     Case: 12-50260       Document: 00512100949         Page: 1     Date Filed: 01/04/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 4, 2013

                                     No. 12-50260                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



KARLA GRIMES,

                                                  Plaintiff–Appellant
v.

WAL-MART STORES TEXAS, L.L.C.,

                                                  Defendant–Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. MO-10-CV-067


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Karla Grimes brought suit against her former
employer, Defendant–Appellee Wal-Mart Stores Texas, LLC, alleging
defamation and three forms of discrimination arising from her termination. The
district court granted summary judgment in Wal-Mart’s favor, and Grimes
appealed. We affirm.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                       I.
      Karla Grimes (“Grimes”) began working for Wal-Mart Stores Texas, LLC
(“Wal-Mart”) in 1986 and received a series of promotions during her twenty-two
years with the company. In 2003, Grimes was promoted to Store Manager at an
existing Wal-Mart. In 2005, she oversaw the opening of a store at which she
became the Store Manager. Then, in November 2008, Grimes was offered a
promotion to the position of Market Manager for Southern New Mexico. She
declined the promotion, however, because the job would require relocating to a
city with services she deemed inadequate for her son, who suffers from a form
of cerebral palsy. Grimes alleges that Wal-Mart knew that her child had special
needs. She further alleges that Wal-Mart subjected her to heightened scrutiny
after she declined the promotion.
      Towards the end of January 2009, Grimes met with two superiors to
discuss an issue related to how Wal-Mart processes applicants for open positions.
Wal-Mart had instructed Grimes’s Co-Manager, Olga Guebara, to interview
candidates for an open position. Wal-Mart in turn received a set of interview
sheets reflecting interviews that had purportedly occurred. However, after
further research, Wal-Mart grew concerned that Grimes’s store had submitted
two interview sheets for interviews that had not actually taken place. Wal-Mart
investigated the incident, and Guebara implicated Grimes. She told a supervisor
that Grimes had instructed her to reuse past interview sheets without
conducting fresh interviews. Grimes denied this allegation, claiming that she
had instructed Guebara to conduct the necessary interviews during a brief
conversation at the office.
      Wal-Mart maintains a four-step, progressive disciplinary system for most
infractions. Step three of this system involves a day off from work with possible
demotion, while step four is termination. Nevertheless, certain conduct—for
instance, “dishonesty/compromised integrity”—is considered “Gross Misconduct”

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and can result in immediate termination. At the conclusion of the investigation
into the interview sheet incident, Grimes was informed that she would be
demoted to Assistant Manager and would be given the accompanying day off to
consider what Wal-Mart viewed as a failure to ensure the integrity of Wal-Mart’s
internal personnel system, called the Career Preference System. Guebara
received a similar punishment. That is, while Wal-Mart deemed both employees
guilty of “Gross Misconduct,” it nevertheless opted for step-three discipline
under the progressive system.
      Around the same time that Grimes received her punishment for the
interview sheet incident, an hourly employee at Grimes’s store contacted a
supervisor to report a suspected job code discrepancy. The employee claimed
that her pay grade was not appropriately coded given her job responsibilities.
An audit of the store revealed that multiple employees had been improperly
coded, resulting in both under- and over-payment. Wal-Mart informed Grimes
of these discrepancies during a series of meetings that took place under Wal-
Mart’s “open door” policy for communicating with supervisors. On February 12,
2009, Grimes was informed that she was being terminated as a result of this
second incident. Guebara was also fired.
      In response, Grimes filed a lawsuit alleging sex discrimination, retaliation
in violation of Title VII, associational discrimination, and defamation. The
district court granted summary judgment in Wal-Mart’s favor. Grimes appealed
the district court’s judgment on her sex discrimination and associational
discrimination claims, as well as the district court’s exclusion of expert
testimony put forth by Grimes.
                                       II.
      “We review a grant of summary judgment de novo, applying the same
standard as the district court.” Ibarra v. United Parcel Serv., 695 F.3d 354, 355
(5th Cir. 2012). Summary judgment is appropriate if “there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists “if
the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
However, a party asserting “that a fact cannot be or is genuinely disputed” must
support such an assertion by citing specific parts of the record. Fed. R. Civ. P.
56(c)(1).
      Exclusion of expert testimony falls within the discretion of the trial court.
Muñoz v. Orr, 200 F.3d 291, 300 (5th Cir. 2000). As such, “we review it only for
an abuse of discretion which amounts to manifest error.” Id. Manifest error is
plain and indisputable, and amounts to a complete disregard of controlling law.
Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004).
                                       III.
                                        A.
      Grimes appeals the district court’s grant of summary judgment on her sex
discrimination and associational discrimination claims. Namely, Grimes claims
that she was terminated either because of her sex or because of her son’s
disability. Discrimination can be proven using direct or circumstantial evidence.
Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 593 (5th Cir. 2007).
Proving discriminatory termination using circumstantial evidence, as Grimes
attempts to do here, requires use of the burden-shifting framework established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
      The burden-shifting framework for proving discrimination proceeds in
three steps.    First, the Plaintiff must establish a prima facie case of
discrimination. Id. If the Plaintiff makes a prima facie showing, it becomes the
employer’s burden to articulate a legitimate, nondiscriminatory reason for
terminating the Plaintiff. Id. Once the employer puts forth a nondiscriminatory



