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Moore v. Pool Corp.

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

March 30, 2018

FRED MOORE, Plaintiff,
POOL CORPORATION, et al. Defendants.



         This case concerns the way in which plaintiff Fred Moore's employer responded when Mr. Moore, who is African-American, complained that one of his customers repeatedly called him a “nigger.” Mr. Moore asserts that the customer's behavior was intolerable because the customer demeaned him in front of the employees who Mr. Moore supervised and harassed him in the presence of other customers. Mr. Moore contends that his employer failed to address the harassment. Mr. Moore also asserts that his employer fired him because he complained about the customer's conduct. Mr. Moore seeks relief under 42 U.S.C. § 1981 for racial harassment and retaliatory discharge.[1]

         The defendants are Superior Pool Products, LLC and SCP Distributors, LLC.[2] Both companies are subsidiaries of Pool Corporation; Pool Corporation operates under the name POOLCORP. (Doc. 68-1, p. 6). POOLCORP does not have employees; it operates entirely through subsidiary companies. (Doc. 68-1, p. 6; Doc. 68-2, p. 6). In this opinion, the Court frequently refers to the defendants as POOLCORP, but the Court makes specific reference to Superior and SCP when necessary for purposes of clarity. The defendants ask the Court to enter judgment on Mr. Moore's § 1981 claims. (Doc. 61). This opinion resolves the defendants' summary judgment motion.


         “The court shall grant summary judgment 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.” Fed.R.Civ.P. 56(a). To demonstrate that there is a genuine dispute as to a material fact that precludes summary judgment, a party opposing a motion for summary judgment must cite “to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). When considering a summary judgment motion, the Court must view the evidence in the record in the light most favorable to the non-moving party and draw reasonable inferences in favor of the non-moving party. White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). In keeping with the summary judgment standard, to the extent that factual inferences are drawn from the Rule 56 record, they are drawn in favor of Mr. Moore, the non-movant.


         A. Mr. Moore's Employment with POOLCORP

         Mr. Moore worked in the pool products business for more than 25 years. (Doc. 71, p. 2, ¶ 1). He was working as a branch manager for Hughes Supply Company in Huntsville in 2001 when POOLCORP and its subsidiaries acquired Hughes Supply Company and became his employers. (Doc. 71, p. 2, ¶ 1; Doc. 68-2, pp. 7, 11). Under POOLCORP, the Huntsville location was designated as Superior Branch 403A, and Mr. Moore continued as the manager for the branch. (See Doc. 68-4, p. 57). In total, Mr. Moore served as branch manager, or sales center manager, for that location for more than 20 years. (See Doc. 71, p. 2, ¶ 1).

         As the sales center manager, Mr. Moore was the highest ranked employee in the Huntsville branch. He supervised from 10 to 12 employees at a time. (Doc. 68-2, p. 11; Doc. 71, p. 2, ¶ 1). According to the job description for the sales center manager position, Mr. Moore had “complete responsibility for developing and managing a business operation that increase[d] sales, profitability, market share, and customer and employee satisfaction by directing, coordinating and monitoring all sales, sales center operation and personnel developments activities.” (Doc. 63, p. 2; Doc. 68-4, p. 114). As sales center manager, Mr. Moore had to demonstrate professionalism, in part by “approach[ing] others in a tactful manner [and] . . . [t]reat[ing] others with respect and consideration, regardless of position or status.” (Doc. 63, p. 2; Doc. 68-4, pp. 114-15). Mr. Moore also had to ensure that the Huntsville branch had good profit margins. (See Doc. 63, p. 2; Doc. 68-4, p. 79).

         Sales for the Huntsville branch grew significantly under Mr. Moore's management. When Mr. Moore became branch manager in 1991, sales for the branch were approximately $800, 000 per year; by 2014, sales for the Huntsville branch exceeded six million dollars per year. (Doc. 71, pp. 2-3, ¶ 2). Mr. Moore's branch always was one of the highest in gross sales and net profit for the region in which he worked, and the Huntsville branch made its “profit budget” in 2010, 2011, and 2012. (Doc. 71, pp. 2-3, ¶ 2; Doc. 68-3, p. 46). The Huntsville branch was on track to make its profit budget in 2014 when POOLCORP terminated Mr. Moore's employment. (See Doc. 68-23, pp. 63-65).

         In 2014, John Ferrer and Scotty Frantz supervised Mr. Moore's work. Mr. Frantz worked for Superior; his title was General Manager. Mr. Ferrer worked for SCP Distributors; his title was Regional Manager. (Doc. 68-2, pp. 17-18; Doc. 68-3, pp. 6-7; Doc. 68-4, pp. 53-54).

