                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0582n.06

                                         No. 14-3828

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

CHRISTOPHER J. MOFFAT, CLARISSA E.                     )                     FILED
THOMPSON, and PATRICIA A. SCHMIDT,                     )             Aug 17, 2015
                                                       )         DEBORAH S. HUNT, Clerk
       Plaintiffs-Appellants,                          )
                                                       )
                                                            ON APPEAL FROM THE
v.                                                     )
                                                            UNITED STATES DISTRICT
                                                       )
                                                            COURT FOR THE NORTHERN
WAL-MART STORES, INC.; WAL-MART                        )
                                                            DISTRICT OF OHIO
ASSOCIATES, INC.; and WAL-MART STORES                  )
EAST, LP,                                              )
                                                       )
       Defendants-Appellees.                           )
                                                       )

BEFORE: KETHLEDGE and WHITE, Circuit Judges; LUDINGTON, District Judge.*

       PER CURIAM. Christopher Moffat, Clarissa Thompson, and Patricia Schmidt appeal

from the district court’s grant of summary judgment to their former employer, Wal-Mart Stores

East, LP (Walmart),1 on their age discrimination claims brought under the Age Discrimination in

Employment Act, 29 U.S.C. §§ 621–634, and analogous state law, Ohio Rev. Code § 4112.02.

Because there are genuine issues of material fact regarding whether Walmart’s proffered reason

for discharging Plaintiffs was pretext for age discrimination, we REVERSE.




       *
          The Honorable Thomas L. Ludington, United States District Judge for the Eastern
District of Michigan, sitting by designation.
        1
          In addition to Wal-Mart Stores East, LP, Plaintiffs named Wal-Mart Stores, Inc., and
Wal-Mart Associates, Inc., as defendants in their amended complaint. But as the district court
noted, Plaintiffs do not dispute that Wal-Mart Stores East, LP, is the sole proper defendant.
No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


                                                  I.

          Walmart employed Plaintiffs at its Brooklyn, Ohio, store in the Lawn and Garden

Department. Moffat worked as a sales associate for seven years, and Thompson for more than

ten years. Schmidt, who served for more than sixteen years, was employed as the Brooklyn

store’s Lawn and Garden Department Manager. According to Assistant Store Manager Brandon

Donegan, Walmart assigned six employees to work primarily in the Lawn and Garden

Department: Moffat (age 54), Thompson (62), Schmidt (59), and three younger associates

(19, 21, and 23).

          In June 2010, Walmart Asset Protection Coordinator Debbie Jenkins, while reviewing

surveillance camera footage, saw Plaintiffs bag plants at a cash register, set the bags aside, and

later carry the bags out of the store without paying. She suspected Plaintiffs of theft, and

informed her supervisor, 31-year-old Market Asset Protection Manager Joe Theobald, who also

viewed the video footage. Theobald instructed her to complete an investigation “by the book.”

          As part of her investigation into the suspected theft, and after discussing the video with

Theobald, Jenkins, along with an assistant store manager, interviewed each Plaintiff individually.

After Plaintiffs admitted to taking the plants, Jenkins accused them of violating Walmart’s policy

against accepting gifts from vendors. Walmart’s Statement of Ethics, to which employees must

adhere, states that an employee “is to never accept gifts or entertainment from any supplier,

potential supplier, government, or any person the associate has reason to believe may be seeking

to influence business decisions or transactions.”2 The policy does not, however, define the term

“gift.”



          2
         There are two versions of Walmart’s Statement of Ethics in the record. The parties do
not contend that there are material differences between them.


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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


       According to Thompson, an employee of Bonnie Bell Plants (Bonnie Bell)—a Walmart

vendor and owner of the plants3—removed the plants that “didn’t look good” from the display

racks and placed them in a cart. He then took the cart to Thompson and asked her to throw the

plants away. Normally, the vendor’s employee loads the plants into his truck—rather than

discard them at the Walmart store—but the store’s greenhouse had had an aphid infestation.

Thompson, who apparently has a “green thumb,” noticed that some of the plants could be

salvaged and commented to the Bonnie Bell employee that she “could save some of [the plants],”

to which he responded, “[G]o for it.” Thompson shared the vendor’s statement with Moffat and

Schmidt, and they each took some plants they thought could be saved. Thompson discarded the

remaining plants.4

       During the interviews with Jenkins, Plaintiffs each identified others they believed

engaged in similar conduct. Moffat testified that he was sure he told Jenkins and the assistant

manager that he knew of at least three Lawn and Garden associates who had taken plants in

previous years, including a department manager.         Thompson similarly stated that several

employees took discarded plants from Bonnie Bell in prior years and that members of

management knew the employees were taking the plants. Schmidt told Jenkins that associates

       3
         Bonnie Bell’s products were “pay-per-scan” merchandise. Under Walmart’s pay-per-
scan program:

                If an item is a pay-per-scan item, Walmart does not pay the vendor for the
       item unless and until it is sold to a customer. Accordingly, if the item is not sold
       and the vendor decides to take the item off of Walmart’s shelves and either try to
       sell it elsewhere or destroy it, for whatever reason, Walmart is not obligated to
       pay the vendor anything for that item. Essentially, the item never “belongs” to
       Walmart. Instead, in exchange for providing the vendor a venue in which to sell
       their [sic] product, Walmart receives a specified portion of the sale price of the
       item.
       4
        Thompson planted the plants she took in a neighbor’s yard where they thrived. The
plants Moffat and Schmidt took did not revive.


