Mings v. Wal-Mart Stores, Inc.

Filing 20

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 7/1/2015. For the foregoing reasons, IT IS HEREBY ORDERED that Wal-Mart Stores East LP's Motion for Summary Judgment (DN 17 ) is GRANTED. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:14-CV-00086-GNS
MANUEL MINGS

PLAINTIFF

v.

WAL-MART STORES, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Summary Judgment (DN 17) filed by
Defendant Wal-Mart Stores East LP (“Wal-Mart”)1. Because the time to file a response has
passed, this matter is ripe for a decision. For the reasons outlined below, the motion is
GRANTED.
I.

STATEMENT OF FACTS AND CLAIMS

In 1981, Manuel Mings (“Mings”) was hired by the Campbellsville Wal-Mart store
where he worked until 1986 when he left following a disagreement with a manager. (Mings Dep.
44:2-3, Mar. 4, 2014, DN 16; Mings Dep. Ex. 2, DN 16-1). Later in 1986, Mings was rehired and
continued to work for Wal-Mart until August 4, 2012. (Compl. ¶ 3, DN 1-2; Mings Dep. 44:2025, 101:22-102:9). During his tenure with Wal-Mart, Mings held a number of positions including
sales associate in sporting goods, support team, and department manager for the pets department.
(Mings Dep. 47:10-21).
As part of its personnel policies and procedures, Wal-Mart has implemented a
progressive discipline policy titled “Wal-Mart’s Coaching for Improvement Policy” whereby
1

Defendant was incorrectly identified as “Wal-Mart Stores, Inc.” in the Complaint and court
filings.
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managers are able to notify employees if the employees’ job performance is substandard. WalMart’s Coaching for Improvement Policy is intended to “provide instruction and assistance to
[employees] if [their] job performance fails to meet the reasonable expectations and standards for
all associates in the same or similar position.” (Def.’s Mot. for Summ. J. Ex. 2). This progressive
discipline policy begins with a “First Written coaching” where the employee is notified that his
or her conduct does not meet Wal-Mart’s expectations. (Def.’s Mot. for Summ. J. Ex. 2).
Subsequent poor job performance may result in a “Second Written coaching,” which limits the
employee’s eligibility for transfers and promotions, or a “Third Written coaching” at which
point, in addition to second-level sanctions, the employee must meet with his or her manager to
develop a plan to rectify any problems or concerns that exist. (Def.’s Mot. for Summ. J. Ex. 2).
Finally, the policy explicitly states that if an employee’s “unacceptable job performance or
conduct warrants a level of coaching and [the employee has] already received a Third Written
level of coaching within the 12 months immediately preceding the unacceptable job performance
or conduct, [the employee] will be subject to termination.” (Def.’s Mot. for Summ. J. Ex. 2).
Thus, four instances of coaching in any twelve-month period are grounds for automatic
termination. As a nearly 31-year employee of Wal-Mart, Mings was familiar with Wal-Mart’s
policies and acknowledged it was “always my understanding that if you got wrote [sic] up four
times, that they’d let you go.” (Mings Dep. 86: 1-3).
Company policy requires employees to take a 30-minute meal break before the beginning
of the fifth hour of their shift. (Def.’s Mot. for Summ. J. Ex. 3). As described in that policy,
failure to abide by the policy guidelines results in a coaching under the Wal-Mart Coaching for
Improvement Policy. (Def.’s Mot. for Summ. J. Ex. 3). Furthermore, Wal-Mart enforces its
Discrimination and Harassment Prevention Policy as part of its discipline program and any

