LINDA H. WILLIAMS V. WAL-MART STORES, INC.
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RENDERED : NOVEMBER 23, 2005
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2004-SC-000080-DG
APPELLANT
LINDA H . WILLIAMS
ON REVIEW FROM COURT OF APPEALS
2001-CA-000414-MR, 2001-CA-000454-MR, 2001-CA-000456-MR
BARREN CIRCUIT COURT NO . 97-CI-00068
WAL-MART STORES, INC.
APPELLEE
OPINION OF THE COURT BY JUSTICE ROACH
AFFIRMING
I . INTRODUCTION
Linda Williams ("Williams") brought suit against Wal-Mart Stores, Inc. ("WalMart") and two individual Wal-Mart management employees . Williams alleged that she
had been subjected to unlawful age discrimination, disability discrimination, and
retaliation in violation of KRS Chapter 344. The case proceeded to trial and the sole
claim presented to the jury was whether Williams had been subjected to age
discrimination by Wal-Mart. The jury determined that Williams had been the victim of
unlawful age discrimination and awarded her damages of $539,237 .00 . Those
damages consisted of $97,237 .00 for lost past and future wages, $192,000 .00 for
humiliation, embarrassment and mental distress, and $250,000 .00 in punitive
damages.' A divided panel of the Court of Appeals held that Williams had failed to
Subsequent to the trial of this matter, we held that (i) punitive damages are not
an available remedy under KRS Chapter 344, Kentucky Dept of Corrs . v . McCullough ,
123 S .W .3d 130, 138 (Ky. 2003), and (ii) the trial court rather than the jury should
present evidence to satisfy the elements of an age discrimination claim and reversed
the trial court . This Court granted discretionary review to consider whether the jury's
verdict against Wal-Mart for age discrimination should be upheld . Having determined
that Williams failed to prove she was the victim of unlawful age discrimination, we affirm
the decision of the Court of Appeals.
II. BACKGROUND
"On appellate review, when determining whether the trial court erred in denying a
motion for directed verdict, the non-moving party's evidence is taken as true and the
non-moving party is entitled to all reasonable inferences that may be made from the
evidence ." Kentucky Dep't of Corrs. v. McCullough , 123 S .W.3d 130, 134 (Ky. 2003).
We will state the facts in that light .
Williams was hired by Wal-Mart in July of 1986, and worked as a cashier there
until her job separation on October 7, 1995. She was fifty-six years of age at the time of
her separation . Because of a medical condition, it was necessary for Williams to take
medicine at various times throughout her workday. Her doctor also recommended that
her prescription be taken with sodium-free water . Initially, Williams brought sodium-free
water from home and left it in the employee's lounge. However, because other
employees sometimes drank the water or threw it away, Williams decided it would be
simpler to purchase water at the store as she needed it.
The sodium-free water was stocked at the front of the store, near the cash
registers . On October 5, 1995, Williams took and drank a gallon of water without paying
for it. Williams testified that she believed customer service manager Jennie Gray had
determine the appropriateness and amount of front pay. See Brooks v. LexingtonFayette Urban County Hous. Auth . , 132 S .W .3d 790, 806 (Ky. 2004).
given her permission to take the water and pay for it at the end of her workday. At the
end of her shift that day, Williams paid 58 cents for the water .
On October 6, 1995, Williams took another gallon of water without paying for it.
Other employees witnessed Williams's actions and reported her conduct to Joyce
Bosse, an assistant manager at the store. Bosse called Joe Medina, an area loss
prevention supervisor to report the incident. Medina instructed her to monitor the
situation . At the end of Willams's shift that day, she left the unfinished water on top of
the refrigerator in the employee lounge and left the store without paying for it.
On October 7, 1995, Williams finished the water from the previous day and
discarded the container . Williams then took another gallon of water . Bosse called
Medina again for further instructions as to how she should handle the situation . Medina
told Bosse that if Williams could not produce receipts for the water, she was to be
terminated . At this point, a meeting was held between Wal-Mart managers and
Williams . During the meeting, which Williams later described as a forty-five minute
interrogation, the managers repeatedly accused her of stealing the water . Williams
contended that she did not steal the water, but was unable to produce receipts for its
purchase . During this meeting, Williams resigned .2 As she left the store, Williams paid
for the two gallons of water . Additional facts relevant to the appropriate legal inquiry will
be set forth below.
