United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.
Cabrel Jacomb (“Jacomb”) initiated this action
against Defendant BBVA Compass Bank (“BBVA
Compass”) alleging race discrimination and retaliation
in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., The Civil
Rights Act of 1991, and 42 U.S.C. § 1981. (Doc. 1). BBVA
Compass moves for summary judgment on all of Jacomb's
claims, arguing there are no genuine issues of material fact
and that it is entitled to judgment as a matter of law.
(Docs. 15 & 16). Jacomb has filed a response in
opposition to the motion, (doc. 20), and BBVA Compass filed a
reply brief, (doc. 21). For the reasons explained below, BBVA
Compass's motion for summary judgment, (doc. 15), will be
Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Rule 56
“mandates the entry of summary judgment, after adequate
time for discovery and upon motion, 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. v. Catrett, 447 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the
absence of a genuine issue of material fact. Id. at
323. The burden then shifts to the nonmoving party, who is
required to “go beyond the pleadings” to
establish there is a “genuine issue for trial.”
Id. at 324. (citation and internal quotation marks
omitted). A dispute about a material fact is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157, (1970); see also Anderson, 477
U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual disputes will be
resolved in Plaintiff's favor when sufficient competent
evidence supports Plaintiff's version of the disputed
facts. See Pace v. Capobianco, 283 F.3d 1275,
1276-78 (11th Cir. 2002) (a court is not required to resolve
disputes in the non-moving party's favor when that
party's version of the events is supported by
insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836
F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
Summary Judgment Facts
Compass is an equal opportunity employer that operates bank
branches in several states throughout the South and West.
(Doc. 15-3 at ¶¶1-2). BBVA Compass has a written
and well-published Equal Employment Opportunity policy
prohibiting any form of discrimination based on race, sex,
sexual orientation, color, age, religion, national origin,
veteran's status, disability, or any other reason
prohibited by law. (Id. at ¶2; doc. 15-2 at
16). BBVA Compass also has a Workplace Harassment Policy that
prohibits harassment based on, but not limited to, legally
protected categories. (Doc. 15-2 at 16). Furthermore, BBVA
Compass has a strict policy prohibiting any form of unlawful
retaliation. (Id. at 18).
an African-American, began working for BBVA Compass in August
2010. (Doc. 15-1 at 11 (36:23-25); doc. 19-1 at 2). Jacomb
was hired as a Senior IT Project Manager, (doc. 15-1 at 11
(37:13-15)), which Betsy McCormick referred to as a Senior
Project Manager in the “Platform Upgrade Department of
the Bank's Technology & Support Services (TeSS),
” (doc. 15-3 at ¶2, p.3). At the beginning of her
employment, Jacomb acknowledged the availability of, and her
agreement to read and abide by, the Employee Handbook and the
Workplace Harassment Policy. (Doc. 15-1 at 16 (54:11-20);
doc. 15-2 at 27).
Jacomb's supervisor was Jose Delgado (Hispanic) but,
beginning in approximately October 2011, Shannon Rowse
(Caucasian) became her supervisor. (Doc. 15-3 at ¶2,
p.3). Beginning in approximately December 2012/January 2013,
Kristin Julbert (Caucasian) became Jacomb's immediate
supervisor. (Doc. 19-1 at 2). Several months later, Jacomb
began reporting to Michael Dale (African-American),
Application Team Lead, who in turn reported to Angie Simmons
(Caucasian). (Doc. 15-1 at 17-18 (60:1-13, 63:1-5)). Dale was
Jacomb's immediate supervisor for several months and
then, for the last month or two of her employment, Jacomb
reported to Barry Lainhart (Caucasian), Business
Partner/Project Mgmt. - Manager. (Doc. 15-1 at 18 (63:18-20,
64:13-23); doc. 15-3 at ¶2, p.3).
