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Kelly v. Wal-Mart Stores, Inc.

United States District Court, D. Colorado

July 31, 2015

OMAR KELLY, Plaintiff,


CHRISTINE M. ARGUELLO United States District Judge

This matter is before the Court on Defendant Walmart Stores, Inc.’s Motion for Summary Judgment. (Doc. # 20.) Plaintiff, despite being given several extensions of time to respond to the Motion, failed to do so. As such, the Court accepts as undisputed all facts set forth in Defendant’s Motion. Because Plaintiff Omar Kelly has failed to establish that a genuine issue of material fact exists as to his race discrimination, hostile work environment, and retaliatory transfer and discharge claims, the Court grants this motion.


On September 21, 2011, Walmart Store No. 966, in Cortez, Colorado, hired Plaintiff, who is African American, as an Overnight Stocker. (Doc. # 20 at 4, ¶ 9.) While working at Walmart, Plaintiff alleged that another Overnight Stocker, Anthony Morgan, subjected him to harassment due to his race. (Id. at 5, ¶ 14.) Specifically, Plaintiff alleged that Mr. Morgan stated that Mr. Morgan’s family was involved with the Klu Klux Klan and rode around in trucks with shotguns; referred to Plaintiff as “boy”; and told Plaintiff to get back to work-again referring to him as “boy”-and stating, “I should crack the whip like back in the slave days.” (Id. at ¶ 15.) Plaintiff informed his manager of Mr. Morgan’s actions and requested to meet with Mr. Morgan to tell him that he did not appreciate his comments. (Id. at 6, ¶ 16.) After this meeting, on October 29, 2011, Walmart fired Mr. Morgan. (Id. at ¶ 21.) In response to Walmart’s 90-Day Performance Appraisal, Plaintiff wrote that Walmart is “[t]he most enjoyable working environment I’ve worked in.” (Id. at 7, ¶ 22.)

Shortly thereafter, Plaintiff approached his shift-manager and requested to be transferred to a Walmart store in Denver because he thought it would be more diverse than Cortez. (Id. at ¶ 23–24.) Effective November 25, 2011, Walmart transferred Plaintiff to work at Store No. 2223, in Westminister, Colorado. (Id. at ¶ 26.) On his first day at the Westminister store, Plaintiff asked for a female associate’s telephone number and texted her after work. (Id. at 8, ¶ 31.) The following day, Plaintiff gave the female associate a card that read:

I would like to say thanks for being so nice and easy to talk to. If more women were like you friendships and relationships would last longer and be more healthier. I feel totaly [sic] comfortable talking to you that’s why I shared some of my personal things with you. I don’t know how the men were in your past, but I would be honored to wake up everyday [sic] to a woman like you. You’re a Queen I only wish I could treat you like my Queen. But since you’re already taken, I can only hope and pray that I find a woman like you someday. I’m a firm believer that God put people in each other [sic] lives for a reason. So maybe it was meant for me to come to Colorado, find you and find true love, maybe not but only God has that answer. P.S. I can’t wait to hang out and get to know everything about you.

(Id. at ¶ 31.) The female associate asked to be escorted out to her car that evening and expressed a desire to quit because she felt so uncomfortable. (Id. at 9, ¶ 32.) Walmart suspended Plaintiff pending the outcome of an investigation into the female associate’s complaint. (Id. at 9, ¶ 33.)

On December 8, 2011, Plaintiff filed a Charge of Discrimination against Walmart with the Equal Employment Opportunity Commission. (Id. at 11, ¶ 38.) On December 19, 2011, Walmart terminated Plaintiff’s employment, stating in his exit interview that Plaintiff violated Walmart’s discrimination and harassment policy by making inappropriate sexual advances on associates and customers and demonstrating aggressive behavior when those advances were not accepted.

On June 17, 2014, Plaintiff filed the instant litigation against Walmart alleging he suffered from a hostile work environment and was retaliated against and discharged due to his race. (Doc. # 2.) On May 13, 2015, Defendant moved for summary judgment. (Doc. # 20.) Plaintiff did not file a Response.[1]


Summary judgment is warranted when “the movant 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 fact is “material” if it is essential to the proper disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, Okl., 119 F.3d 837, 839 (10th Cir. 1997). When reviewing motions for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Id. However, conclusory statements based merely on conjecture, speculation, or subjective belief do not constitute competent summary judgment evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial does not need to disprove the other party’s claim; rather, the movant need simply point out to the Court a lack of evidence for the other party on an essential element of that party’s claim. Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

Once the movant has met its initial burden, the burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671. “To ...

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