Horton v. Wal-Mart, Inc.

Filing 18

MEMORANDUM OPINION. Signed by Judge Thomas T. Cullen on 7/16/2021. (jv)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
DENISE HORTON,

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Plaintiff,
v.
WALMART, INC.,
Defendant.

Civil Action No. 5:20-cv-00107
MEMORANDUM OPINION
By:

Hon. Thomas T. Cullen
United States District Judge

Plaintiff Denise Horton (“Horton”), a former employee of Defendant Walmart, Inc.
(“Walmart”), brought this lawsuit under Title VII of the Civil Rights Act, alleging that Walmart
discriminated against her on the basis of sex. Walmart now moves for summary judgment on
Horton’s claims for pay and promotional discrimination. After reviewing the record, the court
finds that Horton has failed to establish a prima facie case for either claim. The court will
therefore grant Walmart’s motion for summary judgment.
I.
A.

BACKGROUND

Relevant Walmart Policies
All Walmart employees are subject to long-standing compensation practices. These

practices are not disputed and are important for assessing Horton’s claims.
Each Walmart store has its own pay structure, which is reviewed annually to ensure
that it remains competitive in each store’s respective labor market. (Decl. of Lisa Riley ¶¶ 13–
14, Jan. 22, 2021 [ECF No. 4-1].) In that pay structure, every associate’s position is assigned
to a particular “pay class” based on the associate’s job responsibilities. (Id. ¶ 15.) Jobs in the
same pay class have the same minimum starting wage. (Id. ¶ 16.) While an associate in any
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particular pay class must be paid at least that minimum wage, Assistant Store Managers—who
typically set an associate’s starting wage—can increase an associate’s wage based on additional
skills, experience, or education. (Id. ¶¶ 17–18.)
After an associate starts, there are further opportunities for pay increases, including: (1)
after a 90-day evaluation; (2) after annual performance evaluations, which are generally
completed by the Assistant Store Manager or Co-Manager responsible for overseeing the
associate’s department and are co-signed by the associate’s hourly supervisor; (3) after a “merit
increase[]” for “exceptional performance” or for accepting additional responsibilities (e.g.,
joining a Safety Team); (4) if the associate is promoted or moved into a higher pay class; and
(5) if a facility’s pay structure is modified to stay competitive in the market. (Id. ¶¶ 18–19, 22–
24.) When an associate’s pay is increased after an annual performance evaluation, the amount
is set by the corresponding evaluation rating as provided in Walmart’s Compensation
Guidelines. (Id. ¶ 21.) For example, during the relevant time period for this case, the
performance rating for “Standard” in 1998 or “Meets Expectations” in 1999–2000
corresponded to a pay increase of 4%. (Id.)
Because of these opportunities, it is not uncommon for associates in the same position
to have differing rates of pay at a given time. (Id. ¶ 26.) Further, due to the annual pay increases
associated with performance evaluations, “it is not uncommon for associates with long tenures
at Walmart to earn higher hourly rates than associates in the same (or higher) pay classes who
have shorter tenures.” (Id.)

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Walmart’s management framework is also relevant to the present analysis. Each
Walmart store is led by a Store Manager. (Id. ¶ 7.) Some stores have Co-Managers (mid-level,
salaried management), and some stores also have Area Managers and/or Assistant Store
Managers (the lowest levels of salaried employment). (Id.) “Store Managers make key decisions
within the store, while delegating many responsibilities to other salaried managers within their
store, including Area Managers, [Assistant Store Managers,] and/or Co-Managers.” (Id.)
To become an Assistant Store Manager, an associate must be selected for and complete
Walmart’s Management-in-Training program. (Id. ¶ 27.) Any interested associate can apply and
discuss the opportunity with their Store Manager or other salaried members of management.
(Id. ¶¶ 27–28.) Walmart’s eligibility criteria for the Assistant Store Manager position are: “(1)
having an evaluation rating of 3.5 or higher; (2) having one year in the associate’s supervisory
position; (3) having at least one year total experience; (4) working in a department that was
not classified as ‘high shrink’; (5) being 100% current on training; and (6) being willing to
relocate.” (Id. ¶ 29.)
B.

