Baylis v. Wal-Mart Stores, Inc.
MEMORANDUM OPINION re 129 Order on Motion for Partial Summary Judgment. Signed by Glen H. Davidson on 8/20/12. (mhg)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO.1: 1O-CV-00069-GHD
W AL-MART STORES, INC.
Presently before the Court is Defendant's motion for partial summary judgment .
Upon due consideration, the Court finds that this motion should be granted in part and denied in
A. Factual and Procedural Background
On March 24, 2010, Plaintiff Maggie Baylis ("Plaintiff') commenced this employment
discrimination action against Defendant Wal-Mart Stores, Inc. ("Defendant") alleging that she
was terminated from her inventory control position at the Wal-Mart store in Ripley, Mississippi,
based on her race and gender in violation of Title VII and 42 U .S.C. § 1981. Plaintiff maintained
she took a test to obtain a supervisor position at Wal-Mart, was subsequently notified she had
failed the test, and was allegedly terminated from her position. Plaintiff, a black female, further
alleged that the white male store manager replaced Plaintiff with a white male employee.
Plaintiff alleged that Defendant commonly allowed persons to work as managers who failed the
test. Plaintiff claimed to have suffered lost income, mental anxiety, and stress as a result of
Defendant filed a motion for summary judgment, contending that Plaintiff voluntarily
resigned from her job following her second unsuccessful attempt to pass the supervisory test that
was a prerequisite for a supervisor position at Wal-Mart. Defendant maintained that the test was
a set of hypothetical questions designed to assess an associate's decision-making abilities.
Defendant maintained that only the current supervisors at the time the test was implemented
were allowed to sidestep the supervisory test requirement and be grandfathered in as full-time
supervisors. Defendant maintained that Plaintiff s employment discrimination claims should fail
because Plaintiff failed to make a prima facie case for employment discrimination, or
alternatively, that Plaintiff failed to rebut Defendant's articulated legitimate, non-discriminatory
reason for its actions (the need to restructure its staff and the fact that Plaintiff failed the test, a
prerequisite to a supervisor position).
Plaintiff argued in response that she had made a prima facie case of discrimination, as (1)
she is a black female, which is a protected class under Title VII; (2) she was qualified to be a
supervisor because numerous other employees who had not passed the supervisor test worked in
management, and she had been a "supervisor" over three different employees; (3) Plaintiff was
told to leave by the store manager, "essentially fir[ed]"; and (4) Plaintiff was replaced as
"daytime supervisor over the inventory department" by a white male, Robert Miller. Plaintiff
claimed Defendant's proffered reason for her termination was pretextual and that the fact that
Plaintiff was a black female played a role in Defendant's actions, because (1) Plaintiff had
trained the white male who would take her place; (2) Plaintiff was told she had to pass the test in
order to be considered for the day supervisor position "even though she had been performing the
job for the previous six months"; (3) Defendant had allowed numerous other associates to work
in supervisory positions for a period of time who had not passed the test; (4) the store manager
did not allow Plaintiff to continue in the "supervisory position" because "she was a black female
who had complained about race discrimination in the past"; and (5) Defendant did not offer
Plaintiff a comparable job, but instead a demotion.
The Court entered an Order  denying Defendant's motion for summary judgment,
finding that genuine issues of material fact existed and Defendant had failed to show it was
entitled to judgment as a matter oflaw.
On July 18, 2011, trial commenced in this Court. During the trial, the Court denied
Plaintiffs Rule 15(a) motion to amend/correct the pleadings  to conform to proof at trial that
a proximate cause of Plaintiffs discharge was that Plaintiff reported illegal activity, and that
Plaintiff had been retaliated against for complaining about race discrimination.
The jury was given the following special interrogatories:
Was the plaintiff terminated involuntarily from her employment by the
Do you find from a preponderance of the evidence in this case the plaintiffs
race and/or gender was a motivating factor in the decision of Wal-Mart to
terminate her employment?
