Moffat v. Wal-Mart Stores, Inc, 081715 FED6, 14-3828

Docket Nº:14-3828
Opinion Judge:PER CURIAM.
Judge Panel:BEFORE: KETHLEDGE and WHITE, Circuit Judges; LUDINGTON, District Judge. THOMAS L. LUDINGTON, District Judge, dissenting.
Case Date:August 17, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit




No. 14-3828

United States Court of Appeals, Sixth Circuit

August 17, 2015



BEFORE: KETHLEDGE and WHITE, Circuit Judges; LUDINGTON, District Judge. [*]


Christopher Moffat, Clarissa Thompson, and Patricia Schmidt appeal from the district court's grant of summary judgment to their former employer, Wal-Mart Stores East, LP (Walmart), 1 on their age discrimination claims brought under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634, and analogous state law, Ohio Rev. Code § 4112.02. Because there are genuine issues of material fact regarding whether Walmart's proffered reason for discharging Plaintiffs was pretext for age discrimination, we REVERSE.


Walmart employed Plaintiffs at its Brooklyn, Ohio, store in the Lawn and Garden Department. Moffat worked as a sales associate for seven years, and Thompson for more than ten years. Schmidt, who served for more than sixteen years, was employed as the Brooklyn store's Lawn and Garden Department Manager. According to Assistant Store Manager Brandon Donegan, Walmart assigned six employees to work primarily in the Lawn and Garden Department: Moffat (age 54), Thompson (62), Schmidt (59), and three younger associates (19, 21, and 23).

In June 2010, Walmart Asset Protection Coordinator Debbie Jenkins, while reviewing surveillance camera footage, saw Plaintiffs bag plants at a cash register, set the bags aside, and later carry the bags out of the store without paying. She suspected Plaintiffs of theft, and informed her supervisor, 31-year-old Market Asset Protection Manager Joe Theobald, who also viewed the video footage. Theobald instructed her to complete an investigation "by the book."

As part of her investigation into the suspected theft, and after discussing the video with Theobald, Jenkins, along with an assistant store manager, interviewed each Plaintiff individually. After Plaintiffs admitted to taking the plants, Jenkins accused them of violating Walmart's policy against accepting gifts from vendors. Walmart's Statement of Ethics, to which employees must adhere, states that an employee "is to never accept gifts or entertainment from any supplier, potential supplier, government, or any person the associate has reason to believe may be seeking to influence business decisions or transactions."2 The policy does not, however, define the term "gift."

According to Thompson, an employee of Bonnie Bell Plants (Bonnie Bell)-a Walmart vendor and owner of the plants3-removed the plants that "didn't look good" from the display racks and placed them in a cart. He then took the cart to Thompson and asked her to throw the plants away. Normally, the vendor's employee loads the plants into his truck-rather than discard them at the Walmart store-but the store's greenhouse had had an aphid infestation. Thompson, who apparently has a "green thumb, " noticed that some of the plants could be salvaged and commented to the Bonnie Bell employee that she "could save some of [the plants], " to which he responded, "[G]o for it." Thompson shared the vendor's statement with Moffat and Schmidt, and they each took some plants they thought could be saved. Thompson discarded the remaining plants.4

During the interviews with Jenkins, Plaintiffs each identified others they believed engaged in similar conduct. Moffat testified that he was sure he told Jenkins and the assistant manager that he knew of at least three Lawn and Garden associates who had taken plants in previous years, including a department manager. Thompson similarly stated that several employees took discarded plants from Bonnie Bell in prior years and that members of management knew the employees were taking the plants. Schmidt told Jenkins that associates occasionally received items, including cosmetic samples, mouthwash, and greeting-card envelopes, from other vendors.

Plaintiffs also provided a written statement to Jenkins. Moffat wrote: "Bonnie Plant, as they do each year, threw out their vegetables. They told Clarissa [Thompson] to take whatever she wanted & throw the rest away. She took some, Pat [Schmidt] & I took 1 pepper plant & 1 oregano plant. Anyone else? I don't know." In her statement, Thompson wrote:

I honestly did not realize I was doing wrong in taking the tomato [plants] that were being thrown away. I took 3. I also was not aware that I cannot accept a cup of coffee or plants from [a] customer's garden. I would in no way ever[] do wrong to Wal-Mart. I try to save and do as much as I can for the company and customers.

