Sharon Sybrandt v. Home Depot, U.S.A., Inc. ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0117p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
SHARON TURNBULL SYBRANDT,
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No. 08-5598
v.
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Defendant-Appellee. -
HOME DEPOT, U.S.A., INC.,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 07-00031—William J. Haynes, Jr., District Judge.
Argued: March 10, 2009
Decided and Filed: March 26, 2009
Before: BOGGS, Chief Judge; GILMAN and ROGERS, Circuit Judges.
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COUNSEL
ARGUED: August C. Winter, LAW OFFICE, Brentwood, Tennessee, for Appellant.
Elizabeth S. Washko, OGLETREE DEAKINS, NASH, SMOAK & STEWART, P.C.,
Nashville, Tennessee, for Appellee. ON BRIEF: August C. Winter, LAW OFFICE,
Brentwood, Tennessee, for Appellant. Keith D. Frazier, Wendy V. Miller, OGLETREE
DEAKINS, NASH, SMOAK & STEWART, P.C., Nashville, Tennessee, for Appellee.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. Sharon Turnbull Sybrandt sued her former
employer, Home Depot, U.S.A., Inc., alleging that it had violated Title VII of the Civil
Rights Act of 1964 (Title VII) and the Tennessee Human Rights Act (THRA) by terminating
her employment because of her sex. Home Depot filed a motion for summary judgment,
arguing that it had a legitimate, nondiscriminatory reason for terminating Sybrandt based
upon her violation of a company policy that prohibited the use of an employee’s password-
1
No. 08-5598 Sybrandt v. Home Depot Page 2
protected user-identification code to conduct personal transactions involving Home Depot
merchandise. For the reasons set forth below, we AFFIRM the district court’s grant of
summary judgment in favor of Home Depot.
I. BACKGROUND
A. Factual background
Sybrandt began working in November 1991 at one of Home Depot’s stores in
Nashville, Tennessee. She was promoted to the position of Assistant Store Manager in May
2002. Six months later her official title was changed to Operations Assistant Manager.
Home Depot terminated Sybrandt in February 2006 for allegedly violating the company’s
“no-self-service” policy. Sybrandt claims that she was replaced by a male employee, a fact
that Home Depot does not dispute.
The policy that led to Sybrandt’s discharge prohibits employees from using their own
security codes to effectuate certain personal transactions. In particular, the Home Depot
Code of Conduct forbids employees from
performing or authorizing a transaction for oneself, friend(s) or family
including but not limited to the following: . . . [c]reating, modifying or
completing Special Services . . . transactions including special orders, will
calls, quotes, measures and installations.
Home Depot’s Code of Conduct also states that a breach of this policy is considered a
“Major Work Rule Violation[]” that “will normally result in termination for a first offense
. . . .”
Sybrandt was aware of Home Depot’s policy before she was terminated. During her
deposition, Sybrandt explained that the key purpose of the policy is to deter theft and
dishonesty by Home Depot employees. She elaborated that the policy prevents employees
from, for example, purchasing merchandise and then using Home Depot’s computers to show
that they had “returned” the products for a “refund”—when in reality the employees have
simply pocketed both the goods and the refund. Sybrandt acknowledged that another
purpose of the policy is to prevent even the appearance of impropriety.
No. 08-5598 Sybrandt v. Home Depot Page 3
Home Depot terminated Sybrandt in February 2006 for allegedly breaching its “no-
self-service” policy in two ways. First, on November 30, 2005, Sybrandt allowed a
coworker to use the former’s password-protected user ID to process a special-service order
for Sybrandt. Next, on December 28, 2005, Sybrandt entered electronic “notes” on the
computerized history of the same transaction, indicating that she wanted to cancel part of her
order and receive a refund. Home Depot concluded that both actions violated the policy
against allowing employees to service their own special-order transactions.
Before reaching this conclusion, however, Home Depot conducted an internal
investigation. The investigation was handled by a district loss-prevention manager, Matt
Bollinger, and a Human Resources supervisor, Johnna Atwill. Bollinger and Atwill
interviewed Sybrandt in mid-January 2006 as part of the inquiry. They explained to
Sybrandt that she was the subject of an investigation regarding her special order. Sybrandt
recalls, however, that Bollinger did not seem concerned about the notes that she had entered
accompanying her transaction on December 28, 2005.