Do you find from a preponderance of the evidence in this case the plaintiffs
race and/or gender was a motivating factor in Wal-Mart's failure to promote
Plaintiff to the position ofInventory Management Team Supervisor in 2009?
Jury Verdict  at 1. The jury answered Question 1 in the affirmative, but deadlocked on
Questions Two and Three, even after being given a modified Allen charge. The Court declared
the case a mistrial and returned the case to the Court's trial docket for a subsequent trial.
Both parties filed subsequent post-trial motions. The Court denied Plaintiffs motion for
declaratory judgment , which contended that the Court should find, due to collateral
estoppel, that Plaintiff was involuntarily terminated from her employment by Defendant, because
the jury made that finding. The Court held that the jury's partial finding that Plaintiff was
involuntarily terminated will not bind the jury in the upcoming trial.
The Court granted
Plaintiff s renewed motion to amend or correct the pretrial order  that certain proof presented
at trial created new theories of recovery for Plaintiffs discharge: (1) a proximate cause of
Plaintiffs discharge was that Plaintiff reported illegal activity; and (b) Plaintiff was retaliated
against for complaining about race discrimination. The Court explained that Plaintiff would not
be allowed to attack the validity of the supervisory test in trial, only to explore whether Wal
Mart seriously considered the test a prerequisite to the supervisor position. The Court further
stated that Plaintiff's counsel was not permitted to advance a disparate impact theory. The Court
then denied Defendant's renewed motion for judgment as a matter of law , finding that
viewing all inferences in favor of the Plaintiff, the evidence was legally sufficient for a
reasonable jury to find for the Plaintiff.
Now, Defendant has filed a motion for partial summary judgment  in which it
argues for the dismissal of Plaintiff's McArn claim and retaliation claim under 42 U.S.C. § 1981.
B. Summary Judgment Standard
Summary judgment "should be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law." FED. R. CN. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Weaver v.
CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). The rule "mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
sufficient showing to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.
The party moving for summary judgment bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions of the record it believes
demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S. Ct. 2548. Under
Rule 56(a) of the Federal Rules of Civil Procedure, the burden then shifts to the non-movant to
"go beyond the pleadings and by ... affidavits, or by the 'depositions, answers to interrogatories,
and admissions on file,' designate 'specific facts showing that there is a genuine issue for triaL' "
Id. at 324, 106 S. Ct. 2548; Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.
2001); Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995). ''The mere
existence of a scintilla of evidence in support of the plaintiffs position will be insufficient" to
preclude summary judgment; instead, "there must be evidence on which the jury could
reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1985).
(1) 42 U.S.C. § 1981 Race Retaliation Claim l
First, Defendant contends that Plaintiff cannot establish that she was tenninated in
retaliation for complaining about race discrimination in violation of 42 U .S.C. § 1981.
Defendant additionally argues that Plaintiff is not entitled to advance a mixed motives claim
because she did not seek to amend the pretrial order to add such a claim.
Direct evidence of retaliation "if believed, proves the fact of intentional retaliation
without inference or presumption." Fierros v. Tex. Dep't ofHealth, 274 F.3d 187, 195 (5th Cir.
2001) (citation and internal quotation marks omitted), overruled on other grounds by Desert
Palace, Inc. v. Costa, 539 U.S. 90, 92, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003). If there is no
direct evidence of retaliation, the plaintiff must make a prima facie case of retaliation, which is
governed by the McDonnell Douglas burden-shifting framework. See id.; Foley v. Univ. of
Houston Sys., 324 F.3d 310, 316 (5th Cir. 2003) (elements for prima facie case of retaliation
I Defendant correctly states that Plaintiff's only avenue to advance her race retaliation claim is 42 U.S.C.
§ 1981, because she failed to raise retaliation in her EEOC charge and thus has failed to exhaust her administrative
remedies. See Nat'l Ass'n ofGov't Employees v. City Pub. Servo Ed., 40 F.3d 698, 711 (5th Cir. 1994) (citing Tolbert
v. United States, 916 F.2d 245,247-48 (5th Cir. 1990) (per curiam».
under § 1981 the same as those under Title VII).
