By Marjorie Johnson, J.D.
Though the supervisor indicated that he was aware that the employee was behind the allegations against him and strongly denied them, she failed to present sufficient evidence that his retaliatory motive influenced the manager who ultimately recommended her termination.
A Walmart assistant store manager failed to cast sufficient doubt on the retailer’s assertion that she was properly discharged under its progressive disciplinary policy due to her mishandling of a suspected shoplifter and not because several weeks earlier she reported that the store manager was soliciting sexual favors from female associates. While the temporal proximity was sufficient to make a prima facie showing of causation, no reasonable jury could find that the employer’s proffered explanation was pretextual, the Fifth Circuit ruled in affirming dismissal of her Title VII retaliation claim on summary judgment. Her supervisor’s attempts to get witnesses to make false statements against her proved unsuccessful and there was no indication that his retaliatory motive otherwise influenced the ultimate decisonmaker (Brown v Wal-Mart Stores East, L.P., August 14, 2020, Higginson, S.).
The employee was hired in 2014 and began reporting to the store manager in July 2016, after he started working at the store. A month earlier, she had received her third-level coaching. Her first warning had been for absences and tardiness while her second and third were for referencing hourly associates using derogatory language. Under the disciplinary policy, any additional infractions before June 2017 would subject her to termination.
Sexual harassment complaints. In December 2016, she began hearing rumors that her supervisor was sexually harassing female employees. On March 28, 2017, she used the ethics hotline to report that he was soliciting sexual favors in exchange for money or employment-related favors and provided details about alleged incidents. She made a follow-up complaint a week later in which she additionally alleged that he offered to prevent a worker’s attendance-related termination if she performed oral sex on him. He denied all wrongdoing during the investigation and indicated that he was aware that the employee was behind the allegations.
Suspected shoplifter. On May 9, 2017, a customer service rep (CSR) advised the employee that a customer had left the store with more groceries than the register’s receipt reflected. At this point, the CSR had already told a cashier to bring the customer back into the store, which the employee explained violated company policy. However, it was too late to correct the mistake.
“Bad stop.” When the employee arrived at the front of the store, she compared the disgruntled customer’s receipt to the items in her bags and determined that she had paid for them. Her supervisor then stepped in at the customer’s insistence to speak to another manager and checked her receipt, the bags, and her purse. After apologizing and escorting the customer out, he reported the incident to the market manager and head security manager, who concluded there had been a “bad stop.”
The security manager then opened an investigation and asked the store manager to obtain witness statements. The CSR testified that the store manager asked her to falsely state that the employee directed her to stop the customer. Even though he threatened her job if she didn’t do so, she refused.
Termination. After reviewing the witness statements and surveillance footage, the security manager concluded that the employee should receive a warning for questioning the customer after she had already left the store, which ultimately resulted in her termination. He also recommended that the cashier receive a coaching and that the CSR be terminated. Three days later, the sexual harassment allegations against her supervisor were deemed “unsubstantiated,” though he was later terminated for gross sexual misconduct based on a separate report.
Timing suggests causation. On appeal, the Fifth Circuit first rejected the employer’s contention that the employee failed to establish a causal connection between her protected activity and her discharge. The six-to-seven-week gap between her complaints to the hotline and her firing was sufficient at the prima facie stage.
Supervisor’s actions did not show pretext. However, the close temporal proximity was not by itself enough to show pretext and even combined with other evidence was insufficient to establish but-for causation. The Fifth Circuit rejected her argument that her supervisor impermissibly influenced the security manager’s initial perception of the incident by falsely stating that she had instructed the CSR to stop the customer. Notably, she did not dispute that the security manager did not recommend her termination until after he reviewed witness statements and surveillance footage, and that his decision was based on his conclusion that she should not have engaged with the customer once she knew that there had been a bad stop.
And while evidence that her supervisor threatened the CSR with termination if she did not make a false statement against the employee was “deeply disturbing,” it did not prove but-for causation as to the security manager’s termination recommendation since her supervisor’s attempts were undisputedly unsuccessful. Not only did the CSR refuse to lie, but no other witness was successfully pressured into blaming her either. Consequently, the security manager’s termination recommendation was based on his post-investigation conclusion that she should not have engaged the customer once she undisputedly knew that there had been a bad stop and not the store supervisor’s accusation that she instructed the CSR to stop the customer.
Finally, though the employee argued that the retailer’s more favorable treatment of her supervisor in response to the shoplifting incident suggested pretext, there were meaningful differences that could explain why he was not disciplined. In particular, though they both responded to a disgruntled customer who had been inappropriately stopped by another store employee, and both compared that customer’s receipt to the items in her bags, the employee was admittedly aware that the stop violated company policy before she addressed the customer. Because there was no indication that her supervisor was similarly aware of those background facts when he engaged with the customer, the employer could have concluded that he did not violate policy.
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