Brian Fabiniak v. Wal-Mart Stores East, LP

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0140n.06
Case No. 22-3636 FILED
Mar 22, 2023
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
)
BRIAN FABINIAK,
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
WAL-MART STORES EAST, LP, originally ) OHIO
named as Wal-Mart Associates, Inc., )
Defendant-Appellee. ) OPINION
)
Before: BATCHELDER, GRIFFIN, and READLER, Circuit Judges.
CHAD A. READLER, Circuit Judge. Brian Fabiniak managed a Wal-Mart store in
Madison, Ohio. During his tenure, he received numerous warnings that the store was not up to
corporate cleanliness standards. When further inspections revealed even more unsatisfactory
conditions, Fabiniak was fired. Fabiniak, however, attributed his termination to age
discrimination, not violations of company policy. We agree with the district court that Fabiniak
has not established a genuine issue of material fact that Wal-Mart’s termination decision was
pretext for age-based animus. We also affirm the district court’s refusal to extend the discovery
deadline.
Case No. 22-3636, Fabiniak v. Wal-Mart Stores East, LP
I.
A. Following more than a decade of service, Brian Fabiniak, age 46, was terminated as a
Wal-Mart store manager. His troubles trace back to a store tour conducted by Kelene Mavar, a
Wal-Mart Market Human Resources Manager. Following the inspection, Mavar told Fabiniak that
his store was “sub-standard” when it came to cleanliness.
Fabiniak attributed the issue in part to staffing challenges. At the time, Fabiniak was
overseeing nearly 400 employees, with a weekly payroll of almost 10,000 workhours. Wal-Mart’s
staffing system requires that every store be allotted enough payroll hours to be fully staffed.
Fabiniak’s manager, Edward Gregorek, could, at his discretion, direct additional hours to the stores
he oversaw. But Gregorek did not allocate extra hours to Fabiniak’s store.
Gregorek inspected Fabiniak’s store several more times. Based on those inspections,
Gregorek told Fabiniak that the store was sub-standard. Mavar toured the store again a few weeks
after having warned Fabiniak about his store’s condition, only to find parts of the store still “filthy.”
Because Fabiniak’s performance had not improved after the earlier warning, he received a “Red”
Disciplinary Action under Wal-Mart’s discipline protocol.
To better understand the significance of that warning, we note that Wal-Mart’s employee
discipline policy contains three levels. “Yellow” reflects a low-level discipline, “Orange” is the
intermediate level, and “Red” is the highest. As a general matter, the steps proceed sequentially.
Wal-Mart supervisors, however, may skip steps in the case of a “serious” infraction. Likewise, it
is “common practice” to skip steps between discipline levels in situations where the employee has
been warned “multiple” times to change his behavior.
Earlier that year, Fabiniak was charged with a “Yellow” level discipline for failing to enter
the management schedule into Wal-Mart’s internal systems, despite “multiple requests” to do so.
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Case No. 22-3636, Fabiniak v. Wal-Mart Stores East, LP
So when he received his “Red” discipline, Fabiniak was put on a performance improvement plan.
The plan required Fabiniak to show “immediate and continuous improvement” in several
cleanliness-related areas over the next two weeks.
Two weeks came and went. Wal-Mart officials returned to tour the store once again.
Following the tour, Fabiniak was told there were still unclean areas. Another two weeks later,
Mavar and Gregorek again inspected the store, only to find it sub-standard, including in places
Mavar believed she had pointed out a month earlier.
At that point, Fabiniak was terminated. During his termination meeting, Fabiniak admitted
his store still failed to meet Wal-Mart cleanliness standards. Fabiniak’s replacement was 20 years
younger.
B. Fabiniak sued Wal-Mart in state court, invoking Ohio’s anti-discrimination statute,
Ohio Rev. Code Ann. § 4112.02(A). His complaint alleged that Wal-Mart’s actions were
motivated by discriminatory age-based animus. Wal-Mart removed the action to federal court
based on diversity jurisdiction.
After the close of discovery, Fabiniak asked the district court to allow him to engage in
additional discovery. He purported to need more time to request information related to other stores
overseen by Gregorek. The district court denied the motion.
Following discovery, Wal-Mart moved for summary judgment, which the district court
granted. Fabiniak timely appealed that decision as well as the denial of his motion to reopen
discovery.
II.