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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


occasionally received items, including cosmetic samples, mouthwash, and greeting-card

envelopes, from other vendors.

       Plaintiffs also provided a written statement to Jenkins. Moffat wrote: “Bonnie Plant, as

they do each year, threw out their vegetables. They told Clarissa [Thompson] to take whatever

she wanted & throw the rest away. She took some, Pat [Schmidt] & I took 1 pepper plant & 1

oregano plant. Anyone else? I don’t know.” In her statement, Thompson wrote:

              I honestly did not realize I was doing wrong in taking the tomato [plants]
       that were being thrown away. I took 3. I also was not aware that I cannot accept
       a cup of coffee or plants from [a] customer’s garden. I would in no way ever[] do
       wrong to Wal-Mart. I try to save and do as much as I can for the company and
       customers.

               I am very sorry and will not accept gifts or anything ever again.

Schmidt stated:

               I received tomato plants from a vendor that were going to be thrown away
       and said that we may have them[.] From what I was told[,] they have done this in
       the past[.] I did not know that we were not allowed to receive gifts from any one.
       I am sorry for what I done and [it] will never happen again[.] My associate done
       this [for] five years and said that the vendor didn’t want to throw away and said it
       was fine sense we don’t pay for them[.] Again I am very sorry[.] I would never
       had done this if I known this[.] I am new in this Dept. [sic throughout]

       After interviewing Plaintiffs and taking their written statements, Jenkins turned her

investigative file over to Theobald. The file included records with Plaintiffs’ dates of birth. In

his deposition, Theobald could not recall whether he reviewed the file before deciding to

terminate Plaintiffs’ employment; but he testified that, ordinarily, he does not review the file,

including written statements, before deciding whether to discipline an employee. Based on

Plaintiffs’ admissions to taking plants, Theobald considered their conduct as demonstrating

“compromised integrity,” which, under Walmart’s Coaching for Improvement Policy, can

qualify as “gross misconduct” and subject the employee to immediate termination. He decided

to discharge Plaintiffs.

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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


       Jenkins and an assistant store manager met with each Plaintiff to communicate

Theobald’s decision. Plaintiffs were provided an exit interview form that states the reason for

the termination as “Gross Misconduct—Integrity Issue.”        On Moffat’s form, the manager

commented: “Chris was identified by Asset protection as receiving gratuity from a vendor which

is direct violation of the company’s ethics policy.” The manager wrote on Thompson’s form that

“Clarissa is being terminated due to accepting gifts from a local vendor[;] the gifts were tomato

plants and were near death but Walmart policy states that no associate working for Walmart will

accept gifts from a vendor no matter how small.” Schmidt’s exit interview form states that

“Patricia was accepting flowers from vendors with out [sic] paying for them.”

       Walmart discharged Schmidt on June 21, Thompson on June 23, and Moffat on June 28,

2010. On June 23 and June 29, 2010—the same day it discharged Thompson and one day after it

discharged Moffat—Walmart hired 19- and 21-year-old temporary associates (both later made

permanent) “to work the hours that Mr. Moffat and Ms. Thompson would have worked.”

Walmart did not replace Schmidt; Walmart claimed that because the store had too many

department managers, it transferred her duties to another department manager who was older

than Schmidt, but who was later replaced after her retirement by a 26-year-old in August 2010.

Walmart does not dispute that Plaintiffs were otherwise good employees.

       The district court determined that Schmidt could not establish a prima facie case of age

discrimination because she did not show that Walmart treated substantially younger, similarly

situated employees better, and concluded that Plaintiffs did not rebut Walmart’s

nondiscriminatory reason for discharging them and thus could not show pretext. Plaintiffs now

appeal the district court’s entry of summary judgment in Walmart’s favor.




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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


                                                II.

       We review de novo a district court’s order granting summary judgment. Rudisill v. Ford

Motor Co., 709 F.3d 595, 600 (6th Cir. 2013). An award of summary judgment is appropriate “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); Mitchell v. Fankhauser, 375 F.3d

477, 479 (6th Cir. 2004). In determining whether the grant of summary judgment was proper,

“we must view all evidence in the light most favorable to the nonmoving party.” Kleiber v.

Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “The mere existence of a scintilla of evidence to

support the plaintiff’s position will be insufficient; there must be evidence on which the jury

could reasonably find for the plaintiff.” Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995)

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

                                                III.

       Under the ADEA, it is unlawful for an employer to discharge an employee who is at least

40 years old because of the employee’s age. 29 U.S.C. §§ 623(a)(1), 631; Mickey v. Zeidler Tool

& Die Co., 516 F.3d 516, 521 (6th Cir. 2008). Similarly, it is an unlawful discriminatory

practice in Ohio for an employer to discharge an employee because of the person’s age. Ohio

Rev. Code § 4112.02(A). Age-discrimination claims brought under Ohio law are analyzed under

the same standards as claims brought under the ADEA. Minadeo v. ICI Paints, 398 F.3d 751,

763 (6th Cir. 2005). A plaintiff can prove unlawful age discrimination under the ADEA with

circumstantial evidence—that is, “proof that does not on its face establish discriminatory animus,

but does allow a factfinder to draw a reasonable inference that discrimination occurred.” Wexler

v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003).



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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


                                                 A.

