Eric Anderson v. Target Stores, Inc.

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0148n.06
No. 21-5620
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ERIC ANDERSON, ) FILED
) Apr 07, 2022
Plaintiff-Appellant, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
TARGET STORES, INC., ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
Defendant-Appellee. )
)
)
BEFORE: BATCHELDER, NALBANDIAN, and READLER, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge.
Eric Anderson worked for a Target Stores, Inc. department store in Tennessee. Citing
fraudulent time-keeping practices, Target terminated his employment. Anderson sued Target in
federal court, claiming gender, race, and age discrimination under Title VII and the ADEA. The
district court granted summary judgment to Target. We AFFIRM.
I.
Eric Anderson is a 62-year-old African American male. In 2004, Anderson began working
at a Target store as a Sales Floor Team Lead. In 2008, Anderson earned a promotion to Senior
Team Leader. Anderson oversaw the Produce Department and led a team of approximately 15
Target employees. In 2016, Diana Morella, a Caucasian female, was Anderson’s direct supervisor.
During that year, as Anderson and another employee tell it, Morella told Anderson of the “horror
that she would feel if one of her daughters dated a black male.” In 2017, Morella said that several
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employees began to complain to her about Anderson’s prolonged lunch and rest breaks, but
Morella did not investigate these complaints. Morella supervised Anderson until 2018, when she
moved into a position with Target’s Human Resources Department. Anderson never received a
corrective action for any reason while under Morella’s supervision.
Target replaced Morella with Hilary Jones, another Caucasian female. According to
Anderson, he and Jones had a poor working relationship. For example, Anderson said that Jones
would “embarrass” him by talking to him as if he were “an idiot” in front of his team. Anderson
felt that Jones’s conduct towards him undermined his leadership with his team, causing his team
members to underperform on their assignments. And, according to Anderson, things got so bad
that he complained about Jones to Cliff Townsend, the Store Director.
Morella said that after she assumed her new position with Human Resources, she continued
to receive complaints about Anderson’s excessive lunch and rest breaks. These additional
complaints, Morella said, prompted her to investigate the complaints against Anderson.
Anderson recorded his working hours through use of a time clock. He would “punch in”
his employee identification number at the start of the shift, before and after lunch break, and at the
end of the shift. Target policy required employees to submit punch corrections if they did not
punch in at the correct time or if the time-keeping system was not operating. Morella’s
investigation found two punch corrections by Anderson that appeared to violate company policy.
Morella asked Gary Alexander, an African American male and Executive Team Lead of Asset
Protection, to investigate Anderson’s two punch corrections and review all of Anderson’s time
punches for the thirty days prior to the punch corrections at issue.
It was part of Alexander’s job to review employee punch corrections and investigate
potential punch-correction violations. Alexander reviewed Anderson’s time punches, his punch
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corrections, and the store’s security video footage. The footage confirmed that during two shifts—
February 26, 2018, and March 12, 2018—Anderson took longer breaks than allowed, and then
later concealed his prolonged breaks by submitting fraudulent punch corrections. Alexander
concluded that Anderson had violated Target’s meal-break policy, falsified company records, and
committed time theft by submitting fraudulent punch corrections.
On March 21, 2018, Morella and Jones asked Anderson about the punch corrections that
appeared to violate company policy. Anderson did not deny the false punch corrections, and he
told them that he was confused about the whole matter. On March 23, Townsend, Morella, and
Jones met with Anderson and asked him for an explanation of the false punch corrections.
Anderson said that he could not remember what happened on those days. On March 26,
Anderson’s employment was terminated at a meeting with Townsend, Morella, and Jones present.
At the time, Anderson was 60 years old.
Following the meeting, Morella said to Anderson: “I bet you wish you had retired now.”
Anderson received a separation notice that confirmed his termination of employment and stated
that the reasons for his termination were “[v]iolation of company policy” and “falsifying company
documentation.” Anderson neither denied the results of Alexander’s investigation nor explained
why he submitted false punch corrections.
Anderson sued Target in federal court, bringing claims under federal law for gender, race,
and age discrimination. The district court granted summary judgment to Target, and Anderson
timely appealed.
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II.
A. Standard of Review
“We review the district court’s grant of summary judgment de novo.” Romans v. Mich.
Dep’t of Hum. Servs., 668 F.3d 826, 835 (6th Cir. 2012). A defendant moving for summary
judgment must demonstrate the “absence of a genuine issue of material fact” in all essential
elements of the plaintiff’s claims. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). We draw
all reasonable inferences in favor of the plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). And unless the plaintiff “show[s] specific facts that reveal a genuine issue for
trial,” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014), the defendant is entitled to
summary judgment, Catrett, 477 U.S. at 322–23.