A. Before turning to the district court’s summary judgment decision, we begin with a
threshold procedural matter. Fabiniak claims that the district court improperly foreclosed
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Case No. 22-3636, Fabiniak v. Wal-Mart Stores East, LP
additional discovery. Specifically, he contends that he was entitled to more time to pursue
information related to other stores overseen by Gregorek. Claims of that variety turn on the
consideration of five factors: (1) when Fabiniak learned of the issue; (2) how the discovery would
affect the ruling below; (3) the length of the discovery period; (4) whether Fabiniak was dilatory;
and (5) whether Wal-Mart was responsive to discovery requests. Bentkowski v. Scene Mag., 637
F.3d 689, 696 (6th Cir. 2011) (citing Dowling v. Cleveland Clinic Found., 593 F.3d 472, 478 (6th
Cir. 2010)). Put more simply, “[t]he overarching inquiry in these overlapping factors is whether
the moving party was diligent in pursuing discovery.” Id. We review the district court’s denial of
Fabiniak’s request for an abuse of discretion. Id.Fabiniak’s claim for an extension arguably has some merit. At less than five months, the
discovery period could be seen as relatively short. And during that discovery window, Fabiniak
granted deadline extensions to Wal-Mart, a favor which was not returned. That series of events
may well have left Fabiniak in a difficult place as he developed his claims. These issues, however,
are a paradigmatic example of matters that are to be addressed on a case-by-case basis. And we
afford district courts considerable discretion in doing so. Id. On balance, we do not see an abuse
of discretion by the district court in concluding that Fabiniak “could, and should,” have asked for
the needed information months earlier. After all, as reflected by his complaint, Fabiniak knew of
the purported significance of this information at the beginning of this lawsuit. See Dowling, 593
F.3d at 478–79 (affirming the denial of a discovery extension when the party “could have obtained
[the information] earlier had they been more diligent”). Even if Fabiniak did not know about this
information, he has not shown us what information he would have expected to receive that would
change the outcome of this case. For these reasons, we need not upend the district court’s handling
of the discovery process.
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Case No. 22-3636, Fabiniak v. Wal-Mart Stores East, LP
B. Turning now to summary judgment. Wal-Mart was entitled to summary judgment if,
after drawing all reasonable inferences in Fabiniak’s favor, there was no genuine dispute as to any
material fact, and Wal-Mart prevailed as a matter of law. Fed. R. Civ. P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250–52 (1986). We review the grant of summary judgment de novo.
M.J. ex rel. S.J. v. Akron City Sch. Dist. Bd. of Educ., 1 F.4th 436, 445 (6th Cir. 2021).
Generally speaking, Ohio law prohibits employers from discharging employees “because
of” age. Ohio Rev. Code Ann. § 4112.02(A). Age discrimination claims brought under
§ 4112.02(A) “are ‘analyzed under the same standards as federal claims brought under’” the Age
Discrimination in Employment Act. Blizzard v. Marion Tech. Coll., 698 F.3d 275, 283 (6th Cir.
2012) (citation omitted).
As Fabiniak relies on circumstantial evidence, his claims are examined under the
McDonnell Douglas burden-shifting framework. Id. If Fabiniak “successfully makes out a prima
facie case, then the burden shifts to [Wal-Mart] to offer a ‘legitimate, nondiscriminatory’ reason
for its actions.” Blount v. Stanley Eng’g Fastening, 55 F.4th 504, 510 (6th Cir. 2022) (citation
omitted). If Wal-Mart does so, “then the burden of production shifts back to [Fabiniak] to
demonstrate that the proffered reason is a pretext.” Blizzard, 698 F.3d at 283 (quoting Sutherland
v. Mich. Dep’t of Treasury, 344 F.3d 603, 615 (6th Cir. 2003)).
With the parties in agreement that the first two steps have been satisfied, we can move
directly to the final step—pretext. To demonstrate pretext, Fabiniak must put forward evidence
that Wal-Mart “made up its stated reason to conceal intentional discrimination.” Chen v. Dow
Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009). Traditional ways of doing so include showing
that Wal-Mart’s proffered reason for Fabiniak’s termination: (1) has no basis in fact; (2) did not
actually motivate his termination; or (3) is insufficient to explain the company’s action. Miles v.
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S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 888 (6th Cir. 2020). “[T]hese three categories are
simply a convenient way of marshaling evidence and focusing it on the ultimate inquiry: ‘did the
employer fire the employee for the stated reason or not?’” Id. (quoting Tingle v. Arbors at Hilliard,
692 F.3d 523, 530 (6th Cir. 2012)) (cleaned up).
1. Fabiniak begins by arguing that his termination was not “actually motivated” by Wal-
Mart’s stated reasons. To validate his claim, Fabiniak must “present evidence ‘which tend[s] to
prove that an illegal motivation was more likely than that offered by the defendant.’” Brennan v.
