Appeals Court Says Discriminatory Comments Irrelevant to Firing of Wal-Mart Associate

Exclamation PointIt’s rare today to have “direct evidence” of age discrimination – or evidence that on its face raises a legal inference of guilt. Most supervisors and managers have learned to refrain from making discriminatory comments in public.

So when direct evidence of discrimination does exist, you’d think the court would take it seriously. Don’t count on it.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit in Ohio recently dismissed the case of Reva Richardson, a 50-year-old sales associate at a Wal-Mart store in Lansing, Michigan, who was fired after a supervisor allegedly told her son, who also worked at the store, “[We] need to get rid of Reva. She’s too old to work here anymore.”

The  12-year veteran Wal-Mart employee was fired after she fell and broke her wrist while stacking merchandise at the store. The reason given for Richardson’s termination was “demonstrated unsafe work practices which resulted in an accident.”

The appeals court earlier this month upheld the dismissal of Richardson’s case without a trial, essentially finding that no reasonable person could conclude that Richardson was a victim of age discrimination.

The court observed that the supervisor who made the inflammatory remarks, Adam Eschtruth, was transferred to another Wal-Mart store four months before Richardson’s dismissal and Riichardson failed to produce evidence that Eschtruth had any input in the decision to terminate her employment. The Court found that Eschtruth “was not involved in the firing decision” and “his statements do not qualify as direct evidence of age discrimination.”

Of course there was other evidence, including the questionable reason cited for Richardson’s dismissal.

Store manager Mark Darby fired Richardson after he and two other store managers reviewed a surveillance video of Richardson’s fall. They concluded that Richardson created a safety hazard due to improper placement of equipment. Furthermore, they faulted her for failing to look behind when she walked backward and tripped on a piece of equipment.

Richardson argued that Wal-Mart management began mistreating her in 2012 because of her age. Among other things, she said Darby “humiliated” and “taunted and shamed her” by screaming at her in front of a vendor. Moreover, she said Darby and Eschtruth treated two younger associates more favorably than her.

She also said Eschtruth asked her several times during her evaluation  when she was going to “quit” or “leave”  Wal-Mart, to which Richardson responded, “When I can no longer walk.”

According to the appeals court, Richardson’s evaluations were generally positive. However, she received three “written coachings” over a period of 12 years. These involved an alleged attempt to influence the exchange of her daughter’s computer, failure to properly package a hazardous-material item and four unscheduled absences (due to illness) within six months.

The case is Richardson v. Walmart Stores, Inc.,  6th Cir., No. 15-1142,  (Sept. 9, 2016).

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