To establish a prima facie case of unlawful retaliation, a plaintiff must prove he or she (1)
engaged in an activity protected by Title VII, (2) suffered an adverse employment decision, and
that (3) a causal link exists between the protected activity and the adverse decision. Aryain v.
Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008). "An employee has engaged in
activity protected by Title VII if [he] has either (1) 'opposed any practice made an unlawful
employment practice' by Title VII or (2) 'made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing' under Title VII." Long v. Eastfield Call., 88
F.3d 300, 304 (5th Cir. 1996) (quoting 42 U.S.C. § 2000e-3(a». If the plaintiff makes a prima
facie case of retaliation, the burden shifts to the employer to "provide a legitimate, non
retaliatory reason for the adverse employment action." Hernandez v. Yellow Transp., Inc., 641
F.3d 118, 129 (5th Cir. 2011) (citation and internal quotation marks omitted). The burden then
shifts back to the employee to "prove that the protected conduct was a 'but for' cause of the
adverse employment decision." Id. (citation and internal quotation marks omitted).
(a) Prima Facie Case of Retaliation
The parties do not dispute that Plaintiff made complaints to Wal-Mart about her
supervisor's comments and attitude towards her. However, Defendant argues that Plaintiff failed
to raise that she was being mistreated due to her race, that Plaintiff could not have reasonably
believed that she was opposing race discrimination, and thus that Plaintiff did not engage in
protected activity. However, the Court finds that Plaintiffs statements to Wal-Mart complaining
about her supervisor's allegedly racist attitude and comments to her were sufficient to satisfy the
protected activity prong of the prima facie case.
Plaintiff argues with respect to the adverse employment action prong: "Being replaced as
a defacto manager, then terminated, would dissuade a reasonable employee from complaining
about race discrimination."
PL's Resp. Opp'n to Def.'s MPS]  at 17.
Denial of a
promotion is an adverse employment decision. See Davis v. Dall. Area Rapid Transit, 383 F.3d
309, 320 (5th Cir. 2004). And certainly alleged termination would be an adverse employment
action. The Court finds that this prong of Plaintiff s prima facie case is satisfied.
Defendant contends that Plaintiff s comments were too attenuated in time for there to be
a causal link between the alleged protected activity and adverse employment decision. "To
demonstrate the causal prong of a retaliation claim on summary judgment, a plaintiff must at
least raise a question about whether the person who denied him a promotion was aware of the
protected activity." Jd.; see Manning v. Chevron Chern. Co., 332 F.3d 874, 883 (5th Cir. 2003).
"The cases that accept mere temporal proximity between an employer's knowledge of protected
activity and an adverse employment action as sufficient evidence of causality to establish a prima
facie case uniformly hold that the temporal proximity must be very close." Clark Cnty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001); see Raggs v.
Miss. Power & Light Co., 278 F.3d 463,472 (5th Cir. 2002) (five-month period, standing alone,
too attenuated to establish causation for prima facie case of retaliation). The Court finds that a
fact question exists as to a causal link between Plaintiff s prior complaints and subsequent failure
to be promoted. Because this Court is viewing this case at the summary judgment .stage, it must
view the evidence in the light most favorable to Plaintiff. The plaintiff "need only make a very
minimal showing" to establish a prima facie case. Nichols v. Loral Vought Sys. Corp., 81 F.3d
38, 41 (5th Cir. 1996). Based on the foregoing, the Court finds that Plaintiff has established a
prima facie case ofretaliation.
(b) Legitimate, Non-Retaliatory Reason for the Adverse Employment Action
Finding Plaintiff has made a prima facie case of retaliation, next the Court looks to see
whether Defendant has proffered a legitimate, non-retaliatory reason for the adverse employment
action. Defendant has met this burden by asserting that Plaintiff was denied the promotion to
supervisor because she failed the supervisory test that was allegedly a prerequisite to the
position. Defendant further contends that because Plaintiff did not accept any of Defendant's
attempts to provide alternative employment for her, Plaintiff left her employment. The Court
finds that Defendant has met its burden of articulating a legitimate, non-retaliatory reason for the
adverse employment action.