         B. POOLCORP's Anti-Harassment Policy

         When POOLCORP became Mr. Moore's employer, he received the company's employee handbook, and he had to comply with the policies contained within it. (Doc. 60-5; Doc. 68-4, pp. 40, 45). The portion of the handbook devoted to “Corporate Vision and Statements” contains a section entitled “Unlawful Harassment Policy.” (Doc. 68-1, p. 3). The “Unlawful Harassment Policy” begins as follows:

[POOLCORP] maintains a strict policy prohibiting any type of unlawful harassment, and strives to provide an environment that is pleasant, healthful, comfortable, and free from intimidation, hostility, or other offenses which might interfere with work performance. Unlawful harassment of any sort . . . will not be tolerated.

(Doc. 68-1, p. 10, § 11) (emphasis in original). The policy applies not only to POOLCORP personnel but also to “clients, customers, and outside vendors of [POOLCORP].” (Doc. 68-1, p. 10, § 11).[3] The policy “strictly prohibit[s]” harassment on the basis of race and identifies as harassing conduct racial slurs and “any name-calling or acts of physical violence or intimidation that are based on an employee's race . . . .” (Doc. 68-1, p. 10, § 11)

         The handbook offers employees who experience harassment at the hands of a manager or co-employee various avenues for reporting the conduct, and the policy requires any employee who becomes aware of harassing conduct to report the conduct using these same avenues. (See Doc. 68-1, p. 10, § 11). The policy instructs:

If an employee believes that he or she has been subjected to [harassing] conduct by a co-employee or manager or any employee who becomes aware of an incident of harassment, whether by witnessing the incident or being told of it, must report it to the Human Resources Manager, Senior Director of Human Resources, Regional or General Manager, Corporate or Group Vice President, President or General Counsel. Employees may also use Ethicspoint to report any such incidents.

(Doc. 68-1, p. 10, § 11). POOLCORP stated in its policy that it would “investigate[] promptly, examine[] impartially, and resolve[] [] as promptly as possible” all complaints about or incidents or practices of harassment. (Doc. 68-1, p. 10, § 11). The policy strictly prohibits retaliation for “good faith reporting of any alleged harassment.” (Doc. 68-1, p. 10, § 11). The harassment policy was in effect in the years 2013 and 2014. (Doc. 68-2, p. 27).

         The ways in which POOLCORP investigates reports of harassment varies; “it depends on the type of harassment. It depends on who the harasser is.” (Doc. 68-2, p. 30). Sometimes company managers conduct investigations; sometimes members of POOLCORP's Department of Human Resources conduct an investigation. (Doc. 68-2, p. 31). When POOLCORP receives a report that a POOLCORP customer has harassed a POOLCORP employee, “each situation is handled differently.” (Doc. 68-2, p. 32). Although POOLCORP's written policy says that an employee who becomes aware of “an incident of harassment . . . must report” the incident to Human Resources or to a member of management or corporate leadership, POOLCORP's corporate representative testified that it would not necessarily be a violation of company policy for a manager to fail to report an incident of harassment because “[w]orkplace harassment needs to be severe and pervasive and it needs to negatively affect an employee's job and their employment.” (Doc. 68-2, pp. 46-47). According to POOLCORP's Senior Director of Human Resources, “[i]n not all cases that is the situation.” (Doc. 68-2, p. 47). Still, the HR Director acknowledged that a regional or district manager should report an incident of harassment up the chain of command. (Doc. 68-2, p. 48).

         POOLCORP conducts training programs related to the company's Unlawful Harassment Policy. The training program includes a component on third-party harassment. All managers and supervisors must participate in the training program. (Doc. 68-2, p. 30, pp. 32-33). Accordingly, Mr. Frantz and Mr. Ferrer attended training courses relating to discrimination, harassment, and retaliation, and the courses included information about third-party harassment. (Doc. 68-3, pp. 18-19).

         C. Harassment by a POOLCORP Customer

         POOLCORP had a fiscally-lucrative, foul-mouthed customer in the Huntsville area. This customer bought approximately $250, 000 - $300, 000 of pool supplies annually from Superior. (Doc. 68-3, p. 28). His business was desirable; his temper was not. When this customer became stressed, he vented, and he took out his frustrations on Mr. Moore, cursing at Mr. Moore and calling him names like “nigger, ” “goddamned nigger, ” “head nigger, ” “head nigger in charge, ” and other variations of the racial epithet. (Doc. 68-4, pp. 207-208, 211). Mr. Moore estimates that the customer directed racial slurs toward him six or seven times a year between 2009 and 2014. (Doc. 68-4, p. 209). When the customer would call to order supplies, he would ask the employee who answered the phone to put “the head nigger in charge” on the phone. (Doc. 68-4, p. 208; Doc. 68-5, p. 78). When he visited Superior's store, the customer would call Mr. Moore a “nigger” at the counter in front of POOLCORP employees and customers. (Doc. 68-4, p. 210).

