Cooper v. Wal-Mart Stores, Inc.

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS October 16, 2008

FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

KENNETH E. COOPER,

Plaintiff-Appellant,

v. No. 07-2290
(D.C. No. 1:06-cv-00468-JAP-RLP)
WAL-MART STORES, INC., (D. N.M.)
a Delaware corporation,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before GORSUCH, ANDERSON, and BALDOCK, Circuit Judges.

Kenneth E. Cooper appeals from the district court’s grant of summary

judgment in favor of Wal-Mart Stores, Inc., on his claim of racial discrimination

in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(a)(1). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
 Background

Mr. Cooper, who is African American, became the manager of a Wal-Mart

store in Silver City, New Mexico, in 1998. As the store manager, he was

responsible for abiding by and enforcing all Wal-Mart policies, including

avoiding situations and relationships that involve even the appearance of a

conflict of interest, and rules against misappropriation of company funds. In

September 2005, Wal-Mart’s ethics hotline received an anonymous complaint

regarding alleged misconduct by Mr. Cooper. Wal-Mart investigated the

allegations, interviewing approximately 21 employees and examining dozens of

pages of documents. The lead investigator drafted a summary of findings,

concluding that the allegations of harassment, inappropriate conduct,

misappropriation of company funds, and conflict of interest were substantiated.

Specifically, the investigation found that Mr. Cooper violated several

Wal-Mart policies in connection with a trip beginning on June 23, 2005, to tour

the company’s distribution center in Buckeye, Arizona. First, he was the only

member of management accompanying an otherwise all-female group of hourly

employees on the overnight trip, circumstances that Wal-Mart concluded were a

violation of its conflict of interest policy. Second, instead of returning to Silver

City on June 24 with the rest of the group, Mr. Cooper and several other

employees went shopping and spent an additional night in Tucson, Arizona,

before returning home on June 25. Mr. Cooper charged to Wal-Mart the cost of

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meals and the hotel rooms for the extra night, and he allowed the employees who

did not return to Silver City on June 24 to claim eight working hours on their time

sheets for that day.

In addition, the investigation also found substantial evidence that

Mr. Cooper was engaging in an inappropriate relationship with and directing

favoritism toward a department manager, Ms. Quintana, specifically:

• Visiting her home several times, for up to 30 minutes;
• Awarding her a $250 gift card;
• Putting items on layaway for her in his name;
• Increasing her pay substantially more than any other department
manager; and
• Offering to remove a disciplinary action from another employee’s
file if she agreed not to tell anyone that she saw Mr. Cooper leaving
Ms. Quintana’s neighborhood.

The investigation concluded further that Mr. Cooper threatened employees with

retaliation if they reported information to his supervisor, Mr. Andrade, or to the

company’s loss-prevention supervisor; that he made inappropriate, sexually

suggestive comments during store meetings; that he ordered the demotion of an

employee without following the Wal-Mart disciplinary process; that he awarded

$25 gift cards to employees who danced with him at a company party; and that he

direct-billed Wal-Mart for his wife’s stay at a hotel in Silver City.

The investigators provided their findings and documentation to Michael

Moore, Senior Vice President, Operations West of Wal-Mart. Mr. Moore was

responsible for all aspects of store operations in his district, including personnel

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issues. He reviewed the investigation and concluded that it had been conducted

properly. According to his affidavit, he believed that the findings were accurate

and true, and he made the decision to terminate Mr. Cooper’s employment for

gross misconduct. He did not seek a statement from Mr. Cooper before reaching

his decision.

At Mr. Moore’s direction, Mr. Andrade met with Mr. Cooper, informed him

that he was being terminated for gross misconduct, and reviewed with him written

bullet points summarizing the specific reasons for his termination. Mr. Andrade

also presented Mr. Cooper with an Exit Interview form indicating that the reason

for his termination was “Gross Misconduct - Integrity Issue,” which was defined

on the form to include “Misappropriation of Company Assets.” Aplt. App. at 149.

Mr. Cooper wrote a response indicating his disagreement with each of the reasons

given and he signed the Exit Interview form, indicating his denial of all

allegations of misconduct.