Horton’s Walmart Employment History
Horton worked for Walmart for approximately three years and four months at a store

in Charles Town, West Virginia. (Id. ¶¶ 35, 45.) Horton began working for Walmart as a cashier
on September 16, 1997. (Id. ¶ 35.) Her starting pay was $6.00 per hour. (Id.) On October 11,
1997, Walmart promoted Horton to “Customer Service Manager” and gave her a $.50 per
hour pay increase (to $6.50). (Id. ¶ 36.) On December 20, 1997, Horton returned to her
position as a cashier, but on July 10, 1998, she resumed working as a Customer Service

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Manager. (Id. ¶ 37.) She also worked briefly as a Merchandise Zone Sales Associate in January
1998. (Id.)
According to Walmart’s undisputed business records, Horton received the following
pay increases: (1) a $0.24 per hour pay increase in January 1998 (to $6.74) following her first
90 days of employment; (2) a $0.27 (4%) per hour pay increase following a performance
evaluation in September 1998 (to $7.01); (3) a $0.29 (4%) per hour pay increase following a
performance evaluation in September 1999 (to $7.30); (4) a $0.25 per hour pay increase in
October 1999 (to $7.55); (5) a $0.45 per hour pay increase in July 2000 (to $8.00); and (6) a
$0.32 (4%) per hour pay increase following a performance evaluation in September 2000 (to
$8.32). (Id. ¶¶ 38–43.)
Donna Anderson, Horton’s direct supervisor, completed Horton’s performance
evaluations. (Dep. of Denise Horton 41:14–17, 42:6–8, Sept. 3, 2020 [ECF No. 4-2].) Horton
claims that she received a “perfect” score on nearly all of her performance reviews. (Id. at
41:8–23.) Anderson did not recall whether she gave Horton any perfect scores. (Dep. of
Donna Anderson 17:13–18, Jan. 11, 2021 [ECF No. 4-3].) Horton’s 4% pay increases, outlined
above, correspond with a “Standard” or “Meets Expectation” score per Walmart’s
Compensation Guidelines. (See Riley Decl. ¶¶ 21, 44.)
Walmart terminated Horton’s employment in January 2001. (Id. ¶ 45.) Although
Horton does not recall why Walmart fired her, Walmart’s business records indicate “Gross
Misconduct—Integrity” as the reason for her dismissal. (Id.)

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C.

Male Comparators
The crux of Horton’s pay discrimination claim is that male cashiers and cart pushers

earned more than she did despite being in a lower pay class. (Horton Dep. at 34:15–35:15.)
Horton claims that Harry Yates, a male cashier, told her that he earned more than she did. (Id.
at 34:15–35:21.) Horton does not recall how much Yates made, but stated that he earned more
because “they all did,” referring to “[m]en in general.” (Id. at 35:2–9.) Besides Yates, Horton
identified a cart pusher named Michael or Mike (last name unknown) who told her that he
made more than she did. (Id. at 35:24–25.)
Walmart’s business records, however, indicate the Yates never made more than
Horton. (Riley Decl. ¶ 46.) Specifically, Walmart hired Yates on April 4, 2000, at the rate of
$6.25 per hour, when Horton was earning $7.55 per hour. (Id.) Walmart increased Yates’s pay
to $7.00 per hour in July 2000, while Horton’s pay was increased to $8.00 per hour in July
2000 and to $8.32 per hour in September 2000. (Id.) Further, Walmart “reviewed data for all
associates who are listed as having worked as Cart Pushers at Store 2566 during Horton’s
employment there, as well as data for all associates who are listed in Walmart’s records with
an ‘unknown’ job title at Store 2566 during Horton’s employment there, and found no one
with the name ‘Mike’ or ‘Michael’ who earned more than Horton did.” (Id. ¶ 47.)
D.

Promotional Discrimination Facts
Horton filed an EEOC charge on or about May 8, 2012. (ECF No. 4-2 at 21–22.) In

her filing, Horton alleged that she was denied promotions to “assistant manager positions in
1998 and 1999” based on her sex. (Id.) Horton alleges that she “applied at least twice for the
assistant manager position,” once “halfway through 1998,” and “around a year later in 1999,”
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and that Walmart filled both positions with male candidates. (Id. at 22.) She does not recall the
exact title of the position and she does not recall applying for any other promotions. (Horton
Dep. at 55:2–7.) In her deposition, Horton stated: “[A]ssistant manager would have been way
above my qualifications.” (Id. at 55:10–12.) Horton’s Store Manager, Clinton Miller, agreed
that she was not qualified for an Assistant Store Manager position. (See Dep. of Clinton Miller
45:9–47:14, Jan. 4, 2021 [ECF No.4-5].)
II.

