Ware v. AutoZoners ( 2023 )

Case: 22-20422 Document: 00516676743 Page: 1 Date Filed: 03/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 14, 2023
No. 22-20422
Lyle W. Cayce
Clerk
Echo Ware,
Plaintiff—Appellant,
versus
AutoZoners, L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-67
Before Jones, Willett, and Douglas, Circuit Judges.
Per Curiam:*
Appellee AutoZoners, L.L.C. (“AutoZone”) fired Appellant Echo
Ware purportedly for violating company policy—namely, borrowing a
battery without permission in order to start her car. Two weeks earlier, Ware
had complained to management about her delinquent paycheck. Ware sued
AutoZone, alleging sex discrimination under Title VII, 42 U.S.C. § 2000e et
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-20422 Document: 00516676743 Page: 2 Date Filed: 03/14/2023
No. 22-20422
seq., and retaliation under the Fair Labor Standards Act, 29 U.S.C. § 201 et
seq (“FLSA”). The district court entered summary judgment in favor of
AutoZone. Ware now appeals. Having reviewed de novo the briefs, the
pertinent portions of the record, and the thorough and well-reasoned opinion
of the district court, we AFFIRM.
Assuming, arguendo, that Ware established a prima facie case of
discrimination and retaliation, she has failed to meet her burden under the
McDonnell Douglas framework to show that AutoZone’s stated reason for
terminating her employment was pretextual. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 804, 93 S. Ct. 1817, 1825 (1973).1 It is undisputed that
Ware, while working at an AutoZone location in Houston, took a battery from
the store and used it without the permission of her supervisor, which violated
company policy. AutoZone cited this violation as the reason for firing her.
A violation of company policy is typically a legitimate,
nondiscriminatory reason for firing the offending employee. See Kitchen v.
BASF, 952 F.3d 247, 253 (5th Cir. 2020). For her Title VII claim, Ware
raises three arguments to show that AutoZone’s explanation was pretextual:
first, that it was false; second, that it is unworthy of credence; and third, that a
similarly situated employee stole company property but went uninvestigated
and unpunished.
1
Ware also points to a comment made by her supervisor that “she did not want
other females working in her store” as direct evidence of discrimination. A workplace
comment is evidence of discrimination if, inter alia, it is made by “an individual with
authority over the employment decision at issue.” Jackson v. Cal-Western Packaging Corp.,
602 F.3d 374, 380 (5th Cir. 2010). Here, the supervisor did not make the decisions to
investigate and then fire Ware. And there is no evidence that the supervisor influenced the
decisionmaker. Thus, her comment is not direct evidence of discrimination on the part of
AutoZone. And, for the same reasons, the supervisor’s comment is not evidence of pretext
under the McDonnel Douglas framework.
2
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No. 22-20422
First, Ware argues that AutoZone fired her because her use of a new
battery caused the store a “monetary loss.” She then points to a business
form for the proposition that AutoZone recovered the full value of the
battery, so it could not have suffered a loss. Thus, according to Ware,
AutoZone’s stated reason was false. “[E]vidence challenging the substance
of violations, i.e., evidence demonstrating their falsity,” may show pretext.
Laxton v. Gap Inc., 333 F.3d 572, 580 (5th Cir. 2003). We agree with the
district court that whether AutoZone suffered a “monetary loss” is
irrelevant. Ware’s “Corrective Action Review Form” clearly states that she
was terminated for “Failure to comply with AutoZone Policy”—specifically,
“Unauthorized possession or removal of AutoZone’s or an AutoZoner’s
property.” A “monetary loss” may have been a concern, but it was not the
stated reason for Ware’s termination. And even if AutoZone fired Ware
because it thought it incurred a monetary loss, when it had not, Ware would
still need to show that the “erroneous decision” was “reached in bad faith.”
Thomas v. Johnson, 788 F.3d 177, 179 (5th Cir. 2015). She has not, thus, her
proffered evidence does not create a genuine fact issue as to pretext.
Next, Ware contends that AutoZone should not be believed because
three of its witnesses committed perjury. Specifically, Ware alleges that a
human resources representative “intentionally lied” about the reason
undergirding his recommendation to fire Ware; that the district manager
“lied about having knowledge of Ware’s protected activity”; and that the
store supervisor lied about reporting Ware’s policy violation. Ware’s
allegations of perjury, made for the first time on appeal, have no basis in the
record. If anything, Ware has noted some inconsistencies in AutoZone’s
witnesses’ testimony. And the severity of inconsistent testimony present in
this case is far from that in past cases sufficient to overcome summary
judgment. Cf. Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 235–36
(5th Cir. 2015); Gee v. Principi, 289 F.3d 342, 347–48 (5th Cir. 2002).
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Finally, Ware asserts that AutoZone’s disparate treatment of a
similarly situated male employee is evidence of pretext. Specifically, Ware
states that the district manager, when presented with two separate reports of
potential theft—one by a female employee (Ware) and another by a male
employee—ordered that Ware be investigated but not the male employee.
To show disparate treatment, Ware must demonstrate that “the misconduct
for which she was discharged was nearly identical to that engaged in by an
employee not within her protected class whom the company retained.”
Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001) (alterations
adopted and internal quotation marks omitted).
Here, Ware has not created a genuine issue of material fact regarding
pretext because the allegations of misconduct were not “nearly identical.”
With respect to the male employee, the district manager was aware only of
the store supervisor’s “suspicions” that the employee was stealing company
property; but no specific property was identified.2 In contrast, the supervisor
informed the district manager that Ware had, without permission, taken a
new battery out of the store for personal use. In other words, the district
manager had a much clearer picture of Ware’s alleged misconduct than that
of the male employee. In this instance, investigating one but not the other
does not raise a genuine, triable issue of fact as to pretext.
For her FLSA claim, Ware argues that the suspicious timing of her
supervisor reporting her policy violation the same day Ware contacted
AutoZone’s payroll department about her delinquent check creates an
inference of pretext. Temporal proximity “does not, on its own, establish . . .
pretext.” Garcia v. Pro. Cont. Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019).
2
Ware testified that, at some point, she told her supervisor that the male employee
had stolen a couple of car parts, but she could not identify what specifically he had stolen.
4
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Such evidence must be combined “with other significant evidence of pretext
. . . to survive summary judgment.” Id. at 244 (quoting Shackelford v. Deloitte
& Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999)). Here, Ware has mustered
no other significant evidence, thus, summary judgment was properly entered
in AutoZone’s favor.
We hold that the district court was correct in finding that Ware failed
to create a genuine factual dispute that AutoZone fired her by reason of her
sex or in retaliation for complaining about her delinquent check.
AFFIRMED.
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