B. Evidentiary Issues
We start first with Anderson’s evidentiary challenges. Over Anderson’s objection, the
district court deemed several facts as admitted from Target’s statement of undisputed facts. On
appeal, Anderson challenges the district court’s rulings on these facts. The district court’s rulings
with regard to these facts are evidentiary rulings, and as such, we review them for an abuse of
discretion. See Briggs v. Potter, 463 F.3d 507, 511 (6th Cir. 2006). “A district court abuses its
discretion when it relies on erroneous findings of fact, applies the wrong legal standard, misapplies
the correct legal standard when reaching a conclusion, or makes a clear error of judgment.” Id.(citation omitted). We conclude that the district court did not abuse its discretion by deeming these
facts as admitted.
Start with Fact 32 and Fact 33. According to these statements of fact, two African
American employees complained to Morella about Anderson’s taking prolonged breaks and
lunches. Anderson denied both facts, referring to a paragraph from his own affidavit, and asserting
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that Morella mentioned complaints only from Caucasian employees. The district court deemed
these facts as admitted for two reasons. First, Anderson’s denial did not refute Target’s statements
of fact that Morella received complaints from other employees. And second, Anderson relied on
deposition testimony not in the record.
The paragraph that Anderson relies on from his affidavit does not deny, refute, or even
address the complaints from African American employees about Anderson’s prolonged breaks and
lunches. Rather, it relates to complaints from Caucasian employees that Anderson gave the hardest
jobs to them. Furthermore, in violation of the local rules, Anderson does not provide a specific
citation to Morella’s deposition. See Local Rule 56.1(b) (“Each such disputed fact shall be set
forth in a separate, numbered paragraph with specific citations to the record supporting the
contention that such fact is in dispute.”). Therefore, in deeming Fact 32 and Fact 33 as admitted,
the district court did not abuse its discretion.
We turn next to Fact 35, which asserted that Morella, while not initially confronting
Anderson about the complaints regarding his prolonged breaks, decided to address the issue after
she received more complaints. Anderson denied this fact, stating that Morella testified that she
confronted Anderson about the complaints only after the security video was reviewed. The district
court deemed Fact 35 as admitted because Anderson’s response was unresponsive to Target’s
assertion of fact, and Anderson relied on deposition testimony not in the record.
We find no error in the district court’s ruling. Morella testified that the continued
complaints about Anderson’s prolonged breaks and lunches prompted her to address the issue by
investigating the complaints, not to confront Anderson about them. Because Anderson’s denial
does not refute Morella’s actions in addressing the complaints of Anderson’s prolonged breaks,
the district court rightly deemed the fact as admitted.
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We turn to Fact 40. This statement of fact asserted that because two punch corrections by
Anderson appeared to violate company policy, Target’s investigation of Anderson’s prolonged
breaks focused on whether he had falsified company documentation. Anderson denied this fact,
asserting that “Morella’s intent to discriminatorily terminate the Plaintiff” caused the investigation.
The district court deemed this fact as admitted because Anderson’s denial did not refute the
assertion and it contained a legal conclusion that made the objection improper.
We find no error in the district court’s ruling. Anderson’s denial does not refute the fact
of the investigation, but asserts only that Morella’s discriminatory intent caused the investigation.
But whether Morella’s discriminatory intent caused the investigation does not refute the fact of
the investigation’s occurrence or that the investigation turned to whether Anderson had falsified
company documentation. Therefore, the district court did not abuse its discretion by deeming Fact
40 as admitted.
That takes us to Fact 57. This statement of fact asserted that Townsend, an African
American male, summoned Anderson to his office to question him about his punch corrections. It
also asserted that Anderson could not explain the punch corrections because he could not
remember. Relying on his own affidavit, Anderson denied this statement of fact, arguing that
because Townsend is a Caucasian male, the entire statement of fact is false. The district court
deemed this fact as admitted because Anderson’s denial did not attempt to refute any other
assertion of fact in the statement. We agree with the district court. Even if Anderson’s denial
refuted Target’s assertion that Townsend is an African American male, it does not follow that this
denial refuted Target’s description of what occurred during Anderson’s visit to Townsend’s office.
Therefore, the district court did not abuse its discretion by deeming Fact 57 as admitted.
