Case: 20-30403 Document: 00515916839 Page: 1 Date Filed: 06/28/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 28, 2021
No. 20-30403
Lyle W. Cayce
Clerk
Stacy Patrick,
Plaintiff—Appellant,
versus
Walmart, Incorporated, formerly “Wal-Mart,
Incorporated,”
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:18-CV-00738
Before Higginbotham, Costa, and Oldham, Circuit Judges.
Per Curiam:*
Stacy Patrick sued Walmart for employment discrimination after it
fired her from her position as an assistant manager at a Shreveport store.
Patrick, a white woman, claims that Walmart fired her because of her race in
violation of both Title VII of the Civil Rights Act and 42 U.S.C. § 1981. She
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-30403
also alleges that she experienced a racially and sexually hostile work
environment. 1
As an assistant manager, Patrick supervised a group of about fifteen
employees who unloaded merchandise from trucks at the back of the store.
Before the incidents at issue in this case, Patrick had received two disciplinary
“coachings” relating to a customer service complaint and company policy
violation.
The process that led to Patrick’s termination began when unloaders
she supervised complained to a manager that Patrick used the N-word at
work. The complaint triggered an internal investigation during which at least
five employees confirmed that Patrick had used the N-word on the job. Due
to the seriousness of the offense and Patrick’s prior disciplinary record,
Walmart fired her following the investigation.
The district court granted summary judgment to Walmart on all
claims and denied Patrick’s later motion to reopen discovery.
I.
Patrick argues that the district court incorrectly granted summary
judgment on her race discrimination claim. We review a grant of summary
judgment de novo, viewing all facts in the light most favorable to the non-
moving party. Harville v. City of Houston, 945 F.3d 870, 874 (5th Cir. 2019).
Patrick maintains that Walmart terminated her because of her use of
the N-word at work but did not discipline African-American unloaders who
used the same racial epithet on the job. Claims of race discrimination based
on circumstantial evidence, such as Patrick’s, follow the McDonnell Douglas
1
Patrick originally included allegations that her termination was motivated by
retaliation and sex discrimination, but she does not appeal the dismissal of those claims.
2
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v. Green burden-shifting framework. See 411 U.S. 792, 803–04 (1973). 2 The
parties agree that Patrick is a member of a protected class, is qualified for the
job, and was subject to an adverse employment action. So this case turns on
whether Patrick has shown the fourth element of the prima facie case for
disparate treatment: that Walmart treated her less favorably than “other
similarly situated employees who were not members of the protected class,
under nearly identical circumstances.” Lee v. Kan. City S. Ry. Co., 574 F.3d
253, 259 (5th Cir. 2009).
The “nearly identical” requirement ensures that disparate
disciplining of the plaintiff and comparators supports an inference that racial
discrimination, rather than some other difference in employment
circumstances, is the reason for the different consequences. Id. at 259–60.
Here there are significant differences between Patrick’s situation and those
of the African-American comparators she cites. Most glaringly, Patrick was
a supervisor. Employees who have different work responsibilities generally
are not similarly situated. Id. at 260. A supervisor’s use of a racial epithet
around her subordinates is not a “nearly identical” situation to peer
employees’ using the same term when talking to one another. See id.; Vaughn
v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011) (holding that employees
who reported to plaintiff were not appropriate comparators); Vess v. MTD
Consumer Grp., Inc., 755 F. App’x 404, 408 (5th Cir. 2019) (unpublished)
(per curiam) (concluding that supervisor and hourly employee were not
similarly situated).
Patrick argues that the difference in work responsibilities is irrelevant
because a Walmart policy prohibits all employees from using the N-word.
2
Race discrimination claims under Title VII and under section 1981 are “parallel”
and require the “same proof to establish liability.” Harville, 945 F.3d at 874 n.10 (internal
quotations and citations omitted).
3
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While that may bear some relevance to our inquiry, it does not fully resolve
whether the conduct of Patrick and the unloaders was “nearly identical” so
as to allow an inference of racial discrimination. We have already noted that
an employer may understandably treat more seriously a supervisor’s use of
the word in discussions with her supervisees than supervisees’ use of the
word among themselves. But the main reason Patrick’s “policy” argument
does not carry the day is that her use of the N-word was admitted and
substantiated by an internal investigation whereas an investigation into the
alleged use of the word by specific unloaders was inconclusive.
It is fundamental, of course, that a proven allegation is different from
an unproven one. When upper management investigated the complaint
about Patrick’s use of the N-word, numerous employees confirmed the
allegation as did Patrick herself. In contrast, when upper management
investigated Patrick’s complaint that her supervisees were using the N-word,
the unloaders denied saying it themselves or hearing their peers use the word.
Patrick points to earlier complaints about unloaders using the epithet as
corroboration for her allegation, but again it does not appear that any
investigation confirmed a particular unloader’s use of the N-word. While the
summary judgment posture requires us to credit the allegations that some
unloaders did use the word, for the comparator analysis what matters is that
Walmart was able to substantiate the use of the word by Patrick but not
others. See Lee, 574 F.3d at 260 (explaining that “the plaintiff’s conduct that
drew the adverse employment decision must have been ‘nearly identical’ to
that of the proffered comparator who allegedly drew dissimilar employment
decisions”).
For these reasons, the unloaders and Patrick were not similarly
situated so as to allow their disparate treatment to support an inference of
unlawful discrimination.
4
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II.
We can readily dispose of Patrick’s other arguments on appeal.
On the hostile-work-environment claims, we affirm summary
judgment in favor of Walmart essentially for the reasons given by the district
court.
Patrick also argues that the district court abused its discretion when it
declined to reopen discovery or allow her to redepose two witnesses. Yet she
has not explained how the additional deposition testimony would impact the
summary judgment analysis. See Beattie v. Madison Cnty. Sch. Dist., 254 F.3d
595, 606 (5th Cir. 2001). Even if the added discovery would produce
additional evidence indicating that some unloaders used the N-word, that
would not change our conclusion that Patrick was not similarly situated to
those comparators given that she was a supervisor and that Walmart
substantiated her use of the word.
***
The judgment of the district court is AFFIRMED.
5