SUMMARY JUDGMENT STANDARD

Under Rule 56(a), the court must “grant summary judgment 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Glynn v.
Edo Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court should
consider “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with . . . [any] affidavits” filed by the parties. Celotex, 477 U.S. at 322. Whether a fact
is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Id. (citation omitted). The moving party bears
the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477
U.S. at 323. If the moving party meets that burden, the nonmoving party must then come
forward and establish the specific material facts in dispute to survive summary judgment.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).

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In determining whether a genuine issue of material fact exists, the court views the facts
and draws all reasonable inferences in the light most favorable to the nonmoving party. Glynn,
710 F.3d at 213 (citing Bonds v. Levitt, 629 F.3d 369, 380 (4th Cir. 2011)). Moreover,
“[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge.” Anderson, 477 U.S. at 255.
The nonmoving party must, however, “set forth specific facts that go beyond the ‘mere
existence of a scintilla of evidence.’” Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252).
The nonmoving party must show that “there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249. “In other words,
to grant summary judgment the [c]ourt must determine that no reasonable jury could find for
the nonmoving party on the evidence before it.” Perini Corp. v. Perini Constr., Inc., 915 F.2d 121,
124 (4th Cir. 1990) (citing Anderson, 477 U.S. at 248).
III.

ANALYSIS

There are two ways to establish liability under Title VII for a disparate treatment claim:
(1) “demonstrating through direct or circumstantial evidence that [gender] was a motivating
factor in the employer’s adverse employment action”; or (2) relying on the burden-shifting
scheme in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Swaso v. Onslow Cnty. Bd. of
Educ., 698 F. App’x 745, 747 (4th Cir. 2017). The parties agree that this matter falls under the
latter burden-shifting scheme. (See ECF No. 13 at 12.)
Under McDonnell Douglas, the plaintiff must first establish a prima facie case of sex
discrimination. McDonnell Douglas, 411 U.S. at 802. If she succeeds, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment
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action. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996). Finally, if the
defendant does so, the burden shifts back to the plaintiff to show that the defendant’s
proffered reason is pretextual. Id.
Horton alleges a disparate treatment claim against Walmart for (1) pay discrimination
and (2) promotional discrimination on the basis of sex. The court will address each in turn.
A.

Pay Discrimination
First, Horton bases her pay discrimination claim on a purported pay disparity between

her and two male associates. For a pay-disparity claim, the plaintiff must show that “(1) she is
a member of a protected class, (2) she performed her job satisfactorily, (3) an adverse
employment action occurred, and (4) the circumstances suggest an unlawfully discriminatory
motive.” Spencer v. Va. State Univ., 919 F.3d 199, 207 (4th Cir. 2019). “Disparate pay is an
adverse employment action under Title VII.” Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358,
1364 (11th Cir. 2018) (citation omitted).
The undisputed evidence demonstrates that Horton’s pay-disparity claim is either
based on her faulty memory or inaccurate information. Horton claims that Walmart paid two
male associates in a lower pay class—Harry Yates (a cashier) and Michael (a cart pusher)—at
a higher rate than it paid her. Walmart’s undisputed business records show, however, that at
all relevant times, (1) Horton’s pay rate was higher than Yates’s pay rate, and (2) all cart pushers
named Michael or Mike were also paid less than she was. (See Riley Decl. ¶¶ 46–47.) Horton
does not identify any other similarly situated male comparators, nor does she dispute the
accuracy of Walmart’s employment records. Horton therefore fails to offer any evidence that