       A plaintiff without direct evidence of discrimination can establish a prima facie case of

age discrimination by showing: (1) she was at least 40 years old at the time of the alleged

discrimination; (2) she was subjected to an adverse employment action; (3) she was otherwise

qualified for the position; and (4) she was replaced by a younger worker, or there are

circumstances that support an inference of discrimination. Mickey, 516 F.3d at 521; Blizzard v.

Marion Technical Coll., 698 F.3d 275, 283 (6th Cir. 2012); Coomer v. Bethesda Hosp., Inc., 370

F.3d 499, 511 (6th Cir. 2004). “The key question is always whether, under the particular facts

and context of the case at hand, the plaintiff has presented sufficient evidence that he or she

suffered an adverse employment action under circumstances which give rise to an inference of

unlawful discrimination.” Clay v. United Parcel Serv., Inc., 501 F.3d 695, 703 (6th Cir. 2007)

(internal quotation marks omitted).

       Walmart does not dispute that Moffat and Thompson established a prima facie case of

age discrimination; however, it argues that although Schmidt can establish the first three

elements, she cannot show Walmart treated her less favorably than similarly situated employees

outside the protected class.5 Schmidt contends younger employees (1) had engaged in the same


       5
          Schmidt does not dispute that she was not replaced—by a younger employee or
otherwise. But Walmart’s claim that Schmidt failed to prove that the three younger employees
are outside the protected class is misplaced. An ADEA plaintiff need not show that she was
treated less favorably than someone outside the protected class. See O’Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 312–13 (1996) (“The fact that one person in the protected class
has lost out to another person in the protected class is . . . irrelevant, so long as he has lost out
because of his age. . . . [T]he fact that a replacement is substantially younger than the plaintiff is
a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced
by someone outside the protected class.”). Rather, she must show circumstances that support an
inference of unlawful age discrimination. Blizzard, 698 F.3d at 283; Clay, 501 F.3d at 703; see
also Macy v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357, 365 (6th Cir. 2007) (stating that the
fourth element requires a showing that a plaintiff “suffered [the adverse employment action]
under circumstances which give rise to an inference of unlawful discrimination”), abrogated on


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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


conduct as Plaintiffs without consequence, (2) were disciplined less harshly for more serious

misconduct, and (3) had accepted items from vendors without discipline. Walmart maintains

that there is no evidence that the three younger associates Schmidt identified are outside the

ADEA’s protected class and that the evidence does not support that the younger workers

accepted plants from a vendor or were subject to discipline or investigation by Theobald. The

district court concluded that the younger employees were not proper comparators, in part because

the younger employees did not share the same “ultimate decision-maker” (i.e., Theobold) as

Schmidt.

       Contrary to Walmart’s contention, Schmidt presented a prima facie case of age

discrimination because the circumstances of her discharge—identical to her co-plaintiffs in all

relevant respects other than her replacement6—support an inference of age discrimination. The

evidence shows that Walmart discharged three older employees (ages 54, 59, and 62 years) for

engaging in the same conduct, leaving the Lawn and Garden Department staffed primarily by

three significantly younger employees (ages 19, 21, and 23),7 and hired two significantly



other grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012). Such
circumstances may, but need not, include an allegation that plaintiff was treated less favorably
than an employee who is at least six years younger. Id. at 283–84; Grosjean v. First Energy
Corp., 349 F.3d 332, 340 (6th Cir. 2003) (establishing bright-line rule that “an age difference of
six years or less between an employee and a replacement is not significant”).
        6
          Although Schmidt was the Lawn and Garden Department Manager, and Moffat’s and
Thompson’s supervisor, Walmart does not contend that her alleged misconduct was more
egregious than Moffat’s or Thompson’s.
        7
          Walmart argued below that Plaintiffs’ representation that the Lawn and Garden
Department was staffed by five significantly younger employees is factually unsupported.
Walmart asserted that at least fifteen employees worked in the Lawn and Garden Department,
relying on an untitled spreadsheet in the record, and that their ages ranged from 19 to 77 years.
Contrary to Walmart’s argument, Plaintiffs’ contention is supported by record evidence;
Walmart’s is not. First, Plaintiffs cite Assistant Store Manager Donegan’s deposition, in which
he was asked to identify on the spreadsheet the employees who “worked primarily in the lawn
and garden department as opposed to some other department at the Brooklyn Wal-Mart.”


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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


younger employees as replacements (ages 19 and 21).8 The composition of the Lawn and

Garden Department before and after Plaintiffs’ terminations supports an inference of age

discrimination. We conclude Schmidt satisfied the fourth prong and thus established a prima

facie case of age discrimination.

                                                B.

       Once a plaintiff has satisfied her initial burden, the burden of production shifts to the

defendant to proffer a legitimate, nondiscriminatory reason for the adverse decision. Mickey,

516 F.3d at 521.         Plaintiffs do not dispute that Walmart articulated a legitimate,

nondiscriminatory reason for its discharge decision—that Plaintiffs violated its policy against

accepting gifts from suppliers. Thus, the burden shifts to Plaintiffs to show that the stated reason

is pretext for age discrimination. Id.

                                                 1.

       To avoid summary judgment, a plaintiff must present evidence from which a jury could

reasonably find that the employer’s proffered reason for the adverse employment action was not

the real reason that it discharged her and that unlawful age discrimination was the true reason.

Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). A plaintiff generally can show that

the stated reason was not the real reason by showing that it (1) has no basis in fact, (2) did not

actually motivate the adverse employment decision, or (3) was insufficient to motivate discharge.


