Karla Grimes v. Wal-Mart Stores Texas, L.L.C.

Case: 12-50260 Document: 00512100949 Page: 1 Date Filed: 01/04/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 4, 2013

No. 12-50260 Lyle W. Cayce

Summary Calendar Clerk

KARLA GRIMES,

Plaintiff–Appellant

v.

WAL-MART STORES TEXAS, L.L.C.,

Defendant–Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. MO-10-CV-067

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Plaintiff–Appellant Karla Grimes brought suit against her former

employer, Defendant–Appellee Wal-Mart Stores Texas, LLC, alleging

defamation and three forms of discrimination arising from her termination. The

district court granted summary judgment in Wal-Mart’s favor, and Grimes

appealed. We affirm.

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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I.

Karla Grimes (“Grimes”) began working for Wal-Mart Stores Texas, LLC

(“Wal-Mart”) in 1986 and received a series of promotions during her twenty-two

years with the company. In 2003, Grimes was promoted to Store Manager at an

existing Wal-Mart. In 2005, she oversaw the opening of a store at which she

became the Store Manager. Then, in November 2008, Grimes was offered a

promotion to the position of Market Manager for Southern New Mexico. She

declined the promotion, however, because the job would require relocating to a

city with services she deemed inadequate for her son, who suffers from a form

of cerebral palsy. Grimes alleges that Wal-Mart knew that her child had special

needs. She further alleges that Wal-Mart subjected her to heightened scrutiny

after she declined the promotion.

Towards the end of January 2009, Grimes met with two superiors to

discuss an issue related to how Wal-Mart processes applicants for open positions.

Wal-Mart had instructed Grimes’s Co-Manager, Olga Guebara, to interview

candidates for an open position. Wal-Mart in turn received a set of interview

sheets reflecting interviews that had purportedly occurred. However, after

further research, Wal-Mart grew concerned that Grimes’s store had submitted

two interview sheets for interviews that had not actually taken place. Wal-Mart

investigated the incident, and Guebara implicated Grimes. She told a supervisor

that Grimes had instructed her to reuse past interview sheets without

conducting fresh interviews. Grimes denied this allegation, claiming that she

had instructed Guebara to conduct the necessary interviews during a brief

conversation at the office.

Wal-Mart maintains a four-step, progressive disciplinary system for most

infractions. Step three of this system involves a day off from work with possible

demotion, while step four is termination. Nevertheless, certain conduct—for

instance, “dishonesty/compromised integrity”—is considered “Gross Misconduct”

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and can result in immediate termination. At the conclusion of the investigation

into the interview sheet incident, Grimes was informed that she would be

demoted to Assistant Manager and would be given the accompanying day off to

consider what Wal-Mart viewed as a failure to ensure the integrity of Wal-Mart’s

internal personnel system, called the Career Preference System. Guebara

received a similar punishment. That is, while Wal-Mart deemed both employees

guilty of “Gross Misconduct,” it nevertheless opted for step-three discipline

under the progressive system.

Around the same time that Grimes received her punishment for the

interview sheet incident, an hourly employee at Grimes’s store contacted a

supervisor to report a suspected job code discrepancy. The employee claimed

that her pay grade was not appropriately coded given her job responsibilities.

An audit of the store revealed that multiple employees had been improperly

coded, resulting in both under- and over-payment. Wal-Mart informed Grimes

of these discrepancies during a series of meetings that took place under Wal-

Mart’s “open door” policy for communicating with supervisors. On February 12,

2009, Grimes was informed that she was being terminated as a result of this

second incident. Guebara was also fired.

In response, Grimes filed a lawsuit alleging sex discrimination, retaliation

in violation of Title VII, associational discrimination, and defamation. The

district court granted summary judgment in Wal-Mart’s favor. Grimes appealed

the district court’s judgment on her sex discrimination and associational

discrimination claims, as well as the district court’s exclusion of expert

testimony put forth by Grimes.

II.

“We review a grant of summary judgment de novo, applying the same

standard as the district court.” Ibarra v. United Parcel Serv., 695 F.3d 354, 355

(5th Cir. 2012). Summary judgment is appropriate if “there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists “if

the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

However, a party asserting “that a fact cannot be or is genuinely disputed” must

support such an assertion by citing specific parts of the record. Fed. R. Civ. P.