Mr. Cooper used Wal-Mart’s Open Door policy to express his disagreement

with the bases for his termination. He also reported allegations of misconduct

against other Wal-Mart employees, including several store managers. In

response, Wal-Mart conducted an investigation involving numerous investigators,

interviews of dozens of associates, and examination of hundreds of pages of

documents. Once again, the investigators provided their findings and

documentation to Mr. Moore.

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 Two of the other store managers were not disciplined because the

investigators determined that the allegations against them could not be

substantiated. But they concluded that some of the allegations against three other

store managers were substantiated. One manager had given gifts to Mr. Andrade

and to another employee. The investigators also found that this manager

socialized with Mr. Andrade and that employees were reluctant to use the Open

Door policy because of his perceived friendship with his supervisor. The record

does not reflect whether or how this store manager was disciplined based on these

findings. The investigators concluded that two allegations against a second store

manager were substantiated, but had been previously addressed by Wal-Mart.

Finally, the investigators found that six allegations against a third store manager

were substantiated, including four allegations related to inappropriate conduct and

favoritism toward female associates, as well as two allegations regarding his

failure to maintain password and keyword control. Mr. Moore concluded that

these were serious violations of Wal-Mart policy, but that this store manager’s

conduct was not as recent or severe as Mr. Cooper’s conduct and involved fewer

substantiated allegations. This third store manager was demoted two steps to

assistant manager, but was later promoted back to store manager.

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 Mr. Cooper filed this action in district court, asserting that his termination

was motivated by racial discrimination. 1 The district court granted summary

judgment in favor of Wal-Mart, concluding that Mr. Cooper failed to raise a

genuine issue of fact whether Wal-Mart’s proffered non-discriminatory reasons

were pretextual. Mr. Cooper filed a timely appeal.

Standard of Review

“We review the district court’s grant of summary judgment de novo.”

Young v. Dillon Cos., 468 F.3d 1243, 1249 (10th Cir. 2006). Summary judgment

is appropriate “if the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

“In conducting our analysis, we view all of the facts in the light most favorable to

the non-movant and draw all reasonable inferences from the record in favor of the

non-moving party.” Young, 468 F.3d at 1249.

Discussion

Mr. Cooper did not present direct evidence of racial discrimination, so we

examine his claim under the familiar burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Young, 468 F.3d at

1249. Under that framework, Mr. Cooper carried the initial burden of

1
Mr. Cooper asserted other claims in his complaint, which are not at issue in
this appeal.

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establishing a prima facie case of racial discrimination. See id. Wal-Mart

concedes that Mr. Cooper made out a prima facie case of discrimination under

Title VII. “Once the plaintiff establishes a prima facie case, the burden shifts to

the employer to articulate some legitimate, non-discriminatory reason for the

adverse employment action. If the defendant makes this showing, the burden then

shifts back to the plaintiff to show that the defendant’s proffered justification is

pretextual.” Id. (citation omitted). Mr. Cooper does not contend that Wal-Mart

failed to meet its burden to articulate a legitimate, non-discriminatory reason for

his termination. Thus, the issue before this court is whether plaintiff has shown a

genuine issue of material fact as to whether Wal-Mart’s proffered reasons for

discharging Mr. Cooper were a pretext for discrimination. See id.

Pretext

“Pretext exists when an employer does not honestly represent its reasons

for terminating an employee.” Miller v. Eby Realty Group LLC, 396 F.3d 1105,

1111 (10th Cir. 2005). “To show that the defendant’s proffered race-neutral

reasons were actually a pretext for discrimination, this Court has held that the

plaintiff must demonstrate that the defendant’s proffered race-neutral reasons

were so incoherent, weak, inconsistent, or contradictory that a rational factfinder

could conclude the reasons were unworthy of belief.” Young, 468 F.3d at 1250

(quotation and brackets omitted). “The relevant inquiry is not whether the

employer’s proffered reasons were wise, fair or correct, but whether it honestly

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believed those reasons and acted in good faith upon those beliefs.” Rivera v. City