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reason, the Plaintiff must show that the employer’s proffered reason is merely
pretext for discrimination. Id.
      Making a prima facie case of sex discrimination requires that the Plaintiff
show the following: (1) that she belongs to a protected class, (2) that she was
qualified for the position, (3) that she suffered an adverse employment action,
and (4) that she was replaced with a similarly qualified person who was not a
member of the protected class or that similarly situated employees were treated
more favorably. Id. Here, Grimes has failed to make a prima facie showing.
Grimes cannot make a prima facie showing of sex discrimination for two reasons.
First, she cannot show that she was replaced by a person who was not a member
of her protected class because Wal-Mart replaced Grimes with another female.
Second, Grimes has not shown that similarly situated employees were treated
more favorably because the only male employee subjected to discipline that she
discusses was not similarly situated. That employee, Roger Morvan, was a Co-
Manager, which is a position that is subordinate to Grimes’s position of Store
Manager. Furthermore, Morvan only committed a single infraction related to
the Career Preference System. For that violation, he received the same step-
three treatment as Grimes. Grimes, however, committed a further violation and
was punished accordingly. She has not even suggested that Morvan committed
a second offense, let alone one similar to that which Grimes committed. As such,
Grimes cannot make a prima facie showing of sex discrimination.
      A prima facie case of associational discrimination would require that the
Plaintiff show (1) her qualification for the job, (2) an adverse employment action,
(3) the employer’s knowledge of the employee’s disabled relative, and (4) that the
adverse employment action occurred under circumstances raising a reasonable
inference that the relative’s disability was a determining factor in the employer’s




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adverse action.1 Grimes cannot make a prima facie showing of associational
discrimination because she has presented no evidence to suggest that her son’s
disability was a determining factor in her termination.                   While Wal-Mart
arguably was aware of her son’s disability, Grimes has not identified any
evidence to connect knowledge of her son’s disability to her subsequent
termination. While it is true that Grimes declined her promotion explicitly
because of her son’s needs, nothing occurred thereafter that raises a reasonable
inference that her son’s disability was a determining factor in her termination.
Therefore, Grimes has failed to make a prima facie showing of associational
discrimination as well.
       To show pretext, the Plaintiff must establish either that the employer’s
nondiscriminatory reason is untrue or, while true, is only one of the reasons for
the adverse action taken—the other reason being the Plaintiff’s protected
characteristic. Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011).
It is not enough, however, to merely cast doubt on whether the employer had just


