Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—M.D. Pa.: Wal-Mart supervisor fired after alleged threat moves forwards with race and national origin bias suit, (Aug 28, 2026)

By Steven Melendez

Among other things, she submitted an affidavit from a witness who averred that the store lead made a comment in connection to the supervisor that “[t]his isn’t the ghetto.”

A federal district court in Pennsylvania denied summary judgment for Wal-Mart Associates, Inc., in a race and national origin discrimination case brought by a former employee, a Black woman of Colombian national origin, finding she established a prima facie case of discrimination based on alleged anti-Black comments and presented enough evidence that a reasonable jury might find the employer’s claimed reasons for her firing were pretextual. The court declined to disregard affidavits she submitted from coworkers as “sham affidavits,” finding no precedent holding the sham affidavit doctrine applies when an affidavit contradicts prior unsworn statements (Ortiz v. Wal-Mart Associates, Inc., No. 3:24-CV-01138 (M.D. Pa. Aug. 26, 2026)).

In 2016, the plaintiff, a Black woman of Colombian national origin, began working in a Walmart store. She was promoted later that year to customer service manager. She was terminated in April 2017 for excessive absence and tardiness but reinstated after a complaint through Walmart’s “Open-Door” complaint process. She was promoted to a supervisory position in February 2018 before resigning in July 2018 to pursue a position with the U.S. Postal Service.

In November 2019, she returned to Walmart as a general merchandise support manager and she was subsequently promoted to supervisory positions in various Walmart stores. On August 30, 2023, she was named a store lead at a Walmart store in New York.

Accused of threatening subordinate. On September 10, 2023, Walmart received an anonymous report that she threatened a subordinate with violence in the presence of other employees. She denied the claim in both writing and interviews. Walmart claims an employee leading its investigation received five statements from employees who heard the employee in question threatened to punch the subordinate in the face. The employee claims only two people claimed to have heard her make a comment about assaulting someone and that another person they claim was present denied hearing any threats.

Fired. Walmart staff on the “Market Team” concluded that she violated the company’s “Violence-Free Workplace” policy and that she compromised the company’s investigation by communicating with witnesses. They all agreed she should be terminated. She again filed an Open-Door complaint challenging the termination, though she did not there allege a discriminatory motive, according to the ruling in the case. Upon review, Walmart upheld her firing.

The employee filed suit alleging violations of Title VII and Section 1981 by the employer based on race and national origin discrimination. Walmart argued it was entitled to summary judgment because the employee failed to establish a prima facie case of racial discrimination and that, even if she did, it had a legitimate basis for her termination. The company also challenged affidavits she relied upon and a “counter statement of facts” she submitted.

Affidavits. Walmart argued that two affidavits the employee relied upon from Walmart employees should be disregarded under the sham affidavit doctrine. The affidavits were submitted after the close of discovery and failed to actually establish a material issue of fact, the retailer argued, claiming they contradict evidence in the record and only exist to defeat summary judgment. The employee argued they are material because they “only contract prior, unsworn statements” and do, in fact, create a genuine dispute of material fact as to whether she was discriminated against based on her race and national origin.

Under the “sham affidavit” doctrine, a party cannot create a material issue of fact by filing an affidavit disputing their own sworn testimony without demonstrating a plausible explanation for the discrepancy. Here, Walmart argued, the court should apply the doctrine because the employee affidavits contradict statements the employees made to Walmart in its investigation.

Prior unsworn statements. But, the court found, the company failed to cite any caselaw indicating that the sham affidavit doctrine applies when an affidavit contradicts prior unsworn statements. Walmart’s argument “runs counter to the general principle that where evidence is contradicted by other evidence in the record, there is a credibility issue which should be left to the jury,” the court explained.

As for the witnesses who provided the post-discovery affidavits, the employer did not cite caselaw to support its argument that the court may not consider the affidavits because they were produced after the close of discovery. Also, the court noted that Walmart was aware the employees were potential witnesses and chose not to depose them. One of the two witnesses, it noted, was an active part of the employer’s investigation into the alleged threat.

Comparators not required. Walmart argued the employee failed to establish a prima facie discrimination case since she failed to identify comparators treated more favorably or evidence that decision makers in her termination were motivated by discriminatory animus. She argued that she presented evidence from which a reasonable jury might infer her termination was discriminatory, including affidavits stating that other employees—including some in managerial roles—made derogatory comments about Black people, along with the fact that she was never “an actual threat to her coworkers,” that Walmart failed to follow its own investigatory procedures, and that Walmart managers were unsupportive when she sought promotions.

The court found that she is not required to show that other employees of a different race were treated differently. Under the McDonnell Douglas standard, she must establish a prima facie case by demonstrating she is part of a protected class, was qualified for the position, suffered an adverse employee action, and that that occurred “under circumstances that support an inference of unlawful discrimination,” and only the fourth element is in dispute, according to the ruling.

“This isn’t the ghetto.” The employee submitted an affidavit from a Walmart employee alleging that a store lead made a comment that “[t]his isn’t the ghetto” in reference to her and that other supervisors made derogatory comments about Black people. The store lead is listed as a “Witnessing Manager” in Walmart documents, though he wasn’t a final decision-maker in her termination. Still, the court found, a reasonably jury could conclude he played an active role in her firing and “infer racial animus,” the court found, and infer Walmart had a “discriminatory atmosphere” based on the other alleged statements.

The employee met the “relatively light burden” of establishing a prima facie case, the court found.

Non-discriminatory basis for termination. Walmart also argued that its decision to terminate the employee for violating the violence policy and interfering with its investigation was legitimate and that she cannot show it was pretextual.

Terminating an employee for policy violations or for failing to cooperate with a human resources investigation is a legitimate, nondiscriminatory basis for termination, the court agreed. But the employee also presented evidence which could lead a reasonable jury to disbelieve Walmart’s alleged reasons for termination, including her repeated denials that she made a threat and the affidavits from other employees. A reasonable jury could also disbelieve Walmart’s claim that she interfered with the investigation, the court explained.

Walmart argued that it is still entitled to summary judgment because there is no evidence decision-makers acted with discriminatory animus, but the court found a reasonable jury could consider evidence she presented for wrongful termination, racial animus, and “a culture of racial hostility” and conclude Walmart’s reasons for termination were pretextual.

Punitive and emotional damages. The employee alleges emotional damages and claims both compensatory and punitive damages and argues this issue should be decided by the jury. The court concluded that the issue of damages was premature.

The motion for summary judgment was denied.

The case is No. 3:24-CV-01138.

Judge: Mehalchick, K.

Attorneys: Kimberly D. Borland (Borland & Borland) for Jazmin Ortiz. Michael Joseph Kincade, Jr. (Buchanan Ingersoll & Rooney) for Wal-Mart Associates, Inc.

Companies: Wal-Mart Associates, Inc.

Cases: RaceDiscrimination NationalOrigin Discrimination EvidenceDiscovery Discharge RemediesDamages PennsylvaniaNews