USCA11 Case: 21-11494 Date Filed: 03/23/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11494
Non-Argument Calendar
____________________
GREGORY MINARD,
Plaintiff-Appellant,
versus
SAM’S EAST, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:18-cv-01222-AKK
____________________
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2 Opinion of the Court 21-11494
Before JILL PRYOR, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Gregory Minard accuses Sam’s East, Inc. of unlawfully
terminating him because of his race or because of his age.
Although he admits that he violated company policy, he argues
that younger Caucasian employees did the same thing and suffered
no consequences. The district court granted summary judgment
to Sam’s East, concluding that Minard failed to show that his
employer acted with discriminatory intent. We affirm.
I.
Gregory Minard, a 57-year-old African American man,
became the manager of the Sam’s Club in Irondale, Alabama in
2003. During his fourteen years in the role Minard “routinely
received raises, recognition for exceptional store performance, and
positive annual reviews.” Although he developed a strong record,
it was not flawless; on at least two occasions Minard received
disciplinary warnings from his manager for failing to ensure that
his store was properly stocked and organized. Along with
overseeing in-store sales, Club managers like Minard were tasked
with helping to facilitate large wholesale purchases by Club
members. Minard’s most notable success came through these sales
by the truckload.
For Minard, the sales began in 2012 when a local food
distributor came to him hoping to order an enormous amount of
french fries. Back then Minard was largely unfamiliar with the
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21-11494 Opinion of the Court 3
wholesale process, so he contacted the Vice President of Wholesale
Trading, Don Mills, for help. Mills told Minard, among other
things, to have the distributor prepay for the fries by ringing up the
order on the register. Minard followed the instructions, and it
seemed to work well. Minard also went out of his way to make
truckload ordering easy for his members. Sometimes he or a
trusted employee would pick up a member’s credit card to charge
them for an order, saving them the trip to the store. Within a few
years, Minard’s store was grossing over two million dollars
annually in truckload sales. Because of his success, Minard’s
manager even asked him to help neighboring Sam’s Clubs expand
their wholesale business.
But the prepayment process Minard used had a flaw.
Ringing up a truckload order immediately deducted the items from
the store’s inventory, causing the inventory total to drop far below
the actual number of items in the store. And a big enough order
could drop the store’s count into the negatives. In 2015 Sam’s Club
solved this problem with a truckload prepayment policy,
prohibiting stores from ringing them up at the register. The policy
instructed employees to use a special deposit account to hold the
prepaid funds until the truckload shipment arrived at the store.
Only at that point were they to ring up the sale.
Anyone who failed to follow the policy risked discipline
because under another policy recording “sales or returns that were
not actually made, or where the merchandise had not yet been
delivered when the sale was registered” constituted a “financial
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4 Opinion of the Court 21-11494
integrity” violation. Minard, however, failed to adopt the deposit
account process and continued to ring up truckload orders.
Minard’s store began to suffer inventory problems in late
2016 or early 2017 when his french fry supplier suffered shortages
and couldn’t meet the wholesale demand. Minard was forced to
refund prepayments for orders he couldn’t fulfill, but even after
those refunds the inventory system indicated a “negative on-
hands” count. Because the system had processed more sales of fries
than had been delivered to the store, that meant members had paid
for fries they never received. Minard discussed the problem with
the Market Asset Protection Manager, Melanie Patrick, as well as
his manager, Marshall Bacote. Minard also worked with his
members directly to try to determine whose orders had not been
fulfilled. After several months of review, the inventory error
remained unsolved.
Then Athena Rushforth replaced Patrick as the Market Asset
Protection Manager, and when she learned about the discrepancy
while visiting the store in July 2017 she became concerned. Minard
was not at the store that day, so the next week Rushforth, Minard,
and two others joined a conference call to discuss the issue. On the
call Minard explained how he had been pre-ringing the sales and,
in some cases, using a member’s credit card without the person
present; Rushforth explained to him that this process violated
company policy.
Based on this information Rushforth escalated the issue
within the Asset Protection group to Hugh Zengerle, who in turn
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requested an investigation by the company’s Ethics team.
Rushforth was assigned to spearhead the investigation, and she
confirmed that Minard’s actions violated company policy and had
created a “financial integrity issue.” Because Minard already had
two written warnings, both Ethics and HR approved Minard’s
termination. His manager fired him a few days later.
