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Abram v. Von Maur, Inc.

United States District Court, N.D. Alabama, Southern Division

January 31, 2017

VON MAUR, INC., Defendant.



         The court has before it Defendant's Motion for Summary Judgment (Doc. #28) filed on July 18, 2016. The motion is fully briefed. (Docs. #29, 32, 37, 39, 40). Plaintiff Felicia Abram (“Plaintiff”/“Abram”) claims she was the victim of both disparate treatment because of her race in violation of 42 U.S.C. § 1981 and Title VII (Count I) and retaliation in violation of those same statutes. (Count II). Defendant Von Maur, Inc. (“Defendant”/“Von Maur”) contends Plaintiff's claims fail because she cannot establish any of the following: (1) prima facie case of race discrimination or a showing of pretext for discrimination; (2) pattern or practice of race discrimination; or (3) prima facie case of retaliation or a showing of pretext for retaliation. After careful review, the court finds that the motion for summary judgment is due to be granted in its entirety.

         I. Relevant Undisputed Facts[1]

         A. The Von Maur Store

         In many instances, when faced with a Rule 56 motion in an employment case, the court must analyze the business practices and structure of the employer to properly evaluate Plaintiff's claims. Von Maur is a family owned business that operates several upscale department stores, including a store at the Riverchase Galleria Mall in Hoover, Alabama which opened in November 2013. (Doc. #29, Exh. A at ¶ 2). Von Maur holds itself out as an Equal Employment Opportunity (“EEO”) employer, and maintains policies against discrimination and retaliation. (Doc. #29, Exh. B at Exh. 9). Von Maur's EEO policies include a Remedy Procedure instructing employees as to the steps to take to report discrimination or other unlawful treatment, including a telephone number for contacting the Director of Human Resources if necessary. (Id.). Von Maur also maintains an Open Door Policy, stating that employees should “share ideas, concerns, and success.” (Id. at 36; Doc. #29, Exh. A at Exh. 1). Plaintiff claims this Policy was not properly exercised at the Riverchase Galleria location because she didn't feel as comfortable talking to members of management “because the environment was not exactly the same” as the environment at the Von Maur store in Georgia at which she had previously worked. (Doc. #29, Exh. B at 37). Plaintiff did, however, receive copies of the EEO and Open Door Policies when she began working in Alabama. (Id. at Exh. 10).

         Von Maur's stores include a Cosmetics Department, which is staffed by a Department Manager, Counter Managers, and Sales Associates. (Doc. #29, Exh. A at ¶ 3). The Cosmetics Department generates significant sales and revenue for Von Maur in comparison to other departments and is a critical component of the overall success of any particular store. (Id., ¶ 4). Outside account executives for cosmetic brand lines, i.e. Estee Lauder and Clinique, work closely with Cosmetic Department employees. (Id., ¶ 5). Sales Associates and Counter Managers duties are not limited to selling cosmetics; they are also required to develop and run their particular brand's business, demonstrate specific cosmetic knowledge, coordinate and discriminate color schemes, create looks for customers, independently plan events, generate ideas on how to grow sales, and develop clientele. (Id. at Exh. 2, Cosmetic Sales Associate Job Description). Within that framework, the Cosmetics Department Manager's mission is “[t]o develop and motivate department associates [and] [t]o develop the department's sales growth by monitoring and improving the department's level of customer service and visual presentation.” (Id. at Exh. 3, Cosmetics Department Manager Job Description). To accomplish this mission, the Department Manager has a variety of job responsibilities. On a typical day, a Department Manager: “observes, assists and motivates cosmetic associates in providing excellent customer service daily; sets an example for others to follow;” “[a]nalyzes problems and offers creative solutions;” “acts as a member of the department team, and projects a positive and friendly attitude;” and is “able to delegate work when necessary.” (Id.). During the relevant time period, the Riverchase Cosmetics Department employed approximately fourteen different people, excluding Plaintiff. (Doc. #29, Exh. C).