(c) Pretext or Mixed Motive
Finally, assuming Plaintiff made out a prima facie case of retaliation, and Defendant met
its burden by offering a legitimate, non-retaliatory reason for the adverse employment action, the
burden shifts back to Plaintiff to raise a fact question regarding pretext. "Ultimately, the plaintiff
must show that 'but-for' the protected activity, the adverse action would not have occurred."
Mayberry v. Mundy Contract Maint. Inc., 197 F. App'x 314, 317 (5th Cir. 2006) (citing Rios v.
Rossotti, 252 F.3d 375, 380 (5th Cir. 2001». Thus, for the retaliation claim to survive summary
judgment, Plaintiff must offer evidence from which the jury could infer that retaliation-in
whole or in part-motivated the adverse employment action. See Roberson v. AUtel Info. Servs.,
373 F.3d 647, 655 (5th Cir. 2004); Evans v. City ofHouston, 246 F.3d 344, 355 (5th Cir. 2001);
Medina v. Ramsey Steel Co., 238 F.3d 674, 685 (5th Cir. 2001); Swanson v. Gen. Servs. Admin.,
110 F.3d 1180, 1188 (5th Cir. 1997). Plaintiff makes various arguments supporting pretext: that
(l) she had been allowed to perform the supervisor job for the past six months; (b) others had
been allowed to work in supervisory positions who had not passed the supervisory test; (c) the
supervisory test was not seriously considered a prerequisite for the supervisor position; and (d)
she was not allowed to continue in the supervisory position because she was a black female who
had complained about race discrimination in the past. Plaintiff further advances a mixed motives
theory that the fact that she had repeatedly complained about race discrimination played a role in
Defendant's actions. The Court finds that genuine disputes of material fact exist as to whether
Plaintiff was terminated in retaliation for complaining about race discrimination in violation of
42 U.S.C. § 1981, and thus, will sustain this claim past summary judgment.
(2) McArn Claim
Second, Defendant contends that Plaintiff cannot establish that she was terminated for
reporting that merchandise had been stolen from the Wal-Mart store in Ripley, Mississippi, in
violation of Mississippi's public policy exception to the employment-at-will doctrine based on
McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603 (Miss. 1993), "because there is no
evidence that Plaintiff reported actual criminal activity, an indisputable fatal flaw to her claim."
Id. Plaintiff maintains that McArn does not require that Plaintiff must have witnessed the theft,
merely that a series of circumstances exist from which a reasonable jury could infer that theft
was ongoing. Plaintiff further maintains that the items were shown as being in inventory, but
could not be located in the store, and that based on her own knowledge and the fact that the items
could come up missing and then reappeared on the shelves, she reported the alleged thefts to the
Wal-Mart hotline. Plaintiff maintains that she was terminated three days after she reported the
thefts to the Wal-Mart hotline.
McArn provides, inter alia, that "an employee who is discharged for reporting illegal acts
of his employer to the employer or anyone else is not barred by the employment at will doctrine
from bringing action in tort for damages against his employer." 626 So. 2d at 607. "[U]nder
Mississippi law, corporate employers can also be liable for a discharge of an employee in
retaliation for reporting a co-employee's illegal acts that relate to the employer's business."
DeCarlo v. Bonus Stores, Inc., 289 F. App'x 735, 2008 WL 3377546, at *2 (5th Cir. 2008)
(citing DeCarlo v. Bonus Stores, Inc., 989 So. 2d 351,357 (Miss. 2008». In the case sub judice,
Plaintiff asserts she was terminated for reporting the illegal activities of her co-employee.
Alleged theft of items in the Ripley Wal-Mart store obviously would relate to the employer's
business. The issue is whether the acts can be considered "illegal acts" for the purpose of
The Fifth Circuit has explained that an employee's subjective belief that the acts reported
were illegal does not satisfy McArn; instead, the alleged act must actually be illegal. Wheeler v.