Bollinger and Atwill faxed information derived from their initial investigation to Ed
Malowney, one of Home Depot’s Employment Practices Managers. Malowney asked them
to do more factfinding. The full results of the investigation included a written description
of security-camera footage from the Home Depot store on November 30, 2005, which
depicted a desk associate entering information into a computer workstation under Sybrandt’s
password-protected user ID while speaking to Sybrandt. Bollinger’s and Atwill’s
investigation also included witness statements. After reviewing the results of the
investigation, Malowney recommended to his superiors that Home Depot terminate
Sybrandt’s employment. This recommendation was ultimately approved.
Sybrandt received a discharge notice from Home Depot in February 2006 that
explained her termination in the following words:
On November 30, 2005, and December 28, 2005, Sharon made entries to her
personal order #189775, therefore violating company policy regarding
special orders.
Per company policy as stated in the Manager’s Code of Conduct –
Failure to Act with Integrity and Honesty:
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Creating, modifying or completing Special Services . . .
transactions including special orders . . . .
Sharon was in direct violation of company policy when she performed
transactions in her own special order. Failure to act with integrity and
honesty is considered a major work rule violation and is subject to
termination. Based upon Sharon’s actions the company has made the
decision to end the business relationship effective immediately.
In explaining his recommendation to terminate Sybrandt, Malowney stated in his
deposition that Sybrandt had breached Home Depot’s policy irrespective of whether she
actually intended to commit any wrongdoing. Malowney also said that Sybrandt breached
company policy by allowing another employee to use Sybrandt’s user ID to make entries on
the special order on November 30, 2005. As for the notes that Sybrandt entered on her own
transaction on December 28, 2005, Malowney viewed this to be a policy violation because
the whole point of that policy is that you don’t do anything [in] a transaction
that you are personally involved in. You need to disqualify yourself, go to
another [employee], and have another [employee] use their [user ID] to go
into that system.
In light of his interpretation of company policy, Malowney acknowledged that any
time an employee has made “any kind of entry whatsoever into his or her own Special
Services Order,” he has recommended terminating the employee in question. Indeed,
Malowney has recommended discharging 18 Home Depot employees for this reason over
the three-year period preceding his deposition for this case. Malowney nevertheless
conceded that the Home Depot’s Code of Conduct does not expressly discuss the
circumstances under which writing a “note” about one’s own transaction would be a
violation of Home Depot’s policy.
B. Procedural background
Sybrandt sued Home Depot in early January 2007, alleging unlawful employment
discrimination based on sex, in violation of both Title VII, 42 U.S.C. § 2000e-2(a)(1), and
the THRA § 4-21-101 et seq. Her original complaint also included allegations of wage
discrimination, but she voluntarily dismissed that claim. Home Depot filed a motion for
summary judgment in November 2007 as to Sybrandt’s remaining claims of sex
discrimination brought under Title VII and the THRA. The district court granted the motion
in April 2008. This timely appeal followed.
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II. ANALYSIS
A. Standard of review
We review de novo the district court’s grant of summary judgment. See Allen v.
Highlands Hosp. Corp., 545 F.3d 387, 393 (6th Cir. 2008). Summary judgment is proper
where no genuine issue of material fact exists and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment,
the district court must construe all reasonable inferences in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central
issue is “whether the evidence presents a sufficient disagreement to require submission to
a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
B. Disparate-treatment claim
1. Framework for disparate-treatment claims brought under Title VII
Employers are prohibited from, among other things, discharging an employee
because of that individual’s sex. 42 U.S.C. § 2000e-2(a)(1). Both this court and the state
courts in Tennessee have evaluated claims brought under the THRA in the same manner as
Title VII claims. Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 673 (6th Cir.
2008); Graves v. Circuit City Stores, Inc., No. 03A01-9501-CH-00012, 1995 WL 371659,
at *2 (Tenn. Ct. App. June 21, 1995) (“Our Courts have looked to federal case law applying
the provisions of the federal anti-discrimination statutes as the baseline for interpreting and
applying the Tennessee Act.”) The parties on appeal have articulated their arguments
exclusively in terms of Title VII jurisprudence. Our disposition of Sybrandt’s Title VII
claim will therefore apply with equal force to her THRA-based claim.
Direct or circumstantial evidence may be used to establish an employee’s claim of
discrimination. Circumstantial evidence of discrimination is “analyzed under the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973), and later modified by Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 252-53 (1981).” Wright v. Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006).
