Elaine Marie Moorman v. Wal-Mart Stores, Inc.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2012 *
Decided April 5, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 11‐2519
ELAINE MARIE MOORMAN,
Plaintiff‐Appellant,
v.
WAL‐MART STORES, INC.,
Defendant‐Appellee.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 10‐cv‐0405‐MJR
Michael J. Reagan,
Judge
O R D E R
Elaine Marie Moorman has sued her former employer, Wal‐Mart Stores, Inc., for
discrimination based on sex, age, disability, and other related theories. The district court
dismissed her amended complaint for failure to state a claim.
The complaint makes the following allegations. Wal‐Mart hired Moorman in June
2006 as a night stock‐person. When Moorman, who is over 50, showed up on her first day of
* After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED . R. A PP . P.
34(a)(2)(C).

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No. 11‐2519 Page 2
work, however, Wal‐Mart assigned her to be a cashier. Despite her prior retail experience
and positive performance evaluations during her next two years of employment, Wal‐Mart
never advanced her from cashier to night stock‐person, while promoting at least two
substantially younger employees. She adds that younger men were being hired for night
positions in the stock room while she remained a cashier.
Those are her allegations regarding age and sex discrimination, but she also alleges
disability discrimination, sexual harassment, and retaliation for complaining about
discrimination. She alleges that a 15‐year‐old head injury, and double vision, make it
difficult for her to read and write, which contributed to a delay in her learning to operate
the cash register. She alleges that a male manager leaned his chair back, put his hands
behind his head, and spread his legs very wide when he gave her her second‐year
evaluation. And she alleges the following acts of retaliation: Wal‐Mart cut some of her
hours, costing her about $500 in wages, after she told her husband (whom she suspects is a
covert Wal‐Mart agent) that Wal‐Mart fired her son after a woman manager “tried to be
very friendly to him.” Her husband yelled at her for mentioning at work the company’s
manual entitled “Manager’s Toolbox for Remaining Union Free.” Later Wal‐Mart scheduled
her to work eight days in a row, prompting her to quit. Someone stole court documents
from her barn and fired a shot outside her window. And Wal‐Mart assumed that she
worked for or belonged to a labor union.
The district court dismissed without prejudice her claims of sexual harassment and
of the retaliation consisting of stealing documents and shooting because she hadn’t
included them in her EEOC charge. The judge dismissed with prejudice her retaliation
claims because she had not connected the retaliation to Wal‐Mart and her age and sex
claims because she had failed to plead the “basic elements” necessary to “show” a prima
facie case of discrimination under McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973),
and her claim of disability discrimination on the ground that she hadn’t been subjected to a
materially adverse employment action.
We disagree only with the judge’s dismissal of the age and sex claims, as she was not
required to plead specific facts supporting each element of a prima facie case. Swierkiewicz v.
Sorema, N.A., 534 U.S. 506, 508 (2002). Her allegation that she was never “advanced” to the
night stock‐person job that she sought, despite relevant experience, positive performance
reviews, and openings, is borderline because she does not actually state that the night stock‐
person’s job is superior to the job of cashier, but that is perhaps implicit in her use of the
term “advanced,” and since she is pro se we will give her the benefit of the doubt. Haines v.
Kerner, 404 U.S. 519, 520 (1972). Our independent research indicates that it may pay more
than the cashier’s job. http://www.glassdoor.com/Hourly‐Pay/Walmart‐Wal‐Mart‐Cashier‐
Hourly‐Pay‐E715_D_KO8,24.htm); www.glassdoor.com/Hourly‐Pay/ Walmart‐Overnight‐

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No. 11‐2519 3
Stocker‐Hourly‐Pay‐E715_D_KO8,25.htm) (both visited Mar. 30, 2012). This is not
admissible evidence, but merely some informal support for believing that her claim may
have some merit. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 750 (2008). Her desire for
the stock‐person’s job is strongly alleged; she told a supervisor twice “how badly [she]
wanted to get off the front end cash registers” and kept her career profile on Wal‐Mart’s
computer updated with a statement of her desire to work as a stock‐person, and
presumably she had some rational basis for thinking that it was indeed a better job.
We therefore vacate the dismissal of her claims of age and sex discrimination, but
affirm the remainder of the judgment.

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