56(c)(1).

Exclusion of expert testimony falls within the discretion of the trial court.

Muñoz v. Orr, 200 F.3d 291, 300 (5th Cir. 2000). As such, “we review it only for

an abuse of discretion which amounts to manifest error.” Id. Manifest error is

plain and indisputable, and amounts to a complete disregard of controlling law.

Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004).

III.

A.

Grimes appeals the district court’s grant of summary judgment on her sex

discrimination and associational discrimination claims. Namely, Grimes claims

that she was terminated either because of her sex or because of her son’s

disability. Discrimination can be proven using direct or circumstantial evidence.

Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 593 (5th Cir. 2007).

Proving discriminatory termination using circumstantial evidence, as Grimes

attempts to do here, requires use of the burden-shifting framework established

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

The burden-shifting framework for proving discrimination proceeds in

three steps. First, the Plaintiff must establish a prima facie case of

discrimination. Id. If the Plaintiff makes a prima facie showing, it becomes the

employer’s burden to articulate a legitimate, nondiscriminatory reason for

terminating the Plaintiff. Id. Once the employer puts forth a nondiscriminatory

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reason, the Plaintiff must show that the employer’s proffered reason is merely

pretext for discrimination. Id.

Making a prima facie case of sex discrimination requires that the Plaintiff

show the following: (1) that she belongs to a protected class, (2) that she was

qualified for the position, (3) that she suffered an adverse employment action,

and (4) that she was replaced with a similarly qualified person who was not a

member of the protected class or that similarly situated employees were treated

more favorably. Id. Here, Grimes has failed to make a prima facie showing.

Grimes cannot make a prima facie showing of sex discrimination for two reasons.

First, she cannot show that she was replaced by a person who was not a member

of her protected class because Wal-Mart replaced Grimes with another female.

Second, Grimes has not shown that similarly situated employees were treated

more favorably because the only male employee subjected to discipline that she

discusses was not similarly situated. That employee, Roger Morvan, was a Co-

Manager, which is a position that is subordinate to Grimes’s position of Store

Manager. Furthermore, Morvan only committed a single infraction related to

the Career Preference System. For that violation, he received the same step-

three treatment as Grimes. Grimes, however, committed a further violation and

was punished accordingly. She has not even suggested that Morvan committed

a second offense, let alone one similar to that which Grimes committed. As such,

Grimes cannot make a prima facie showing of sex discrimination.

A prima facie case of associational discrimination would require that the

Plaintiff show (1) her qualification for the job, (2) an adverse employment action,

(3) the employer’s knowledge of the employee’s disabled relative, and (4) that the

adverse employment action occurred under circumstances raising a reasonable

inference that the relative’s disability was a determining factor in the employer’s

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adverse action.1 Grimes cannot make a prima facie showing of associational

discrimination because she has presented no evidence to suggest that her son’s

disability was a determining factor in her termination. While Wal-Mart

arguably was aware of her son’s disability, Grimes has not identified any

evidence to connect knowledge of her son’s disability to her subsequent

termination. While it is true that Grimes declined her promotion explicitly

because of her son’s needs, nothing occurred thereafter that raises a reasonable

inference that her son’s disability was a determining factor in her termination.

Therefore, Grimes has failed to make a prima facie showing of associational

discrimination as well.

To show pretext, the Plaintiff must establish either that the employer’s

nondiscriminatory reason is untrue or, while true, is only one of the reasons for

the adverse action taken—the other reason being the Plaintiff’s protected

characteristic. Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011).

It is not enough, however, to merely cast doubt on whether the employer had just

1

The Fifth Circuit has not explicitly recognized a cause of action for discrimination

based on association with a handicapped individual, nor have we described what such a claim

requires. This Court referenced an associational discrimination claim based on disability in

an unpublished opinion. Carter v. Ridge, 255 Fed. App’x 826, 833 (5th Cir. 2007) (per curiam)

(unpublished). However, that opinion affirmed dismissal of the associational discrimination

claim on exhaustion grounds. Id. Likewise, judgment as a matter of law was affirmed in

Rogers v. International Marine Terminals, Inc., 87 F.3d 755 (5th Cir. 1996), without explaining

what an associational discrimination claim entails. 87 F.3d at 760–61. In Deffenbaugh-

Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 588–89 (5th Cir. 1998), partially vacated on

other grounds sub nom., Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en

banc) (per curiam), the Court recognized an associational discrimination claim based on an

interracial relationship, but the Court did not elucidate the elements required to make a prima

facie showing.