As a result, responsibility for the store’s truckload sales
shifted to Nadine Smith, a 29-year-old Caucasian woman who had
been Minard’s assistant manager. Smith had been assisting Minard
with all aspects of truckload orders for some time. She was one of
the few employees permitted to pick up members’ credit cards, and
like Minard she had pre-rung wholesale purchases weeks before the
items arrived. After Minard was fired, Smith continued to pre-ring
truckload orders using members’ credit cards, which again caused
the store’s french fry inventory to drop into the negatives. This led
to a second Ethics investigation, again led by Rushforth and
Zengerle. Rushforth concluded that Smith had merely been
following Minard’s directions, so Smith was re-trained but not
disciplined. Sam’s Club closed the Irondale store not long after,
and the truckload members were directed to the nearby Trussville,
Alabama location.
The Trussville Sam’s Club was managed by Elizabeth
Bowler, a 50-year-old Caucasian woman. Bowler fulfilled these
orders like Minard did—by pre-ringing the sales—though she
would wait until a few days before the items arrived rather than
ringing up the order the moment it was placed. At Trussville the
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6 Opinion of the Court 21-11494
transactions never triggered the complex inventory problem that
they had at Irondale, so Bowler’s process went unnoticed for some
time. When Sam’s Club eventually learned that Bowler was not
following company policy, HR concluded that Bowler needed
“training” and so “provided documentation” about the special
prepayment account. But the company did not discipline Bowler.
Minard sued, claiming that Sam’s Club had unlawfully
discriminated against him because of his age and race—and did so
in violation of
42 U.S.C. § 1981, Title VII of the Civil Rights Act of
1964, the federal Age Discrimination in Employment Act, and the
Alabama Age Discrimination in Employment Act. 1 See 42 U.S.C.
§ 2000e-2;
29 U.S.C. § 623;
Ala. Code § 25-1-22. The district court
granted summary judgment to Sam’s Club, concluding that Minard
failed to prove that Sam’s Club acted with discriminatory intent, in
part because he compared himself to employees who were not
“similarly situated” to him. Minard appeals.
II.
We review a grant of summary judgment de novo,
“construing all facts and drawing all reasonable inferences in favor
of the nonmoving party.” Jefferson v. Sewon Am., Inc.,
891 F.3d
1 Minard also brought two state law claims: a negligent hiring, training,
supervision, and retention claim and an outrage claim. But he abandoned
them both by failing to argue them on appeal; his cursory discussion of the
negligent hiring claim in his initial brief is not enough. See Greenbriar, Ltd. v.
City of Alabaster,
881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
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21-11494 Opinion of the Court 7
911, 919 (11th Cir. 2018) (citation omitted). Summary judgment is
appropriate when the moving party is entitled to a judgment as a
matter of law. Cantu v. City of Dothan,
974 F.3d 1217, 1228 (11th
Cir. 2020).
III.
Under Title VII and
42 U.S.C. § 1981, it is unlawful to
terminate an employee because of his race. See Lewis v. City of
Union City,
918 F.3d 1213, 1220 (11th Cir. 2019) (en banc). Nor can
race be “a motivating factor for an adverse employment action,”
even if “other factors also motivated the action.” See Quigg v.
Thomas Cnty. Sch. Dist.,
814 F.3d 1227, 1235 (11th Cir. 2016)
(citing 42 U.S.C. § 2000e–2(m)) (quotation omitted). But see
Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media,
140 S. Ct.
1009, 1019 (2020) (holding that the Title VII motivating factor test
does not extend to § 1981). The ADEA prohibits employers from
firing employees because of age, but unlike Title VII it does not
authorize “mixed-motive” age discrimination claims. Mora v.
Jackson Mem’l Found., Inc.,
597 F.3d 1201, 1203–04 (11th Cir.
2010).
At summary judgment, the employee must produce
sufficient evidence to show that the employer acted with
discriminatory intent. Smith v. Lockheed-Martin Corp.,
644 F.3d
1321, 1328 (11th Cir. 2011). He may satisfy this burden using either
direct or circumstantial evidence, including by relying on the
McDonnell Douglas framework. See Lewis, 918 F.3d at 1220 (Title
VII and § 1981 claims); Sims v. MVM, Inc.,
704 F.3d 1327, 1332
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8 Opinion of the Court 21-11494
(11th Cir. 2013) (ADEA claims); Robinson v. Alabama Cent. Credit
Union,
964 So. 2d 1225, 1228 (Ala. 2007) (Alabama age
discrimination law mirrors ADEA).