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violation of Wal-Mart’s policy against harassment results in discipline under the Coaching for
Improvement Policy. (Def.’s Mot. for Summ. J. Ex. 3). Mings acknowledges that he was aware
of both of these policies and that a violation of either policy would result in coaching. (Mings
Dep. 90:17-96:4).
While employed by Wal-Mart, Mings was coached on a number of occasions for conduct
ranging from excessive absences and tardies, to failing to record a gun sale in violation of WalMart’s gun sale policy. (Def.’s Mot. for Summ. J. Ex. 5 at 2-3, DN 17-6). During his time as the
pets department manager from 2008 to 2010, Mings was coached twice for failure to perform his
job properly. (Def.’s Mot. for Summ. J. Ex. 5 at 1). Because he was aware that two more
instances of coaching would result in termination, Mings voluntarily returned to sporting goods
as a sales associate in March of 2010. (Mings Dep. 47:8-48:2).
On February 14, 2012, Mings was coached for violation of Wal-Mart’s Breaks, Meal
Period and Days of Rest Policy when he failed to take a 30-minute break during the first five
hours of his shift. (Def.’s Mot. for Summ. J. Ex. 5 at 7). Mings admitted that he had worked in
excess of five hours and that this conduct was against company policy. (Def.’s Mot. for Summ. J.
Ex. 5 at 7; Mings Dep. 128:12-22). As previously discussed, the Breaks policy states that
“[a]ssociates will be subject to disciplinary action for . . . missing meal periods, or taking meal
periods that are too long, too short or untimely,” and that a break or meal period offense “shall be
addressed under the Coaching for Improvement Policy.” (Def.’s Mot. for Summ. J. Ex. 3). Mings
was coached again for violating the same policy on June 7, 2012. (Def.’s Mot. for Summ. J. Ex.
5 at 8). Again, Mings admitted that he had been in violation of the policy and was aware that it
would result in coaching. (Mings Dep. 91:23-92:3, 130:2-5). Wal-Mart’s Policy explicitly states
that when an associate has multiple violations advancement to the next level of coaching will

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occur, and if an active coaching already exists the next appropriate level should be given. (Def.’s
Mot. for Summ. J. Ex. 3).
On July 16, 2012 Mings received a Third Written coaching for violation of Wal-Mart’s
zero-tolerance Discrimination and Harassment Prevention Policy after a female co-worker
complained about Mings’ inappropriate conduct. (Def.’s Mot. for Summ. J. Ex. 5 at 8). The coworker had asked Mings to help her find merchandise in the store, and while Mings was helping
her she mentioned that she had a boyfriend. (Mings Dep. 131:16-23). Mings admits that he
responded that her boyfriend “didn’t want to buy the car without driving it first.” (Mings Dep.
131:24-132:1, 136:9-25).
Wal-Mart’s harassment policy is a “zero tolerance” policy and defines prohibited
harassment as “[v]erbal kidding, teasing, or joking; [m]aking offensive comments about an
individual’s status, appearance, or sexual activity . . . .” (Def.’s Mot. for Summ. J. 4).
Furthermore, any report under this policy results in an investigation. (Def.’s Mot. for Summ. J.
4). “If an investigation reveals that an associate has violated [the harassment] policy (or any
other policy) that associate will be subject to disciplinary action.” (Def.’s Mot. for Summ. J. 4).
Following the incident the female associate complained to management who determined, based
on Mings’ own admission, that he had violated Wal-Mart’s sexual harassment policy. (Mings
Dep. 144:12-145:1).
Finally, Mings received a fourth and final coaching on August 4, 2012. (Mings Dep.
102:3-103:1). Mings was found to be in violation of Wal-Mart’s policy concerning the sale of
firearms and firearm accessories when he failed to lock the stores handgun ammunition case.
(Mings Dep. 103:16-104:11). Sales associates in sporting goods are required to maintain the
sporting goods area in accordance with company policies and procedures as well as state and

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federal laws. (Def.’s Mot. for Summ. J. Ex. 7, DN 17-8). Wal-Mart maintained a specific policy
concerning the sale and storage of firearms and ammunition requiring associates to keep hand
gun ammunition inaccessible to customers. (Def.’s Mot. for Summ. J. Ex. 7, DN 17-9). Mings
acknowledged that he was aware of this policy, and that he left the ammunition case unlocked
and unsecured after opening it to help a customer. (Mings Dep. 103:21-25, 107:5-7).
Following this fourth coaching within a twelve-month period Mings was terminated.
(Mings Dep. 107:13-23). At the time of his termination Mings was 51 years old. (Mings Dep.
71:21-72:22, 102:3-23). On November 12, 2013 Mings filed suit in Taylor Circuit Court alleging
age discrimination, claiming that he was discharged because of his age in violation of KRS
344.040, and that lawsuit was removed to this Court. (Compl. ¶ 5, DN 1-2; Notice of Removal,
DN 1-1).
II.