Tractor Supply Co., 237 F. App’x 9, 20 (6th Cir. 2007) (citation omitted). That evidence, Fabiniak
claims, is that Wal-Mart skipped a step in its discipline process, meaning cleanliness issues did not
in fact trigger his discharge. As Fabiniak sees things, evidence that Wal-Mart departed from its
own disciplinary processes is tantamount to evidence of pretext. And, Fabiniak emphasizes, he
received a “Red” rather than an “Orange” level Disciplinary Action for maintaining a sub-standard
store. Add in the fact that Gregorek did not use his discretion to increase the number of shift hours
available to Fabiniak, and the pretextual nature of Wal-Mart’s justification for his termination
becomes plain, says Fabiniak.
The record demonstrates that Wal-Mart had a basis to fire Fabiniak. Critical to the analysis
here is “whether the employer made a reasonably informed and considered decision before taking
the complained-of action.” Tingle, 692 F.3d at 531 (quoting Michael v. Caterpillar Fin. Servs.
Corp., 496 F.3d 584, 598–99 (6th Cir. 2007)) (quotation marks omitted). That turns our attention
“to the nature of [Wal-Mart’s] investigation and disciplinary decision process.” Id. at 531. If that
process was reasonably informed and well considered, it is not our job to second guess the
company’s business judgment. Id. at 530. Fabiniak had multiple warnings and thousands of
employee-hours to bring his store into compliance, yet he did not. After several inspections, the
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store was still “filthy,” a fact not lost on Fabiniak. At the time of his termination, after all, Fabiniak
agreed that the store did not meet cleanliness standards.
Even if Wal-Mart skipped a step in the disciplinary process, we see no evidentiary basis
undermining the company’s honest assessment of Fabiniak’s faults, leading to his termination. As
a starting point, even if Wal-Mart violated its own policy, “an employer’s failure to follow self-
imposed regulations or procedures is generally insufficient to support a finding of pretext.” Miles,
946 F.3d at 896 (citation omitted). Nor, in any event, would skipping a step even be a departure
from company policy. Wal-Mart managers retain the discretion to jump steps for serious
violations. Step-skipping, in fact, was typical in cases where an employee had previously been
warned multiple times. If anything, the discretionary jump to “Red” should have alerted Fabiniak
to Wal-Mart’s commitment to maintaining clean stores. On top of that, Fabiniak had multiple
warnings to bring his store into compliance. Those warnings included his performance
improvement plan, which offered detailed steps on how he could improve his managerial
deficiencies. That Fabiniak chose to disregard this array of warnings is not “in any way related to
[his] age or in any way reflect[ive of] age animus.” Brennan, 237 F. App’x at 21. Instead, it
reflects Fabiniak’s continued disagreement with company practices and policies, a “disagreement
[that] is insufficient to show pretext.” Papierz v. Benteler Auto. Corp., No. 21-1237, 2022 WL
154342, at *2 (6th Cir. Jan. 18, 2022). All things considered, we see no reason to doubt Wal-
Mart’s assessment that Fabiniak “exhibited numerous performance issues and failed to avail
himself of multiple opportunities to improve prior to termination.” And more broadly, Fabiniak
has not put forward evidence that creates a genuine issue of material fact that Wal-Mart “made up
its stated reason to conceal intentional discrimination.” Chen, 580 F.3d at 400 n.4.
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2. Fabiniak also believes his cleanliness violations were a pretextual basis for his
termination because a similarly situated manager at the nearby Eastlake Wal-Mart was not
terminated for managing a dirty store. But Fabiniak’s evidence that the Eastlake manager was
similarly situated is lacking. To be similarly situated, Fabiniak must show, among other things,
that he and the comparator “engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them for it.”
Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 777 (6th Cir. 2016) (citation omitted).
Fabiniak has a record of disciplinary violations and repeated warnings on cleanliness. His
comparator? Fabiniak has not shown a similar record of misdeeds. Accordingly, Fabiniak has not
carried his burden of persuasion on pretext. Cf. Papierz, 2022 WL 154342, at *3 (quoting Peters
v. Lincoln Elec. Co., 285 F.3d 456, 470 (6th Cir. 2002)) (“[M]ere conjecture that the employer’s
explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary
judgment.”).
3. Fabiniak’s remaining arguments regarding pretext were not pursued in the district court.
As a result, they are forfeited, and we decline to address them. See Knall Bev., Inc. v. Teamsters
Loc. Union No. 293 Pension Plan, 744 F.3d 419, 424 (6th Cir. 2014).
We affirm the judgment of the district court.
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