Donegan identified six individuals, including the Plaintiffs. Second, the spreadsheet alone does
not support Walmart’s version of the facts because it does not identify the departments of the
employees listed on it.
        8
          In its brief, Walmart concedes that it replaced Moffat and Thompson with 19 and 21-
year-olds, although it asserts the two new hires were temporary associates. That the new hires
were temporary—rather than permanent—does not alter our analysis. See Tuttle v. Metro. Gov’t
of Nashville, 474 F.3d 307, 318 (6th Cir. 2007) (“In cases where the new hire takes on the
plaintiff’s former job responsibilities, merely designating the new hire ‘temporary’ will not
defeat the fourth element.”).


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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


Blizzard, 698 F.3d at 285. This first category includes evidence that the employer’s basis for the

plaintiff’s discharge never happened, and the second category requires the plaintiff to admit the

factual basis underlying the employer’s proffered reason and further admit that the conduct could

motivate dismissal. Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir. 2012). “The

third category of pretext consists of evidence that other employees, particularly employees

outside the protected class, were not disciplined even though they engaged in substantially

identical conduct to that which the employer contends motivated its discipline of the plaintiff.”

Id. This court does not require rigid application of these three criteria; rather, the question is a

commonsense one: “Did the employer fire the employee for the stated reason or not?” Blizzard,

698 F.3d at 285. At the summary-judgment stage, the plaintiff need only rebut the employer’s

proffered rationales to carry her burden; she need not disprove them. Griffin v. Finkbeiner, 689

F.3d 584, 593 (6th Cir. 2012). Courts should exercise caution in granting summary judgment for

the defendant once the plaintiff has made a prima facie case and a showing of pretext because

“an employer’s true motivations are particularly difficult to ascertain, thereby frequently making

such factual determinations unsuitable for disposition at the summary judgment stage.” Singfield

v. Akron Metro. Hous. Auth., 389 F.3d 555, 564 (6th Cir. 2004) (citations omitted).

       Here, Walmart asserts that Theobold discharged Plaintiffs for violating its gifts policy.

But Walmart does not have a zero-tolerance rule for violations of that policy, since Theobold and

Jenkins both admitted that they could have allowed Plaintiffs to keep their jobs. And Plaintiffs

each testified that they did not know they had violated the gifts policy when they took the plants

home. Thus, Walmart fired the plaintiffs for what was at worst a technical—and seemingly

innocent—violation of the gifts policy. Given that Walmart’s discipline guidelines encourage




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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


managers to try less-draconian measures before firing an associate for any reason, a reasonable

jury could find that Walmart did not dismiss Plaintiffs for taking the plants.

       Other indicia of pretext appear in the record, though not argued on appeal by Plaintiffs.

Consistent with his indifferent attitude, Theobald testified that after discharging Plaintiffs, he

reviewed their files and learned that they alleged younger employees had taken plants in previous

years, but he did not open an investigation into the allegations or instruct another person to do so.

Further,   Theobald’s     decision-making     process    did    not   comport     with    Walmart’s

Investigation/Suspension Policy.9       Under that policy, Human Resources conducts all

investigations, except those involving fraud or theft. When theft or fraud is suspected, Asset

Protection or Corporate Investigations will investigate, not Human Resources. During a theft

investigation, if Asset Protection determines there simply was no theft or fraud, it will continue

and complete the investigation; however, if Asset Protection determines that an associate

violated Walmart policy but did not engage in theft or fraud, as Jenkins and Theobald did here, it

must consult with Human Resources before discharging the employee. Human Resources, in

such a case, must approve Asset Protection’s decision to dismiss the employee, after it reviews



       9
           The parties make no issue over Schmidt’s role as a department manager. Although
Walmart maintains that “no Walmart salaried member of management had ever given [Plaintiffs]
permission to take any plants home,” Schmidt (and a prior Lawn and Garden Department
Manager) tacitly approved the taking of the discarded plants when she also took plants.
(Emphasis removed.) Walmart suggests only salaried managers, not hourly managers like
Schmidt, had authority to resolve ethical issues. However, that distinction is at odds with
Walmart’s written policies. According to Walmart’s written job description for the Lawn and
Garden Department Manager, an essential function of Schmidt’s duties included supervising
Lawn and Garden Department employees by “teaching and supporting Company policies and
procedures [and] ensuring compliance.” The job description also required her to be proficient in
ethics and compliance. Moreover, if an employee has questions about a gift or an ethical issue,
Walmart policy instructs him to contact his supervisor or the Ethics Office. A jury might
reasonably find that Walmart’s stated reason for dismissing Moffat and Thompson is pretexual in
light of a manager’s tacit approval of the alleged misconduct.


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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


all relevant records.   However, Theobald was the sole decision-maker here, as Walmart

emphasizes, and it appears he did not consult with Human Resources, or seek and receive

approval to discharge Plaintiffs.10 All of this is evidence from which a jury could reasonably

conclude that Plaintiffs’ alleged misconduct did not actually motivate Walmart’s decision, and

thus, Walmart’s proffered rationale was not the real reason for discharging Plaintiffs.

                                                2.

