United States District Court, N.D. Alabama, Western Division
MADELINE HUGHES HAIKALA, District Judge.
Plaintiff Betty Shackelford, an African-American female, was formerly employed as a cashier at Publix Super Markets, Inc.'s Northport, Alabama store. In this lawsuit, Ms. Shackelford contends that when Publix terminated her from her job, the company violated a number of federal statutes, including the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Ms. Shackelford also asserts two state law claims against Publix. First, she alleges that Publix violated the Alabama Age Discrimination Act ("AADA"), Ala. Code §§ 25-1-20 et seq. Second, she complains that Publix negligently hired, trained, retained, and supervised the employees who purportedly discriminated against her. (Doc. 1).
Publix asks the Court to enter summary judgment on all of Ms. Shackelford's claims and to strike the affidavits that Ms. Shackelford filed in opposition to Publix's summary judgment motion. As explained in greater detail below, the Court denies the motion to strike in its entirety. The Court also denies the motion for summary judgment with respect to Ms. Shackelford's ADEA, AADA, and Title VII claims. The Court grants the motion for summary judgment with respect to Ms. Shackelford's negligent hiring, training, retention, and supervision claims.
I. FACTUAL BACKGROUND
Publix hired Ms. Shackelford in February 2004. Initially, she worked as a part-time front service clerk at Publix's Northport store. She became a full-time deli clerk in September 2004, and she became a full-time cashier at the store in December 2009. She worked as a cashier until she was terminated in November 2011. (Doc. 35-1 ¶ 3; Doc. 35-3; Doc. 35-5; Doc. 35-11). Ms. Shackelford was fifty-four (54) years old when Publix discharged her. (Doc. 45-3 at 9). Chris Cook, who was 45 years old when Ms. Shackelford was terminated, was the manager of the Northport Publix store from June 26, 2010 until September 8, 2012. (Doc. 45-3 at 5; Doc. 35-4).
Evidence concerning management's preference for young, white employees at Publix's Northport store
Ms. Shackelford testified that management at Publix's Northport store treated young white employees better than older, black employees. For example, younger white employees were permitted to socialize with each other while older black employees who socialized were told to return to work. ( See Doc. 45-16 at 209).
Other Publix employees who worked at the Northport store while Mr. Cook was the store manager have supplied testimony regarding discriminatory conduct on the part of Publix management and Mr. Cook in particular. For example, Northport Publix employee Paul Clark stated in an affidavit that he overheard a conversation in which Mr. Cook and Chris Black, a team leader at the Northport Publix, agreed that the store's "front end" employees (including cashiers) needed to "mirror" its clientele. (Doc. 45-1). Mr. Black and Mr. Cook had another discussion in which Mr. Black suggested that it was problematic that most of the "front end" employees were black because most of the store's customers were young and white. ( Id. )
Jared Randolph, who also worked at the Northport Publix while Mr. Cook was the store manager, stated in an affidavit that he heard Mr. Cook say, "Publix needs more younger workers because they are more reliable and it makes our image look better." (Doc. 45-2).
Jean Brasfield, who was approximately 57 years old when Publix fired Ms. Shackelford, testified that she felt that, due to her age, she was being targeted while Mr. Cook was the store manager because management frequently told her that she was too slow. (Doc. 45-8).
Kelvin Richardson testified that Mr. Cook would assign only one black employee to stock the freezer section, a difficult task for a single employee to complete alone. Mr. Cook would assign two white employees to complete the same task. (Doc. 45-4). When Mr. Richardson brought this discrepancy to Mr. Cook's attention, Mr. Cook refused to change the practice. ( Id. ) Mr. Richardson also testified that he frequently observed two or more white employees talk and socialize with each other with no consequences, but two or more black employees who talked and socialized with each other were immediately told to stop and to get back to work. ( Id. ) Similarly, Mr. Richardson testified that white employees who used the smoking area in the back of the store were free to do so without supervision, but black employees who wanted to use the smoking area had to be supervised by an employee who worked in the back of the store. ( Id. ) Mr. Richardson heard Mr. Cook say that he did not care if employees complained about him because "Publix had his back and would support all of his actions." ( Id. ) Mr. Richardson testified that he observed Mr. Cook take food from the deli and eat it without first paying for the food at the register. (Doc. 45-4).