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That leaves Fact 60. This statement of fact asserted that Jones was neither involved in the
investigation of Anderson’s prolonged breaks nor in the decision to terminate Anderson’s
employment. The district court deemed this fact as admitted because Anderson relied on
deposition testimony not before the court. However, even if Anderson’s denial properly refuted
Fact 60, it is immaterial because the outcome of this case does not depend on this statement of
fact. See 1704 Farmington v. City of Memphis, 437 F. App’x 387, 390 (6th Cir. 2011) (finding
that the district court did not abuse its discretion because the challenged statements of fact did not
“command a different disposition of the case”). Therefore, the district court did not abuse its
discretion by deeming this fact as admitted.
In sum, the district court did not abuse its discretion by deeming any of these facts as
admitted.
C. Gender Discrimination
Anderson claims that Target discriminated against him because of his gender in violation
of Title VII. Because Anderson’s gender discrimination claim relies on indirect evidence of
discrimination, we apply the McDonnell Douglas burden-shifting framework. See Risch v. Royal
Oak Police Dep’t, 581 F.3d 383, 390 (6th Cir. 2009); Miles v. S. Cent. Hum. Res. Agency, Inc.,
946 F.3d 883, 887 (6th Cir. 2020). The initial burden is on Anderson to establish his prima facie
case for gender discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
If Anderson establishes his prima facie case, the burden shifts to Target to offer a legitimate,
nondiscriminatory reason for Anderson’s termination. See id. If Target offers a legitimate reason,
the burden shifts back to Anderson to show that the proffered reason was pretext for discrimination.
See id. at 804.
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To establish his prima facie case of discrimination, Anderson must show that he was “(1)
a member of a protected class, (2) subject to an adverse employment action, (3) qualified for the
position, and (4) replaced by a person outside the protected class or treated differently than
similarly situated . . . employees.” Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 303 (6th
Cir. 2016). For the fourth prong, he “must show that the defendant treated minority employees
who were similarly situated to the plaintiff more favorably than he was treated.” MacEachern v.
Quicken Loans, Inc., No. 17-1005, 2017 WL 5466656, at *3 (6th Cir. Oct. 17, 2017) (citing
Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir. 2003)).
Here, Target contests only the fourth element—that Target treated Anderson differently
from a similarly situated female employee. To qualify as similarly situated, the comparator
employee “must be similar in all of the relevant aspects.” Ercegovich v. Goodyear Tire & Rubber
Co., 154 F.3d 344, 352 (6th Cir. 1998) (quotation marks omitted). The relevant aspects usually
include whether the comparator employees had the same supervisor, worked under the same
standards, and engaged in the same conduct as the plaintiff. Id.The district court concluded that Anderson’s proffered comparator female employee,
Brenda Holliday-Lewis, was not similarly situated to Anderson because the two did not engage in
the “same relevant conduct.” The district court explained that Anderson failed to establish that
Holliday-Lewis received complaints similar to those that Anderson received, or that Holliday-
Lewis submitted fraudulent punch corrections. “Without this evidence establishing that Ms.
Holliday-Lewis engaged in similar conduct yet received different treatment, the Court has no
marker by which to gauge [Target’s] conduct.” We agree with the district court.
On appeal, Anderson points out that Maria McGhee, a former Target “Human Resources
Executive,” said that she saw Holliday-Lewis fixing time punches to comply with Target’s meal-
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break policy. But Anderson does not explain how Holliday-Lewis’s correcting of time punches
shows that she was accused of taking prolonged breaks as Anderson was, or that Target
investigated her for prolonged breaks that later turned up evidence of fraudulent punch corrections.
Devoid of facts that show similar complaints about Holliday-Lewis and a similar investigation of
her, the district court rightly concluded that Anderson “failed to establish that Ms. Holliday-Lewis
is an appropriate comparator.”
Anderson also points to four other Target employees whom Target terminated for
fraudulent punch corrections as similarly situated comparators to Anderson. But these employees
cannot be relevant comparators simply because Target terminated their employment for fraudulent
punch corrections. For these comparator employees to be relevant, Anderson had to show that
Target treated them more favorably than they treated Anderson. But he cannot do so because
Target terminated their employment just as Target terminated Anderson’s employment.
Therefore, Anderson failed to establish his prima facie case for reverse gender
discrimination, and we need not address his claims that Target’s reasons for discharging him were
pretextual.
D. Racial Discrimination
Anderson claims that Target discriminated against him because of his race in violation of
Title VII. On appeal, Anderson’s argument claiming racial discrimination relies only on direct
evidence. Direct evidence “does not require a factfinder to draw any inferences in order to
conclude that the challenged employment action was motivated at least in part by” unlawful
discrimination. Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003). Indeed, the proffered
direct evidence must “compel[] the conclusion that unlawful discrimination was at least a
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motivating factor in the employer’s actions.” Kuhn v. Washtenaw County, 709 F.3d 612, 624 (6th
Cir. 2013) (quotation marks omitted).