         The employees in the Huntsville branch talked about the way in which the customer spoke to and about Mr. Moore, but they did not report the customer's conduct, per POOLCORP's Unlawful Harassment Policy. (See Doc. 68-4, p. 209; Doc. 68-5, p. 79; Doc. 68-6, pp. 73-76, 111; Doc. 68-7, pp. 24-25; Doc. 68-8, p. 2; Doc. 68-21, p. 96; Doc. 60-31, p. 47). Mr. Moore described the customer's conduct as “terrible” and “devastating.” (Doc. 68-4, p. 207, 210). He testified that it was “horrible[] for any human being to have to live through that.” (Doc. 68-4, p. 210). Mr. Moore admits that he probably cussed in front of other customers when the harassing customer called him names. (See Doc. 68-4, p. 210). He stated, “that really, really puts me in a bad predicament when someone calling you a black nigger, head nigger, and you got all these customers in front of you and employees and you have to listen to that on this ear and look at the people with your eyes; and then [] maintain your cool.” (Doc. 68-4, p. 210-211).

         Mr. Moore asked the customer to stop using the racial epithet, but Mr. Moore testified that there “[w]as[] no stopping him . . . .” (Doc. 68-4, p. 209). If Mr. Moore hung up on the customer, the customer would call back and ask the employee who answered the phone to “[t]ell that black nigger he don't hang up on me.” (Doc. 68-4, pp. 209-10). The customer's conduct was atrocious.

         D. Reporting the Customer's Harassment

         Mr. Moore reported the customer's conduct to Mr. Frantz. (Doc. 68-4, p. 211).[4] In 2005 or 2006, during a conversation between Mr. Frantz, Ilyasha Anderson (the Operations Manager for Superior's Huntsville branch), and Mr. Moore, Ms. Anderson asked if they could “fire” the customer. (Doc. 68-4, p. 212; Doc. 68-8, p. 2). Mr. Frantz replied that they could fire the customer, but he would not remove the value of the customer's annual gross sales from Mr. Moore's branch sales target. (Doc. 68-4, p. 212; see also Doc. 68-3, p. 27; Doc. 68-6, pp. 79-81). Mr. Moore explained that “was a no win” situation because he either had to put up with the customer's conduct to keep the customer's sales or “get fired because you don't hit budget.” (Doc. 68-4, p. 212). Additionally, if Mr. Moore could not to replace the customer's business in his annual budget, it may have negatively impacted his bonus for that year and for years to come. (Doc. 68-3, p. 28; Doc. 68-6, pp. 79-81, 129-30; Doc. 71, p. 4, ¶ 5). Although Mr. Frantz told Mr. Moore that he could fire the customer, Mr. Frantz did not recommend to anyone in POOLCORP's top management that the company should fire the customer because of the harassment; Mr. Frantz made that recommendation only to Mr. Moore. (Doc. 68-3, pp. 32-33).

         Mr. Moore had Mr. Frantz listen to a recorded telephone message in which the customer called Mr. Moore a “nigger.” (Doc. 68-4, p. 213; Doc. 68-3, pp. 23-24; Doc. 71, p. 4, ¶ 7). Mr. Moore said to Mr. Frantz, “just listen to what I have to go through.” (Doc. 68-4, p. 214). Mr. Moore testified that “nothing got done about it;” Mr. Frantz did not help him. (Doc. 68-4, p. 214).[5] Mr. Moore also discussed the racial slurs with Dave Grendel, Tig Blake, and John Ferrer, the three regional managers who supervised him. (Doc. 68-4, pp. 215-216; see also Doc. 71, pp. 3-4, ¶ 5).[6]

         In the fall of 2013, when she knew that Mr. Franz and Mr. Ferrer would be in the Huntsville branch office, Mr. Moore's wife visited the office and asked for permission to confront the customer about his use of racial slurs. (Doc. 68-4, p. 216; Doc. 68-3, pp. 35-36; Doc. 68-12, ¶ 1; Doc. 68-13, pp. 44, 58). Ms. Moore told Mr. Franz and Mr. Ferrer that she did not want to get her husband fired, but the customer's use of the racial slurs had to stop. (Doc. 68-4, p. 222). Mr. Frantz told Ms. Moore that she could speak to the customer. (Doc. 68-4, p. 222; Doc. 68-3, p. 36).