No. 08-5598 Sybrandt v. Home Depot Page 6
The McDonnell Douglas/Burdine framework first requires
that the plaintiff establish a prima facie case. Once a prima facie case has
been shown, the plaintiff is entitled to a presumption that the defendant
discriminated against him or her in violation of Title VII. The defendant
then bears the burden of production to put forth a legitimate,
nondiscriminatory reason for the complained of adverse treatment. The
explanation provided must be legally sufficient to justify a judgment for the
defendant. If the defendant meets this burden, the presumption of
discrimination created by the prima facie case falls away and the plaintiff
then needs to show that the defendant’s legitimate nondiscriminatory reason
was a pretext for discrimination. Throughout this burden-shifting approach,
the plaintiff continues to bear the ultimate burden of proving, by a
preponderance of the evidence, the intent to discriminate.
Wright, 455 F.3d at 706-07 (citations and internal quotation marks omitted).
Plaintiffs may establish pretext by showing that the proffered reason “(1) has no
basis in fact; (2) did not actually motivate the adverse employment action; or (3) was
insufficient to warrant the adverse action.” Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d
495, 502 (6th Cir. 2009) (citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078,
1084 (6th Cir. 1994)). A “plaintiff may also demonstrate pretext by offering evidence which
challenges the reasonableness of the employer’s decision to the extent that such an inquiry
sheds light on whether the employer’s proffered reason for the employment action was its
actual motivation.” White, 533 F.3d at 393 (citation and internal quotation marks omitted).
2. There is no genuine issue of material fact regarding pretext
In order to properly apply the preceding standards to this case, we note at the outset
that Home Depot assumes for the sake of this appeal that Sybrandt has established a prima
facie case of discrimination on the basis of her sex. Sybrandt, in turn, does not dispute that
Home Depot has articulated a facially legitimate, nondiscriminatory reason for terminating
her employment—i.e., that she was discharged for purportedly violating Home Depot’s Code
of Conduct. Instead, Sybrandt argues that the district court erred in granting summary
judgment in favor of Home Depot because there is a genuine issue of material fact regarding
whether Home Depot’s stated reason for terminating her was simply a pretext used to hide
sex-based discrimination.
No. 08-5598 Sybrandt v. Home Depot Page 7
Sybrandt articulates several criticisms of Home Depot’s decision to terminate her in
an effort to show that there is a genuine issue of material fact with regard to pretext. These
critiques will be grouped together and discussed in the course of evaluating two overarching
claims. First, Sybrandt argues that Home Depot’s proffered reason for discharging her has
no basis in fact. She next contends that the decision to terminate her employment was so
unreasonable that a factfinder could conclude that Home Depot’s stated ground for
discharging her—that she violated company policy—was in actuality a pretext used to hide
sex-based discrimination. We will address each of these points in turn.
a. Home Depot had a factual basis for honestly believing that
Sybrandt had breached company policy
There is no material dispute about the acts that ultimately led to Sybrandt’s
discharge: (a) Sybrandt’s user ID was utilized by a coworker to enter new information
regarding the special order on November 30, 2005, and (b) Sybrandt entered electronic notes
regarding her own special order on December 28 of the same year. Sybrandt’s main
contention on appeal is that these actions do not violate Home Depot’s Code of Conduct
because they do not involve “[c]reating, modifying or completing” a special-service
transaction. Her argument thus boils down to a disagreement with Home Depot concerning
whether these two incidents technically violate company policy.
But disputes about the interpretation of company policy do not typically create
genuine issues of material fact regarding whether a company’s stated reason for an adverse
employment action is only a pretext designed to mask unlawful discrimination. This is
because “as long as an employer has an honest belief in its proffered nondiscriminatory
reason for discharging an employee, the employee cannot establish that the reason was
pretextual simply because it is ultimately shown to be incorrect.” Majewski v. Auto. Data
Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001). “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. Serv. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007) (citations and internal
quotation marks omitted).