Anderson offers as direct evidence Morella’s comment from 2016, in which she told
Anderson that she would be disgusted if her daughters dated African American men. The district
court found that the lapse of time between that comment and Anderson’s termination of
employment in 2018 cut against its probative value as direct evidence of racial animus. The district
court also found that the comment related to “hypothetical social relationships” that required
several inferences to establish the comment as direct evidence of unlawful discrimination in the
termination of Anderson’s employment.
We agree with the district court. “Isolated and ambiguous comments are insufficient to
support a finding of direct discrimination.” White v. Columbus Metro. Hous. Auth., 429 F.3d 232,
239 (6th Cir. 2005). Morella’s alleged comment was isolated from the events that led to
Anderson’s termination of employment by time and context. Indeed, it would require several
inferences over the course of several years and across varying contexts to conclude that it played
even a motivating factor in Target’s decision to terminate Anderson’s employment. This the direct
evidence standard does not permit. See, e.g., Igwe v. Salvation Army, 790 F. App’x 28, 34 (6th
Cir. 2019) (finding that the employer’s comments did not relate to the issues that led to the adverse
employment action). Therefore, Morella’s alleged comment does not provide sufficient direct
evidence of racial discrimination.
On appeal, Anderson argues that the district court’s analysis was too narrow in its
examination of Anderson’s proffered evidence. Anderson argues that the district court erred by
deeming Morella’s dating comment to have no probative value or relevance. But Anderson
misunderstands the district court’s conclusion, which was that Morella’s comment had little
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probative value as direct evidence of unlawful discrimination, not that it lacked any probative
value at all or that it was inadmissible. In fact, the district court considered Morella’s comment
and provided sound reasons for its conclusion that the comment did not provide sufficient direct
evidence of unlawful discrimination.
On appeal, Anderson emphasizes four other facts as direct evidence of unlawful
discrimination. First, he says that Morella directed him to assign the hard jobs to African American
employees. Second, he points to Morella’s “unsubstantiated” claim that she received complaints
about Anderson’s taking prolonged breaks. Third, he points to Morella’s asking him not to address
another employee’s complaint against Anderson that he had sexually harassed the employee.
Fourth, he offers Jones’s claim that she did not know the race of the employee who replaced
Anderson after Target terminated Anderson’s employment. But these facts fail to qualify as direct
evidence.
The first fact fails for the same reason that Morella’s 2016 comment about her daughters’
dating African American men fails—it was too isolated by time and context. The remaining facts
fail because they do not even suggest racial animus on the part of Morella. See Worthy v. Mich.
Bell Tel. Co., 472 F. App’x 342, 348 (6th Cir. 2012) (finding that statements “not clearly reflective”
of racial bias failed to qualify as direct evidence of racial bias). The district court concluded as
much, and Anderson does not provide any reasons that overcome that conclusion. Therefore,
Anderson has failed to establish sufficient direct evidence of racial discrimination.
E. Age Discrimination
Anderson’s final claim is that Target discriminated against him because of his age, in
violation of the ADEA. The ADEA prohibits terminating an individual’s employment “because
of such individual’s age.” 29 U.S.C. § 623(a)(1). “This requires showing that age was the
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determinative reason they were terminated . . . .” Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 324
(6th Cir. 2021); see also Gross v FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009) (“A plaintiff
must prove by a preponderance of the evidence . . . that age was the ‘but for’ cause of the
challenged employer decision.”). The plaintiff can use either direct or indirect evidence for his
ADEA claim. See Tennial, 840 F.3d at 305. Anderson raises two arguments on appeal, one that
uses direct evidence and the other that uses indirect evidence.
Anderson’s direct evidence argument fails because he did not raise it before the district
court. Forfeiture is the “failure to make the timely assertion of a right.” United States v. Olano,
507 U.S. 725, 733 (1993). Parties must raise their arguments before the district court to preserve
them for appeal. See Greer v. United States, 938 F.3d 766, 770 (6th Cir. 2019). Because Anderson
raises his direct evidence argument for the first time on appeal, he forfeited that argument.