         One month later, in December 2013, Ms. Moore had her opportunity to speak with the customer during a company customer appreciation trip. (Doc. 68-4, pp. 223-224; Doc. 68-12, ¶ 2; Doc. 68-13, p. 62). Ms. Moore told the customer that he had to stop using calling her husband a “nigger.” (Doc. 68-4, p. 224; Doc. 68-13, p. 62). Mr. Moore told Mr. Ferrer and Mr. Frantz that his wife spoke with the customer and told him to stop the harassment. (Doc. 68-4, pp. 227-228; Doc. 71, p. 4, ¶ 6). After the trip, the customer continued to direct racial epithets to Mr. Moore. (Doc. 68-4, pp. 226-227).

         E. Alleged Retaliatory Acts

         Mr. Moore asserts that Mr. Ferrer and Mr. Frantz treated him differently after he last complained about the customer's harassment and informed them that his wife confronted the customer about the harassment. Prior to November 2013, Mr. Moore's job responsibilities included selecting employees to work at the Huntsville Branch. (Doc. 71, p. 4, ¶ 8; see also 68-5, p. 16-17; Doc. 60-31, p. 12). Then, in late November or early December 2013, Mr. Ferrer interviewed Michael Thrash to fill the vacant operations manager position at the Huntsville Branch. (Doc. 71, p. 4, ¶ 8). Although Mr. Moore recommended a different candidate, Mr. Ferrer and Mr. Frantz chose Mr. Thrash to be the operations manager. (Doc. 71, p. 4, ¶ 8; Doc. 68-2, p. 16). When an inside sales position needed to be filled at the Huntsville Branch in March 2014, Mr. Ferrer handled the interviews and selected the candidate for the position. (Doc. 71, p. 4, ¶ 8).

         Additionally, in late 2013 and early 2014, Mr. Moore noticed that his interaction with Mr. Ferrer became infrequent. (Doc. 71, p. 5, ¶¶ 9, 10; see also Doc. 68-4, p. 71). Mr. Moore had been talking to Mr. Ferrer on the phone once a week or so, but in 2014 Mr. Ferrer stopped answering Mr. Moore's phone calls. (Doc. 68-4, pp. 70-71). Instead of talking to Mr. Moore, Mr. Ferrer began communicating directly with Mr. Moore's employees, and when he visited the Huntsville branch, Mr. Ferrer spent his time with Phillip Works, a branch employee, and Mr. Thrash instead of Mr. Moore. (Doc. 71, p. 5, ¶ 10).

         On May 22, 2014, Mr. Ferrer sent Pat Finger, POOLCORP's Senior Human Resources Director, an email discussing complaints from four customers regarding Mr. Moore. (Doc. 68-9, p. 82; Doc. 71-4, p. 2; Doc. 71-5, pp. 2-3). Mr. Ferrer did not discuss the complaints with Mr. Moore before sending the email to Ms. Finger. (Doc. 68-9, pp. 82-83).

         Mr. Frantz and Mr. Ferrer visited the branch office in early June 2014, and they met separately with customers, Mr. Thrash, and Mr. Moore. (See Doc. 71, p. 7, ¶ 15; Doc. 68-3, p. 102). Mr. Frantz and Mr. Ferrer testified that they discussed Mr. Moore's management of the branch and customer complaints during their meeting, but according to Mr. Moore, Mr. Frantz and Mr. Ferrer tried to coerce him into quitting. (Doc. 68-3, p. 102; Doc. 71, p. 7, ¶ 15). Mr. Moore did not have contact with Mr. Frantz and Mr. Ferrer again until they visited the branch to fire him.

         F. Mr. Moore's Termination

         In August 2014, Mr. Frantz, Mr. Ferrer, Mike Lillie (the future regional manager for the Huntsville branch), and Tommy Canady (the future general manager for the branch) decided together to terminate Mr. Moore's employment. (Doc. 60-14, p. 94; Doc. 68-2, pp. 23 & 25; Doc. 68-3, pp. 90, 92, 96; Doc. 68-23, pp. 12-13, 94). They made the decision during a meeting in Texas. Ms. Finger also attended the meeting. (Doc. 68-9, p. 11; Doc. 68-23, p. 87). During the meeting, the group discussed customer complaints, Mr. Moore's performance, his reputation in the market, and his management style. (Doc. 68-3, p. 89; Doc. 68-9, p. 16).[7] During the meeting, no one discussed Mr. Moore's harassment allegations regarding the POOLCORP customer. Mr. Lillie and Ms. Finger did not know about the harassment. (Doc. 68-2, pp. 45-47; Doc. 68-9, p. 17:14; Doc. 68-23, pp. 89-90).