         B. Plaintiff's Employment at Von Maur

         Von Maur initially hired Plaintiff in January 2013 as a Cosmetic Department Sales Associate at its North Point Mall store in Alpharetta, Georgia. (Doc. #29, Exh. B. at 26-27). At the time of her hire, Keith Lockett, an African-American, managed the North Point store. (Id. at 32-33; Doc. #29, Exh. A at ¶ 6). In February 2013, Lockett approved a wage increase for Plaintiff based on her early performance as a Sales Associate, because he wanted to retain her. (Doc. #29, Exh. C at No. 5). In April 2013, Plaintiff applied and interviewed for the open Cosmetics Department Manager position at North Point, and Von Maur promoted her to that position in early May 2013. (Doc. #29, Exh. B at 2; Doc. #29, Exh. D at 137).

         In July 2013, Von Maur began interviewing internal and external candidates for positions that would be available at Riverchase when the store opened in November 2013. (Doc. #29, Exh. D at 152-53, 155-56). Plaintiff applied for the Cosmetics Department Manager position and interviewed with Regional Director George LaMark, Riverchase Store Manager Caitlin Harris, and Riverchase First Floor Manager Aileen Read. (Id. at 140-43). Based on her previous experience in cosmetics at Von Maur, and her interview performance, Von Maur selected Plaintiff for the open position, and believed she had strong potential to lead the department. (Id. at 144; Doc. #29, Exh. B at 25-26; Doc. #29, Exh. A at Exh. 12). Plaintiff began working at the Riverchase store on or about August 18, 2013. (Doc. #32, Exh. 1).

         1. Plaintiff's Performance under Store Manager Caitlin Harris

         Caitlin Harris worked as the Riverchase Store Manager from June 2013 until January 2014.[2] (Doc. #29, Exh. E at 10). During Harris's tenure as Store Manager, several Von Maur employees complained about Plaintiff's management style. Lancôme Counter Manager Sarah Beth Brooks resigned with no notice on November 1, 2013, the day before the Riverchase store opened. (Doc. #29, Exh. H at 43-47). In her exit interview with Human Resource Manager James McIntosh, Brooks stated that Plaintiff made her feel uncomfortable, was very direct and too negative, did not provide adequate training, and failed to provide clear expectations. (Id. at 43-47). McIntosh sent Brooks' exit interview form to Read and Harris for their review. (Id. at 47-48; Doc. #29, Exh. G at 53). McIntosh has documentation that this issue was brought to Plaintiff's attention, particularly as it reflected Plaintiff's communication issues, the need to provide accurate information, and proper delegation. (Doc. #29, Exh. F at Exh. 37; Doc. #29, Exh. E at 51). Plaintiff denies having any such communication. (Doc. #29, Exh. B at 367-69).

         Caitlin Harris personally observed Plaintiff micromanaging her staff, including rearranging their stock, making them nervous about displaying product and refusing to allow them to independently obtain their sales numbers, which left Counter Managers in the dark regarding sales performance. (Doc. #29, Exh. E at 51). Harris had associates come to ask her questions about their individual performance, which is information that Plaintiff, as Department Manager, was provided by the buying office. (Id. at 56-57) (“[Plaintiff] was the only one who knew where [that information] was, but she didn't share that with anyone else.”). Sales associate Rosemary Goodwell resigned her position as Sales Associate, citing Plaintiff's management style as one reason. (Doc. #29, Exh. H at 48-50). Goodwell testified that Plaintiff created “an air of intimidation without saying anything” and that other Sales Associates “didn't particularly like her management style either.” (Doc. #29, Exh. I at 27, 32-33). Goodwell stated that Plaintiff forbade Sales Associates from talking with each other, even if sales were slow on the floor. She also stated that after the initial training, “we were just, more or less, left on our own.” (Id. at 19, 40). As to Plaintiff's management style, Goodwell stated there was “no cohesion, and there was no team building, ” that “it just seemed like there was nothing done to cement everybody together, ” and the air was one of “keep them divided and conquer.” (Id. at 41-42). Goodwell reported to Human Resource Manager McIntosh that Plaintiff micromanaged the department, failed to create and foster an atmosphere of teamwork, and rushed their training. (Doc. #29, Exh. H at 50).