Michael Johnson testified that he observed Mr. Cook "talk down" to African-American employees. He also observed "a pattern" of Mr. Cook reprimanding African-American employees and terminating African-American employees and replacing them with Caucasian employees. (Doc. 45-6). Another employee, Toniko Bryant, observed that Publix management wrote-up African-American employees for conduct for which white employees were not disciplined. (Doc. 45-7).
Jacob Brian Foster testified that he observed a Caucasian Publix deli employee, Faye Ramsey, state, in reference to a customer, "I can't stand niggers like that." (Doc. 45-5; Doc. 45-16, p. 62). Mr. Foster confirmed hearing Ms. Ramsey make the statement when one of the store managers asked him, but to Mr. Foster's knowledge, Ms. Ramsey was not disciplined. (Doc. 45-5). Mr. Foster also testified that he observed Ms. Ramsey eating food from the deli area without paying for it, that Publix management observed Ms. Ramsey eating the food, and that Ms. Ramsey never was suspended or terminated for this behavior. (Doc. 45-5).
Evidence Concerning Ms. Shackelford's Discharge
Publix terminated Ms. Shackelford because of events that transpired on November 28, 2011. That day, Ms. Shackelford spent most of her lunch break arranging to get medication for another Publix employee who was sick. (Doc. 45-16 at 152-57). In the time that remained in her break, she went to the Publix deli to get something to eat. ( Id. at 157). She ordered two pieces of rotisserie chicken and four potato wedges from deli worker Faye Ramsey. ( Id. at 158-59). Ms. Ramsey placed Ms. Shackelford's food in a black partitioned box that Publix typically uses for deli dinners. ( Id. at 159; Doc. 45-15). Individual items typically are served in a smaller orange box. (Doc. 45-15; Doc. 35-8).
Because of the packaging, Ms. Shackelford looked at the price sticker on the bottom of the black box to make sure that she would not be charged for a deli dinner; deli dinners are more expensive than the chicken and one side. The deli dinner price appeared on the sticker. (Doc. 45-16 at 160-62). Ms. Shackelford told Kimberly Brown, the nearest deli worker, about the mistake. ( Id. at 162; Doc. 35-8). Ms. Brown was frying chicken, so she asked Kiesha George, another deli worker, to leave Ms. Shackelford's order in the black box and correct the price sticker. Ms. George complied. (Doc. 35-8; Doc. 45-16 at 163-65).
Ms. Shackelford took her food to the customer service counter to pay for it. (Doc. 45-16 at 166-67). According to Ms. Shackelford, to avoid being overcharged, she told Michelle Hunter, who was working at the customer service counter, that she did not get a deli dinner. ( Id. at 168). Ms. Hunter reported in a statement that Ms. Shackelford said she did not get a "chicken meal" and to "just ring up the smallest ticket, the potato wedges." (Doc. 35-8). Ms. Shackelford took the box to the break room and ate the potato wedges. (Doc. 45-16 at 168). She gave the chicken to Steven Hernandez, another Publix employee, because she did not have time to eat it. ( Id. at 168-69; Doc. 45-12).
While Ms. Shackelford was at the customer service counter, Ms. Hunter did not open the box of food to check its contents, but after Ms. Shackelford left, Ms. Hunter told her supervisor, customer service manager Charli Pierce, that she believed Ms. Shackelford had not paid for all of the food in the box. (Doc. 35-8; Doc. 35-4 at 41-43). According to Mr. Cook, Ms. Pierce went to the breakroom and somehow verified that there was chicken in Ms. Shackelford's box. (Doc. 35-4 at 48). Ms. Pierce then reported the incident to Mr. Cook. He interviewed Ms. Hunter, the deli associates involved, and Mr. Hernandez and got written statements from them. (Doc. 35-4 at 41-43, 50; Doc. 35-8; Doc. 45-12). According to Mr. Cook, Ms. Hunter rang up the chicken and then voided the charge at Ms. Shackelford's request. (Doc. 35-4 at 45-46). Although a receipt ordinarily reflects a voided transaction, no such transaction appears on Ms. Shackelford's receipt. ( Id.; Doc. 45-10).
