a genuine issue of material fact as to whether Stone’s termination was motivated by her worker’s compensation claim. Defendant adduces no affidavit or deposition Page 5 of 8 1 evidence from Watkins herself, so even if it were the dispositive question, the only evidence 2 adduced concerning whether Stone actually used vulgarities towards Watkins is Stone’s own 3 testimony denying it and Mejia’s hearsay testimony that Watkins complained to her afterwards. 4 Mejia’s testimony is admissible to prove that Watkins reported the allegations, but it is 5 inadmissible to prove that Stone actually made the comments to Watkins. See Fed. R. Evid. 6 801–802. Lowe’s adduces Watkins’s handwritten statement concerning the incidents, but 7 although the statement is signed and does not constitute hearsay because it is a party admission 8 as against Stone, see Fed. R. Evid. 801(d)(2), the statement is not signed under penalty of 9 perjury, and it is therefore not admissible because it has not been authenticated, see Fed. R. Evid. 10 901. There is no admissible evidence adduced indicating that Stone made the alleged vulgar 11 comments to Watkins. 12 Summary judgment is inappropriate where a fact-finder can infer retaliation from an 13 employer’s awareness of protected activity and the timing and manner of its subsequent 14 investigation and termination of an employee. Cf. Perez v. Curcio, 841 F.2d 255, 258 (9th Cir. 15 1988) (reversing a district court’s grant of summary judgment on a federal age discrimination 16 claim). Lowe’s argues that Stone had filed worker’s compensation claims in the past and had not 17 been fired for doing so, but this is likely inadmissible character evidence as to the issue of 18 whether Stone’s firing was retaliation for her worker’s compensation claim in this particular 19 instance. See Fed. R. Evid. 404. Even if admissible, the evidence does not foreclose the 20 possibility of retaliation in this case and would in fact permit a fact-finder to infer that the latest 21 worker’s compensation claim was simply “the last straw” in Lowe’s view. 22 Still, the question is not whether Stone was fired for a bad reason, or for a good reason 23 with insufficient evidence. The question is whether she was fired for having filed her worker’s 24 compensation claim. Lowe’s argues that there is no evidence of a causal link between Stone’s 25 firing and her worker’s compensation claim. This is Lowe’s strongest argument. An at-will employee alleging that she was fired for filing a worker’s compensation claim must prove that Page 6 of 8 1 the wrongful motivation was the sole proximate cause of her termination. Allum v. Valley Bank 2 of Nev., 970 P.2d 1062, 1066 (Nev. 1998). Lowe’s notes that the Texas Court of Appeals 3 recently ruled that a four-and-a-half month gap between filing a worker’s compensation claim 4 and a firing was too long as a matter of law to support an inference of retaliation when the firing 5 occurred only two weeks after a report of harassment. See Green v. Lowe’s Home Ctrs., Inc., 199 6 S.W.3d 514, 523 (Tex. App. 2006) (affirming a trial court’s grant of summary judgment). Here, 7 twice as many months passed between Stone’s worker’s compensation claim and her 8 termination, and she was fired two weeks after Watkins reported the harassment to Mejia. Based 9 on a lack of evidence of proximate causation, Lowe’s has met its initial burden on summary 10 judgment. 11 Stone responds that she was fired because the lump-sum payout she received two weeks 12 earlier had affected the store’s “bottom line.” Stone adduces a letter she received from the State 13 of Nevada Department of Administration indicating that she was entitled to $136.78 per month 14 through March 2040 or a lump-sum of $22,510.03. (See Letter, Mar. 18, 2010, ECF No. 19-5, at 15 19). She attests that an internal Lowe’s “Dash Seven” report lists expenses chargeable to any 16 particular store, including worker’s compensation paid by the company. (Stone Aff. ¶ 15.b, Mar. 17 21, 2010, ECF No. 19-1). On a date not alleged, Wanita Mead told Stone about the report and 18 noted that worker’s compensation affects a store’s “bottom line.” (See id.). Mead was the store 19 manager when Stone was injured. (Mead Dep. 14, Jan. 28, 2011, ECF No. 19-3). But Mead 20 never learned about Stone’s worker’s compensation settlement until after Stone had been fired, 21 and she never learned the amount. (Id. at 27). On another date not alleged, Mr. Andrew 22 Christopher, the store’s Loss Prevention Manager, laughingly said to Stone, “You already hit the 23 $50,000 dollar mark.” (See Stone Aff. ¶ 15.a). Cappendyck testified that he had nothing to do 24 with Lowe’s worker’s compensation processing system and that he had never discussed Stone’s 25 claim with anyone other than Lowe’s’ attorney (after the present case was filed). (Cappendyck Dep. 59–61, Jan. 5, 2011, ECF No. 19-2). He could not recall the name of the loss prevention Page 7 of 8 1 officer at the store in 2009 but knew the district loss prevention officer was a Mr. Danny Smith. 2 (See id. at 64). Maggie Mejia, the human resources director, also knew about Stone’s injury. 3 (See Mejia Dep. 12–13, Jan. 5, 2011, ECF No. 19-4). But Mejia never knew about Stone’s 4 lump-sum payment. (Id. at 24). Lowe’s denied that Stone was fired because of her March 2010 5 settlement payment but admitted that a third-party administrator called Specialty Risk Services, 6 LLC paid the settlement. (See Def.’s Resp. to Pl.’s Second Set of Reqs. for Admis. 1–2, date, 19- 7 6, at 17). 8 Stone has not met her shifted burden. She filed for worker’s compensation many months 9 before she was terminated, and although she was terminated within two weeks of receiving the 10 lump-sum settlement, she has not produced evidence creating a genuine issue of material fact as 11 to whether the settlement proximately caused Lowe’s to fire her. Mejia, the human resources 12 director who actually fired Stone, testified that she never knew about any lump-sum payment. 13 Mead, the store manager, testified that she didn’t know about the settlement until after Stone was 14 gone and never learned how much the settlement had been for. Mejia fired Stone based on 15 Cappendyck’s investigation of the Stone–Watkins controversy. Cappendyck testified that he 16 never discussed Stone’s worker’s compensation claim with anyone besides corporate counsel, in 17 connection with the present lawsuit. There is no evidence he knew of the lump-sum payment or 18 was motivated by the claim generally. Stone has not met her shifted burden of showing a 19 genuine issue of material fact as to proximate causation. 20 CONCLUSION 21 IT IS HEREBY ORDERED that the Motion Summary Judgment (ECF No. 18) is 22 23 24 25 GRANTED. IT IS SO ORDERED. Dated this 9th day of May, 2011. _____________________________________ ROBERT C. JONES United States District Judge Page 8 of 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.