       Even if a plaintiff provides sufficient evidence to create a factual dispute regarding the

falsity of the employer’s proffered reasons, the employer is entitled to summary judgment if the

honest-belief rule applies. Where the employer has an “honest belief” in the nondiscriminatory

basis on which it has made its adverse employment decision, the employee does not show

pretext. Tingle v. Arbors at Hilliard, 692 F.3d 523, 530–31 (6th Cir. 2012). The “key inquiry in

assessing whether an employer holds such an honest belief is whether the employer made a

reasonably informed and considered decision before taking the complained-of action.” Michael

v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598–99 (6th Cir. 2007) (internal quotation marks

omitted). An employer that reasonably and honestly relies on particularized facts in making an

adverse employment decision is entitled to summary judgment on pretext, “even if its conclusion

is later shown to be mistaken, foolish, trivial, or baseless.” Chen, 580 F.3d at 401 (internal

quotation marks omitted). However, if the plaintiff can show that the employer’s decisional


       10
          Plaintiffs allege that younger employees had been disciplined less harshly for more
serious misconduct and that the younger employees are proper comparators. For instance, a 26-
year-old associate was reprimanded for “writting [sic] a bad check and then recieving [sic] a
payroll advance,” which the supervisor concluded was “like stealing merchandis[e] from the
store.” Walmart contends, and the district court agreed, that the younger employees were not
similarly situated to Plaintiffs because they were disciplined by someone other than Theobald.
The disparity in discipline (and decision maker) is perhaps explainable in part by Theobald’s
apparent failure to follow Walmart’s Investigation/Suspension Policy in investigating Plaintiffs’
alleged policy violations.


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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


process was “unworthy of credence” by producing “sufficient evidence to establish that the

employer failed to make a reasonably informed and considered decision before taking its adverse

employment action,” then the honest-belief defense does not apply. Smith v. Chrysler Corp., 155

F.3d 799, 807–08 (6th Cir. 1998) (internal quotation marks omitted).

        Here, Theobald’s own testimony shows that he did not ascertain or know all the relevant

facts, and that he did not think it important to know such facts before terminating Plaintiffs’

employment. The honest-belief defense, therefore, does not apply. In sum, considering the

totality of the circumstances, a jury could reasonably find that Walmart’s proffered reason for

discharging Plaintiffs is false.

                                                 C.

        A plaintiff’s prima facie case, together with evidence showing the employer’s proffered

reason is false, permits the jury to infer the ultimate fact of intentional discrimination. Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147–49 (2000); St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 511 (1993). No additional proof of discrimination is required because “[p]roof

that the defendant’s explanation is unworthy of credence is simply one form of circumstantial

evidence that is probative of intentional discrimination, and it may be quite persuasive.” Reeves,

530 U.S. at 147; Hicks, 509 U.S. at 511. Judgment as a matter of law may be appropriate in

cases where, for example, the plaintiff’s prima facie case is not strong or the plaintiff creates

“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.”




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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


Reeves, 530 U.S. at 148.      There is sufficient evidence here, however, to allow a jury to

reasonably find that Walmart’s decision to discharge Plaintiffs was discriminatory.11

                                                IV.

       For these reasons, we REVERSE.




       11
           Plaintiffs assert that certain ageist remarks by a Walmart Senior Executive constitute
evidence of discriminatory animus, citing an internal memorandum proposing cost-savings
strategies to employee benefits. Specifically, Plaintiffs contend the memorandum’s linking of its
aging workforce and higher health-care costs indicates bias. Assuming the memorandum does
indicate age-related bias, this court evaluates statements allegedly showing an employer’s age
bias under the following four factors, taking all of the circumstances into account: “(1) whether
the statements were made by a decision-maker or by an agent within the scope of his
employment; (2) whether the statements were related to the decision-making process; (3)
whether the statements were more than merely vague, ambiguous or isolated remarks; and (4)
whether they were made proximate in time to the act of termination.” Peters v. Lincoln Elec.
Co., 285 F.3d 456, 478 (6th Cir. 2002). The memorandum fails all four factors. It was drafted in
2005 by a Senior Executive for Walmart’s Board of Directors, and there is no evidence that
Theobald read the memorandum at any time before dismissing Plaintiffs.


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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


       THOMAS L. LUDINGTON, District Judge, dissenting. I write separately to

respectfully address two primary points. First, Appellant Schmidt, who was not replaced by a

younger employee, has not met her prima facie burden to produce evidence raising an inference

of Wal-Mart’s age discrimination. Second, Appellants, in my view, have not identified anything

about Theobald’s interpretation and implementation of Wal-Mart’s ethics policy that suggests an

ageist agenda. I would affirm the district court.

                                                    I.

       The facts as set forth by the majority are largely uncontroversial. It is worth noting,

however, that the ultimate decision-maker in this case, Joseph Theobald, was not responsible for

conducting the initial investigation into the Appellants’ alleged misbehavior. Rather, Theobald’s

subordinate, Asset Protection Coordinator Debbie Jenkins was. Theobald’s job was to review her

investigation and reach a personnel decision based on the facts she gathered. Jenkins checked

with Theobald twice during the investigation: once at its outset, when she viewed security

footage of Appellants taking inventory from the store without paying for it, and again when her

investigation was complete. When Theobald learned that Appellants acknowledged receiving the

merchandise from a vendor, he made the decision to terminate their employment.

                                                    II.

                                                    A.

       Schmidt did not demonstrate a prima facie case of age discrimination. The majority’s

contention that she did rests primarily on the fact that Schmidt was terminated together with two

other employees, Moffat and Thompson, as a result of the same plant-taking incident. But that

conclusion conflates an important distinction between Moffat and Thompson’s prima facie cases

and Schmidt’s prima facie case. Because Schmidt produced no direct evidence of age



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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


discrimination and Schmidt was not replaced by a younger employee, the district court correctly

concluded that she could not establish disparate treatment inferentially utilizing the McDonnell-

Douglas burden shifting analysis.