District courts within this Circuit have, however, recognized a cause of action for

associational discrimination. See, e.g., Spinks v. Trugreen Landcare, LLC, 322 F. Supp. 2d

784, 796 (S.D. Tex. 2004); Moresi v. AMR Corp., No. CA 3:98–CV–1518–R, 1999 WL 680210,

at *2–*3 (N.D. Tex. Aug. 31, 1999). It is the test laid out in these cases that the Court cites

here. See Moresi, 1999 WL 680210, at *3. However, this opinion should not be construed as

recognizing a cause of action for associational discrimination based on disability since, even

assuming such a cause exists, Grimes cannot meet the burden that such a claim would entail.

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cause; the Plaintiff must affirmatively show that the employer’s proffered reason

is unworthy of credence. Moore v. Eli Lilly & Co., 990 F.2d 812, 815–16 (5th Cir.

1993). Since Wal-Mart has proffered a nondiscriminatory reason for terminating

Grimes—two incidents involving the integrity of the Career Preference

System—it would be Grimes’s obligation to show pretext, assuming arguendo

she can make a prima facie showing.

Here, Grimes explicitly relies on the same evidence of pretext for both of

her discrimination claims. The Court will thus address both claims together in

examining Grimes’s pretext theories. As explained below, even assuming

arguendo that Grimes can make a prima facie showing of discrimination, she has

not offered sufficient evidence to create a genuine issue of material fact

regarding pretext. Grimes has presented no affirmative evidence suggesting

Wal-Mart terminated her for discriminatory reasons, and her attempts to

undermine Wal-Mart’s proffered reasons fall short. Instead of showing why Wal-

Mart’s reasons are unworthy of credence, Grimes merely attempts to cast doubt

on whether Wal-Mart had just cause to terminate her. See Moore, 990 F.2d at

815–16. There being no genuine dispute of material fact, Wal-Mart is entitled

to judgment as a matter of law. Accordingly, the Court will affirm.

Grimes first argues that Wal-Mart’s reasons for terminating her are

pretext because Wal-Mart gave inconsistent reasons for her termination. She

claims that the job code issue for which she was ultimately fired was not

mentioned during her exit interview or during a hearing before the Texas

Workforce Commission. Id. However, Grimes’s argument is not supported by

the record. Wal-Mart uses a software suite called the Career Preference System

for a variety of personnel-related purposes. Wal-Mart uses the system to track

hiring for specific positions and to code employees for pay purposes based on

their specific job level. Grimes’s argument relies on conflating her two distinct

disciplinary incidents in hopes of creating a sense of ambiguity. She focuses on

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the fact that Wal-Mart frequently described her transgressions broadly as

“integrity issues involving the Career Preference System,” and thereby concludes

that Wal-Mart has given inconsistent reasons for her termination since they did

not specifically mention the job coding issue. However, “integrity issues

involving the Career Preference System” clearly encapsulates both the interview

sheets incident as well as the job coding problem, since both transgressions

violated the integrity of the Career Preference System. Therefore, contrary to

Grimes’s claims, Wal-Mart has not given inconsistent reasons as to why it

terminated Grimes.

Grimes also contends that Wal-Mart has no evidence she was aware of the

interview sheet incident or the job coding discrepancies, and that this means her

termination was pretextual. Wal-Mart, however, was not required to definitively

prove that Grimes directed the incidents that led to her termination. Indeed,

this argument completely disregards this Court’s admonition that discrimination

plaintiffs must “do more than cast doubt on whether the employer had just cause

for its decision.” Moore, 990 F.2d at 815 (internal quotation marks and brackets

omitted). Grimes was charged with overseeing an entire store as Store Manager.

