United States District Court, N.D. Alabama, Northeastern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
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
defendants are Superior Pool Products, LLC and SCP
Distributors, LLC. 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.
SUMMARY JUDGMENT STANDARD
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.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Mr. Moore's Employment with POOLCORP
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).
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.
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).
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).
POOLCORP's Anti-Harassment Policy
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, §
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)
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).
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).
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.
Harassment by a POOLCORP Customer
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).
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).
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.
Reporting the Customer's Harassment
Moore reported the customer's conduct to Mr. Frantz.
(Doc. 68-4, p. 211). 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).
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). 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, ¶
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).
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).
Alleged Retaliatory Acts
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).
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).
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).
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.
Mr. Moore's Termination
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). 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).
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).
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).
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). 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).
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).
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.
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).
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