       As the majority correctly emphasizes, the requirement for inferentially establishing a

prima facie case of age discrimination is not as stringent as that applied by the district court.

Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002) (explaining that the fourth element of a

prima facie case requires only “circumstances that support an inference of discrimination”). A

plaintiff need not show she was replaced by a younger employee if she can show circumstances

that give rise to an inference of age discrimination. The majority, however, then proceeds to

apply a rule, the authority for which I am unaware, that permits Schmidt to establish a prima

facie case by simple association. That is, if a plaintiff such as Schmidt is terminated along with

other employees who can establish a prima facie case—even if they do so only by identifying a

younger replacement—the plaintiff is entitled to borrow the inference of discrimination that

arises out of the relative ages of her co-workers and her co-workers’ replacements. This is a new

rule that incorporates disparate-impact-like reasoning into a disparate treatment case. There are

several problems with such a rule.

       The first problem relates to the deficiency of corroborative evidence justifying

application of the rule in this case. Schmidt offers nothing analytically to justify associating her

case with Moffat and Thompson’s cases other than the fact that it arose in the context of the

plant-taking incident, which she also argues did not actually motivate Wal-Mart’s decision.

Schmidt has not identified any evidence about the process Wal-Mart employed to hire Moffat

and Thompson’s replacements that suggest age was at all relevant. Schmidt has not marshaled

any information about the number of applicants and their ages or the selection method that would



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suggest age was a discriminating factor. And Schmidt’s only effort to address the subject of age

at all was to explain in her termination interview that she thought there were younger employees

who she had heard engaged in similar misconduct but who were not terminated. But, despite the

availability of discovery Schmidt produced no evidence that the names she identified in the

termination interview were actually employees, that they were in fact younger employees, that

they engaged in similar misconduct or that their alleged misconduct was responded to by the

same decision-maker. That is, in summary, Schmidt offered no admissible evidence that Wal-

Mart was discriminating based on age other than observing that two of her co-workers were

replaced by younger employees.

       The second problem with this rule is that deploying this sort-of disparate impact analysis

into the calculus of the McDonnell-Douglas prima facie case evidentiary framework has no

express limitation. Is it important that it was two of three employees that were replaced by

younger workers? Does the piggy-backing plaintiff have any burden of proof concerning the

circumstances of replacement hires? And how should Wal-Mart’s (or any future defendant’s)

usual opportunity for rebuttal in disparate-impact analysis be reviewed when employed to satisfy

the prima facie element of an inference-of-disparate-treatment age discrimination claim?

Respectfully, proof of the replacement of two out of three employees with younger employees

does not, without more, justify an inference of disparate age discrimination.

       Although I agree the district court erred in applying the wrong standard to Schmidt’s

prima facie case, I would affirm the result reached by the district court.

                                                 B.

       The decision to discredit Theobald’s termination of Appellants is more problematic.

While district courts should hesitate to dispose of a case on summary judgment after a prima



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facie case has been established, district courts should be equally hesitant to turn the interpretation

of corporate policy into a question for a civil jury. There is no shortage of authority urging

caution when it comes to analyzing the internal personnel operations of a corporation when there

are no indicia, even faint, of discriminatory animus. See, e.g., Haughton v. Orchid Automation,

206 F. App’x 524, 532 (6th Cir. 2006) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 585 (6th

Cir. 1992)) (internal quotation marks omitted). Before judgment may be passed on a defendant’s

employment decision a plaintiff must show that “discrimination was the real reason for the

adverse employment action.” Haughton, 206 F. App’x at 531-32 (6th Cir. 2006) (quoting St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)); see also Majewski v. Automatic Data

Processing, Inc., 274 F.3d 1106, 1116-17 (6th Cir. 2001) (“[An] employee cannot establish that

the reason [for termination] was pretextual simply because it is ultimately shown to be

incorrect.”).

        That bears emphasizing. Aside from an old corporate memo, which the majority rightly

discredits, Appellants have not identified any evidence of ageist animus on the part of the Wal-

Mart decision-makers at the Brooklyn, Ohio store. And there appears to be no disagreement that

while the plants at issue had little if any value, Wal-Mart’s ethics rules served important

purposes—to justify the integrity of their product pricing and to emphasize their employees’ duty

to protect Wal-Mart’s inventory, particularly the perishable sort. One can see why Wal-Mart

could face very tangible business risks if it was not disciplined in enforcing these principles,

even if in a set of circumstances such as this, where inventory of little monetary value is

involved. Indeed, there is no dispute between the parties that Wal-Mart extensively trained its

employees, including Appellants, on its ethics policy and ensured its employees, again including

Appellants, passed a computer-based lesson (“CBL”) demonstrating proficiency in that policy.



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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


See Dep. of Christopher Moffat, ECF No. 19-1, Page ID 329-331; Dep. of Clarissa Thompson,

ECF No. 19-2, Page ID 415-16; Dep. of Patricia Schmidt, ECF No. 19-3, Page ID 502-07. And

there is also no dispute that the CBL gave examples of gifts and gratuities to include

“discontinued or no longer used samples and merchandise” and encouraged employees to obtain

advice if they were unsure of the policy. Moffat Corp. Ethics CBL, ECF No. 19-4, Page ID 584.

