Arrington, Eddie J. v. Wal-Mart Stores Inc

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 3, 2006*
Decided May 3, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-2472
EDDIE J. ARRINGTON, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Indiana,
Fort Wayne Division
v.
No. 1:02-CV-386
WAL-MART STORES, INC.,
Defendant-Appellee. William C. Lee,
Judge.
ORDER
Eddie Arrington was fired from his job at Wal-Mart after the cash register he
was operating came up a few dollars short. He sued claiming that really he was
fired because he is black, and after Wal-Mart counterclaimed to recover the money
it says Arrington took from the register and gave to a co-worker, Arrington
amended his complaint to add a retaliation claim. The district court granted
summary judgment for Wal-Mart on both the discrimination and retaliation claims.
Arrington appeals, and we now affirm.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-2472 Page 2
We view the evidence at summary judgment in the light most favorable to
Arrington. Ballance v. City of Springfield, 424 F.3d 614, 616 (7th Cir. 2005).
Arrington worked at a Wal-Mart store in Fort Wayne, Indiana, as a cashier in the
store’s restaurant. On October 18, 2000, the restaurant experienced a $15 shortage.
Following company procedure, the store’s loss-prevention investigator reviewed the
transaction records from the restaurant cash register and also watched the
videotape from a surveillance camera trained on the register. The investigator
became suspicious about a transaction between Arrington and a white co-worker,
Jody Lauer. Lauer had purchased a soda for $1.04, which she paid for with a five-
dollar bill and four pennies. Although she was entitled to $4.00 in change, the
surveillance videotape showed that Arrington removed a number of one-dollar bills
from the register, fanned them open, and handed the money to Lauer. The
investigator reported to his supervisor, Micah Hawk, that the number of singles
given to Lauer appeared to total more than four. After watching the video and
reviewing the transaction records independently, Hawk interviewed Arrington on
October 24, his next scheduled workday. Arrington would not answer Hawk’s
questions about the soda transaction; instead he became upset, accused Hawk of
lying, and left the interview. Hawk reported the encounter to a store manager, who
accepted Hawk’s recommendation and immediately fired Arrington. Paperwork
completed that same day by the manager gives the reason for his termination as
“gross misconduct—integrity issue.” The following day Hawk interviewed Lauer;
she confessed in writing that Arrington gave her $9.00 in “change” to which she was
not entitled. Another store manager then fired Lauer on Hawk’s recommendation.
Arrington sued in state court under Title VII of the Civil Rights Act of 1964
and 42 U.S.C. § 1981. Wal-Mart removed the action to federal court and
counterclaimed for the money Arrington gave Lauer, who would not repay it.
Arrington then amended his complaint to add a claim accusing Wal-Mart of
pressing a frivolous counterclaim to retaliate for his discrimination suit. Arrington
and Wal-Mart both moved for summary judgment, but before the hearing on the
parties’ motions Arrington discharged his attorney and opted to proceed pro se.
After the district court granted summary judgment for Wal-Mart on Arrington’s
discrimination and retaliation claims, the company dismissed its counterclaim.
We review a grant of summary judgment de novo, Bio v. Fed. Express Corp.,
424 F.3d 593, 596 (7th Cir. 2005), and will affirm if the record establishes that
“there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law,” see Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). Arrington addresses only the discrimination
claim in his brief, and thus has abandoned any argument concerning the resolution
of his retaliation claim. See Blise v. Antaramian, 409 F.3d 861, 866 (7th Cir. 2005)
(“The failure to develop an argument constitutes a waiver.”).
No. 05-2472 Page 3
Arrington relies only on the direct method of proving that Wal-Mart
terminated him because of his race. A plaintiff relying on the direct method may
utilize both direct and circumstantial evidence to establish discriminatory
motivation. Rudin v. Lincoln Land Cmty. College, 420 F.3d 712, 721 (7th Cir.
2005). Direct evidence of race discrimination is evidence that, if believed by the
trier of fact, would prove discriminatory conduct on the part of the employer
“without reliance on inference or presumption.” Id. (internal quotation and citation
omitted). In this context, direct evidence would essentially be an outright
admission by the decision-maker that the challenged action was undertaken
because of the employee’s race. Rogers v. City of Chicago, 320 F.3d 748, 753 (7th
Cir. 2003). Circumstantial evidence, in contrast, allows the trier of fact to infer a
discriminatory motivation. Jordan v. City of Gary, 396 F.3d 825, 832 (7th Cir.
2005). Arrington concedes that he lacks direct evidence that he was terminated
because of his race. He argues, however, that a jury could infer that theft was not
the actual reason for his termination because the precise number of bills he handed
Lauer cannot be discerned from the videotape, and because Lauer recanted her
written confession after he filed suit.
Arrington’s argument is without merit. It does not matter whether an exact
number of one-dollar bills can be counted by watching the videotape. It matters
only that the decision-makers at Wal-Mart really believed that Arrington had aided
Lauer in committing theft, see Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 940
(7th Cir. 2003); Stalter v. Wal-Mart Stores, Inc., 195 F.3d 285, 289 (7th Cir. 1999),
and Lauer’s written confession that prompted her termination is enough to
demonstrate the absence of any material dispute concerning that question. And
even if we were to accept Lauer’s testimony that she falsely confessed in response to
Hawk’s “coercion,” her recantation raises no inference that Hawk pressured her to
confess to further a plan to fire Arrington because of his race. See Jordan, 396 F.3d
at 832-33.
AFFIRMED.