& County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004) (quotation and

brackets omitted); see also Pastran v. K-Mart Corp., 210 F.3d 1201, 1206

(10th Cir. 2000) (“The pertinent question in determining pretext is not whether

the employer was right to think the employee engaged in misconduct, but whether

that belief was genuine or pretextual.” (quotation and brackets omitted)). “The

reason for this rule is plain: our role is to prevent intentional discriminatory

hiring practices, not to act as a ‘super personnel department,’ second guessing

employers’ honestly held (even if erroneous) business judgments.” Young,

468 F.3d at 1250.

Because there seems to be some confusion on plaintiff’s part, 2 we note that,

although intermediate evidentiary burdens shift back and forth under the

McDonnell Douglas framework, “the ultimate burden of persuading the trier of

fact that the defendant intentionally discriminated against the plaintiff remains at

all times with the plaintiff.” Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d

1160, 1173 (10th Cir. 2007) (quotation and alteration omitted). Thus, Mr. Cooper

bears the burden to produce evidence at the pretext phase sufficient to support an

inference of discrimination. See id.

2
In his appeal brief Mr. Cooper refers to Wal-Mart’s failure to meet its
burden of showing good faith.

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 Mr. Cooper attempts to show pretext in three different ways: (1) with

evidence that Wal-Mart’s stated reasons for his termination were false, see

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000);

(2) with evidence that Wal-Mart treated him differently than similarly situated

employees whose policy violations were of comparable seriousness, see

Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1120 (10th Cir. 2007); and

(3) with evidence of procedural irregularities in Wal-Mart’s investigation, see id.

at 1122.

Evidence of Falsity of Wal-Mart’s Proffered
Reasons for Termination

Mr. Cooper contends that he presented sufficient evidence disputing the

facts underlying Wal-Mart’s findings regarding his misconduct, such that there

exist material issues of fact regarding whether Wal-Mart honestly believed those

reasons and acted in good faith upon that belief. “The Supreme Court has

recognized that ‘in appropriate circumstances, the trier of fact can reasonably

infer from the falsity of the explanation that the employer is dissembling to cover

up a discriminatory purpose.’” Young, 468 F.3d at 1250 (brackets omitted)

(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)).

“But the nature and quantum of plaintiff’s proof is key, for the Supreme Court has

also explained that evidence about the falsity of an employer’s proffered

race-neutral explanation for termination will not always be adequate to sustain

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liability.” Id. (quotation and ellipsis omitted). Thus, the plaintiff’s evidence

must be both relevant to the issue of pretext, and sufficient to raise a substantial

doubt about the veracity of the employer’s reasons.

Mr. Cooper contends that he has shown material issues of fact in dispute

with respect to each and every reason Wal-Mart proffered for his termination.

The district court concluded that he failed to dispute the facts underlying

Wal-Mart’s finding that he misappropriated company funds in connection with the

trip to Buckeye, Arizona. It also suggested that this was Wal-Mart’s dominant

reason for terminating Mr. Cooper. See Aplt. App. at 189 (stating that he failed

to “dispute what is arguably the most significant of Defendant’s findings

involving misappropriation of funds–the payment of hotel and meal expenses

incurred during the unauthorized trip to Tucson”). We agree.

First, Mr. Cooper does not dispute the facts found in Wal-Mart’s

investigation regarding this incident. 3 Instead, he contends that his supervisor,

Mr. Andrade, authorized the Buckeye trip. But he fails to show that the aspects

of the trip to which Wal-Mart objected–the shopping outing recorded as work

3
Mr. Cooper’s testimony regarding the events is consistent with Wal-Mart’s
findings. Although he asserted in the district court that the evidence showed the
employees appropriately recorded a flat eight hours on their time sheets for June
24 for the driving time associated with the return trip from Buckeye, whether or
not they actually drove home on that day, this is a mischaracterization of his own
testimony. He stated that the time spent by the employees who chose to travel
back home on June 24 was considered work time, but he admitted that his group
did not spend any time that day returning to Silver City. See Aplt. App. at 134.

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time, the extra meals, and the extra night’s stay in Tucson–were authorized. He

presents no evidence disputing Mr. Andrade’s testimony that he was never

informed about Mr. Cooper and other employees staying an additional night on

the Buckeye trip.