         Harris and Read met with Plaintiff after Goodwell's resignation. (Doc. #29, Exh. F at Exh. 37). Documentation from that meeting indicates that Plaintiff was counseled regarding her communication and leadership, with examples given to Plaintiff “as to why Felicia needs to be aware of her verbal and nonverbal communication.” (Id.). The same documentation indicates that Harris and Read spoke with Plaintiff about some additional employees voicing concerns, including that they were not permitted to make their own decisions and that they were spoken to as if they were new to cosmetics. (Id.). Plaintiff disputes that anything was mentioned about any employee other than Goodwell. (Doc. #33, Exh. 21 at ¶ 5). As to Goodwell, Plaintiff responds that “Rosemary's complaints were very unfounded and that they hired the wrong individual for a job that she could not do; moreover, Rosemary left that job because she had not been disciplined for kicking me … That does not count as a previous conversation when you consider the facts.” (Doc. #29, Exh. B at 367-69). However, Plaintiff also admits that Harris and Read “told me that she quit because of me” and that “they said we talked to [Goodwell] and she said that you were micromanaging her and that she had not been trained.” (Id. at 80-81). Plaintiff disagreed with the criticisms that were relayed to her by her superiors. She drafted a rebuttal letter but did not send it because she says she feared retaliation. (Id. at 115-16).

         According to Harris, approximately one week after this discussion with Plaintiff following Goodwell's resignation, Harris received feedback from Kyle Earley, Defendant's African-American Riverchase Loss Prevention Manager, that Earley had overheard Plaintiff making negative comments about the store in front of other employees. (Doc. #29, Exh. E at 41-44). Although Harris recorded in documentation that she spoke to Plaintiff about this issue, Plaintiff denies that she made any negative comments about the store and disputes that Earley “made this complaint because he complained to me he felt Ms. Harris was racist. He complained about Ms. Harris so much, it made me uncomfortable.” (Doc. #33, Exh. 21 at ¶ 6).

         Finally, although there is no documentation that Plaintiff was counseled on or about December 4, 2013 regarding giving inaccurate information to Harris and Read about her subordinates' interests in certain opportunities within the store, there is documentation that Plaintiff was spoken to on that date regarding “how important it is to relay accurate information.” (Id., ¶ 7; Doc. #29, Exh. F at Exh. 37).

         2. Plaintiff's Performance under Store Manager Melissa Patton

         In mid-January 2014, Harris left Riverchase and became Director of Store Integration at Von Maur's corporate headquarters in Iowa. (Doc. #29, Exh. E at 9). Approximately one month later, on February 10, 2014, Melissa Patton became the Riverchase Store Manager. (Doc. #29, Exh. F at 137). Harris did not discuss Plaintiff or share her concerns about Plaintiff's performance with Patton before she left. (Doc. #29, Exh. E at 39). However, while Store Manager, Harris had discussed her concerns about Plaintiff's performance with her supervisor, Regional Director George LaMark, on several occasions. (Id. at 45-46, 59-60; Doc. #29, Exh. D at 188).

         Shortly after Patton started, Keith Lockett[3] made the decision to have First Floor Manager Aileen Read spend more time in cosmetics “because she needed to be down there to make sure things were running smoothly.” (Doc. #29, Exh. F at 259). Patton was surprised by this decision because she believed that Plaintiff should have been capable of running the Department with minimal supervision by a floor manager. (Id. at 258-59). On Patton's first day as Store Manager, Plaintiff came to see her, complaining that Read was spending too much time in the Department and interfering with her responsibilities. (Id. at 134-37). Patton reported Plaintiff's complaint about Read to LaMark. (Id. at 141). Patton made her own observations about Read's involvement in the department. (Id. at 145). Read and Abram had different ideas about how to run the department.[4] (Id. at 149).

         On March 7, 2014, Plaintiff received her annual review, which Read prepared and Patton approved. (Id. at 107-08, 213). Read rates Plaintiff with a “meets expectations” in all categories except for department sales and attendance; in that category, she received a “not meeting expectations” rating.[5] (Doc. #29, Exh. J at 30, 35, 36, 43, 48-52). Specifically, Plaintiff had accrued twelve tardies and ten absences for the year. (Id., Exh. 4). The review also lists communication, leadership, and taking positive action to build and maintain department morale as goals for Plaintiff. (Id.).

