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Mudrich v. Wal-Mart Stores, Inc.

United States District Court, D. Minnesota

July 8, 2013

BRYAN R. MUDRICH, Plaintiff,
v.
WAL-MART STORES, INC, Defendant

Page 1002

[Copyrighted Material Omitted]

Page 1003

Bryan R. Mudrich, Burnsville, MN, Pro se.

Stephanie D. Sarantopoulos and Joseph D. Weiner, LITTLER MENDELSON, PC, Minneapolis, MN, for defendant.

OPINION

JOHN R. TUNHEIM, United States District Judge.

Page 1004

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff Bryan R. Mudrich worked in the Tire and Lube Express department of Defendant Wal-Mart Stores, Inc. (" Wal-Mart" ) for approximately one year before his termination in the spring of 2010. Mudrich alleges that he was wrongfully terminated because Wal-Mart engaged in gender discrimination in violation of Title VII, 42 U.S.C. § § 2000e, et seq., and the Minnesota Human Rights Act (" MHRA" ), Minn. Stat. § 363A.08. Mudrich also brings a claim for defamation and alleges that Wal-Mart violated the Whistleblower Act, Minn. Stat. § 181.932. On March 22, 2013, United States Magistrate Judge Jeffrey J. Keyes issued a Report and Recommendation (" R& R" ) recommending that the Court grant Wal-Mart's motion for summary judgment with respect to Mudrich's whistleblower claim and deny the motion with respect to Mudrich's wrongful termination/gender discrimination claims and his defamation claim. Wal-Mart made timely objections to the R& R. (Docket No. 111.) Mudrich did not object to the dismissal of his whistleblower claim. Having conducted a de novo review of those portions of the R& R to which Wal-Mart objects, see 28 U.S.C. § 636(b)(1)(C), D. Minn. L.R. 72.2(b), and having carefully reviewed the submitted materials, the Court overrules Wal-Mart's objections and adopts the R& R in its entirety.

BACKGROUND[1]

Mudrich began working in Wal-Mart's Tire and Lube Express department in May 2009. (Aff. of Bryan R. Mudrich ¶ 2, Jan. 7, 2013, Docket No. 105.) Mudrich was a " Service Writer" and was responsible for writing orders and performing services such as oil changes, tire replacements, battery changes, and tire rotations. ( Id. ¶ 3.) Mudrich contends that he was wrongly terminated because he was accused of providing a free tire rotation on April 3, 2010, that his co-worker, Catherine Kinnonen, had provided. ( See id. )

Mudrich alleges that he was the victim of gender discrimination because Wal-Mart did not discipline Kinnonen at all,

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much less fire her. (Second Am. Compl. at 2, Dec. 9, 2011, Docket No. 52.) Wal-Mart contends that it terminated Mudrich because he did not comply with a company policy that required him to write a corrective action plan as part of his discipline for violations that occurred on March 20, 2010, not the April 3 incidents. [2] (Aff. of Regina Gilmore ¶ ¶ 10-12, 15, Aug. 6, 2012, Docket No. 77.)

Wal-Mart's Disciplinary Policy and Mudrich's Disciplinary History

Wal-Mart has a " Coaching for Improvement Policy" that identifies types of discipline that may be administered depending on the nature and severity of the misconduct. (Gilmore Aff. ¶ 4.) The policy identifies verbal coaching, written coaching, and " Decision-Making Day Coaching" as possible types of discipline. ( Id.; see also Mudrich Aff. ¶ 20.) Decision-Making Day Coaching or " D-Day" coaching results in a one-day paid suspension and requires the employee to submit an " action plan for improved performance." (Gilmore Aff. ¶ 4; see also Mudrich Dep. 182:1-2, Docket No. 110.)

During his year of employment with Wal-Mart, Mudrich received reprimands for violations of Wal-Mart policies. On February 7, 2010, he received a verbal coaching for inappropriately combining two customer discounts without manager approval. (Gilmore Aff. ¶ 5.) Mudrich does not dispute that he met with assistant manager Regina Gilmore about combining the discounts (Mudrich Dep. 136:22-137:20), but Mudrich did not recognize that the meeting was a verbal coaching ( id. 139:17-24). On February 28, 2010, Mudrich received a written coaching for attendance and punctuality concerns. (Gilmore Aff. ¶ 6.) Mudrich contends that although concerns about his attendance were addressed by his managers, he never received the documentation for the written coaching and he did not know either meeting was considered coaching under Wal-Mart's policies. (Mudrich Dep. 140:19-145:22.)

The Disputed Discounts and D-Day Discipline

In late March 2010, Gilmore received a report indicating that Mudrich may have provided services on March 20 without charging for them. (Gilmore Aff. ¶ 7.) To fully understand the factual dispute, it is necessary to understand Wal-Mart's system of processing orders in its Tire and Lube Express department. First, a service writer like Mudrich is supposed to greet the customer and log into a handheld scanning device using a personal login and password. (Gilmore Aff. ¶ 9.) The service writer uses the scanning device to scan the Vehicle Identification Number and write the service order, creating a work order that is sent to the garage area. ( Id. ; Mudrich Aff. ¶ 5.) After the garage technicians service the vehicle, they enter a work order via a computer. (Gilmore Aff. ¶ 9.) This completed work order is sent to the cashier area where the service writer signs onto the register and rings up the customer. ( Id. ) Any discounts provided to the customer must be processed at the time of checkout. ( Id. ) In addition, the handheld scanning device is programmed to log out an employee if it remains idle for more than two minutes. (Mudrich Dep. 167:18-168:2,)

Mudrich alleges that on April 3, 2010, after Kinnonen had clocked out for the day she returned to the Tire and Lube ...


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