In Richardson v. Wal-Mart Stores, Inc., No. 15-1142, 2016 U.S. App. LEXIS 15565 (6th Cir. Sept. 9, 2016) the Sixth Circuit Court of Appeals recently upheld the district court’s grant of summary judgment in favor of Wal-Mart in an age-discrimination suit based at least in part on the much litigated and maligned — but still available — honest-belief rule because it determined that the store manager honestly believed that the former employee’s disciplinary record justified her firing.

Reva Richardson had worked at a Wal-Mart store in Lansing, Michigan in various capacities, including as a department manager and customer service manager, for approximately 12 years prior to being fired at age 62. Wal-Mart employs a progressive discipline system whereby the company provides levels of “coaching” if an employee’s job performance does not meet company expectations. The first three levels are “written coachings,” and levels two and three require the employee to develop an action plan to correct the problems and concerns. The fourth level requires that the employee be terminated and all four levels require two managers, the one issuing the coaching and another as a witness, to meet with the employee.

Richardson received a first level coaching in January 2011 regarding her attempts to influence the exchange of her daughter’s damaged laptop for a working one, a second level coaching in September 2011 for mishandling a regulated hazardous-material item that had been returned, about which she submitted an action plan and a third level coaching in August 2012 for absenteeism.

She claimed that in November and December 2012 she began to perceive that she was being mistreated by management, including allegations that she had been humiliated, screamed at and embarrassed in front of fellow employees. She also claimed that one former manager had told her son, also a Wal-Mart employee, that she was told old to work there and that she had been asked several times when she was going to quit.

In March 2013 she broke her wrist when she fell while stacking merchandise on a pallet and when three separate members of management reviewed a surveillance tape they determined that she had created a workplace safety hazard by failing to follow proper workplace-safety standards. Because this was her fourth “coaching,” she was terminated. She filed a lawsuit in Michigan state court alleging age discrimination, race discrimination and intentional infliction of emotional distress. The case was removed to federal court where Richardson eventually dismissed the race discrimination and emotional distress claims and the district court granted Wal-Mart’s motion for summary judgment on the age discrimination claim, which Richardson appealed.

Because the appellate court found that Richardson had not presented any direct of evidence of discrimination, it applied the circumstantial evidence burden-shifting McDonnell Douglas test wherein the plaintiff must first prove that she has a prima facie case of age discrimination, which then shifts the burden to the employer to offer a legitimate, nondiscriminatory reason for the firing, which then shifts the burden back to the employee to show that that reason was pretextual. It was undisputed that Richardson had established a prima facie case for age discrimination but Wal-Mart argued that Richardson’s violation of Wal-Mart’s workplace safety practices, which brought her to the fourth and final step of its progressive disciplinary process, was a legitimate, nondiscriminatory reason for the termination.

Richardson rebutted Wal-Mart’s argument by essentially attempting to delegitimize the coachings by claiming, among other things that the coachings were unverifiable, that the documentation was not authentic and that even if it was, they should be excluded from evidence under Michigan law because copies of them were not in her personnel file. The court disposed of each of her arguments because it determined that they were not supported by the record. However, the court also noted that even if she could successfully challenge one or more of the coachings, Wal-Mart was still entitled to summary judgment under the honest-belief rule, which allows an employer to avoid a pretext claim if it can “establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.” In order to overcome an honest-belief justification, the employee “must put forth evidence which demonstrates that the employer did not ‘honestly believe’ in the proffered non-discriminatory reason for its adverse employment action.”

The court determined that Richardson had not done so because she had not shown that the manager who ultimately terminated her did not honestly believe that her coaching history justified her termination. In reaching this conclusion, the court noted “[t]he honest-belief rule provides that an employer is entitled to summary judgment on pretext even if its conclusion is later shown to be mistaken, foolish, trivial, or baseless.” (emphasis added).

Because it determined that Richardson had not offered any direct or circumstantial evidence that would support her claim, Wal-Mart was entitled to summary judgment and it affirmed the district court.

The continued availability of this defense makes it all the more important for employers to not only closely follow their progressive discipline protocol but also carefully document so that can be argued that the company reasonably relied on the process when it took an adverse job decision.

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