I am very sorry and will not accept gifts or anything ever again. Schmidt stated:

I received tomato plants from a vendor that were going to be thrown away and said that we may have them[.] From what I was told[, ] they have done this in the past[.] I did not know that we were not allowed to receive gifts from any one. I am sorry for what I done and [it] will never happen again[.] My associate done this [for] five years and said that the vendor didn't want to throw away and said it was fine sense we don't pay for them[.] Again I am very sorry[.] I would never had done this if I known this[.] I am new in this Dept. [sic throughout]

After interviewing Plaintiffs and taking their written statements, Jenkins turned her investigative file over to Theobald. The file included records with Plaintiffs' dates of birth. In his deposition, Theobald could not recall whether he reviewed the file before deciding to terminate Plaintiffs' employment; but he testified that, ordinarily, he does not review the file, including written statements, before deciding whether to discipline an employee. Based on Plaintiffs' admissions to taking plants, Theobald considered their conduct as demonstrating "compromised integrity, " which, under Walmart's Coaching for Improvement Policy, can qualify as "gross misconduct" and subject the employee to immediate termination. He decided to discharge Plaintiffs.

Jenkins and an assistant store manager met with each Plaintiff to communicate Theobald's decision. Plaintiffs were provided an exit interview form that states the reason for the termination as "Gross Misconduct-Integrity Issue." On Moffat's form, the manager commented: "Chris was identified by Asset protection as receiving gratuity from a vendor which is direct violation of the company's ethics policy." The manager wrote on Thompson's form that "Clarissa is being terminated due to accepting gifts from a local vendor[;] the gifts were tomato plants and were near death but Walmart policy states that no associate working for Walmart will accept gifts from a vendor no matter how small." Schmidt's exit interview form states that "Patricia was accepting flowers from vendors with out [sic] paying for them."

Walmart discharged Schmidt on June 21, Thompson on June 23, and Moffat on June 28, 2010. On June 23 and June 29, 2010-the same day it discharged Thompson and one day after it discharged Moffat-Walmart hired 19- and 21-year-old temporary associates (both later made permanent) "to work the hours that Mr. Moffat and Ms. Thompson would have worked." Walmart did not replace Schmidt; Walmart claimed that because the store had too many department managers, it transferred her duties to another department manager who was older than Schmidt, but who was later replaced after her retirement by a 26-year-old in August 2010. Walmart does not dispute that Plaintiffs were otherwise good employees.

The district court determined that Schmidt could not establish a prima facie case of age discrimination because she did not show that Walmart treated substantially younger, similarly situated employees better, and concluded that Plaintiffs did not rebut Walmart's nondiscriminatory reason for discharging them and thus could not show pretext. Plaintiffs now appeal the district court's entry of summary judgment in Walmart's favor.


We review de novo a district court's order granting summary judgment. Rudisill v. Ford Motor Co., 709 F.3d 595, 600 (6th Cir. 2013). An award of summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Mitchell v. Fankhauser, 375 F.3d 477, 479 (6th Cir. 2004). In determining whether the grant of summary judgment was proper, "we must view all evidence in the light most favorable to the nonmoving party." Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "The mere existence of a scintilla of evidence to support the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).


Under the ADEA, it is unlawful for an employer to discharge an employee who is at least 40 years old because of the employee's age. 29 U.S.C. §§ 623(a)(1), 631; Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 521 (6th Cir. 2008). Similarly, it is an unlawful discriminatory practice in Ohio for an employer to discharge an employee because of the person's age. Ohio Rev. Code § 4112.02(A). Age-discrimination claims brought under Ohio law are analyzed under the same standards as claims brought under the ADEA. Minadeo v. ICI Paints, 398 F.3d 751, 763 (6th Cir. 2005). A plaintiff can prove unlawful age discrimination under the ADEA with circumstantial evidence-that is, "proof that does not on its face establish discriminatory animus, but does allow a...

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