Mr. Cook does not recall a specific conversation with his supervisor, district manager Mike Shannon, but he believes he contacted Mr. Shannon and human resources representative Jon Hartman and told them that it had been "verified that Betty stole some chicken." ( Id. at 50-51). Mr. Cook then called Ms. Shackelford into his office and asked her what she said at the customer service counter when she purchased her food. (Doc. 45-16 at 177-78). She told him that she said to Ms. Hunter that she did not purchase a deli dinner. ( Id. ) Mr. Cook asked her if she had paid for the chicken and asked to see the receipt. (Doc. 35-4 at 51-52; Doc. 45-16 at 179-80). When she produced the receipt, Ms. Shackelford realized she had not paid for the chicken. (Doc. 45-16 at 180). Ms. Shackelford told Mr. Cook she honestly thought she had paid for the chicken and offered to pay for it then. ( Id. ). Mr. Cook testified that Ms. Shackelford said, "Oh, I just made a mistake, " which he took as an admission of wrongdoing. (Doc. 35-4 at 52). Shanon Comer, the deli manager, was in Mr. Cook's office during the conversation. According to Ms. Comer, Ms. Shackelford said she had not paid attention to how much her bill was because she was focused on picking up the medicine for her friend. (Doc. 45-12).
Ms. Shackelford testified that Mr. Cook told her that he believed Ms. Hunter. He terminated Ms. Shackelford on the spot. (Doc. 45-16 at 181). Ms. Comer wrote in her statement that Mr. Cook told Ms. Shackelford her story did not "jive" and that she was suspended. (Doc. 45-12). Mr. Cook testified that he suspended Ms. Shackelford pending further investigation. Then he spoke with Mr. Shannon and Mr. Hartman again, and they all decided to terminate Ms. Shackelford. (Doc. 35-4 at 52-54). Mr. Cook decided to mail Ms. Shackelford her discharge paperwork rather than call her back into his office because he received a threatening phone call that he believed may have been related to Ms. Shackelford's termination. ( Id. at 55). The Notice of Discharge, dated November 29, 2011, lists the reason for Ms. Shackelford's termination as "other." This notice appears to supersede a previous Notice of Discharge that stated that Ms. Shackelford was terminated for "theft." ( See Doc. 35-11). Publix now contends that Ms. Shackelford was terminated for violating the Associate Handbook rules on theft and employee purchases. ( See Doc. 35 at 5; Doc. 35-12).
Although Mr. Cook testified that Publix did not hire a full-time cashier to replace Ms. Shackelford, (Doc. 35-4 at 59), Publix did hire several part-time cashiers two-and-a-half to three months after the company fired Ms. Shackelford. (Doc. 45-3 at 10, 12). According to Publix's interrogatory responses, the first five new cashiers were white and were approximately 28, 20, 18, 24, and 18 years old when Publix hired them. ( Id. ) It also appears that none of the eleven cashiers that Publix hired between Ms. Shackelford's termination and Mr. Cook's departure from the Northport store on September 8, 2012 were over the age of 40 and only one was African-American. (Doc. 45-3 at 9-19).
While Mr. Cook was manager of the Northport store, Publix fired only one other employee for failing to pay for food: Daniel Simpson. Mr. Simpson, a white male, was a part-time front service clerk, who was approximately 22 years old when Publix fired him. According to Mr. Simpson's Notice of Discharge, Publix terminated his employment after he twice took food without paying for it. (Doc. 48-5; Doc. 45-3 at 15).
Following her termination, Ms. Shackelford filed a charge with the Equal Employment Opportunity Commission ("EEOC"). She received a "right to sue" letter from the EEOC on October 1, 2012. (Doc. 45-22). She timely filed the Complaint in this case on October 11, 2012. (Doc. 1).
A. Publix's Motion to Strike
Publix asks the Court to strike all of the affidavits that Ms. Shackelford provided in opposition to Publix's summary judgment motion. Under Rule 56(c)(2) of the Federal Rules of Civil Procedure, at the summary judgment stage, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed.R.Civ.P. 56(c)(2). These objections function like trial objections adjusted for the pretrial setting, and "[t]he burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated." Fed.R.Civ.P. 56(c)(2) advisory committee's note (2010 amendments).
In short, Rule 56(c)(2) enables a party to submit evidence that ultimately will be admissible at trial in an inadmissible form at the summary judgment stage. For example, under the rule, "a district court may consider a hearsay statement in passing on a motion for summary judgment if the statement could be reduced to admissible evidence at trial or reduced to admissible form." Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012) (internal citation and quotation marks omitted). A district court has broad discretion to determine at the summary judgment stage what evidence it will consider pursuant to Rule 56(c)(2). See Green v. City of Northport, No. 7:11-CV-2354, 2014 WL 1338106, at *1 (N.D. Ala. March 31, 2014). In this case, Ms. Shackelford has carried her burden of persuading ...