United States District Court, D. Colorado
NGOZI J. AZU, Plaintiff,
v.
SAM'S CLUB, INC., WALMART STORES, Defendants.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT
R.
BROOKE JACKSON JUDGE
This
matter is before the Court on defendant Sam's West,
Inc.[1]
(“Sam's Club”)'s motion for summary
judgment. See ECF No. 46. For the reasons stated
herein, the motion is GRANTED in part and DENIED in part.
I.
BACKGROUND
Plaintiff
Ngozi Azu (“Azu”) is a former employee of
Sam's Club. She is a black female who was born in Nigeria
and was fifty-three years old when she resigned from
Sam's Club. See ECF No. 46 ¶ 1. She claims
that Sam's Club created a hostile work environment based
on her race, national origin, sex, and age and constructively
discharged her in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., and the Age Discrimination in Employment
Act of 1967 (“ADEA”), 29 U.S.C. § 621 et
seq.
Azu
worked as a Pharmacy Manager at Sam's Club in Aurora,
Colorado, from 2003 to about May 19, 2017. See Id.
¶ 2. In 2013 she began taking online courses to receive
her Doctor of Pharmacy (“PharmD”) degree. See
Id. ¶ 7. She claims that in February 2016 she
received approval from her then-manager, Thomas Gary, to take
time off with full pay to accommodate her PharmD clinical
rotations. See id. Between September and December
2016 Azu participated in two six-week PharmD clinical
rotations, during which time she worked at Sam's Club for
one to two days per week. See id. ¶ 8.
Thereafter she returned to a full-time schedule. See
id.
Performance
Evaluations and Coachings
Azu's
pharmacy sales declined while she was on rotation. See
id. at 3 n.3. Azu claims that this decline was due to
Dmitry Kunin's creation of “false sales target[s],
” (2) Sam's Club's losing Kaiser Company's
health insurance clients, and (3) many of Sam's
Club's pharmacy sales moving from in-store to online.
See ECF No. 49-1 ¶ 4; ECF No. 22 ¶ 6.
Between
2016 and 2017 Azu received two negative performance reviews
and two performance coachings. Gary gave Azu the first
“Needs Development” negative performance
evaluation at some point in 2016. See ECF No. 46
¶ 4.
Then,
during one of Azu's rotations in approximately November
2016, Sam's Club replaced Gary with Dmitry Kunin. See
id. ¶ 9. Sam's Club tasked Kunin with
“improving the market's business growth and
performance, and ensuring pharmacies followed consistent best
practices.” See id. He conducted approximately
six visits to Azu's pharmacy between January 2017 and May
2017. See id. ¶ 13.Kunin was vocal about his
displeasure with Azu's clinical rotation arrangement.
During a December 20, 2016 phone call, Kunin told Azu that
she should not have received full pay while on rotation
because she did not have sufficient accumulated paid time off
(“PTO”). See id. ¶ 11. Kunin raised
this issue again when they first met in person in January
2017, and subsequently “[e]very single time” they
met thereafter. Id. ¶ 12. During that first
meeting, Kunin also asked Azu where she was from and what
made her decide to come to the United States. See
id. ¶ 27.
Kunin
gave Azu her first performance coaching on approximately
February 22, 2017 based on “numerous performance
deficiencies and compliance areas” that Kunin had
previously discussed with Azu. Id. ¶ 14. The
coaching document described several performance, compliance,
and safety deficiencies, including “not fixing and
executing on model pharmacy standards, having undated
records, lack of organization, allowing for the
pharmacy's blood pressure machine to be broken for over
five days, not updating the 30/60/90 day plan, not labeling
locked drawers, and keeping controlled substance keys hanging
in drawers.” Id.
Kunin
gave Azu another “Needs Development” negative
performance evaluation in March 2017, noting similar areas
for growth as those that Gary had listed in the 2016
performance evaluation. See id. ¶ 16. Following
a visit to Azu's pharmacy in which Kunin observed little
to no improvements, Kunin gave Azu a second coaching on
approximately March 31, 2017. See id. ¶ 18.
This second coaching document described many of the same
deficiencies as the first coaching document. Id.
¶ 18.
During
both coachings, Azu “refused to take ownership of the
performance and compliance concerns or discuss necessary
steps for improvement.” Id. ¶ 22. She
asserts that both coachings were unfair because at the time
she had either fixed the problems or made arrangement to do
so. See id. ¶¶ 15, 19.
Kunin's
Comments to Azu
At
various times between November 2016 and March 2017, Kunin
made several offensive comments to her. On approximately
January 18, 2017, during their first in-person meeting, Kunin
allegedly told Azu (1) that he believed Azu was not available
to do her job, (2) he had “young people from my
previous location that I want to bring here to reenergize the
store, ” (3) he wanted to hire a “young
person” or “male person” to reenergize the
pharmacy, and (4) “We don't want your kind here
anymore. We need a new beginning here.” ECF No. 46
¶ 28. On approximately March 29, 2017 Kunin was
searching through pharmacy drawers and discussing why they
were not labeled when he noticed Azu's purse in an open
drawer, put his hand on the purse, and looked at its
contents, see id. ¶ 32.