Jacomb's Performance Evaluation, Attendance Issues, and
Complaints of Race-Based Harassment
about January 14, 2013, Rowse prepared the calculation sheet
for Jacomb's AIM Bonus, based on her assessment of
Jacomb's performance for 2012. (Doc. 15-3 at ¶3;
doc. 15-4 at 3-4). On or about March 18, 2013, Julbert issued
Jacomb her 2012-2013 performance evaluation. (Doc. 15-2 at
34-36). Because at that time Julbert had only been
Jacomb's supervisor for about two or three months, she
incorporated input from Jacomb's prior managers and from
her customers and peers, in addition to her own observations,
when preparing the evaluation. (Id. at 35). Although
Julbert identified issues where she believed Jacomb needed to
show improvement, and therefore rated her performance in one
category as “Below Expectations, ” overall she
rated Jacomb's performance as “Expected, ”
the same rating Jacomb had received on her previous annual
evaluation, when she reported to Rowse. (Id. at
35-37). Although the evaluation noted Jacomb's
“very frequent absences due to illness or other
personal issues, ” it stated “she typically
attempts to work remotely during these times” and that
“[t]his willingness to work remotely has been
noted.” (Id. at 36). Any merit-based increase
that Jacomb received would have been (and was) based on her
overall “Expected” evaluation and not on any
individual category within the evaluation. (Doc. 15-3 at
Jacomb reported Julbert “gave [her] a low evaluation
and caused [her] to receive a lower raise and bonus than
[she] was due, ” (doc. 19-1 at 2), she testified she is
unaware of how merit raises are calculated. (Doc. 15-1 at
25-26 (93:5-94:1)). Jacomb also testified Julbert would call
her names, such as stupid, and say she should “not be
working here” and “you are not competent.”
(Doc. 15-1 at 23 (84:17-20)). Jacomb also states that Julbert
would require her to bring a doctor's note if she took
scheduled/approved sick leave and to make up the time.
(Id. at 24 (86:8-21)). BBVA Compass did not have a
policy requiring Jacomb to have a doctor's note when she
took sick leave. (Id.).
March 20, 2013, in response to an email about time off for a
doctor's appointment, Julbert sent Jacomb the following
It's not about a policy. As you and I discussed last week
in detail, you are out of the office a lot - more than anyone
else on the team. Whether for doctors [sic] appointments or
being sick, it is a significant amount of time. It has been
almost weekly since you joined my team and as we talked
about, your prior management had the same challenges before.
So, if you are going to be out, I would like to either have
you take sick time or make up the time in the office
otherwise I will track both closely. That is part of the
reason for me asking for the doctors note. As we also talked
about, if your project performance and the feedback I am
getting were good, this would be less of a concern.
Unfortunately, coupling your frequent absences and the
challenges with your performance creates the need or [sic]
closer management and direction until the time that we get
one or both to where they need to be.
Let me know if you still have questions or concerns and I
will be happy to set some time for another in person
discussion next week and we can walk through it again.
(Doc. 19-2 at 2) (emphasis added). Jacomb points to several
email exchanges prior to March 20, 2013, from other BBVA
Compass employees to show “the voluminous amount of
positive feedback” she received. (Doc. 20 at ¶9;
doc. 19-3 at 22 (“The site really looks good. Great job
on this project.” From Rowse, February 3, 2012; doc.
19-3 at 27 (“Great job.” From Rowse, April 25,
2012); doc. 19-3 at 32 (“This was very well worded for
the appointment. Thank you.” From Julbert, March 15,
2013); doc. 19-3 at 34 (“I just wanted to tell you what
a great job you are doing on this project. I know it often
feels like you're trying to ‘herd a bunch of cats,
' but you're doing a good job of it!” From
Debbie Byrd (SVP, Director of Loss Prevention), August 15,
2012); doc.19-3 at 40 (“Good Job! Thanks!” From
Alejandro E. Carriles (Mobile & Internet Strategies -
are additional emails from other BBVA Compass employees and
team members giving positive feedback for Jacomb, dated March
21, 2013 through March 27, 2013. (Doc. 19-3 at 2, 6, 7, 8,
11). Having received these emails from others, on March 27,
2013, Julbert forwarded Jacomb one of the
“feedback” emails she received about Jacomb, with
the following text:
Can you stop by on this today so we can catch up? I really
think you have some misunderstandings still about what the
issues are that we are still fighting with your performance
levels. While I am happy to have feedback like this and the 4
others ones you have asked people to send me (and I will
include them in your file for sure), it has little to do with
the challenges we are working to fix with your performance.
