969 F.3d 571 (5th Cir. 2020), 19-60719, Brown v. Wal-Mart Stores East, L.P.

Docket Nº:19-60719
Citation:969 F.3d 571
Opinion Judge:Stephen A. Higginson, Circuit Judge:
Party Name:Lashawnda BROWN, Plaintiff-Appellant, v. WAL-MART STORES EAST, L.P.; Amanda Payton; John and Jane Does I-X, Defendants-Appellees.
Attorney:John Frederick Hawkins, Hawkins Gibson, P.L.L.C., Jackson, MS, Jason Kirschberg, Gadow Tyler, P.L.L.C., Jackson, MS, for Plaintiff-Appellant. Steven Russell Cupp, Esq., Fisher & Phillips, L.L.P., Gulfport, MS, for Defendants-Appellees.
Judge Panel:Before Clement, Southwick, and Higginson, Circuit Judges.
Case Date:August 14, 2020
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 571

969 F.3d 571 (5th Cir. 2020)

Lashawnda BROWN, Plaintiff-Appellant,

v.

WAL-MART STORES EAST, L.P.; Amanda Payton; John and Jane Does I-X, Defendants-Appellees.

No. 19-60719

United States Court of Appeals, Fifth Circuit

August 14, 2020

Revised August 14, 2020.

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:18-CV-243

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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John Frederick Hawkins, Hawkins Gibson, P.L.L.C., Jackson, MS, Jason Kirschberg, Gadow Tyler, P.L.L.C., Jackson, MS, for Plaintiff-Appellant.

Steven Russell Cupp, Esq., Fisher & Phillips, L.L.P., Gulfport, MS, for Defendants-Appellees.

Before Clement, Southwick, and Higginson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Plaintiff-Appellant Lashawnda Brown, an assistant manager at Wal-Mart Stores East, L.P. (Wal-Mart), was fired after she reported her supervisor, Aurelio Quinn, for sexually harassing other Wal-Mart employees. According to Wal-Mart, Brown was terminated because she violated Wal-Mart's Investigation and Detention of Shoplifters Policy (AP-09). Brown sued Wal-Mart for retaliation and wrongful termination and Amanda Payton, another assistant manager at Wal-Mart, for tortious interference with an employment contract. The district court granted summary judgment for the defendants, dismissing all of Brown's claims. Brown appeals the district court's dismissal of her Title VII retaliation claim against Wal-Mart. We AFFIRM.

I

In 2014, Brown began working as an assistant manager at the Wal-Mart Neighborhood Market in Biloxi, Mississippi. She reported to the store manager, Quinn, who began working at the store in July 2016.

In December 2016, Brown began hearing rumors about Quinn paying another employee, S.M., for sex. That employee never spoke to Brown about the incident directly, but two other employees, Amanda Payton and S.D., told Brown what S.M. had told them about her relationship with Quinn. S.D. also told Brown that Quinn had invited her to meet him at his hotel room. Brown reported these incidents to Nate Drebes, a project manager for associate relations, but she perceived that Drebes "pushed [her reports] under the rug."

On March 28, 2017, Brown used Wal-Mart's ethics hotline to report that Quinn was soliciting sexual favors from Wal-Mart employees in exchange for money or employment-related favors. She provided details about the incidents described above and additionally alleged that Quinn had removed an "attendance occurrence" for S.M., allegedly in exchange for sexual favors. Brown stated that she believed Quinn's behavior was ongoing.

On April 4, 2017, Brown used the Wal-Mart ethics hotline to follow up on her initial report and report a new allegation of sexual harassment by Quinn. She alleged that S.D. told her that S.M. had asked Quinn how she could keep her job "since she had nine points and was facing an automatic termination." Quinn allegedly replied, "If you suck my dick." S.M.'s points were later removed.

Wal-Mart investigated. On May 17, 2017, Quinn made a statement denying any wrongdoing, expressing frustration with Brown, and indicating he was aware

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Brown was behind the allegations. A customer service representative, Nicole Rankin, testified via affidavit that it was well known in the store that Brown had reported Quinn for sexual harassment.

On May 19, 2017, Brown was fired. Three days later, Wal-Mart closed its sexual harassment investigation, finding the allegations against Quinn "unsubstantiated."

Quinn was later terminated for gross sexual misconduct based on the report of another Wal-Mart employee.