Nor does Mr. Cooper present any evidence that his misappropriation of

funds in connection with the Buckeye trip was not a dominant–if not the most

dominant–issue in Wal-Mart’s decision to terminate his employment. 4 The

relative importance of an employer’s multiple reasons for the adverse action must

enter into our analysis, because “[t]he pretext inquiry about whether a plaintiff

raises substantial doubt about a number of the employer’s reasons is not limited to

just a numeric quantitative assessment of the proffered reasons, but also includes

a qualitative assessment that takes into account which reasons dominated the

employer’s decision making process.” Bryant v. Farmers Ins. Exch., 432 F.3d

1114, 1127 n.6 (10th Cir. 2005) (quotation and brackets omitted). Thus, when a

plaintiff casts doubt on the dominant reason for termination put forth by the

employer, his failure to address other, less consequential reasons does not entitle

the employer to summary judgment. Id. at 1126-27. On the other hand, if the

employer offers one reason which, standing alone, would have caused it to

4
The record shows that Mr. Cooper was terminated for gross misconduct,
which includes misappropriation of company assets. And the dollar amount
misappropriated in connection with the Buckeye trip far exceeded the other
allegations of misappropriation of funds.

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terminate the plaintiff, then debunking the employer’s other reasons will not

defeat summary judgment. See Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303,

1310 (10th Cir. 2005). Mr. Cooper does not contend that this reason for his

termination was intertwined with the other reasons proffered by Wal-Mart. Thus,

his failure to debunk a dominant, stand-alone reason for Wal-Mart’s decision to

terminate his employment supports the district court’s grant of summary

judgment. See id.

Mr. Cooper argues that summary judgment is nonetheless unavailable to

Wal-Mart for two reasons. First he contends that he has raised substantial doubt

about many of Wal-Mart’s numerous reasons for terminating him. See Tyler v.

RE/MAX Mountain States, Inc., 232 F.3d 808, 814 (10th Cir. 2000) (holding an

inference of pretext may be drawn “when the plaintiff casts substantial doubt on

many of the employer’s multiple reasons, [such that] the jury could reasonably

find the employer lacks credibility”). Second, he argues that “the pretextual

character of one explanation is so fishy and suspicious, that a jury could find that

the employer (or its decision-maker) lacks all credibility.” Jaramillo, 427 F.3d at

1310 (citation and quotation omitted). As to both contentions, we disagree.

Mr. Cooper was required to show “that the evidence of [his] misconduct

presented to [Mr. Moore] was so implausible, incoherent, or internally

contradictory that [Mr. Moore] must have made his decision on some other basis.”

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Rivera, 365 F.3d at 925. 5 According to the materials submitted to Mr. Moore, the

Wal-Mart investigators made their findings regarding Mr. Cooper’s verbal threats

of retaliation, his sexually suggestive comments, and his inappropriate offer to

remove a disciplinary action from an employee’s file, based upon witnesses’s

statements as to what he said and did. In response, he simply denies that he ever

made the verbal threats, the offer, and some of the comments. And while he

admits to making other remarks, he asserts that they must have been misconstrued

because he did not intend them to be sexually suggestive, two employees testified

they did not interpret the statements in that manner and were not offended by

them, and Mr. Andrade had not received any complaints.

These conflicts in the evidence fail to create an inference that Mr. Moore’s

articulated motivating reasons were a pretext for discrimination. This is so

because “conflicting evidence only affects summary judgment if it is relevant to

the inquiry.” Piercy v. Maketa, 480 F.3d 1192, 1201 (10th Cir. 2007) (holding

that, despite conflicting versions of what occurred leading up to plaintiff’s

termination, she failed to show a reason to believe that her employer’s proffered

reason for termination masked a retaliatory motive). “Perhaps a reasonable

5
We note at the outset that Mr. Cooper fails to even address on appeal
several of Wal-Mart’s misconduct findings. He does not mention in his opening
appellate brief the all-female aspect of the Buckeye trip, his visits to
Ms. Quintana’s home, or his placement of an item on layaway for her. Nor does
he address Wal-Mart’s finding that he told assistant managers it was none of their
business who he was seeing outside of the store.

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factfinder could observe all the witnesses and believe Plaintiff’s version of the

events . . . . [but] that is not the issue. What is at issue is whether the evidence of

Plaintiff’s misconduct presented to [Mr. Moore] was so weak that a rational

factfinder could infer that [Mr. Moore’s] expressed reason for terminating

Plaintiff must have been pretextual.” Rivera, 365 F.3d at 925. Mr. Cooper’s

denials and his disagreement with Wal-Mart’s conclusions that certain remarks

were sexually suggestive fail to support an inference of pretext.