         Around the same time, three of Plaintiff's staff members, Lawrence, Lowe, and Milito, sought out Patton to complain about Plaintiff's inability to delegate, poor communication skills, and negativity. (Doc. #29, Exh. F at 153-167). Plaintiff denies that she was ever told that Lawrence, Lowe, and Militio had complained about her management style. (Doc. #33, Exh. 21 at ¶ 12).

         On March 16, 2014, Plaintiff talked to Patton about her interest in applying for a promotion to a First Floor Manager position at the North Point store in Alpharetta, Georgia. (Doc. #29, Exh. F at 153-67). Because the Store Manager would have to approve Plaintiff for the promotion, Patton explained that she would need to see improvement in Plaintiff's communication before she could provide the endorsement.[6] (Id. at 154).

         Two days later, on March 18, 2014, Lowe again approached Patton, telling her that Plaintiff was spreading rumors about Lowe allegedly resigning, fought with Read (which left her unsure of her directional mandate), and had made the Clinique Counter Manager, Jessica Ruger, cry. (Id., Exhs. 37, 41). Plaintiff denies that she spread rumors about Lowe or that she made Ruger cry, but she does not deny that Lowe made these complaints to Patton. (Doc. #33, Exh. 21 at ¶ 13). Around this time, Patton called Carol Proctor, an Estee Lauder account executive, to introduce herself as the new Store Manager. (Doc. #29, Exh. F at 191-97). Proctor declined Patton's invitations to meet, stating that Plaintiff's actions had soured her on Von Maur. (Id. at 191-97) (testifying that “she did not want to meet with me because she was so upset with the way that Felicia [Abram] handled the department ….”).

         3. The Termination of Plaintiff's Employment with Von Maur

         Patton made the decision to terminate Plaintiff's employment on or around March 20, 2014. (Id. at 201). She testified that the decision was made:

Because she [Abram] wasn't performing the expectations of the position. After our coaching sessions and we had brought concerns to her attention, she wasn't improving that we needed her - she was negative. She wasn't driving the business. She had communication concerns. Her leadership was ineffective.
She wasn't able to manage her staff. I had my floor manager down there helping. We needed somebody in there that could steer the department in a positive, upward direction. It was getting worse, and counseling would not have helped that.

(Id. at 224-25).

         Patton requested a meeting with LaMark and Lockett to discuss concerns she had about performance in the cosmetics department. (Id. at 206). The three discussed the department and department morale, and “the issues that we were continuing to have with [Plaintiff] and … the business in the department and that things were not improving.” (Doc. #29, Exh. D at 200). Lockett “provided some thoughts on some visits … as well as [his] thoughts on her [Plaintiff's] development.” (Doc. #29, Exh. K at 30, 44-45). He recalled “having to give [Plaintiff] feedback after a training session that we had there at the store about just kind of toning it down, not being so direct.” (Id. at 48). LaMark and Lockett supported Patton's decision to terminate Plaintiff's employment after “review[ing] her file … [since] the department was in really bad shape.” (Doc. #29, Exh. D at 200). LaMark testified that Plaintiff was terminated, as opposed to counseled, because “[w]e invested a lot of time as far as getting her to that point and, you know, we didn't want to have to counsel her … we wanted her to be successful and … it got to a point where the department was just - it was not in good shape, and we had to make a change.” (Id. at 189, 228). LaMark added to his testimony that “[i]t was a new store” and management felt that they had to take “quick action to make sure that [they were] doing what's best for the business.” (Id. at 187-88).

         Plaintiff's employment with Von Maur was terminated on March 25, 2014. (Doc. #29, Exh. B at 15). At the time of termination, Plaintiff did not state (or in any way suggest) that she felt she was being discriminated or retaliated against. (Id. at 364-65). Though Patton delivered her termination notice, Plaintiff was unaware of who made the decision to terminate her employment. (Id. at 248).