       1
         The Fifth Circuit has not explicitly recognized a cause of action for discrimination
based on association with a handicapped individual, nor have we described what such a claim
requires. This Court referenced an associational discrimination claim based on disability in
an unpublished opinion. Carter v. Ridge, 255 Fed. App’x 826, 833 (5th Cir. 2007) (per curiam)
(unpublished). However, that opinion affirmed dismissal of the associational discrimination
claim on exhaustion grounds. Id. Likewise, judgment as a matter of law was affirmed in
Rogers v. International Marine Terminals, Inc., 87 F.3d 755 (5th Cir. 1996), without explaining
what an associational discrimination claim entails. 87 F.3d at 760–61. In Deffenbaugh-
Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 588–89 (5th Cir. 1998), partially vacated on
other grounds sub nom., Williams v. Wal-Mart Stores, Inc., 182 F.3d 333 (5th Cir. 1999) (en
banc) (per curiam), the Court recognized an associational discrimination claim based on an
interracial relationship, but the Court did not elucidate the elements required to make a prima
facie showing.
        District courts within this Circuit have, however, recognized a cause of action for
associational discrimination. See, e.g., Spinks v. Trugreen Landcare, LLC, 322 F. Supp. 2d
784, 796 (S.D. Tex. 2004); Moresi v. AMR Corp., No. CA 3:98–CV–1518–R, 1999 WL 680210,
at *2–*3 (N.D. Tex. Aug. 31, 1999). It is the test laid out in these cases that the Court cites
here. See Moresi, 1999 WL 680210, at *3. However, this opinion should not be construed as
recognizing a cause of action for associational discrimination based on disability since, even
assuming such a cause exists, Grimes cannot meet the burden that such a claim would entail.

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cause; the Plaintiff must affirmatively show that the employer’s proffered reason
is unworthy of credence. Moore v. Eli Lilly & Co., 990 F.2d 812, 815–16 (5th Cir.
1993). Since Wal-Mart has proffered a nondiscriminatory reason for terminating
Grimes—two incidents involving the integrity of the Career Preference
System—it would be Grimes’s obligation to show pretext, assuming arguendo
she can make a prima facie showing.
      Here, Grimes explicitly relies on the same evidence of pretext for both of
her discrimination claims. The Court will thus address both claims together in
examining Grimes’s pretext theories.       As explained below, even assuming
arguendo that Grimes can make a prima facie showing of discrimination, she has
not offered sufficient evidence to create a genuine issue of material fact
regarding pretext. Grimes has presented no affirmative evidence suggesting
Wal-Mart terminated her for discriminatory reasons, and her attempts to
undermine Wal-Mart’s proffered reasons fall short. Instead of showing why Wal-
Mart’s reasons are unworthy of credence, Grimes merely attempts to cast doubt
on whether Wal-Mart had just cause to terminate her. See Moore, 990 F.2d at
815–16. There being no genuine dispute of material fact, Wal-Mart is entitled
to judgment as a matter of law. Accordingly, the Court will affirm.
      Grimes first argues that Wal-Mart’s reasons for terminating her are
pretext because Wal-Mart gave inconsistent reasons for her termination. She
claims that the job code issue for which she was ultimately fired was not
mentioned during her exit interview or during a hearing before the Texas
Workforce Commission. Id. However, Grimes’s argument is not supported by
the record. Wal-Mart uses a software suite called the Career Preference System
for a variety of personnel-related purposes. Wal-Mart uses the system to track
hiring for specific positions and to code employees for pay purposes based on
their specific job level. Grimes’s argument relies on conflating her two distinct
disciplinary incidents in hopes of creating a sense of ambiguity. She focuses on

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the fact that Wal-Mart frequently described her transgressions broadly as
“integrity issues involving the Career Preference System,” and thereby concludes
that Wal-Mart has given inconsistent reasons for her termination since they did
not specifically mention the job coding issue.      However, “integrity issues
involving the Career Preference System” clearly encapsulates both the interview
sheets incident as well as the job coding problem, since both transgressions
violated the integrity of the Career Preference System. Therefore, contrary to
Grimes’s claims, Wal-Mart has not given inconsistent reasons as to why it
terminated Grimes.
      Grimes also contends that Wal-Mart has no evidence she was aware of the
interview sheet incident or the job coding discrepancies, and that this means her
termination was pretextual. Wal-Mart, however, was not required to definitively
prove that Grimes directed the incidents that led to her termination. Indeed,
this argument completely disregards this Court’s admonition that discrimination
plaintiffs must “do more than cast doubt on whether the employer had just cause
for its decision.” Moore, 990 F.2d at 815 (internal quotation marks and brackets
omitted). Grimes was charged with overseeing an entire store as Store Manager.
It was her obligation to comply with company policies and ensure her
subordinates did the same. It was thus sufficient for Wal-Mart to accumulate
inculpatory evidence through an investigation and to fire Grimes given her
supervisory role at this particular store. Statements from co-workers directly
implicated Grimes and inconsistencies in her version of events further
undermined her credibility. This evidence strengthens Wal-Mart’s claim that
its termination of Grimes was not pretext for discrimination.
      Grimes’s argument regarding contemporaneous evidence of job code
violations also fails. Grimes claims that Wal-Mart lacked evidence of job code
violations when it fired her, but then expressly concedes that Wal-Mart in fact
had evidence that at least three employees had been improperly coded. Grimes