Wal-Mart also cited as a reason for Mr. Cooper’s termination that he

ordered the demotion of an employee without following the company’s

disciplinary process. There is no dispute that, without following that process,

Mr. Cooper decided to remove an employee from her position in the cash office

and reassign her to a sales clerk/cashier position. He contends, however, that

there is a factual dispute whether the employee was actually demoted and that the

disciplinary procedures only come into play if the action taken was disciplinary in

nature. But he admits that the basis for the employee’s “reassignment” was

because she had been rude to employees and was divulging confidential

information about payday loans. Moreover, Wal-Mart noted in its investigative

findings that Mr. Cooper’s co-manager–the person who carried out the

reassignment at his direction–characterized it as a demotion. We conclude that

Mr. Cooper has failed to show sufficient weakness in the evidence presented to

Mr. Moore regarding this issue to allow a factfinder to infer pretext.

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 Similarly, Mr. Cooper denies that he dictated a letter posted in the cash

office that threatened to fire or “re-arrange” anyone who provided information to

his superiors before going to him first. Aplt. App. at 95. Mr. Moore was

presented with evidence that Mr. Cooper was aware of this letter and intended to

enforce the admonitions in it. 6 Thus, a dispute regarding whether Mr. Cooper

dictated the letter is insufficient to support an inference of pretext.

Mr. Cooper also attempts to debunk two of Wal-Mart’s findings of

improper favoritism related to Ms. Quintana. He contends that he did not exceed

his discretion as the store manager in raising her salary, and that his award of a

$250 gift card to her was not a violation of the conflict of interest policy because

it was approved by Mr. Andrade. These arguments ignore Wal-Mart’s concern

not only with actual conflicts of interest, but also with the appearance of a

conflict created by the instances of favorable treatment of and fraternization with

Ms. Quintana. Thus, regardless of his authority to do so, Wal-Mart concluded

that Mr. Cooper’s decision to raise her salary significantly more than any other

department manager was a real or apparent conflict of interest. Likewise,

Mr. Andrade’s assent to his request to award Ms. Quintana the gift card is not

relevant in the absence of evidence that Mr. Cooper disclosed to his supervisor

6
Wal-Mart’s investigative findings included a statement from a witness that,
when Mr. Cooper asked her whether she had seen the letter, she responded, “Yes,
I saw your threat,” and he replied, “It’s not a threat, it’s a promise.” Aplt. App.
at 86 (quotations omitted).

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the full extent of his fraternization with her. Moreover, despite Mr. Cooper’s

assertion that the gift card was an appropriate award for Ms. Quintana’s

disclosure of a potential fraud scheme by another employee, the investigators

presented Mr. Moore with evidence that she had no involvement in that

investigation. Again, he has not shown that the evidence Mr. Moore relied on

was so weak as to create an inference of pretext. See Rivera, 365 F.3d at 925.

Mr. Cooper also attempts to show that there is relevant conflicting evidence

regarding Wal-Mart’s two other findings that he misappropriated company funds.

He does not deny giving out $25 gift cards to employees at a holiday party, but he

contends that Wal-Mart’s finding of misconduct was mistaken because the cards

were actually awarded to employees who participated in a line dance. He points

to a witness’s testimony supporting his position that it was a “group thing,” rather

than one-on-one dancing with him. Aplt. App. at 125. But Wal-Mart’s

investigative finding did not state that he was dancing one-on-one with the gift

card recipients and he does not deny that he participated in the dancing. See id.

(same witness testifying that “everybody was dancing”). Thus, he has not shown

any factual dispute regarding this finding of misconduct.

Finally, Mr. Cooper asserts that Wal-Mart’s finding that he direct-billed the

cost of his wife’s hotel room to the company is not only wrong, but “so fishy and

suspicious” that it casts doubt on all of the other reasons for his termination, and

a jury could therefore reasonably find that Wal-Mart lacks all credibility.