While it could be argued that a failure to raise a related argument of the same claim with
the same factual basis does not necessarily amount to a forfeiture, see, e.g., Roberts v. Coffee
County, 826 F. App’x 549, 555 n.4 (6th Cir. 2020), that is not the case here. An ADEA claim
using direct evidence requires different elements and a different analysis from an ADEA claim
using indirect evidence. See Pelcha, 988 F.3d at 324–25 (contrasting the elements of both types
of ADEA claims). Therefore, because the ADEA claim using direct evidence is not merely an
“offshoot” of the ADEA claim using indirect evidence, Anderson forfeited the direct evidence
argument that he raises now. See Ohio State Univ. v. Redbubble, Inc., 989 F.3d 435, 444–45 (6th
Cir. 2021) (deeming an argument as unpreserved and forfeited because, although the claim had the
same factual basis as the preserved claims, it involved different elements).
Even if Anderson did not forfeit his direct evidence argument, it still fails on the merits.
His argument relies on two pieces evidence: First, that Jones, as a decisionmaker involved in
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terminating Anderson’s employment, told another employee that she planned to replace Anderson
with a younger person; and second, that at the termination meeting, Morella, also a decisionmaker
involved in terminating Anderson’s employment, told Anderson, “I bet you wish you had retired
now.” Neither of these constitutes sufficient direct evidence.
We start with Jones’s statement. Even granting Anderson’s contention that Jones involved
herself in the decision to terminate Anderson, he fails to show that Jones’s statement related to the
“decisional process” that resulted in Anderson’s termination of employment. See Bush v.
Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998) (citation omitted). Anderson does not offer
any evidence that Jones made this statement during the investigation of Anderson’s punch
corrections, the several meetings that Jones and others had with Anderson related to his punch
corrections, or during the decisional process that resulted in Anderson’s termination of
employment. Therefore, Jones’s statement, wholly disconnected from these events, cannot
constitute direct evidence. See Geiger v. Tower Auto., 579 F.3d 614, 621–22 (6th Cir. 2009)
(finding no direct evidence in statements by supervisor that were not connected to the decision to
terminate the plaintiff’s employment).
Morella’s statement fares no better because it alone cannot prove that age was “the
determinative reason” that Target terminated Anderson. Pelcha, 988 F.3d at 324. Indeed, several
facts cut against a “but-for” causal connection between Anderson’s age and his termination. See
Gross, 557 U.S. at 178. First, as the district court pointed out, Alexander, not Morella, conducted
the investigation that ultimately found that Anderson submitted fraudulent punch corrections.
Second, Townsend, Target’s Store Director, was involved in the termination decision. Notably,
Anderson has not set forth any facts that suggest age-bias on either Alexander’s or Townsend’s
part. Third and finally, the fact that Anderson committed a fireable offense by submitting
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fraudulent time corrections—a fact that Anderson neither denies nor rebuts—indicates that Target
would have terminated his employment absent Morella’s statement. Morella’s lone statement fails
to establish age discrimination as the determinative factor in Anderson’s termination of
employment. Therefore, Anderson’s direct evidence argument is without merit.
Anderson’s indirect evidence argument is without merit too. We analyze ADEA claims
using indirect evidence under the McDonnell Douglas burden-shifting framework. See Pelcha,
988 F.3d at 324–25. Still, the ultimate burden of persuasion in an ADEA claim remains with the
plaintiff. See Gross, 557 U.S. at 177. Anderson has established his prima facie case because
Target replaced Anderson with an employee who is in his thirties. Yet Target offered legitimate,
nondiscriminatory reasons for firing Anderson—namely, that he was fired for “[v]iolation of
company policy” and “falsifying company documentation.”
That leaves Anderson with the burden to show that Target’s reasons were pretext for age
discrimination. To show pretext, the plaintiff must show that the employer’s stated reason “had
no basis in fact, did not actually motivate the defendant’s challenged conduct, or was insufficient
to motivate the defendant’s challenged conduct.” Schoonmaker v. Spartan Graphics Leasing,
LLC, 595 F.3d 261, 268 (6th Cir. 2010).
Anderson has failed to show that Target’s stated reason was pretext for age discrimination.
As noted, Anderson does not deny or rebut the fact that he submitted fraudulent punch corrections,
the very basis for Target’s decision to terminate Anderson’s employment. As to actual motivation,
Anderson can rely only on statements by Jones and Morella that are either unrelated to the
termination decision, or insufficient to show that age was the determinative reason for Target’s
termination decision. Finally, as to insufficient motivation, Target company policy states that
Anderson’s conduct can result in termination of employment. And Anderson fails to point to any
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employee who did what Anderson did but retained his or her employment. In fact, Target
terminated the employees whom Anderson offers as comparators because they submitted
fraudulent punch corrections. As the district court noted, this argument gets it “backwards.”
Therefore, Anderson failed to establish sufficient direct or indirect evidence for his age
discrimination claim.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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