It was her obligation to comply with company policies and ensure her

subordinates did the same. It was thus sufficient for Wal-Mart to accumulate

inculpatory evidence through an investigation and to fire Grimes given her

supervisory role at this particular store. Statements from co-workers directly

implicated Grimes and inconsistencies in her version of events further

undermined her credibility. This evidence strengthens Wal-Mart’s claim that

its termination of Grimes was not pretext for discrimination.

Grimes’s argument regarding contemporaneous evidence of job code

violations also fails. Grimes claims that Wal-Mart lacked evidence of job code

violations when it fired her, but then expressly concedes that Wal-Mart in fact

had evidence that at least three employees had been improperly coded. Grimes

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was responsible for enforcing company policies, procedures, and regulations, as

well as ensuring that subordinate employees complied with the company’s

policies. Wal-Mart uncovered contemporaneous evidence that Grimes had failed

to comply with company directives regarding interviews and that Grimes

oversaw job coding discrepancies. Rather than showing pretext, this evidence

further underscores the legitimacy of Wal-Mart’s nondiscriminatory reasons for

firing Grimes.

Grimes also claims that a supervisor was not objective in his investigation

of her misconduct because he failed to mention an exculpatory statement

submitted by a co-worker. This argument fails for two reasons. First, it is

difficult to conclude that Wal-Mart’s investigation of Grimes was biased merely

because a specific statement by an employee was not included in a summary of

the investigation. A summary is just that: a concise overview. It would defeat

the purpose of a summary if the author was required to include every possible

detail. Second, the statement relied upon by Grimes is not as exculpatory as she

hopes. While the employee, Christy Rodriguez, claimed to have heard Grimes

instructing Guebara to conduct the interviews required by Wal-Mart—as Grimes

asserts—Rodriguez’s statement also made clear that the conversation between

Grimes and Guebara lasted over thirteen minutes, not the fifteen seconds

Grimes previously claimed. It was also clear to Wal-Mart that Grimes was in

the room when Guebara retrieved the interview sheets that were ultimately

resubmitted in lieu of conducting fresh interviews. Grimes has thus failed to

identify any aspect of the investigation that creates an issue of fact as to her

supervisor’s objectivity.

Grimes’s final two assertions are similarly unavailing. Grimes claims that

her offenses were trivial and thus not deserving of termination, and yet Grimes

herself conceded that she “understand[s] the seriousness of the Career

Preference Procedures.” This admission attests to the gravity of Grimes’s

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infractions and strengthens Wal-Mart’s case for termination. The same is true

regarding the claim that Wal-Mart failed to follow its own disciplinary policy

when it elected to terminate Grimes. As with her claim concerning inconsistent

reasons, Grimes attempts to conflate her disciplinary infractions in hopes of

creating ambiguity. She argues that Wal-Mart effectively skipped step three of

the disciplinary procedure when it fired her. However, the record clearly shows

that Grimes was disciplined two separate times for two separate incidents, and

that the punishments Grimes received matched steps three and four of Wal-

Mart’s four-step policy, respectively. Moreover, Grimes’s exit paperwork

indicates that Grimes was terminated for “Gross Misconduct.” Conduct of such

severity falls outside of Wal-Mart’s progressive discipline system. That is, Wal-

Mart was not required to follow the four-step discipline system at all given the

nature of Grimes’s conduct. These arguments thus cannot create an issue of

material fact regarding pretext.

As explained above, Grimes has presented insufficient evidence to suggest

that the nondiscriminatory reasons for her termination put forth by Wal-Mart

constitute pretext. At best, Grimes has disputed that Wal-Mart had just cause

to fire her. As this Court’s precedent clearly shows, more is needed. Grimes

must present enough evidence for a reasonable factfinder to conclude that the

reasons offered by Wal-Mart are either untrue, or, if true, only part of the reason

for her termination. She has failed to do so. Therefore, summary judgment was

appropriate.

B.

Grimes also appeals the district court’s exclusion of an expert witness that

Grimes would have called at trial. Because we affirm summary judgment, this

claim is denied as moot.

IV. CONCLUSION

For the foregoing reasons, the district court’s judgment is AFFIRMED.

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