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Jaramillo, 427 F.3d at 1310 (quotation omitted). We agree with Mr. Cooper that,

based on the record before us, he has shown a substantial weakness in the

evidence presented to Mr. Moore on this issue. He points to testimony that he

gave cash to another Wal-Mart employee who paid for the hotel room. 7 On the

other hand, Wal-Mart’s investigative findings state only that Mr. Cooper “direct

billed” Wal-Mart for the cost of the hotel room, id. at 66, 85, without any

indication in the record what that conclusion means, what it is based upon, or

whether any evidence was presented to Mr. Moore to support it. Wal-Mart does

not even address this reason for Mr. Cooper’s termination in its appeal brief.

We cannot conclude, however, that the pretextual character of this one

reason for Mr. Cooper’s termination is sufficient to undermine the veracity of the

numerous other reasons proffered by Wal-Mart, which remain uncontested. With

no evidence that Mr. Moore’s true motivation was racial, no reasonable jury could

infer solely from the uncertainty whether this one reason was real or phony, that

the true motivation for Mr. Cooper’s termination was indeed his race. See Russell

v. Acme-Evans Co., 51 F.3d 64, 70 (7th Cir. 1995). Moreover, having failed to

7
The district court dismissed this evidence based on the witness’s suggestion
that the money had come from the Wal-Mart cash office, but there is no such
suggestion in the testimony. The witness simply answered “No” when asked if
Mr. Cooper ever indicated that the money had been taken from a Wal-Mart
account. Aplt. App. at 126.

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cast substantial doubt on many of Wal-Mart’s reasons, Mr. Cooper has failed to

show pretext on that basis. See Tyler, 232 F.3d at 814.

Evidence that Similarly Situated Employees
Were Treated Differently

A plaintiff may show pretext “by providing evidence that he was treated

differently from other similarly-situated, nonprotected employees who violated

work rules of comparable seriousness.” Kendrick, 220 F.3d at 1232. Wal-Mart

conducted an investigation in response to the allegations Mr. Cooper made against

other store managers in the Open Door complaint he submitted following his

termination. He argues that four other store managers, all of whom are Hispanic,

were charged with similar misconduct, but received less-severe discipline. He

asserts that the evidence of disparate treatment supports an inference that

Wal-Mart’s reasons for terminating him were a pretext for discrimination.

The parties do not dispute that these other store managers reported to the

same supervisor and were subject to the same standards of performance and

discipline as Mr. Cooper. See id. But Wal-Mart contends that he has failed to

proffer evidence showing that their violations of work rules were of comparable

seriousness to his violations. “This is crucial because in order to infer that the

disparate treatment of two similarly situated employees was tinged with

discriminatory animus, the two employees’ violations of company policy must be

of comparable seriousness.” Timmerman, 483 F.3d at 1121. Mr. Cooper “bears

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the burden of producing evidence that these employees were similarly situated.”

Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1121 n.4 (10th Cir. 2007).

Although Mr. Cooper focuses on the allegations of misconduct against the

other employees, the relevant evidence pertains to Wal-Mart’s findings of

violations and resulting discipline. At best, the undisputed evidence in the record

shows findings of misconduct by the other store managers that were both less

severe and less frequent than Mr. Cooper’s misconduct. None of the four had as

many findings of misconduct against them as Mr. Cooper did. 8 And none of the

allegations substantiated against the other store managers involved offenses as

serious as misappropriation of company funds. 9

Mr. Cooper protests that the degree of severity of misconduct is always a

question for the jury, but we have upheld summary judgment where a plaintiff’s

pretext argument based on disparate discipline fails to present evidence of a

violation of comparable severity. See, e.g., Timmerman, 483 F.3d at 1121 (noting

plaintiff failed to establish that other employees’ violations were as frequent and

8
Mr. Cooper contends that, like him, one other store manager “was charged
with a litany of misconduct,” which he characterizes as “similar to claims
Wal-Mart is making against Cooper.” Aplt. Opening Br. at 31-32. But the record
indicates that only six of seventeen allegations against this store manager were
substantiated.
9
Although Mr. Cooper asserts that another store manager “was also accused
of misconduct involving misappropriation, similar to claims made against [him],”
Aplt. Opening Br. at 31, he fails to support this contention with a citation to the
record. Nor did our review of the record reveal evidence of a finding of
misappropriation of company funds involving this other store manager.