Kunin
also made several comments to Azu the exact dates of which
she cannot recall. At some point before Azu's March 31,
2017 second coaching, see id. ¶ 34, Azu alleges
that Kunin: (1) said, “Beware, there is a new sheriff
in town;” (2) said, “You dumb Nigerians should
not seek any more education, it does not make any
difference;” (3) said, “We don't need stupid
Nigerians here anymore. You are probably a fake Nigerian
princess trying to scam people anyway;” (4) said,
“Sam's Club, Inc. . . . needs younger blood in this
digital age, not an old cargo that is stuck in old ways of
doing things;” (5) told Azu that she was stuck in
“old ways of doing things” and Kunin wanted to
hire a “new” person, id. ¶ 29; (6)
asked Azu why she did not have a male pharmacist or
technician, see id. ¶ 30; (7) asked, during a
conversation about her mother's health, whether Azu's
mother was on Medicare or Medicaid and said that her mother
should go back to Africa, see id. ¶ 31; and (8)
called Azu on two or three occasions after a weekly
conference call and asked whether she was actually on the
call, [2] see id. ¶ 33.
After
her second performance coaching on March 31, 2017, Azu did
not “deal with [Kunin] as much” other than in
weekly conference calls. Id. ¶ 34.
Azu's
Complaints to Elnajjar
Several
days after her second coaching, on approximately April 5,
2017, Azu emailed Sanaa Elnajjar-Kunin's manager and
Sam's Club Regional Health & Wellness Director-and
Dawn Gaschler-Sam's Club Human Resources Manager-a
document describing various interactions with Kunin between
December 20, 2016 and March 31, 2017. The letter did not
mention any of the abovementioned statements that were
overtly based on race, national origin, sex, or age. See
id. ¶ 35; ECF No. 40-7. The email mentioned only
that Kunin occasionally spoke to Azu “in an angry
tone;” that he accused her of ignoring emails and
conference calls; that he accused her pharmacy of being dirty
and disorganized; that he accused her of failing to help grow
the business; and that he asked her questions about her
background (including where she was “originally from,
” “what made [her] come here, ” how long
had she been here, whether she was married and what her
husband did, whether she had children and how old they were,
whether her mother lived with her and for how long, and
whether her mother had health insurance). ECF No. 46-7 at
490-93.
In
response to this email, Elnajjar arranged for a conference
call between herself, Azu, and Sam's Club People Partner
Colleen Weigle. See ECF No. 46 ¶ 36. During
this April 21, 2015 conference call, Azu described
“some” of the issues set forth in her email,
including that Kunin was “loud” to her, overly
critical of her, and “picked on” her.
Id. ¶ 37. Once again, Azu did not mention any
of Kunin's alleged statements or conduct that were
overtly based on race, national origin, sex, or age. See
id. Weigle ultimately told Elnajjar that she could not
substantiate any wrongdoing. See id. ¶ 39.
In
March or April 2017 Elnajjar participated in a walk-through
of several pharmacies, including Azu's. See id.
¶ 20. Elnajjar was disappointed in Azu's
walk-through. See id. ¶ 21. When Elnajjar asked
Azu how she planned to grow certain aspects of her business,
Azu responded defensively without providing any specifics
responses. See id. Elnajjar told Azu to “fix
things because [Elnajjar was] not going to micromanage
[Azu].” Id.
According
to Elnajjar, Azu did not mention any problems with Kunin
during this visit. See id. ¶ 41. However, Azu
testified in her deposition that she did complain to Elnajjar
that Kunin had asked her “all kinds of questions,
” although she did not describe anything specific.
Id. ¶ 40. Later in her deposition, Azu also
stated that she had told Elnajjar about the following
comments that Kunin made: (1) that “he needs a new
person to replace [her]” and “needs a young male
pharmacist;” (2) that he called Azu “dumb;”
(3) that he “doesn't need any stupid Nigerian here
anymore;” (4) that he told Azu her workplace display
frame “suck[ed];” and (5) that he “yelled
at [her] in front of technicians.” Id. In her
sworn affidavit attached to her response to Sam's
Club's motion, she asserts that she also told Elnajjar
about various other derogatory comments about her Nigerian
nationality and about her age, although she does not clarify
when this conversation occurred. See ECF No. 49-1
¶¶ 9-12.
On
approximately April 28, 2017 Azu faxed a letter of
resignation to Kunin, effective May 19, 2017. See
id. ¶ 23. Azu did not inform any manager or anyone
at human resources why she was resigning, nor did she include
that information in her resignation letter. See id.
¶ 25. Azu claims that she resigned based on pressure
from Kunin, her belief that Kunin would fire her, a hostile
work environment cultivated by Kunin, and panic attacks she
suffered as a result. See id. ¶ 26.
Procedural
...