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was responsible for enforcing company policies, procedures, and regulations, as
well as ensuring that subordinate employees complied with the company’s
policies. Wal-Mart uncovered contemporaneous evidence that Grimes had failed
to comply with company directives regarding interviews and that Grimes
oversaw job coding discrepancies. Rather than showing pretext, this evidence
further underscores the legitimacy of Wal-Mart’s nondiscriminatory reasons for
firing Grimes.
      Grimes also claims that a supervisor was not objective in his investigation
of her misconduct because he failed to mention an exculpatory statement
submitted by a co-worker. This argument fails for two reasons. First, it is
difficult to conclude that Wal-Mart’s investigation of Grimes was biased merely
because a specific statement by an employee was not included in a summary of
the investigation. A summary is just that: a concise overview. It would defeat
the purpose of a summary if the author was required to include every possible
detail. Second, the statement relied upon by Grimes is not as exculpatory as she
hopes. While the employee, Christy Rodriguez, claimed to have heard Grimes
instructing Guebara to conduct the interviews required by Wal-Mart—as Grimes
asserts—Rodriguez’s statement also made clear that the conversation between
Grimes and Guebara lasted over thirteen minutes, not the fifteen seconds
Grimes previously claimed. It was also clear to Wal-Mart that Grimes was in
the room when Guebara retrieved the interview sheets that were ultimately
resubmitted in lieu of conducting fresh interviews. Grimes has thus failed to
identify any aspect of the investigation that creates an issue of fact as to her
supervisor’s objectivity.
      Grimes’s final two assertions are similarly unavailing. Grimes claims that
her offenses were trivial and thus not deserving of termination, and yet Grimes
herself conceded that she “understand[s] the seriousness of the Career
Preference Procedures.” This admission attests to the gravity of Grimes’s

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infractions and strengthens Wal-Mart’s case for termination. The same is true
regarding the claim that Wal-Mart failed to follow its own disciplinary policy
when it elected to terminate Grimes. As with her claim concerning inconsistent
reasons, Grimes attempts to conflate her disciplinary infractions in hopes of
creating ambiguity. She argues that Wal-Mart effectively skipped step three of
the disciplinary procedure when it fired her. However, the record clearly shows
that Grimes was disciplined two separate times for two separate incidents, and
that the punishments Grimes received matched steps three and four of Wal-
Mart’s four-step policy, respectively.       Moreover, Grimes’s exit paperwork
indicates that Grimes was terminated for “Gross Misconduct.” Conduct of such
severity falls outside of Wal-Mart’s progressive discipline system. That is, Wal-
Mart was not required to follow the four-step discipline system at all given the
nature of Grimes’s conduct. These arguments thus cannot create an issue of
material fact regarding pretext.
      As explained above, Grimes has presented insufficient evidence to suggest
that the nondiscriminatory reasons for her termination put forth by Wal-Mart
constitute pretext. At best, Grimes has disputed that Wal-Mart had just cause
to fire her. As this Court’s precedent clearly shows, more is needed. Grimes
must present enough evidence for a reasonable factfinder to conclude that the
reasons offered by Wal-Mart are either untrue, or, if true, only part of the reason
for her termination. She has failed to do so. Therefore, summary judgment was
appropriate.
                                        B.
      Grimes also appeals the district court’s exclusion of an expert witness that
Grimes would have called at trial. Because we affirm summary judgment, this
claim is denied as moot.
                              IV. CONCLUSION
      For the foregoing reasons, the district court’s judgment is AFFIRMED.

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