By Kathleen Kapusta, J.D. Despite a supervisor’s alleged statement that a 62-year old Walmart associate was too old to work and his questions as to when she was going to quit, the employee failed to prove by direct evidence that the retail giant fired her because of her age. Nor could she show that Walmart’s proffered reason for terminating her—her coaching for unsafe work practices, which was her fourth coaching overall, required termination under the store’s progressive discipline policy—was pretexutal. The Sixth Circuit affirmed summary judgment against her age discrimination claim under Michigan’s Elliot-Larsen Civil Rights Act (Richardson v. Wal-Mart Stores, Inc., September 9, 2016, Daughtrey, M.). Over the course of the employee’s 12-year career at Walmart, she held various positions, the last of which was as an hourly associate in the store’s reclamation department, where she handled claims and returns and arranged and organized merchandize. Pursuant to Walmart’s disciplinary policy, an employee receives a "coaching" if her job performance does not meet the store’s expectations or otherwise violates it policies or procedures. A fourth coaching results in termination. Coachings. The employee received her first coaching in January 2011 when she attempted to influence the exchange of her daughter’s damaged laptop for a working one. Her second coaching was eight months later for failing to properly package a hazardous-material item. In August 2012, she received a third coaching for attendance policy violations. Shortly after that she claimed the store manager, who was responsible for one of the coachings, and a manager who was responsible for another coaching, began to mistreat her and humiliate her. She also claimed that they treated younger associates more favorably and that the manager told her son, also a Walmart employee, "[W]e need to get rid of Reva, she’s too old to work here anymore." He also purportedly asked her several times when she was going to quit. Termination. The employee was fired in March 2013 after the store manager decided she should receive a fourth coaching for failing to follow proper workplace safety standards when she tripped and fell over a cart while stacking merchandize and broke her wrist. She subsequently sued, asserting a claim for age discrimination in violation of the ELCRA. Walmart’s motion for summary judgment was granted by the district court. Direct evidence. Although the employee argued on appeal that the manager’s age-related comments were direct evidence of discrimination, the Sixth Circuit disagreed. Not only was he not involved in the termination decision, at the time she was fired he had not been working at that store for at least four months. And while she claimed that the store manager exhibited a "pervasive pattern of discriminatory conduct" toward her by among things, staring at her, not greeting her, and embarrassing her in front of colleagues and vendors, at most this demonstrated that he did not like her, not age-based animus. Circumstantial evidence. Although the employee established a prima facie case of age discrimination under the burden-shifting framework, she failed to show pretext. She argued that the coachings were fabricated because they were unsigned, but the coaching documents were attached to notarized declarations from Walmart managers with personal knowledge of them. Moreover, the employee acknowledged that each occurred. And although the coachings were not signed by hand, they were acknowledged electronically by the employee and her managers using their user IDs and passwords, which was sufficient under Michigan law. As to her assertion that the first coaching was not a disciplinary action, she conceded that she attempted to assist in the exchange of her daughter’s laptop; she spoke with an electronics associate and customer service manager regarding the exchange; and she met with managers to discuss the incident. She also conceded that a verbal coaching occurs when managers "take you into the office and talk to you about [the event] . . . basically a warning, a heads-up." Also rejected was her assertion that the coaching documents should be excluded because copies of them were not in her paper personnel file as required by Michigan law. However, the court pointed out, nothing in the statute dictates that all records relating to an employee must be maintained in a paper-file format. The employee’s attacks on the factual basis for each of the coachings were similarly unsuccessful. Honest belief. And even if she could successfully dispute her coachings, the court found that she failed to show the store manager did not honestly believe her coaching history justified the termination decision. He reasonably relied on the fact that she had three prior coachings in her record, reviewed each of them, and terminated her based on her coaching history and violation of Walmart’s safety standards.
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