Minard argues that the company’s decision to fire him but
not two younger white employees who also violated company
policy is sufficient circumstantial evidence of intentional
discrimination. He relies on the McDonnell Douglas burden-
shifting framework, which requires the employee to make out an
initial “prima facie case of discrimination.” See Lewis, 918 F.3d at
1220–21. If an employee produces a prima facie case, the employer
must produce “a legitimate, nondiscriminatory reason for its
actions.” Id. Then the employee must show that any proffered
reason “was merely a pretext,” for the “ultimate burden” of
persuasion is always on the employee to establish that he was “the
victim of intentional discrimination.” Id. (quotation omitted).
To establish the prima facie case of discrimination, Minard
must show (1) that he belongs to a protected class, (2) that he
suffered an adverse employment action, (3) that he was qualified
for the job, and (4) that his employer treated “similarly situated”
employees outside his class more favorably. See id. The parties
agree that Minard satisfies the first three elements, but they dispute
the fourth. Minard claims that both Smith and Bowler were
“similarly situated” because both pre-rang truckload orders and
because Smith used members’ credit cards. And despite these
similarities, he argues, Sam’s Club only disciplined and terminated
him.
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Another employee is “similarly situated” to a plaintiff only
when she is similar in “all material respects,” meaning she “cannot
reasonably be distinguished.” Id. at 1227–28 (quotation omitted).
In this analysis we often consider whether she (1) “engaged in the
same basic conduct (or misconduct) as the plaintiff”; (2) was
subjected “to the same employment policy, guideline, or rule”; (3)
was managed by the same supervisor; and (4) shared “the plaintiff’s
employment or disciplinary history.” Id.
Based on these characteristics neither Smith nor Bowler was
similarly situated to Minard. Unlike Minard, Bowler never directed
her staff to borrow members’ credit cards to pay for truckload
orders at the store. And even though she pre-rang wholesale orders
for a year, this never led to an unresolvable negative inventory
problem. Minard also had two written disciplinary warnings, but
both Bowler’s and Smith’s records were clean. Now it’s true that
Smith was more like Minard than Bowler in that she also misused
members’ credit cards, but on the other hand Smith was not a Club
manager. In fact, she had been Minard’s assistant manager; it
therefore was reasonable for Sam’s Club to attribute more of the
responsibility to her superior, Minard. These material distinctions
show that neither Bowler nor Smith was similarly situated to
Minard.
The record is also devoid of direct evidence that Sam’s Club
acted with discriminatory intent, and the other remaining bits of
evidence do not form a “convincing mosaic” from which a jury
could infer intentional discrimination. See Lockheed-Martin, 644
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10 Opinion of the Court 21-11494
F.3d at 1328. Minard argues that Rushforth purposefully avoided
him “as a black African American” and selectively worked with the
younger “white female” employees at the store. But Minard was
not working when Rushforth first visited his club in July 2017, the
day she learned of the inventory problem. And on the follow-up
conference call a few days later Minard admitted to her that he had
not been following the company policy for truckload sales. Then
Rushforth was tasked with a central role in the “financial integrity”
investigation Sam’s Club opened a few weeks later. Although this
evidence shows that Rushforth investigated a perplexing inventory
problem that Minard caused by mishandling truckload orders, it
does not add up to racial discrimination.2
* * *
The issue here is not whether it was a wise business decision
to fire Minard despite his years of hard work and his success
garnering truckload sales. Sam’s Club may “fire an employee for a
good reason, a bad reason, a reason based on erroneous facts, or
for no reason at all, as long as its action is not for a discriminatory
reason.” See Nix v. WLCY Radio/Rahall Commc’ns,
738 F.2d
1181, 1187 (11th Cir. 1984), abrogated on other grounds by Lewis,
2Minard’s direct evidence of age discrimination is also inadequate. He points
to an offhand comment by a speaker at an annual company meeting that “if
you were writing with paper and pencil instead of taking notes on a tablet or
a phone, then you were kind of like a dinosaur.” This tangential “evidence is
too weak to raise a genuine fact issue.” See Alvarez v. Royal Atl. Devs., Inc.,
610 F.3d 1253, 1267–68 (11th Cir. 2010).
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918 F.3d at 1218. Because Minard fails to show that Sam’s Club
acted with discriminatory intent, his race and age discrimination
claims cannot succeed.
AFFIRMED.
