United States District Court, N.D. Alabama, Southern Division
E. Ott Chief United States Magistrate Judge
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.
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.
Standard of Review
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.
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).
is a licensed optometrist in the State of Alabama. (Pl. Dep.
at 14). 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). Some of these
locations include Vision Centers, which lease space and
services to licensed optometrists rather than employing
optometrists to see patients. (Id.)
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; 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).
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).
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
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).
employs a Vision Center Manager to oversee operations of the
Vision Centers. (Nataness Averhart Decl. at 2; 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).
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).
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; ...