United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
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.
Relevant Undisputed Facts
The Von Maur Store
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).
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,
Plaintiff's Employment at Von Maur
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).
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.
Plaintiff's Performance under Store Manager Caitlin
Harris worked as the Riverchase Store Manager from June 2013
until January 2014. (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).
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).
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
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).
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).
Plaintiff's Performance under Store Manager Melissa
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).
after Patton started, Keith Lockett 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. (Id. at 149).
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. (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.).
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).
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. (Id. at 154).
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
The Termination of Plaintiff's Employment with Von
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
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
(Id. at 224-25).
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
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).
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.).
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).
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).
Plaintiff's Complaints of Racially Unfair
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.
Summary Judgment Standard
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.
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.
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).
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.”