2 The evidence placed in the most favorable light to Williams demonstrates that
she was forced to resign by Wal-Mart . Williams testified that she was threatened with
jail if she did not voluntarily resign .
Ill. Analysis
A. Age Discrimination Claim
KRS 344.040(1) 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." This Court has consistently interpreted the civil
rights provisions of KRS Chapter 344 consistent with the applicable federal antidiscrimination laws . See Brooks v. Lexington-Fayette Urban County Hous . Auth . , 132
S .W .3d 790, 802 (Ky. 2004); Howard Baer, Inc. v. Schave , 127 S .W .3d 589,592 (Ky.
2003); Bank One, Kentucky, N .A. v. Murphy, 52 S .W.3d 540, 544 (Ky. 2001);
Ammerman v. Bd . of Educ. of Nicholas County , 30 S .W .3d 793, 797-98 (Ky. 2000) . Age
discrimination cases under the federal Age Discrimination in Employment Act ("ADEA"),
29 U .S .C. ยงยง 621-634, are analyzed under the same framework as employment
discrimination cases under Title VII. Grosjean v. First Energy Corp. , 349 F .3d 332, 335
(6th Cir. 2003).
1 . The Prima Facie Case
There are two paths for a plaintiff seeking to establish an age discrimination
case . One path consists of direct evidence of discriminatory animus. Absent direct
evidence of discrimination, Plaintiff must satisfy the burden-shifting test of McDonnell
Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L .Ed .2d 668 (1973) . The
reasoning behind the McDonnell Douglas burden shifting approach is to allow a victim
of discrimination to establish a case through inferential and circumstantial proof. As
Justice O'Connor has noted, "the entire purpose of the McDonnell Douglas prima facie
case is to compensate for the fact that direct evidence of intentional discrimination is
hard to come by." Price Waterhouse v. Hopkins, 490 U .S . 228, 271, 109 S .Ct. 1775,
1802, 104 L .Ed .2d 268 (1989) (O'Connor, J. concurring); see also Trans World Airlines,
Inc. v. Thurston, 469 U .S . 111, 121, 105 S.Ct. 613, 622, 83 L.Ed .2d 523 (1985) ("The
shifting burdens of proof set forth in McDonnell Douglas are designed to assure that the
`plaintiff [has] his day in court despite the unavailability of direct evidence ."') . If a plaintiff
attempts to prove its case using the McDonnell Qou_, las framework, then the plaintiff is
not required to introduce direct evidence of discrimination . Kline v. Tennessee Valley
Auth . ,128 F.3d 337, 349 (6th Cir. 1997).
Under the McDonnell Douglas framework a plaintiff can establish a prima facie
case of age discrimination by proving that he or she : (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. Kline , 128
F .3d at 349 . In age discrimination cases the fourth element is modified to require
replacement not by a person outside the protected class, but replacement by a
significantly younger person . O'Connor v. Consol. Coin Caterers Corp . , 517 U .S . 308,
313, 116 S .Ct. 1307, .1310, 134 L.Ed .2d 433 (1996). In the present matter, there is no
dispute that Williams proved the first three elements of her case . However, Wal-Mart
asserts that Williams did not establish that she was replaced by a significantly younger
person, thus failing to satisfy the fourth requirement.
Specifically, Wal-Mart claims that Williams was not replaced but that her duties
were redistributed among existing employees . See Grosiean , 349 F.3d at 336 ("A
person is not replaced when another employee is assigned to perform the plaintiff's
duties in addition to other duties, or when the work is redistributed among other existing
employees already performing related work . A person is replaced only when another
employee is hired or reassigned to perform the plaintiff's duties ." (internal quotation
marks and citations omitted)). Williams counters that assertion with documentary
evidence produced by Wal-Mart in discovery, which demonstrates that every person
hired after Williams's separation was younger than she was. The fourth prong,
however, requires replacement by an individual who is significantly younger than the
terminated employee . There have been numerous cases in the federal courts
discussing how many years younger a replacement has to be in order to satisfy the
significantly-younger requirement . See Grosiean , 349 F.3d at 338-340 (discussing the
numerous approaches to the issue by the federal circuit courts of appeals and
concluding that an age difference of less than six years is not significant) .
