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Robert W. Kohut v. Home Depot U.S.A.

December 16, 2010

ROBERT W. KOHUT, PLAINTIFF,
v.
HOME DEPOT U.S.A., INC., DEFENDANT.



The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Robert W. Kohut ("Kohut") alleges that defendant Home Depot U.S.A., Inc. ("Home Depot") discriminated against him based on race (Caucasian) and age (59) when it terminated his employment on June 8, 2007, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), and the Age and Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. ("ADEA"). Now pending before the court is Home Depot's motion for summary judgment. (Dkt. No. 32.) For the reasons set forth below, Home Depot's motion is granted.

BACKGROUND

Kohut, who is Caucasian, was hired by Home Depot in 1996 as a Sales Associate in the Plumbing Department at its Brickyard, Illinois store. (Dkt. No. 34 ("Home Depot's SMF") ¶ 3.) Kohut was forty-eight years old at the time he was hired by Home Depot. (Id. ¶ 4.) In March 1999, he was promoted to the position of Department Supervisor in the Paint Department in the Brickyard store, and he thereafter held various Department Supervisor positions at the Brickyard store. (Id. ¶¶ 6-7.) In October 2001, Kohut was promoted to the position of Assistant Store Manager of the Elston, Illinois store. (Id. ¶ 7.) From August 2006 through June 8, 2007, Kohut served in the position of Merchandise Assistant Store Manager at the Elston store. (Id. ¶¶ 10,56.) At all times relevant to Kohut's claims in this lawsuit, the Store Manager of the Elston store was Lissett Urso ("Urso") and the Human Resources Manager of the Elston store was Latasha Reynolds ("Reynolds"). (Id. ¶¶ 19, 24.)

1. Home Depot's Policies

A. Code of Conduct: Standards of Conduct Home Depot maintains a document titled "Code of Conduct: Manager's Guide 2007" that provides "common-sense rules of conduct that are necessary for orderly and efficient operations." (Home Depot's SMF ¶ 11 (citing Home Depot's Ex. 4 ("Code of Conduct") at 2.) Under its "Standards of Conduct" section, the Code of Conduct expressly states,

This Code of Conduct does not create a contract between The Home Depot and any of its associates. . . . The Home Depot and the associate each continue to have the absolute authority to terminate the employment relationship at will. The employment relationship may be terminated with or without cause and with or without prior notice. (Code of Conduct 3 (emphasis in original); Home Depot's SMF ¶ 15.) The Code of Conduct further states,

The Code of Conduct provides examples of Major Work Rule Violations, which are violations considered to be so severe in nature that they would normally result in termination for a first offense, and Minor Work Rule Violations, which are violations considered to be unacceptable behaviors in the workplace and would normally result in discipline and may individually or cumulatively result in termination of employment depending on the seriousness of the offense(s). * * * Any associate who violates a rule of conduct may be disciplined up to and including termination of employment. The reasons listed for termination or discipline are examples only and are not meant to include and do not in fact include all reasons for which an associate may be disciplined or discharged. (Code of Conduct 2-3 (emphasis in original); Home Depot's SMF ¶ 15.)

The "Standards of Conduct" section of the Code of Conduct also includes a section titled "Respect," which states:

"Respect for all people" is one of The Home Depot's core values. The Company is committed to providing an environment of mutual respect, free of harassment and discrimination for our associates, customers and vendors. Associates are expected to treat fellow associates, customers and vendors with courtesy and to resolve any differences in a professional, non-abusive, non-inflammatory and non-threatening manner. Associates are responsible for their own behavior and for understanding how others may perceive their conduct in the workplace. Conduct that may be acceptable outside of the work environment may not be acceptable in the workplace. (Code of Conduct 7 ("Respect Policy"); Home Depot's SMF ¶ 17.)

B. Major Work Rule Violations and Minor Work Rule Violations In a section titled "Major Work Rule Violations," the Code of Conduct lists "[e]xamples of Major Work Rule Violations." (Code of Conduct 10.) One sub-section titled "Discrimination or Harassment" states in relevant part:

* Examples of conduct that could be considered harassment or disrespectful behavior include but are not limited to: directing abusive or obscene language to fellow associates, customers or vendors; offensive jokes; threats of termination; or willfully creating circumstances that would make the workplace intolerable

* Treating a fellow associate, customer or vendor in an abusive, threatening or inflammatory manner

(Code of Conduct 13; Dkt. No. 40 ("Home Depot's Resp. to Kohut's Add'l Facts") ¶ 91.)

Under the section titled "Minor Work Rule Violations," the Code of Conduct describes a "Respect Violation" as:

* Failing to treat associates, customers, or vendors with respect or engaging in other inappropriate conduct toward others

* Failing to notify a member of a Home Depot management team, a member of Human Resources or a designated Company resource of discrimination or harassment(Code of Conduct 25; see also Home Depot's Resp. to Kohut's Add'l Facts ¶ 91.)

C. Manager's Guide to Investigation and Discipline The Code of Conduct also includes a section titled "Manager's Guide to Investigation and to Discipline." (Code of Conduct 26-34 ("Manager's Guide").) This section includes "guidelines" for conducting an investigation and "standard disciplinary processes" employed by Home Depot. (Code of Conduct 26, 29.)

For example, the Manager's Guide recommends that managers investigating a possible violation of the Code of Conduct should "[c]onduct a thorough investigation in partnership with Human Resources, the management team, or an Asset Protection Manager as appropriate so that the final outcome is based upon facts and not perception, hearsay, or speculation." (Code of Conduct 26-27; see also Dkt. No. 38 at 20-25 ("Kohut's Add'l Facts") ¶ 81; Home Depot's Resp. to Kohut's Add'l Facts ¶ 81.) The Manager's Guide further advises "[b]e sure to give the associate who has been accused of wrongdoing an opportunity to tell his/her side of the situation" and "[b]e sure to obtain, create and maintain appropriate, thorough ...


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