       Discovery was closed. Appellants produced no additional evidence of ageism. Despite

this, the suggestion is that Wal-Mart’s decision-makers at its Brooklyn store were sufficiently

inept that one must, taking the facts in the light most favorable to the Appellants, conclude that

age might have been a motivation for Appellants’ termination. I do not believe Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), cited for this proposition, to be

controlling in this case. The facts of Reeves are inapposite to the facts Appellants have actually

developed in this case. This dispute is more appropriately governed by Sixth Circuit caselaw

counseling deference to business judgment. The mere fact Theobald did not gather more

evidence, instead relying on evidence gathered by a direct subordinate tasked with investigating

Appellants’ misconduct, does not meet this Court’s standard for proof of pretext.

                                                 1.

       The majority concludes that the decision-making process utilized by Theobald was so

deficient that no proof or indicia of age discrimination need be proved by Appellants to survive

summary judgment. According to the majority, such a deficient process is itself an analog for

intentional ageist animus. I do not believe that existing legal authority supports that proposition.

       Reeves, in my view, requires affirmance. In Abdulnour v. Campbell Soup Supply Co.,

LLC, 502 F.3d 496, 504 (2007), this Court held that under Reeves a plaintiff must make a

“substantial showing that his employer’s stated reason for terminating him was false.” But



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because the plaintiff “fail[ed] to adduce any evidence that he was fired for a reason other than

poor job performance” his case could not survive summary judgment under Reeves. Id. Thus,

Abdulnour highlights an important point. Reeves demands that a plaintiff demonstrate the falsity

of an employer’s justification for termination, not its mere deficiency. The facts of Reeves alone

are sufficient to demonstrate this point. Surviving summary judgment requires that “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.” 530 U.S. at 148 (emphasis added).

       In Reeves, the employee-petitioner was terminated due to “numerous timekeeping errors

and misrepresentations on the part of [the petitioner and two of his coworkers.]” Id. 138 (quoting

Reeves v. Sanderson Plumbing Products, Inc., 197 F.3d 688, 690 (5th Cir. 1999)) (internal

quotation marks omitted). After being terminated, the petitioner, Reeves, filed suit against his

employer under the ADEA “contending that he had been fired because of his age[.]” Id. The case

proceeded to trial and the jury returned a verdict for Reeves. The defendant filed a motion for

judgment as a matter of law that was denied by the district court. The Fifth Circuit reversed.

       In reversing, the Fifth Circuit held that “[Reeves] had not introduced sufficient evidence

to sustain the jury’s finding of unlawful discrimination.” Id. at 139. The Fifth Circuit noted that

Reeves likely produced sufficient evidence to demonstrate pretext but he did not prove the

ultimate issue: whether the employer’s decision to terminate was motivated by Reeves’ age. The

Fifth Circuit reached this conclusion because the evidence of ageism on the part of one of

Reeves’ supervisors—certain ageist comments—was unrelated to Reeve’s actual termination.

Reeves did not introduce any evidence that the two other supervisors that participated in his

termination “were motivated by age[.]” Id. “On this basis, the court concluded that petitioner had



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not introduced sufficient evidence for a rational jury to conclude that he had been discharged

because of his age.” Id. at 140.

       The Supreme Court disagreed but did so because Reeves “made a substantial showing

that respondent’s explanation was false.” Id. at 144. The evidence supporting the

nondiscriminatory explanation for Reeves’ discharge “consisted primarily of testimony by

Chesnut and Sanderson and documentation of petitioner’s alleged ‘shoddy record keeping.’” Id.

at 143 (quoting Reeves, 197 F.3d at 692). This evidence purportedly revealed that the area

Reeves oversaw was very lax, due in part to Reeves “not correctly recording the absences and

hours of employees.” Id. at 144. The employer-respondent also produced evidence of employees

that Reeves supervised who committed attendance violations but who went undisciplined by

Reeves. Ultimately, the employer claimed that Reeves was terminated for falsifying company

pay records since employees under Reeves’ charge were being paid for hours Reeves failed to

indicate they did not actually work.

       While this explanation established a nondiscriminatory basis on which Reeves was

terminated, Reeves responded by disproving the respondent’s claims of deficient performance.

The Supreme Court detailed at length the ways in which Reeves produced evidence that

disproved his former employer’s nondiscriminatory reason for termination. Id. at 144-45. Many

of Reeves’ explanations resulted in concessions by his former supervisor that Reeves’ allegedly

terminable offenses were actually not offenses at all. Many resulted from assumptions made by

management when confronted with less-than-clear records. For example, Reeves’ superior

admitted that the timeclock at the plant often malfunctioned. When it did, a supervisor such as

Reeves would write in the day’s start time—7 a.m.—as the employee’s arrival time if the

employee was at his station on time. This undercut the employer’s assertion that an employee



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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


who punched in at 7 a.m. could not be at his station by 7 a.m. Thus, Reeves rebutted, with

admissible evidence, each factual assertion that his employer advanced to justify his termination.

       Because of the evidence that petitioner-plaintiff Reeves’ produced that his employer’s

reasons for terminating him were false, the Supreme Court did away with the requirement that a

plaintiff show some additional indicia of age discrimination to establish a prima facie case and

survive summary judgment. The Supreme Court explained, however, that an employer’s

nondiscriminatory explanation for a plaintiff’s termination must be false if it is to stand in for

indicia of discrimination. That has also been the law of our Circuit. See, e.g., Shah v. NXP

Semiconductors USA, Inc., 507 F. App’x 483 (6th Cir. 2012) (holding that appellant could not

establish that the process of hiring her eventual replacement before terminating her proves that

the employer’s reason for termination was false and that, as a result, she needed to prove

discriminatory animus); cf. Hale v. ABF Freight Sys., Inc., 503 F. App’x 323, 335-36 (6th Cir.