We do not need to settle that precise issue today . The exhibit introduced by the
plaintiff demonstrates that the next sixteen hires made by Wal-Mart after Williams's
separation consisted of individuals at least eight years younger than Williams . In fact,
all but three were under forty. Furthermore, Wal-Mart's reliance on Grosiean is
misplaced as the case actually supports Williams's position . In Grosiean , an existing
employee temporarily assumed the plaintiff's job responsibilities after he was
reassigned, and the position was eventually filled by another individual . The court
concluded that the temporary replacement was not the relevant replacement for
purposes of plaintiff's age discrimination claim, focusing instead on the individual hired
to fill the position permanently. In the present matter, even if Wal-Mart established that
the cashier duties of Williams were temporarily absorbed by other employees, the
company cannot overcome the fact that its next sixteen hires were substantially
younger . Quite simply, when the evidence at trial is viewed in the light most favorable
to Williams, it establishes that she was replaced by at least one of these substantially
younger individuals .
2. The Legitimate, Nondiscriminatory Reason for Termination
Once the plaintiff has established a prima facie case, the burden shifts to the
employer to articulate a "legitimate nondiscriminatory reason" for the termination
decision . Reeves v. Sanderson Plumbing Prods., Inc . , 530 U .S . 133, 142, 120 S .Ct .
2097, 2106, 147 L .Ed .2d 105 (2000) (quoting Texas Dep't of Cmty. Affairs v. Burdine,
450 U .S . 248, 254, 101 S .Ct. 1089, 1094, 67 L.Ed . 207 (1981)) (internal quotation
marks omitted) . The defendant bears only the burden of production and this involves no
credibility assessments . Id.
.
Wal-Mart presented evidence at trial that it had a strict policy against employees
taking merchandise without first paying for it and that a violation of the policy resulted in
immediate termination . Additionally, Wal-Mart did not allow employees to purchase
merchandise while "on the - clock ." Therefore, Wal-Mart's employees are only permitted
to obtain and pay for merchandise at the beginning or end of their shifts or during lunch
breaks . Wal-Mart contends that Williams was fired for violating these policies.
3. Plaintiffs Showing of Pretext
After a defendant has provided a legitimate, nondiscriminatory reason for the
termination, the McDonnell Douglas framework disappears. Reeves, 530 U.S . at 142,
120 S .Ct. at 2106. At this point, the plaintiff must persuade the trier of fact, by a
preponderance of the evidence, that the defendant unlawfully discriminated against her.
Id . In order to prevail, the plaintiff must typically demonstrate that the employer's stated
reason for the termination was merely a pretext, masking the discriminatory motive . Id.
In other words, a plaintiff is required to "produce sufficient evidence from which the jury
[could] reasonably reject the employer's explanation ." Manzer v. Diamond Shamrock
Chems., Co ., 29 F.3d 1078, 1083 (6th Cir. 1994) . In Manzer, the court listed three
methods for establishing pretext : (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 . Id . at 1084.
The Court of Appeals concluded that Williams did not establish pretext and
therefore her age discrimination claim failed . We disagree, and believe that Williams
made a weak showing of pretext . Again, the evidence must be considered in the light
most favorable to Williams, and we discuss the following facts with that standard in
mind.
