Kelly v. Costco Wholesale Corp.
632 F. App'x 779
5th Cir.2015Background
- Erich Kelly, age 53, worked for Costco from 2001 to 2011; demoted to cashier in 2009 for falsifying sanitation paperwork, later promoted to meat lead.
- In May 2011 an unannounced meat department inspection revealed numerous policy violations for which Kelly was terminated.
- Romo (warehouse manager) allegedly made a remark about hiring young workers when Kelly asked for help; Kelly claims this evidences age bias.
- Webb (regional VP) terminated Kelly after interviews and considering prior discipline; other department employees with varying ages were treated differently.
- Kelly sued in state court; Costco removed to federal court and moved for summary judgment; district court granted.
- On appeal, the Fifth Circuit affirms summary judgment, applying McDonnell Douglas framework and rejecting pretext and “cat’s paw” theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prima facie case established? | Kelly argues age was factor in termination. | Costco contends evidence supports nondiscriminatory reasons. | Assumed; plaintiff did not negate nondiscriminatory reasons. |
| Pretext evidence sufficient? | Romo remark shows discriminatory animus. | Remarks are stray, insufficient to show pretext; no other evidence of discrimination. | No pretext shown; remarks not enough. |
| Romo’s influence over Webb? | Romo influenced termination decision as interviewer. | No evidence Romo had influence over Webb’s ultimate decision. | Romo lacked influence over Webb; cannot sustain cat’s paw. |
| Evidence of true reasons for termination? | Disciplinary history and department issues show false reasons. | Department problems and discipline are legitimate nondiscriminatory reasons. | Reasons found credible; not pretextual. |
Key Cases Cited
- Reed v. Neopost USA, Inc., 701 F.3d 434 (5th Cir.2012) (two-part test for discriminatory remarks and causal influence)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (framework for pretext in circumstantial evidence cases)
- Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (U.S. 2000) (production of legitimate reasons does not require credibility assessment at stage two)
- Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir.1996) (remarks-based discrimination analysis; age comparison considerations)
- Laxton v. Gap Inc., 333 F.3d 572 (5th Cir.2003) (discriminatory remarks must come from person with influence over decision)
- Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144 (5th Cir.1995) (precedent on evaluating evidence of discrimination)
- Waggoner v. City of Garland, Tex., 987 F.2d 1160 (5th Cir.1993) (stray remarks do not prove discrimination)
- Cervantez v. KMGP Servs. Co. Inc., 349 Fed.Appx. 4 (5th Cir.2009) (stray remarks insufficient to establish pretext)