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Marbuary v. Wal-Mart Stores East, LP

United States District Court, N.D. Alabama, Southern Division

November 21, 2017



          John E. Ott Chief United States Magistrate Judge

         Plaintiff Latisha Marbuary has sued defendant Wal-Mart Stores East, LP (“Wal-Mart”) alleging discrimination because of race, in violation of 42 U.S.C. § 1981. (Doc. 1).[1] The cause now comes to be heard on Wal-Mart's motion for summary judgment. (Doc. 19). The issues have been fully briefed and are now ripe for review. (Docs. 20, 24 & 25). For the reasons below, the Court finds that Wal-Mart's motion for summary judgment is due to be granted.

         I. Standard of Review

         Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a party is authorized to move for summary judgment on claim asserted against it. Under that rule, the “court shall grant summary judgment if 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.” Rule 56(a), Fed.R.Civ.P. The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, ” relying on submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Once the moving party has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324.

         Both the party “asserting that a fact cannot be, ” and a party asserting that a fact is genuinely disputed, must support their assertions by “citing to particular parts of materials in the record, ” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Rule 56(c)(1)(A), (B). In its review of the evidence, a court must credit the evidence of the non-movant and draw all justifiable inferences in the non-movant's favor. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). At summary judgment, “the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         II. Facts

         Marbuary is a licensed optometrist in the State of Alabama. (Pl. Dep. at 14).[2] She owns a company called 20/20 Vision Works, LLC. (Pl. Dep. at 25). Wal-Mart is a retailer operating multiple store locations in the State of Alabama. (Billy W. Lawley, II Decl. at ¶ 3).[3] Some of these locations include Vision Centers, which lease space and services to licensed optometrists rather than employing optometrists to see patients. (Id.)

         Wal-Mart entered into a License and Optional Services Agreement with Dr. Neal Irwin, an optometrist, to practice at the Vision Center in Store #1229 in Hoover, Alabama, beginning on September 1, 2012. (Pl. Ex. 3;[4] Lawley Dep. at. 38-40). Before the contract began, Marbuary, through her company, 20/20 Vision Works purchased Irwin's practice. (Pl. Dep. at 38-39; Pl. Ex. 3). Marbuary entered into an Assignment and Assumption Agreement under which Irwin transferred the Wal-Mart contract to her. (Pl. Ex. 3 at 74 of 78). The terms of the original contract transferred to Marbuary, including (1) a September 1, 2015 expiration date (2) and the list of dates and hours Marbuary would be required to be at Store # 1229 or provide a licensed optometrist to cover for her. (Pl. Dep. at 47-49).

         Marbuary also had a separate License and Optional Services Agreement with Wal-Mart Store # 2723 in Sumiton, Alabama for 2013-2014. (Pl. Dep. at 34). The contract similarly required Marbuary to either be present at the store or have a licensed optometrist present on specified days of the week, some of which overlapped with Store # 1229. (Lawley Decl. at ¶ 4; Pl. Dep. at 34). Under Article 6 of the License and Optional Services contract, Walmart had the right to terminate Marbuary's contract for: “(a) Doctor's failure to abide by any of the covenants, terms and conditions herein shall constitute a default.” (Pl. Dep. at 7-8).

         In December 2014, Marbuary asked Walmart Market Health and Wellness Manager Billy Lawley, her primary Walmart contact, to assist her in amending the terms of her contract with Store #1229, including a reduction in her contracted hours from six days per week to four days per week. (Pl. Dep. at 44-46). Lawley worked with Marbuary to make this and other requested changes happen. (Lawley Dep. at 65-66; Pl. Dep. at 44-46, 52-53).

         Lawley had conversations with Marbuary about the need to provide optometrist coverage at both the Sumiton and Hoover locations pursuant to her contracts, as there were occasions when Marbuary would cancel her scheduled time at one Vision Center in order to cover the other, busier Vision Center (without providing an optometrist to cover the less-busy store). (Lawley Dep . a t 45-49). Ultimately, Marbuary voluntarily terminated her Sumiton contract because “ [she] just couldn't do both. [She] couldn't be at two places at one time.” (Pl. Dep. at 35).

         Wal-Mart employs a Vision Center Manager to oversee operations of the Vision Centers. (Nataness Averhart Decl. at 2;[5] Lawley Decl. p. 7). In his role as Market Health and Wellness Manager, Lawley checks in with the Vision Center Manager at each location to ensure operations are running smoothly and to inquire about the services each optometrist is providing. (Lawley Decl. at 7). During the course of Marbuary's contract with Store #1229, Hoover Vision Center Manager Nataness (“Nat”) Averhart noticed that Marbuary was not fulfilling her contractual obligations to either be present or have another optometrist present during her contracted office hours. (Averhart Decl. at 5). Consequently, Averhart made multiple reports to Lawley that Marbuary either failed to appear for her scheduled hours or did not work the posted hours, i.e., she arrived late and/or left early. (Lawley Decl. at 7; Averhart Decl. at 4-7). According to Averhart, Marbuary's frequent absences during posted doctors' hours (a) resulted in disappointed customers who were unable to see an optometrist, and (b) lowered the Vision Center's revenue potential. (Averhart Decl. at 3, 5). However, Lawley never noticed any glaring problems with Marbuary's performance and did not receive any customer complaints about her. (Lawley Dep. at 43).

         On one occasion, Marbuary called Averhart to report she was sick and would not be at the Vision Center. (Averhart Decl. p. 4). Upon learning from Averhart that Marbuary would not be present (and, thus, the Hoover location could not see patients), Lawley asked Averhart to travel to the Sumiton Vision Center, which was short-staffed that day. (Lawley Dep. at 45-49; Averhart Decl. at 4). When Averhart arrived in Sumiton, Averhart found Marbuary there, seeing patients, rather than home sick as she had represented to Averhart. (Averhart Dec. at 4).

         On another occasion, May 28, 2015, Marbuary informed Averhart she would not be at Store #1229. (Averhart Decl. p. 4). Several days later, a doctor from a Target store that also provided optometrist services called Averhart looking for Marbuary, asking if Marbuary could fill-in for the doctor again, as Marbuary had done on May 28, 2015. (Id.) On May 28, 2015, when Marbuary filled-in for the Target optometrist, she was contractually bound to provide optometric services at Walmart Store #1229. (Id.) Averhart kept Lawley apprised of Marbuary's repeated violations of her Walmart contract. (Averhart Decl. at 4-5). Averhart emailed Lawley the dates which Marbuary either did not come to Store #1229 or was late/left early. (Lawley Ex. 5; Averhart Decl. at 7, Ex. A). Averhart stated that Marbuary did not fulfill the days/hours of her contract on the following dates: February 28, 2014; March 24, 2014; April 8, 2014; April 22, 2014; April 25, 2014; May 17, 2014; May 20, 2014; May 21, 2014; May, 27, 2014; June 3, 2014; June 26, 2014; June 27, 2014; June 30, 2014; July 12, 2014; August 19, 20114; September 27, 2014; ...

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