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involved a comparable dollar amount as her own misconduct); Kendrick, 220 F.3d

at 1232 (holding plaintiff failed to show pretext based on disparate discipline

because physical pushing of a superior constituted a violation of greater severity

than verbal abuse by other employees).

Furthermore, we rejected the same argument in Riggs, 497 F3d at 1116-17.

We acknowledged that, “at the summary judgment stage, the plaintiff need only

produce evidence that similarly situated employees were treated differently.” Id.

at 1117. But we rejected the plaintiff’s premise that the district court must have

made improper factual findings in support of its determination that other

employees were not similarly situated, concluding that “[t]he district court was

plainly allowed to make the determination that Ms. Riggs did not produce

sufficient evidence of disparate treatment to create a genuine issue of material

fact for trial.” Id. Thus, we upheld the district court’s distinction between the

plaintiff’s misconduct involving customers and the other employees’ offenses,

noting that she proffered no evidence suggesting that the employer considered the

other offenses to be as egregious as hers. Id. at 1120-21.

We reach the same conclusion here. Mr. Cooper has not proffered evidence

of violations by other store managers’ violations of comparable seriousness to his

own misconduct sufficient to carry his burden of persuasion in showing pretext

based on Wal-Mart’s disparate discipline of similarly situated employees.

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 Evidence of Procedural Irregularities
in Wal-Mart’s Investigation

Mr. Cooper’s final contention is that Wal-Mart’s failure to seek his

response to the allegations of misconduct, and its failure to interview additional

employees in its investigation, are sufficient procedural irregularities to show that

its reasons for terminating him were a pretext for discrimination. “We have

previously held that disturbing procedural irregularities surrounding an adverse

employment action may demonstrate that an employer’s proffered

nondiscriminatory business reason is pretextual.” Timmerman, 483 F.3d at 1122.

But “[t]he mere fact that an employer failed to follow its own internal procedures

does not necessarily suggest that the substantive reasons given by the employer

for its employment decision were pretextual.” Berry v. T-Mobile USA, Inc.,

490 F.3d 1211, 1222 (10th Cir. 2007) (quotation and ellipsis omitted).

In order to establish pretext based on a procedural irregularity, a plaintiff

must identify an applicable written or unwritten policy or procedure that the

employer failed to follow. See id. (noting plaintiff pointed to no written policy

and no evidence of an unwritten specific approach to progressive discipline);

Jaramillo, 427 F.3d at 1312-13 (holding failure to administer examination that

was not required “is not a procedural irregularity”). Here there is no dispute that

Wal-Mart did not seek out Mr. Cooper’s side of the story before Mr. Moore

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decided to terminate him. 10 Mr. Cooper asserts that three policies required

Wal-Mart to do so: the Open Door policy, the Respect for the Individual policy,

and Wal-Mart’s progressive discipline policy called “The Coaching For

Improvement Process.” Aplt. App. at 168. Mr. Cooper fails to point us to the

text of either of the first two policies in the record, and unlike the district court,

we will not assume that he correctly characterizes their requirements in his

argument.

Mr. Cooper does not dispute that, under Wal-Mart’s progressive discipline

policy, it could terminate him immediately for gross misconduct, without

applying step discipline. But he contends that the Coaching for Improvement

policy required Wal-Mart to obtain his statement before determining whether he

engaged in gross misconduct. One of the “Guidelines for Administering the

Coaching for Improvement Process” is to “Discuss the situation with the

Associate to get their side and any additional facts.” Id. at 169. But as Wal-Mart

notes, the policy also states that “Associates who are deemed to have engaged in

Gross Misconduct are subject to immediate termination. This is not part of the

10
Wal-Mart argues that Mr. Cooper was given ample opportunity to give his
statement after his termination and that Mr. Moore considered that statement, as
evidenced by the further investigation conducted. But there is no indication in
Mr. Moore’s affidavit that he reviewed Mr. Cooper’s post-termination responses
to the misconduct allegations with an eye toward potentially reevaluating his prior
decision, and the subsequent investigation focused solely on Mr. Cooper’s
allegations against other employees.

