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Jacomb v. BBVA Compass Bank

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

March 14, 2018

CABREL JACOMB, Plaintiff,
v.
BBVA COMPASS BANK, Defendant.

          MEMORANDUM OPINION [1]

          JOHN H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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 GRANTED.

         I. Standard of Review

         Under 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).

         The 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).

         II. Summary Judgment Facts

         BBVA 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).

         Jacomb, 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[2] 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).

         Initially, 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).

         A. Jacomb's Performance Evaluation, Attendance Issues, and Complaints of Race-Based Harassment

         On or 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 ¶4).

         Although 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.).

         On March 20, 2013, in response to an email about time off for a doctor's appointment, Julbert sent Jacomb the following email:

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 - SVP, Director).

         There 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 opinion.
Please find 15 minutes on my calendar and book some time for us to speak.

(Doc. 19-13 at 12).

         On 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)).

         Jacomb 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.” (Id. (81:10)).

         Following 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)).

         B. Jacomb's First EEOC Charge

         On 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 follows:

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 ...

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