STANDARD OF REVIEW

In ruling on a motion for summary judgment, the Court must determine whether there is
any genuine issue of any material fact that would preclude entry of judgment for the moving
party as a matter of law. See Fed. R. Civ. P. 56(a). The moving party bears the initial burden
stating the basis for the motion and identifying evidence in the record that demonstrates an
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). If the moving party satisfies its burden, the non-moving party must then produce specific
evidence proving the existence of a genuine issue of fact for trial. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986).
While the Court must view the evidence in the light most favorable to the non-moving
party, the non-moving party must do more than merely show the existence of some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

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475 U.S. 574, 586 (1986) (citation omitted). Rather, the non-moving party must present specific
facts proving that a genuine factual issue exists by “citing to particular parts of the materials in
the record” or by “showing that the materials cited do not establish the absence . . . of a genuine
dispute.” Fed. R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the
[non-moving party's] position will be insufficient; there must be evidence on which the jury
could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.
III.

DISCUSSION

Mings has alleged age discrimination in violation of KRS 344.040, which states that it is
unlawful for an employer to “fail or refuse to hire, or to discharge any individual, or otherwise to
discriminate against an individual . . . because of the individual’s . . . age [of] forty (40) and
over . . . .” KRS 344.010(1)(a). Kentucky courts have “consistently interpreted the civil rights
provisions of KRS Chapter 344 consistent with applicable federal anti-discrimination law.”
Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky. 2005) (citations omitted).
In the absence of direct evidence—which does not exist in this case—a plaintiff must
satisfy the burden shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Williams, 184 S.W.3d at 495. The McDonnell Douglas test requires Mings to first establish a
prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. Once a prima facie
case is established the burden then shifts to Wal-Mart to articulate a legitimate, nondiscriminatory reason for termination of the employee. Williams 184 S.W.3d at 496. Finally,
once Walmart has expressed a non-discriminatory reason for termination, the burden then shifts
back to Mings to establish that the reason for termination articulated by Wal-Mart is merely a
pretext for discrimination. Id.

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A.

Mings has failed to establish a prima facie case of age discrimination.

To prove a prima facie case of age discrimination, Mings must prove that he: “(1) was a
member of a protected class, (2) was discharged, (3) was qualified for the position from which
they were discharged, and (4) was replaced by a person outside the protected class.” Williams
184 S.W.3d at 496 (citing Kline v. Tenn. Valley Auth., 128 F.3d 337, 349 (6th Cir. 1997)). In this
case there is no question that Mings was part of a protected class or that he was discharged.
However, he has failed to present sufficient evidence to prove all elements of a prima facie case.
The Sixth Circuit has established that “[i]n order to be ‘qualified’ for [his] position, [a
plaintiff] must demonstrate that [he] was meeting [his] employer’s expectations and was
performing to [his] employer’s satisfaction.” Warfield v. Lebanon Corr. Inst., 181 F.3d 723, 729
(6th Cir. 1999) (citation omitted). In this case, Wal-Mart has provided evidence of a number of
instances where Mings’ performance was below expectation. The record shows as many as ten
occasions, including six between 2010 and 2012, where Mings was coached for either poor
performance or failure to comply with company policies. (Def.’s Mot. for Summ. J. Ex. 5). The
record also indicates that Mings knew the content of these policies and that he admits to the
conduct that violated these policies.
Bare assertions by Mings that he was performing satisfactorily will not suffice to carry
his burden; he must establish evidence that “he was doing his job well enough to rule out the
possibility that he was fired for inadequate job performance.” Kahl v. The Mueller Co., 173 F.3d
855, 1999 WL 196556, at *5 (6th Cir. 1999) (quoting Town v. Mich. Bell Tel. Co., 568 N.W.2d
64, 69-70 (Mich. 1997)). Mings has failed to present evidence to establish that his job
performance was satisfactory; in fact he admits that he was not in compliance with company
policies. Because there is ample evidence of Mings failing to meet expectations and Mings has