         4. Post-Termination Events

         A few days after the termination of her employment, Plaintiff dropped off a handwritten note, which stated that there had been “no previous conversations/write ups or warning of pending termination if no improvement had ever been discussed.” (Id. at Exh. 5). On March 28, 2014, Plaintiff called Jill Salmonson, Human Resources Manager, to say that she felt that she had been wrongfully terminated. (Doc. #29, Exh. L at Exh. 1). The typed notes from that call indicate that Plaintiff had problems with Caitlin Harris. (Id. at Exh. 2). “[Plaintiff] said she was accused of things she never said or did, or accusing her of things others have said or did. … [T]here are unfair practices that take place at that store … [Plaintiff] was never told that her team wasn't happy and was never given a chance to make it better. … [Plaintiff] was also told they weren't happy with her numbers.” (Id.).

         After termination, Plaintiff also contacted Amy Rotert, Von Maur's Vice President of Stores and Loss Prevention. (Doc. #29, Exh. B at 373-75). During that conversation, Plaintiff discussed the fact that she and the Floor Manager did not work well together, and “went through and talked about additional people that were hired that she wasn't happy with.” (Doc. #29, Exh. M at 26). In response, Rotert “pull[ed] out” the concerns and conducted a “broad scope of … investigation, ” determining “if there was an issue with the termination, whether that was retaliatory or if we had other issues or if we - if it was the right decision for them to make.” (Id. at 30).

         Plaintiff's vacated position remained open for about a month, at which time Patton considered two internal candidates for the job: Kristen Lowery (Caucasian) and Larissa Simpson (African American). (Doc. #29, Exh. F at 225-27). Patton selected Lowery, but also promoted Simpson to the Human Resources Assistant position at the same time. (Id.). Simpson is now an executive, Third Floor Manager, at the Galleria store. (Id. at 228).

         C. Plaintiff's Complaints of Racially Unfair Treatment

         At the end of February 2014, Read instructed Plaintiff to discipline Sales Associate Sandy Moore, African American, for “issues with attendance.” (Doc. #29, Exh. B at 274-75). When Plaintiff reviewed the attendance records for other associates, she determined that Maria Milito, Caucasian, had a similar attendance record to Moore's, yet Read had not instructed Plaintiff to discipline Milito. (Id. at 274-75). Plaintiff thought this was a disparity and brought it to Patton's attention. (Id. at 274-75). Patton agreed that all employees who fell below specified standards were to be written up in the categories of their poor performance. (Id. at 276, 289-91). As a result, Plaintiff prepared discipline for all employees who fell below various standards; however, she was not permitted to present those written disciplines to anyone other than Moore. (Id. at 276, 289-91). Plaintiff discussed this with Lockett, but Lockett informed Plaintiff that he knew of the decision to discipline Moore not for attendance, but for poor sales performance. (Id. at 281; Doc. #29, Exh. K at 60). Patton characterized Moore's performance as “fairly deficient” and “low.” (Doc. #29, Exh. F at 123-24). Plaintiff had access to the sales performance records and was able to determine this was so; in fact, Plaintiff acknowledged that she knew that Moore was being disciplined for her sales performance. (Doc. #29, Exh. B at 273-81, 300). Plaintiff administered Moore's disciplinary warning. (Id. at 46-47, 122-24, 227-29). After the warning, Moore remained employed, with her benefits intact; however, verbal or written warnings bar an employee's eligibility to receive a full merit increase and impedes the ability for promotion. (Doc. #29, Exh. D at 83-84; Doc. #29, Exh. F at 118, 130). The bottom line of this controversy is this: Moore suffered from both attendance and performance problems and received a disciplinary warning. Milito had attendance issues but not performance problems, and did not receive a write up.

         II. Summary Judgment Standard

         Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go beyond the pleadings and - by pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file - designate specific facts showing that there is a genuine issue for trial. Id. at 324.

         The substantive law will identify which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Anderson”). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub. Educ. For Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine, “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See Id. at 249.

         When faced with a “properly supported motion for summary judgment, [the non-moving party] must come forward with specific factual evidence, presenting more than mere allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v. Liberty Lobby, Inc., teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations made in the complaint; instead, as the party bearing the burden of proof at trial, she must come forward with at least some evidence to support each element essential to her case at trial. See Anderson, 477 U.S. at 252. “[A] party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [her] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'” Id. at 248 (citations omitted).

         Summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative.” ...

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