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Coaching for Improvement process.” Id. at 170. We agree with the district court

that the guideline to seek out the employee’s side of the story appears to apply to

all investigations, “as the determination of whether the misconduct is ‘gross’ does

not occur until after the step allowing the employee to provide input.” Id. at 193.

But plaintiff failed to present any evidence that Wal-Mart believed its policy

mandated getting his side of the story before he was terminated. See Aplt.

Opening Br. at 29 (reciting Wal-Mart’s explanation that it did not get a statement

from him because the violations were so numerous he could not possibly rebut

every one). We have held that, if the decision makers did not believe that a rigid

policy existed, their mistake in failing to follow it does not show pretext. See

Berry, 490 F.3d at 1222.

Moreover, Mr. Cooper ignores that the standard for establishing pretext

requires evidence of not just any procedural shortfall, but of a “disturbing

procedural irregularity,” Timmerman, 483 F.3d at 1122, often exemplified by an

employer’s “falsifying or manipulating of relevant criteria,” Plotke v. White,

405 F.3d 1092, 1104 (10th Cir. 2005) (quotation and brackets omitted). In Plotke

we held that the plaintiff’s evidence supported an inference that her employer had

fabricated a memo after the fact to support its decision to terminate her, raising a

genuine doubt about the employer’s motivation. Id. at 1104-05.

In contrast, on facts similar to those presented here, we concluded that an

employer’s a failure to follow its normal investigative practice of seeking out the

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employee’s side of the story was insufficient to suggest that its reasons for

terminating the plaintiff were false. In Riggs the employer admitted that an

investigation of misconduct typically included obtaining a statement from the

employee, 497 F.3d at 1114, but the employer failed to do so before terminating

Ms. Riggs, id. at 1119. Her supervisor explained that, after receiving a customer

complaint, she did not discuss the issue further with Ms. Riggs because the

plaintiff was on vacation at the time and the customer’s description of the

employee involved in the misconduct fit only the plaintiff. Id. We concluded

that, “[a]lthough allowing Ms. Riggs to complete her side of the story would seem

to be the most fair way of addressing the situation, we cannot say that [her

supervisor’s] failure to do so in these circumstances constitutes a disturbing

procedural irregularity sufficient to prove pretext.” Id. (quotation omitted). We

reach the same conclusion here: Mr. Cooper has not proffered evidence of a

disturbing procedural irregularity based upon Wal-Mart’s failure to get his side of

the story before deciding to terminate him.

Finally, Mr. Cooper argues that Wal-Mart’s investigation was biased

because, out of over 400 employees, it chose to interview only those few who

could corroborate the allegations against him. He contends this demonstrates that

Wal-Mart’s proffered reasons for his termination were a pretext for

discrimination. The record shows that Wal-Mart interviewed approximately 21

employees in its investigation, including Ms. Quintana and Mr. Cooper’s

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co-manager, both of whom were also terminated. Although Mr. Cooper asserts

that “[s]ignificant employees who could or would dispute the claims were

apparently not interviewed,” Aplt. Opening Br. at 27, he fails to identify a single

additional witness or present any evidence that the witnesses Wal-Mart

interviewed were biased. Nor does he identify any policy, written or unwritten,

that required Wal-Mart to interview more or different witnesses. Thus, he fails to

carry his burden to present evidence of a disturbing procedural irregularity based

on the witnesses that Wal-Mart interviewed, or failed to interview, in its

investigation. 11

Conclusion

Although Mr. Cooper did not have a burden to establish conclusively at the

summary judgment stage whether Wal-Mart’s stated reasons for his termination

were pretextual, he “was required to establish that there is a genuine factual

dispute with regard to the truth.” Swackhammer, 493 F.3d at 1170 (quotation

omitted). That genuine factual dispute must relate to whether Mr. Moore “acted

in good faith upon the beliefs he held.” Id. Viewed in the light most favorable to

plaintiff’s position, the evidence in the record does not call into question whether

Mr. Moore or Wal-Mart actually relied, honestly and in good faith, upon the

11
In light of our previous conclusions, we also reject Mr. Cooper’s assertion
that his evidence of procedural irregularities, when considered in combination
with his other evidence, is sufficient to show pretext.

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misconduct findings in the investigation in making the decision to terminate

Mr. Cooper’s employment. See id.

The judgment of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock
Circuit Judge

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