BL Dev. Corp., 415 F.3d 399, 403 (5th Cir. 2005). Purported violations of federal regulations,
such as OSHA, have been found not to constitute "illegal acts" for the purpose of McArn.
Howell v. Operations Mgmt. Int'l, Inc., 77 F. App'x 248, at *4 (5th Cir. 2003). The acts
complained of must warrant the imposition of criminal penalties to constitute "illegal acts" under
McArn. Hammons v. Fleetwood Homes of Miss., Inc., 907 So. 2d 357, 360 (Miss. ct. App.
2004), cited in Kyle v. Circus Circus Miss., Inc .. , 430 F. App'x 247,251 (5th Cir. 2011).
To invoke the McArn exception, the plaintiff must present evidence of the criminal act.
See Kyle, 430 F. App'x at 252-53 (held no evidence supported that employee's complaint of
employees' mishandling of tip pool money at casino was illegal act when undisputed evidence
showed casino delegated discretion to two other employees to allocate and distribute the tip pool
money; employee's passing references to employer of purported criminal tax evasion and letter
to IRS to allege same had failed to establish illegal act); but see DeCarlo, 289 F. App'x at 736
(employee's reporting to employer of his former supervisor's alleged criminal fraud,
misappropriation, and embezzlement of store funds constituted illegal act).
In the case sub judice, Plaintiff testified by deposition that she had "constantly" reported
the theft of several items in the electronics department in the Wal-Mart store. Plaintiff stated that
while maintaining stock in the back room of the Wal-Mart store as part of her job, she repeatedly
discovered significant merchandise missing in the electronics cage. She further stated that she
reported every concern to Melvin Searcy, the manager of the Ripley Wal-Mart store, and Searcy
took the key to the electronics cage from the electronics department manager, Andrea Rogers.
Plaintiff maintains that the key was later returned to Rogers, and Searcy advised Plaintiff to leave
the issue alone.
Plaintiff contends that Rogers stole the missing items; specifically, Plaintiff
claims that Rogers would remove the items and would then return the items back to the store
after Searcy talked to her. Pl.'s Dep. [120-1] at 90. Plaintiff concedes that she never actually
saw Rogers steal the items from the store, but "it was just obvious that [Rogers] was taking most
of that stuff' and Plaintiff "fe[lt] like the department manager was taking most of the
equipment." Id. at 77, 89-90. But Plaintiff pointed to no specific evidence of any illegal
activity. Plaintiff testified that when she reported the missing items, she actually said that she
could not find the items. Id. at 80. Searcy testified by deposition that after Plaintiff had reported
the missing items to him, he was not "particular[ly] upset about it because I can show you a stack
of on-hand changes for any day of the week where we take merchandise up and we take it
down... , I don't get that excited until we have looked for two or three days and then they are
missing and they don't show up." Searcy Dep. [114-4] at 25. Searcy further testified that it was
not "an integrity problem"; no items left the building; any missing items were due to
implementation of the new system; and "I simply had stuff that either was not binned or pulled
from the floor without taking it to the bins, just human error." Id. at 26. The Court finds that the
record is bereft of evidence supporting an illegal act under McArn.
Instead, the Court is
confronted with Plaintiff s subjective belief that a theft had been committed, even though the
only factor that would suggest theft was the temporary inability to locate certain inventory
following the implementation of a new system at the Ripley Wal-Mart store. The Court finds
this evidence unpersuasive, and accordingly, finds that no genuine dispute of material fact exists
with respect to Plaintiff s McArn claim. The same should be dismissed as a matter of law.
In sum, the Court finds that summary judgment should be granted as to Plaintiffs
claim for wrongful termination for reporting illegal activity under McArn, as this claim must be
dismissed as a matter of law; but summary judgment should be denied as to Plaintiff's race
retaliation claim under § 1981, as genuine disputes of material fact exist with respect to that
A separate order in accordance with this opinion shall issue this day.
fhe:/)O d;;Y of August, 2012.
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