We conclude that there is no genuine issue of material fact as to whether Home
Depot held an honest belief that Sybrandt had violated company policy. Home Depot
No. 08-5598 Sybrandt v. Home Depot Page 8
engaged in a thorough investigation to determine whether Sybrandt’s conduct was
inappropriate. A human resources representative (Atwill) and a loss-prevention manager
(Bollinger) conducted the investigation. They interviewed Sybrandt and other employees
regarding the events in question. The results of their investigation included a written
description of security-camera footage, which depicted Sybrandt speaking with a coworker
while the latter used Sybrandt’s user ID to make entries on Sybrandt’s special-service order
on November 30, 2005. Furthermore, an Employment Practices Manager for Home Depot
(Malowney) not only reviewed the initial results of the Atwill/Bollinger investigation, but
also requested further factfinding before recommending Sybrandt’s discharge. Home
Depot’s decision was therefore “reasonably informed.” See Michael, 496 F.3d at 598
(citation and internal quotation marks omitted); see also id. at 600 (concluding that the
employer “presented sound, nondiscriminatory reasons for [disciplining the employee] based
on a reasonable investigation of events that occurred”).
In addition to being reasonably informed, the decision to discharge Sybrandt
reflected a “considered” judgment. See id. Malowney has always taken an uncompromising
view of Home Depot’s policy against “[c]reating, modifying or completing Special Services
. . . transactions including special orders.” He believes that “the whole point of that policy
is that you don’t do anything [in] a transaction that you are personally involved in.”
Malowney also interprets the policy to strictly forbid one employee from allowing another
employee to use the user ID of the former. As a result of this strict approach to the policy,
Malowney has consistently recommended the discharge of employees for making any entries
in their own special orders. This practice is perhaps not so surprising given that one of the
policy’s purposes—as Sybrandt concedes—is to avoid even the appearance of wrongdoing.
Sybrandt has not produced any material countervailing evidence indicating that “the
process [Home Depot] used to conduct the investigation was irregular or idiosyncratic.” See
Allen v. Highlands Hosp. Corp., Inc., 545 F.3d 387, 398 (6th Cir. 2008) (holding that there
was no genuine issue of material fact regarding pretext in the context of a claim based on
the Age Discrimination in Employment Act of 1967). The only evidence that even hints at
irregularity is the fact that Bollinger originally seemed unconcerned that Sybrandt entered
electronic notes on her own special order. But this does not undermine our conclusion
Malowney and his superiors—i.e., the Home Depot representatives who ultimately decided
No. 08-5598 Sybrandt v. Home Depot Page 9
to discharge Sybrandt—honestly believed that Sybrandt committed an offense worthy of
termination. Whether Bollinger believed that the December 28, 2005 notes were violations
of company policy is immaterial because Bollinger did not control the decision to discharge
Sybrandt. Furthermore, we do not require a perfect decisional process. See Michael, 496
F.3d at 598-99 (holding that this court does not require “that the decisional process used by
the employer be optimal or that it left no stone unturned.”) (citation and internal quotation
marks omitted).
In sum, Home Depot proffered a legitimate, nondiscriminatory reason for terminating
Sybrandt. The record further demonstrates that Home Depot had an honestly held belief that
she violated company policy because the decision to terminate her was “reasonably informed
and considered.” See id.
b. Home Depot’s decision to terminate Sybrandt was not so
unreasonable so as to give rise to an inference of pretext
In addition to arguing that the decision to terminate her had “no basis in fact” under
the first factor enumerated in Manzer v. Diamond Shamrock Chemicals Company, 29 F.3d
1078, 1084 (6th Cir. 1994), Sybrandt relies on more recent precedent holding that “the
reasonableness of an employer’s decision may be considered to the extent that such an
inquiry sheds light on whether the employer’s proffered reason for the employment action
was its actual motivation.” See Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576
(6th Cir. 2003) (en banc). Sybrandt argues that the decision to discharge her was “unfair and
extreme,” and can therefore give rise to an inference of pretext in light of the following
considerations: (1) Home Depot allegedly failed to disseminate its strict interpretation of the
policy that prevents employees from making any electronic entries regarding one’s own
special order, (2) Bollinger seemed unconcerned about Sybrandt’s entering such notes, and
(3) the facts that led to her termination—“forgetting to log out of her User ID and entering
notes asking others to modify her order” do not demonstrate a lack of integrity. We
conclude that Sybrandt’s attempt to repackage her claim in terms of extreme
unreasonableness is unavailing.