Wal-Mart's proffered legitimate, nondiscriminatory reason for Brown's termination is based on two company policies: AP-09 and the Coaching for Improvement Policy. AP-09 states that authorized associates, like Brown, may approach a shoplifting suspect only if four conditions are met: (1) an authorized associate has observed all five elements of an unlawful taking, (2) an associate witness is present, (3) the associate witness is able to be in a safe position while maintaining the ability to see and hear the interaction between the authorized associate and the suspect, and (4) doing so will not place an associate or customer in an unsafe situation. The policy prohibits all associates from going beyond the facility's sidewalk to make an approach or obtain additional information regarding a suspect. The policy also prohibits patting down, frisking, or searching a suspect or a suspect's belongings such as a purse or bag. Any employee who witnesses a violation of the policy must report it to the market asset protection manager and regional asset protection director for the facility. Failure to do so may result in disciplinary action, including termination.

The Coaching for Improvement Policy, Wal-Mart's employee disciplinary policy, states that employees will receive one of three levels of coaching if their performance fails to meet reasonable expectations, violates a company policy, or interferes with the safe, orderly, and efficient operation of business. First level coachings are essentially warnings; second level coachings require employees to submit plans of action outlining how they will improve their conduct or performance; and third level coachings require employees to submit action plans and discuss them with their managers, who will "take appropriate action" based on the plans. Employees may receive only one of each level of coaching in any 12-month period or they "will be subject to termination."

In June of 2016, Brown received a third level coaching under Wal-Mart's disciplinary policy. Her first written coaching was for absences and tardiness, and her second and third written coachings were for using derogatory language when referencing hourly associates. Therefore, any additional coaching before June of 2017 subjected Brown to termination.

On May 9, 2017, five weeks after Brown's second report of sexual harassment via the ethics hotline and ten days before her termination, Brown was called to the front of the store to handle a possible shoplifting incident. Before Brown got to the front of the store, customer service representative Rankin told Brown that a customer left the store with a grocery cart full of items, but the receipt obtained from the self-checkout register reflected that the customer had only paid for six items. Rankin also told Brown that she had instructed a cashier, G.C., to bring the customer back into the store. Brown told Rankin that it was not appropriate to follow the customer into the parking lot, but it was too late to correct the mistake.

According to Rankin and Jessica Danyus, another Wal-Mart employee who witnessed the incident, by the time Brown arrived at the front of the store, there was already a "huge commotion" and the customer was already back inside the store.

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Brown testified at her deposition, "when you come back in the store and I have a receipt in my hand that have six items and you got a buggy-load and it have more than six bags in there, I'm going to ask you some questions." Brown compared the receipt to the items in the customer's bags and determined that the customer had paid for the items in her cart.

Angered by the inquiry, the customer demanded to speak to another manager. Quinn was standing just behind Brown, and when he approached, the customer gave him her receipt and showed him the contents of her bags, including the inside of her purse. Quinn checked her receipt, apologized to her, and escorted her outside, where he spoke with her for a while. According to Quinn, the customer insisted on reporting the incident.

Immediately thereafter, Quinn reported the incident to market manager Todd Jabbia. According to Quinn, after he described the incident to Jabbia, Jabbia immediately concluded "[t]hat's a bad stop." Jabbia then reported the incident to market asset protection manager Terry Hebert, who called Quinn to hear his version of events and also concluded there had been a bad stop. When asked at his deposition what Brown did wrong, Quinn maintained, contrary to Brown and Rankin's testimony, that Brown had instructed Rankin to stop the customer.

Hebert investigated. As was his normal practice, he instructed the store manager, Quinn, to obtain witness statements. Rankin testified that when Quinn obtained her statement, he asked her to say that Brown directed her to stop the customer. Rankin refused, and Quinn indicated she would lose her job. Rankin asked Quinn if she could keep her job if she wrote down that Brown told her to stop the customer, and he said, "that's what we been trying to get you to say." Ultimately, Rankin did not say that Brown told her to stop the customer.

After reviewing the witness statements gathered by Quinn and surveillance footage, Hebert concluded that Brown had "questioned a customer without observing the Five Elements and despite the fact the customer had gone past the facility's sidewalk." "Ms. Brown should not have engaged the customer at all under the circumstances; she should have allowed the customer to leave." As a result, Hebert recommended that Brown receive coaching for violating AP-09. He concluded "[t]his next level coaching will result in termination due to previous coachings." Hebert also recommended that cashier G.C. receive a coaching and that Rankin be terminated despite having no coachings pending. Hebert testified via declaration that "Quinn did not participate or otherwise influence the decision to issue discipline for the AP-09 violation."

II

We review "a district court's grant of summary judgment de novo, applying the same legal standards as the...

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