Williams testified that on October 5, she received permission from a manager to
pay for the water at the end of her shift . There was also evidence that management
employees watched Williams pay for the empty jug of water at the end of her shift on
October 5 but said nothing. Williams argues that if there was truly a zero-tolerance
policy then she would have been discharged or confronted on that day. In addition, she
claims that she was not afforded the opportunity to pay for the water on October 7 and
that she had planned to pay for both jugs at the end of the shift, just as she had done
two days earlier . Williams also argues that the extreme measures employed by WalMart management employees at the meeting where she was confronted with the
charges demonstrates pretext. She contends that Wal-Mart's efforts to coerce a
confession and force her resignation by threatening criminal prosecution are further
evidence of pretext . Wal-Mart responds that no manager gave Williams permission to
pay for the water at the end of her shift and that she had every opportunity before the
shift and during her lunch break to pay for the water, but she failed to do so .
Nevertheless, Williams has produced sufficient evidence such that a jury might
reasonably reject Wal-Mart's explanation for her dismissal . We emphasize that we are
not to make an independent judgment of the evidence and, with this standard in mind,
we believe Williams established a weak showing of pretext .
4. Beyond a Showing of Pretext
Until the United States Supreme Court issued St. Mary's Honor Center v. Hicks,
509 U .S . 502, 113 S.Ct. 2742, 125 L.Ed .2d 407 (1993), federal courts were split in
characterizing the impact of a showing of pretext by the plaintiff. Three approaches
were developed by the Circuits-the Sixth Circuit described these approaches in the
following way:
"Pretext only" is the least stringent of the three approaches . It
simply requires that a plaintiff prove that the defendant's proffered reason
is pretextual . Once this is proven, the plaintiff is entitled to judgment as a
matter of law.
The moderate approach to pretext analysis is dubbed the
"permissive pretext only" standard . Under this method, if the plaintiff
establishes that the defendant's reasons are pretextual the trier of fact is
permitted, but not required, to enter judgment for the plaintiff. The
technique allows a permissive rather than a mandatory determination
favoring the plaintiff.
Under the "pretext plus" strand of analysis, a plaintiff acquires an
additional burden . The plaintiff must not only demonstrate that the
employer's asserted reasons were pretextual, but the plaintiff also must
introduce additional evidence of discrimination . Only with an indirect and
direct showing of discrimination is the plaintiff entitled to judgment as a
matter of law. The pretext plus approach was the position of a majority of
the circuit courts prior to 1993.
Kline v. Tennessee Valley Auth . , 128 F.3d 337, 343 (6th Cir. 1997) (citations omitted) .
In St. Mary's Honor Center , the Supreme Court rejected the "pretext plus" and
"pretext only" approaches in favor of the "permissive pretext only' standard and held
that it was permissible, but not mandatory, for the trier of fact to make an ultimate
finding of intentional discrimination once the plaintiff has established pretext. St. Mary's
Honor Ctr ., 509 U .S. at 511, 113 S .Ct. at 2742 . This issue was further analyzed by the
United States Supreme Court in Reeves . In Reeves, the court of appeals had assumed
that a prima facie case of discrimination combined with sufficient evidence of pretext
was "insufficient as a matter of law to sustain a jury's finding of intentional
discrimination ." Reeves , 530 U.S . at 146, 120 S .Ct. at 2108. The Supreme Court
explained the court of appeals had misunderstood St. Mary's Honor Center and
explained its decision in that case:
There we held that the factfinder's rejection of the employer's legitimate,
nondiscriminatory reason for its action does not compel j udgment for the
plaintiff . The ultimate question is whether the employer intentionally
discriminated, and proof that "the employer's proffered reason is
unpersuasive, or even obviously contrived, does not necessarily establish
that the plaintiff's proffered reason . . . is correct." In other words, "[i]t is
not enough . . . to disbelieve the employer; the factfinder must believe the
plaintiff's explanation of intentional discrimination ."
In reaching this conclusion, however, we reasoned that it is
permissible for the trier of fact to infer the ultimate fact of discrimination
from the falsity of the employer's explanation .
Id . at 146-47, 120 S .Ct. at 2108 (citations omitted) (alterations in original) . This Court
has correctly construed this aspect of Reeves, explaining : "In other words, a plaintiff's
prima facie case plus proof of a pretext may constitute sufficient evidence to survive a
motion for a directed verdict." Kentucky Dep't of Corrs. v. McCullough , 123 S .W .3d 130,
134 (Ky. 2003) (second emphasis added) .