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she suffered an adverse employment action via pay disparity and has failed to state a prima facie
case of discrimination
Second, Horton asserts that Walmart discriminated against her on the basis of sex
because she only received $0.10 pay increases despite receiving “perfect” performance
evaluations. Again, Horton’s claim appears to be based on her faulty memory and is belied by
the evidence. As discussed above, Horton received seven pay raises—ranging from $0.24 per
hour to $0.50 per hour—increasing her pay from $6.00 per hour to $8.32 per hour during her
employment. Indeed, Horton never received a $0.10 raise. Each of Horton’s 4% raises from
her annual performance evaluations corresponded with Walmart’s Compensation Guidelines
for “Standard” or “Meets Expectations” ratings at that time.
Further, Horton never identified a male comparator who received more favorable pay
increases than she did. With no comparator, Horton cannot establish that she suffered an
adverse employment action due to her pay increases. To the contrary, the record establishes
that Walmart gave Horton favorable pay increases for a variety of reasons, and there is nothing
in the record to suggest that anyone—let alone another male—received more favorable
treatment in pay raises. Since Horton failed to identify a male comparator who received more
favorable treatment, she cannot establish that she suffered an adverse employment action.
In sum, regarding both purported instances of pay discrimination, Horton has not
established a prima facie case of sex discrimination and has failed to create any genuine issues
of material fact. The court will therefore grant summary judgment in favor of Walmart on
Horton’s pay discrimination claim.

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B.

Promotional Discrimination
Next, Horton asserts that she suffered promotional discrimination on two occasions,

but the court need only address the latter one. 1 Specifically, Horton asserts that Walmart failed
to promote her to an “assistant manager” position. 2
To establish a prima facie case of promotional discrimination, a plaintiff must show that:
“(1) she is a member of a protected class; (2) her employer had an open position for which
she applied or sought to apply; (3) she was qualified for the position; and (4) she was rejected
for the position under circumstances giving rise to an inference of unlawful discrimination.”
Evans, 80 F.3d at 959–60.
Walmart identifies this “assistant manager” position as Assistant Store Manager. Based
on the record, Horton has failed to present evidence that she was qualified for the position of
Assistant Store Manager. Rather, Horton admitted the opposite. Horton stated in her

Horton’s alleged first instance of promotional discrimination occurred “halfway through 1998.” This claim is
time-barred. This specific claim was related to, but not part of, a larger class-action lawsuit where the Supreme
Court decertified the class because the plaintiffs failed to satisfy Rule 23(a)(2)’s commonality requirement. WalMart, Inc. v. Dukes, 564 U.S. 338, 359 (2011). It is undisputed that the decision ended the tolling of limitations
for absent class members to pursue individual claims for the same conduct raised in the Dukes complaints,
dating back to December 26, 1998. See Dukes v. Wal-Mart Stores, Inc., No. 3:01-cv-02252-CRB, 2015 WL
3623481, at *1–3 (N.D. Cal. June 10, 2015) (granting summary judgment in favor of Walmart regarding
allegations that occurred before December 26, 1998). Because Horton is seeking to recover for actions that
occurred before December 26, 1998, the claim is time-barred. In any event, Horton did not address Walmart’s
argument in her opposition brief, so the court assumes that she concedes it.
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Horton equivocated in her deposition regarding whether she was denied a promotion for “assistant manager”
or another kind of management position. (See Horton Dep. at 55:2–7 (“And I don’t know about assistant
manager at all. I believe that needs to be management. I’m just—I’m very uncertain about the word assistant
manager. I believe I meant to say management.”). In her EEOC charge of discrimination, however, Horton
only identified the “assistant manager” position. (See ECF No. 4-2 at 22.) Horton did not address this issue in
her opposition brief, so the court again assumes that she concedes it. But to the extent Horton seeks to recover
for not receiving a promotion for some other kind of management position, Horton is foreclosed from doing
so under Fourth Circuit caselaw. See, e.g., Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013)
(“In any subsequent lawsuit alleging unlawful employment practices under Title VII, a federal court may only
consider those allegations included in the EEOC charge.”).
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deposition that “assistant manager would have been way above my qualifications.” (Horton
Dep. 55:10–12.) By her own admission, she was not qualified for the promotion she was
seeking, and the third element is not satisfied. Therefore, Horton has failed to state a prima
facie case for promotional discrimination under Title VII, and the court will grant summary
judgment in favor of Walmart.
VI.

CONCLUSION

For these reasons, the court will grant Walmart’s motion for summary judgment (ECF
No. 3). A separate order will issue.
The clerk is directed to forward a copy of this Memorandum Opinion and the
accompanying Order to all counsel on record.
ENTERED this 16th day of July, 2021.

/s/ Thomas T. Cullen
______________________________
HON. THOMAS T. CULLEN
UNITED STATES DISTRICT JUDGE

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