Turning to the first consideration, Home Depot’s failure to disseminate its “strict
interpretation” of its own policy does not create a genuine issue of material fact regarding
pretext. Indeed, this court recently rejected what is essentially the same argument in the age-
No. 08-5598 Sybrandt v. Home Depot Page 10
discrimination case of Allen, 545 F.3d 387. One of the plaintiffs in Allen was a hospital
employee who was terminated for removing x-rays from the hospital without written
authorization—even though the x-rays were of the employee’s own granddaughter. Id. at
391-92. The employee claimed that she had received oral permission to retrieve the x-rays
from the child’s mother (the employee’s daughter), but the hospital maintained that the she
had breached the hospital’s confidentiality policy by failing to secure valid written
authorization. Id. Nothing in the policy itself, however, explicitly stated that oral permission
was an inadequate substitute for written authorization. Id. at 397-98. This court nevertheless
held that “the fact that the [h]ospital would benefit from developing a more detailed policy
on this issue does not mean that [the plaintiff] succeeded in creating a genuine issue of
material fact about whether [the hospital’s] stated reason for terminating [her] was a pretext
designed to hide age-based discrimination.” Id.
Similarly, Sybrandt has arguably shown that Home Depot might “benefit from
developing a more detailed policy” regarding its strict interpretation of the “no-self-service”
rule. See id. But the fact that there might be some ambiguity in Home Depot’s Code of
Conduct does not suffice to create a genuine issue of material fact about whether Home
Depot’s stated reason for terminating Sybrandt was a pretext designed to mask sex-based
discrimination. See id.
The remaining two points raised by Sybrandt also fail to create a genuine issue of
material fact regarding pretext. Bollinger’s alleged unconcern about whether employees
enter electronic notes regarding their own special orders is immaterial because he was not
a decisionmaker with respect to Sybrandt’s termination. And even if we accept that
“forgetting to log out of her User ID and entering notes asking others to modify her order”
do not per se demonstrate a lack of integrity, Sybrandt failed to present any evidence that
Home Depot did not hold “an honest belief in its proffered nondiscriminatory reason for
discharging” her. See Majewski v. Auto. Data Processing, Inc., 274 F.3d 1106, 1117 (6th
Cir. 2001).
In sum, Sybrandt argues against what she alleges is an overly strict interpretation of
Home Depot’s “no-self-service” policy. But this is not enough under our precedents. Of
course, “[o]ne way in which the plaintiff may raise doubts about the lawfulness of the
No. 08-5598 Sybrandt v. Home Depot Page 11
employer’s business decision is by suggesting that the decision itself was unreasonable.”
White, 533 F.3d at 394 n.6. Sybrandt’s proof, however, is insufficient to allow a reasonable
jury to conclude that Home Depot’s policy decision was so unreasonable as to be
disbelieved. Unlike the records in White and Wexler, which contained evidence directly
supporting the plaintiff’s argument, there is no evidence tending to show that Sybrandt’s
interpretation of the rule is superior to that of Home Depot’s. Indeed, there is no evidence
that Home Depot’s interpretation was objectively wrong or inconsistent with its prior
practice. Cf. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 527 (6th Cir. 2008) (holding
that a jury could find the defendant’s explanation that business conditions required the
termination of the plaintiff unreasonable because, among other things, it was demonstrably
false). Home Depot also conducted a reasonable investigation prior to Sybrandt’s
termination, which strongly supports the view that it made an honest rather than a pretextual
decision when it relied on the self-service rule to terminate her. See Smith, 155 F.3d at 807
(“[T]he key inquiry is whether the employer made a reasonably informed and considered
decision . . . .”).
On this record, we conclude that a reasonable jury could not find that the application
of Home Depot’s self-service rule to Sybrandt was so unreasonable as to be disbelieved. See
Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 627 (6th Cir. 2006) (explaining that the rule
in Wexler should not be used to turn the federal courts into a “super personnel department”).
She has essentially based her case on the assertion that her activities were not clearly
prohibited by the self-service rule. But this alone, without other evidence of employer
unreasonableness or dishonesty—especially where a reasonable investigation has been
conducted—does not suffice under our precedents to create a material dispute over whether
Home Depot’s proffered explanation was merely a pretext for an unlawful business practice.
Sybrandt has ultimately failed to highlight any material evidence suggesting that
Home Depot’s stated reason for discharging her was a pretext designed to mask sex
discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)
(holding that an employer is entitled to a judgment as a matter of law where “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”).
The bare fact that Sybrandt was replaced by a male employee, in the absence of any other
No. 08-5598 Sybrandt v. Home Depot Page 12
evidence that would support a charge of sex-based discrimination, is simply not enough to
survive summary judgment.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.