The Supreme Court in Reeves, after discussing the impact of the employer's
false explanation for the termination, went on to hold :
Thus, a plaintiff"s prima facie case, combined with sufficient evidence to
find that the employer's asserted justification is false, may permit the trier
of fact to conclude that the employer unlawfully discriminated .
This is not to say that such a showing by the plaintiff will always be
adequate to sustain a jury's finding of liability . Certainly there will be
instances where, although the plaintiff has established a prima facie case
and set forth sufficient evidence to reject the defendant's explanation, no
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rational factfinder could conclude that the action was discriminatory. For
instance, an employer would be entitled to judgment as a matter of law if
the record conclusively revealed some other, nondiscriminatory reason for
the employer's decision, or if the plaintiff created only a weak issue of fact
as to whether the employer's reason was untrue and there was abundant
and uncontroverted independent evidence that no discrimination had
occurred . To hold otherwise would be effectively to insulate an entire
category of employment discrimination cases from review under Rule 50,
and we have reiterated that trial courts should not treat discrimination
differently from other ultimate questions of fact.
Whether judgment as a matter of law is appropriate in any
particular case will depend on a number of factors . Those include the
strength of the plaintiff's prima facie case, the probative value of the proof
that the employer's explanation is false, and any other evidence that
supports the employer's case and that properly may be considered on a
motion for judgment as a matter of law.
Reeves , 530 U .S . at 148-49, 120 S.Ct. at 2109 (internal citations and quotation marks
omitted) .
In Reeves, the Court concluded that the plaintiff had established a prima facie
case and had "made a substantial showing" that the employer's explanation was false .
Id. at 142-44, 120 S.Ct. at 2106-07. However, in the present matter Williams has, at
best, "created only a weak issue of fact as to whether the employer's reason was untrue
and there wa s abundant and uncontroverted independen t evidence that no
discrimination had occurred ." Id. a t 148, 120 S.Ct . 2109 (emphasis added) .
A review of the record demonstrates that the trial court misunderstood its role
when addressing Wal-Mart's motion for a directed verdict . At the conference to address
the motion, the trial court characterized Williams's claim as "a very weak case" and
appeared to focus exclusively on whether she had established a prima facie case under
the McDonnell Douglas framework . The trial court explained that "it is so easy to make
a prima facie case in here, here we are stuck trying this case on age discrimination ."
The appropriate inquiry, however, was not only whether a prima facie case had been
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established, but was instead whether there was sufficient evidence to permit a rational
trier of fact to conclude that Wal-Mart had unlawfully discriminated against Williams
because of her age. We conclude that there was not .
The record contains two important pieces of uncontroverted evidence that no
discrimination occurred . First, Wal-Mart presented evidence of two employees under
the age of forty who were fired for substantially the same reason as Williams, one for
drinking an Icee and the other for drinking a soft drink, neither of which had been paid
for. Second, and most important, the sole decisionmaker responsible for terminating
Williams did not know how old she was.
It was undisputed that Joe Medina, the off-site loss prevention supervisor, made
the decision to fire Williams . Additionally, there was no evidence offered that Medina
had any knowledge of Williams's age . Medina's unrefuted testimony was, that at the
time he made the decision to terminate Williams, he (i) had never seen her, (ii) did not
know her age, and (iii) had never been told her age .
A thorough review of the trial record demonstrates that Williams's theory of the
case embraced the notion that Medina was the sole decisionmaker . Notably, Medina
responded in the affirmative to the following questions from Williams's counsel : (i) "And
you were the one that made the decision to fire Linda Williams?"; and (ii) "Really, you
were the man to make the decision?" Additionally, in his closing argument, Williams's
lawyer argued that Medina was the "culprit" and that "he made the call ." He further
argued that the local Wal-Mart management staff were just following orders in dealing
with Williams .