         Mr. Frantz and Mr. Ferrer met with Mr. Moore on September 3, 2014 at the branch office to terminate his employment. (Doc. 71-10, p. 2). Mr. Moore asked why he was being fired. Mr. Frantz testified that he told Mr. Moore that POOLCORP was receiving “too many customer complaints and also several employees had complained and were resigning because of him.” (Doc. 68-3, p. 66). Mr. Moore asserts that customer complaints were the only reasons Mr. Frantz gave him for his termination. (Doc. 68-4, p. 244).

         The day after POOLCORP fired Mr. Moore, Mr. Lillie called Mr. Works to offer him the sales center manager position for the Huntsville branch. (See Doc. 68-5, p. 74). Shortly after the telephone conversation, Mr. Works received an offer letter from Mr. Lillie, which Mr. Works promptly signed and returned. (Doc. 68-5, p. 74; Doc. 71-7, p. 2). Mr. Works began working as the sales center manager a few days after he accepted the offer. (Doc. 68-5, p. 77).

         III. ANALYSIS

         A. Racial Harassment

         Mr. Moore asserts claims against the defendants under 42 U.S.C. § 1981 for racial harassment and retaliation. (Doc. 18). Section 1981 “prohibits intentional race discrimination in the making and enforcement of public and private contracts, including employment contracts.” Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999) (citation omitted).[8] Mr. Moore asserts that the defendants violated § 1981 by subjecting him to racial harassment and a hostile work environment by forcing him to work with a customer who routinely used racial slurs when he and the customer interacted. (Doc. 18, ¶¶ 38-40).

         To prove racial harassment, Mr. Moore must show that his “workplace [was] permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993)) (internal marks omitted). To avoid summary judgment, Mr. Moore must present evidence from which a jury could find that: (1) he is a member of a protected class; (2) he was subject to unwelcome harassment; (3) the harassment was based on his race; (4) the harassment was severe or pervasive enough to alter the terms and conditions of his employment and create a discriminatorily abusive working environment; and (5) the employer is responsible for the harassment under a theory of either direct or vicarious liability. Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248-49 (11th Cir. 2014); Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010). Mr. Moore is a member of a protected class. The defendants do not dispute that Mr. Moore was subject to harassment based on his race or contend that they are not responsible for the harassment under a theory of direct or vicarious liability. (See Doc. 61-1, pp. 31-35). Instead, the defendants argue that Mr. Moore's racial harassment claim must fail as a matter of law because he cannot establish that the harassment he experienced was unwelcome or sufficiently severe or pervasive. (Doc. 61-1 at 31-35).

         1. Unwelcome harassment

         The defendants argue that the harassment Mr. Moore experienced from a POOLCORP customer was not unwelcome because Mr. Moore (1) “elected” not to fire the customer after Mr. Frantz gave him permission to do so, (2) went to dinner with the customer, (3) invited the customer on a customer appreciation trip, and (4) visited the customer in the hospital. (See Doc. 61-1, pp. 34-35; Doc. 72, pp. 14-15). These arguments are entirely unpersuasive.

         For harassment to be actionable, the conduct must be “unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.” Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982). There is nothing in the record to suggest that Mr. Moore solicited or provoked the POOLCORP customer to call him a “nigger.” There is no conduct that warrants the use of racial slurs to degrade someone, and the Court cannot imagine a set of circumstances in which an African-American employee would invite a Caucasian customer to call him “nigger.” Mr. Moore testified that the customer's conduct was “devastating, ” “terrible, ” and “horrible.” (Doc. 68-4, pp. 207, 210).

         The defendants argue that Mr. Moore's decision not to terminate or fire the POOLCORP customer after Mr. Frantz gave him permission to do so shows that the harassment was not unwelcome. (Doc. 61-1, p. 34). But POOLCORP omits from its argument the price that POOLCORP exacted from Mr. Moore for the “option” of firing the customer. It undisputed that Mr. Frantz told Mr. Moore that he would not remove the customer's business from the Huntsville branch's budget. (Doc. 68-3, pp. 27-28, 34; 68-4, p. 213). As a result, if Mr. Moore exercised his “option” to fire the customer, he would have had to find $250, 000 - $300, 000 worth of new business to make ...

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