2012) (reversing summary judgment in ADEA case where there was no evidence of ageism but

there was proof of direct hostility toward the plaintiff by the ultimate decision-maker that was

not related to stated reason for termination).

       One could be critical of Theobald for a number of reasons. While his methods, and his

decision that the case required termination rather than coaching, may leave something to be

desired, his explanation demonstrated his ability to distinguish the relevant difference between

Wal-Mart’s integrity policy and its policy prohibiting employee theft. When asked whether

employees would violate the gifts policy by retrieving dead plants from the trash without the

vendor’s knowledge, he answered no. Dep. of Joseph Theobald, ECF No. 20-4, Page ID 1041-

42. When posed a question concerning Appellants’ behavior in this case and whether that

violated the gifts policy, he answered yes. Id. at 1038-39. When asked why this situation resulted



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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


in such a harsh penalty he directed his questioner’s attention to Wal-Mart’s decision to make

integrity issues an immediately terminable offense. Id. at 1041. His answer comports with what

he listed as the reason for Appellants’ termination when he initially made the decision: “integrity

issue.”

          While Theobald acknowledged that he did not review the documentary evidence

available to him about Appellants’ interviews with Jenkins, he did rely upon Appellants’

admissions to Jenkins during their investigatory interviews. Appellants admitted during their

interviews that they asked a vendor if they could take home items which they were responsible

for overseeing, which is all the information that Wal-Mart’s policy and the law required

Theobald to rely upon. Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998) (“[W]e do not

require that the decisional process used by the employer be optimal or that it left no stone

unturned.”). Far from leaving numerous stones unturned, Theobald relied on the facts gathered

by Jenkins, a permissible means of decision-making. See Crabtree v. Sec’y, U.S. Dep’t of

Homeland Sec., No. 14-3868, 2015 WL 1948267, at *4 (6th Cir. May 1, 2015) (holding that a

decision-maker’s reliance on reports of misbehavior from subordinates can constitute reasonable

reliance on particularized facts).

          Finally, I do not believe a jury could, without more, conclude that Theobald’s decision

was actually pretext for age discrimination. As addressed above, proof of the falsity of an

employer’s proffered reason for termination has always been distinguished from a harsh or

erroneous application of corporate policy. The law should continue to treat the two differently.

                                                2.

          Assuming for sake of argument that Appellants could conceivably rebut Wal-Mart’s

legitimate non-discriminatory reason for termination, that does not end my concern. “Under this



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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


circuit’s modified honest-belief doctrine, for an employer to avoid a finding that its claimed

nondiscriminatory reason was pretextual, the employer must be able to establish its reasonable

reliance on the particularized facts that were before it at the time the decision was made.” Russell

v. Univ. of Toledo, 537 F.3d 596, 605 (6th Cir. 2008) (quoting Wright v. Murray Guard, Inc.,

455 F.3d 702, 708 (6th Cir.2006)) (internal quotation marks omitted) (emphasis in original). The

majority notes that “Theobald’s own testimony shows that he did not ascertain or know all the

relevant facts[] and that he did not think it important to know such facts before terminating

Plaintiffs’ employment.” For that reason, the majority concludes, “[t]he honest-belief defense . . .

does not apply.”

       That, in my view, misapplies the honest belief rule. The honest belief rule asks if the

reliance by the employer on the “particularized facts that were before it at the time the decision

was made” was reasonable. Russell, 537 F.3d at 605. Put another way, “the key inquiry is

whether the employer made a reasonably informed and considered decision before taking an

adverse employment action.” Smith, 155 F.3d at 807. No evidence adduced by Appellants, or

identified by the majority would make Theobald’s reliance on the facts before him unreasonable.

True, he could have gathered more information or undertaken a more deliberate procedure. But

Appellants admitted, and all parties agree, that they took the plants after asking the vendor if they

could. See Crabtree, 2015 WL 1948267, at *4 (holding that it is reasonable for a decision maker

to not directly ascertain facts but instead rely on facts communicated by subordinate

investigators). Theobald’s reliance on the Appellants’ admissions of culpability was reasonable.

                                                 C.

       One last point is important. Allowing an ADEA case to proceed to trial with no material

evidence of age discrimination is particularly concerning because the ADEA does not authorize a



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No. 14-3828, Moffat et al. v. Wal-Mart Stores, Inc. et al.


mixed-motive jury question. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). This means

that a reasonable juror must conclude not only that Wal-Mart possessed some ageist animus in

arriving at its termination decision, but that the decision to terminate was predicated only on

Appellants’ age. How any reasonable juror could do so in a case where the plaintiffs have

admitted to committing the offending conduct and the plaintiffs have marshaled virtually no

evidence that the plaintiffs’ ages were Wal-Mart’s guiding criteria is puzzling.

                                                III.

       Respectfully, I would affirm the district court’s conclusion that Appellants “have not

supplied evidence by which the fact finder might reasonably infer the existence of a

discriminatory motive.” August 1, 2014 Opinion & Order 17, ECF No. 36, Page ID 2091.




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