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failed to refute this evidence with anything more than his own assertions, he has failed to “rule
out the possibility the he was fired for inadequate job performance.” Id.
When the Plaintiff fails to establish evidence to support one of the essential elements of
his claim, summary judgment in favor of the Defendant is appropriate. Thus, because Mings has
failed to satisfy one of the necessary elements to establish a prima facie case of age
discrimination summary judgment in favor of Wal-Mart is appropriate.
Moreover, summary judgment is appropriate because the record contains no evidence that
Mings was replaced by a younger individual, another essential element of his prima facie case. In
fact, Mings acknowledges that after he was terminated his job duties were absorbed by other
employees. (Mings Dep. 154:17-155:15). The Sixth Circuit has established that Mings’ inability
to show that he was “replaced by a younger person because the duties of [his] job were absorbed
by various people” is essentially fatal to his prima facie case. Morrow v. Am. Bag Co., 23 F.
App’x. 450, 454 (6th Cir. 2001). Mings must “offer ‘additional direct, circumstantial, or
statistical evidence tending to indicate that the employer singled out the plaintiff [Mings] for
discharge for impermissible reasons’ by demonstrating that a ‘comparable non-protected person
was treated better.’” Id. at 455 (citing Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,
350 (6th Cir. 1998)). Mings has failed to present any such evidence. Again, Mings’ failure to
establish evidence to support an essential element of his prima facie case necessitates a grant of
summary judgment in favor of Wal-Mart.
B.

Wal-Mart has articulated a legitimate, non-discriminatory reason for Mings’
termination.

Assuming that Mings has met his burden to establish a prima facie case, the burden then
must shift to Wal-Mart to articulate a “legitimate nondiscriminatory reason” termination
decision. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, (2000) (quoting Tex.
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Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, (1981)). “This burden is one of production,
not persuasion; it ‘can involve no credibility assessment.’” Id. (citation omitted).
As previously detailed, Wal-Mart enforces a progressive disciplinary entitled Wal-Mart’s
Coaching for Improvement Policy. This policy explicitly states that receiving four coachings or
write-ups in a 12-month period is immediate grounds for termination. The uncontroverted
evidence contained in the record shows that Mings received four coachings between February
2012 and August 2012 (Def.’s Mot. for Summ. J. Ex. 5 at 7-9); that Mings admits to the conduct
that warranted these coachings (Mings Dep. 168:14-20); that Mings was aware that his conduct
was in violation of company policies and warranted coaching (Mings Dep. 87:7-9, 93:20-22,
110:21-23); and finally that Mings was aware of Wal-Mart’s four-strike termination policy.
(Mings Dep. 85:14-86:3). Thus, Wal-Mart has successfully demonstrated a legitimate, nondiscriminatory reason for Mings’ termination.
C.

Mings has not provided evidence to establish that Wal-Mart’s stated reason
for his termination were pretextual.

Because Wal-Mart has articulated a legitimate, nondiscriminatory reason for Mings’
termination the McDonnell Douglas test requires Mings to show that Wal-Mart’s stated reason
for termination is only a pretext for age discrimination. According to the Sixth Circuit, pretext
may be established by evidence that “(1) the proffered reasons are false; (2) the proffered reasons
did not actually motivate the decision; and (3) the plaintiff could show that the reasons given
were insufficient to motivate the decision.” Manzer v. Diamond Shamrock Chems., Co., 29 F.3d
1078, 1084 (6th Cir. 1994).
In the current case, Mings does not assert that the reason for his termination offered by
Wal-Mart is false. In fact, as discussed extensively above, Mings admits that Wal-Mart’s
Coaching for Improvement Policy clearly states that an associate who is coached four times
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within a 12-month period is subject to automatic termination. (Mings Dep. 14:12-15).
Furthermore, Mings has acknowledged that the basis of his termination was the four write ups he
received between February 2012 and August 2012. (Mings Dep. 100:4-11, 179:16-25). Finally,
because Mings admits that Wal-Mart’s Coaching for Improvement Policy subjects associates to
automatic termination after a fourth write-up, it would be irrational to claim that Mings’ four
coachings were insufficient to motivate Wal-Mart’s action. In fact, Mings makes no such claim
and the record presents no evidence to support any inference other than that Wal-Mart’s
termination of Mings was in accordance with its explicit policy.
Mings has failed present any direct evidence of age discrimination. Furthermore, Mings
has not presented evidence to support each essential element of his prima facie case. Mings has
also failed to present any evidence to establish that Wal-Mart’s legitimate proffered reason for
his termination is a pretext for age discrimination, which warrants the entry of summary
judgment in Wal-Mart’s favor.
IV.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that Wal-Mart Stores East LP’s
Motion for Summary Judgment (DN 17) is GRANTED.

Greg N. Stivers, Judge
United States District Court
July 1, 2015

cc:

counsel of record

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