Considered together, and despite Williams's weak showing of pretext, these facts
show that Medina was solely responsible for Williams's termination and that he did not
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know her age at the time he made that decision . Furthermore, there exists no evidence
in the record which contradicts these conclusions . Consequently, we conclude that this
case is one of those "instances where, although the plaintiff has established a prima
facie case and set forth sufficient evidence to reject the defendant's explanation, no
rational factfinder could conclude that the action was discriminatory." Reeves 530 U .S.
at 148, 120 S .Ct. 2109.3
B. Designation of the Record
Finally, Williams argues that the Court of Appeals erred in allowing Wal-Mart's
appeal to proceed despite its failure to designate the record for appeal in accordance
with CR 75 .01 . In support of this position, Williams cites a long line of now inapplicable
Kentucky appellate cases demanding strict compliance with CR 75 .01 .4 In many of
these cases parties suffered a dismissal of their claims for seemingly minor deviations
from the rule.
Williams, however, ignores the fundamental change in our approach to problems
of noncompliance that we explained in Ready v. Jamison , 705 S.W.2d 479 (Ky. 1986) .
3 The opinion of the Court of Appeals focused on Medina's role as the sole
decisionmaker and concluded that his lack of knowledge of Williams's age precluded
any finding of pretext . While it would typically be appropriate to focus on the
decisionmaker at that stage of the analysis, this case demands a different approach.
Here there was specific evidence supporting Williams's theory of pretext, namely that
she had been given permission, or at least tacit approval, for the very conduct which
eventually served as the basis for her dismissal . Her theory is even more credible given
the fact that, although Wal-Mart contends Williams was in violation of company policy as
early as October 5, she was not fired immediately for her infraction . In the end, the
peculiar facts of this case foreclose a finding that Williams failed to demonstrate pretext.
4 In addition to the pre-Ready decisions on which Williams relies, she also cites
Commonwealth v. Roberts , 122 S.W .3d 524 (Ky. 2003), in support of her position . In
Roberts , this Court unanimously dismissed the appeal of a criminal defendant who had
failed to comply with a Court of Appeals order that he provide transcripts of lower court
proceedings designated under CR 75 .01 . Despite Williams's suggestion to the contrary,
and notwithstanding our dismissal of the defendant's appeal, this case is in no way a
return to that earlier line of decisions .
- 1 3-
In that case, which was premised on a change to CR 73 .02(2), we adopted a standard
of substantial compliance . We stated, "(w)hile dismissal still may be appropriate where
the breach of the rule and the harm to the opponent is sufficiently serious, under CR
73.02(2) the appellate court is charged with the burden of deciding the appropriate
sanction on a case by case basis." Id . at 482 . Accordingly, we review the Court of
Appeals' denial of Williams's motion to dismiss under an abuse of discretion standard .
Williams has not alleged that she was at all prejudiced by Wal-Mart's failure to
designate the record for appeal .
Nor has she demonstrated that Wal-Mart's breach
was sufficiently serious such that dismissal was warranted. In short, she has not
provided any reason, aside from her plea that we return to a regime of strict compliance,
justifying this claim of error. Consequently, we find that the Court of Appeals did not
abuse its discretion in denying her motion to dismiss Wal-Mart's appeal .
IV. CONCLUSION
We are not called on to judge the wisdom of Wal-Mart's decision to terminate
Williams . Rather, our duty is to determine whether there was sufficient evidence to
support the jury's finding of age discrimination . For the foregoing reasons, we conclude
that no rational jury could have found that Williams was subjected to unlawful age
discrimination . Therefore we affirm the decision of the Court of Appeals.
All concur.
COUNSEL FOR APPELLANT :
Lee Huddleston
Huddleston & Huddleston
PO Box 2130
Bowling Green, Kentucky 42102-2130
COUNSEL FOR APPELLEE :
Elizabeth U . Mendel
Woodward, Hobson & Fulton
2500 National City Tower
Louisville, Kentucky 40202
Kathryn A. Quesenberry
Woodward, Hobson & Fulton
2500 National City Tower
Louisville, Kentucky 40202
Erin M . Roark
Woodward, Hobson & Fulton
2500 National City Tower
Louisville, Kentucky 40202
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