As a result, I really don't think it will be necessary
for you to continue sharing the feedback I have received with
all of your team members in order to ask they provide their
Please find 15 minutes on my calendar and book some time for
us to speak.
(Doc. 19-13 at 12).
April 25, 2013, Julbert issued Jacomb a written warning for
excessive unscheduled absences. (Doc. 15-1 at 16 (55:11-15)).
At another point in time when Julbert was Jacomb's
supervisor, Jacomb complained to BBVA Compass's employee
hotline about Julbert and her harassment. (Doc. 15-1 at 13-14
(44:15-45:21)). Jacomb also testified she was harassed by
Jillian Henning (Caucasian). (Doc 15-1 at 24 (88:6-9).
According to Jacomb, Henning told her she would “kick
her ass.” (Id. (88:22-89:8)).
took FMLA leave from April 29, 2013 to July 1, 2013.
(Id. at 17 (58:11-15)). When Jacomb returned from
FMLA leave in July 2013, she no longer reported to Julbert.
(Doc. 15-1 at 17 (59:17-24)). Beginning in July 2013, Jacomb
reported to Group Operations Manager Angie Simmons
(Caucasian), who in turn reported to Kevin McMahon
(Caucasian). (Id. at 17-18 (59:55-60:8,
64:24-65:10)). Jacomb testified Simmons'
“tone” was discriminatory and/or harassing. (Doc.
15-1 at 22 (80:2-11)). Jacomb explained “she would
actually come out of her office and ask me for things in a
harsh way, in front of everyone.” (Id.
(81:5-7)). Jacomb described it as “hollering.”
her return from FMLA leave, Jacomb complained to Human
Resources about the April 25, 2013 write-up, and, after
investigation and review, Senior HR partner Crystal Berryhill
(Caucasian) removed this write-up for absenteeism from
Jacomb's personnel file. (Doc. 19-5 at 2). Berryhill
explained that, although she does not have a way to validate
every day Jacomb coded sick time, she would remove the
written warning from her file based on the documentation
Jacomb provided. (Id.). Between the time she was
issued the written warning and the time it was removed,
Jacomb did not experience a reduction in her pay, a demotion
or any other adverse action as a result of the written
warning. (Doc. 15-1 at 16-17 (55:24-58:10)).
Jacomb's First EEOC Charge
September 24, 2013, Jacomb filed a charge of discrimination
with the EEOC, alleging she had been discriminated against on
the basis of her race. (Doc. 19-1 at 2). The Charge states as
1. I am an African-American female and am employed with BBVA
Compass as a Project manager. I have been in this position
for over 3 years.
2. In December 2012, I was placed under the supervision of
Kristen Julbert (Caucasian). After Julbert became my
supervisor she began to harass me constantly until I went out
on medical leave in April 2013. I believe that this
harassment was because of my race. The harassment consisted
of speaking to me in a harsh and demeaning manner, giving me
unjustified write-ups, and harassing me about taking sick
leave. She also gave me a low evaluation and caused me to
receive a lower raise and bonus than I was due. Julbert did
not treat my Caucasian co-employees in the same harassing
manner. I have also been harassed by another manager Jillian
Henning (Caucasian) who has threatened me and stated that she
would “kick my ass.” Henning does not speak to
Caucasian employees in his manner. In addition, the authority
to manage the budget for my group has been taken away.
3. I believe I have been subjected to a racially hostile work
environment and discriminated against because of my race in
discipline, evaluation, compensation (raises and bonuses) and