Azu v. Sam's Club, Inc.

          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 ...