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Brakeman v. BBVA Compass

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

July 6, 2018

BBVA COMPASS, Defendant.


          John E. Ott, Chief United States Magistrate Judge.

         In this action, Krystal Brakeman (“Plaintiff”) claims that her former employer, BBVA Compass (“Compass”), denied her a promotion and discharged her in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2611 et seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111 et seq.; and Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq. (Doc.[1] 1 (“Complaint” or “Compl.”). The cause now comes to be heard on Compass's motion for summary judgment. (Doc. 17). Upon consideration, the court[2] concludes that the motion is due to be granted.


         Pursuant to Rule 56, Fed. R. Civ. P., a party may move for summary judgment claims asserted against it. Under that rule, 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.” Rule 56(a), Fed.R.Civ.P. The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, ” relying on submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has met that burden, the nonmoving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324.

         Both the party “asserting that a fact cannot be, ” and a party asserting that a fact is genuinely disputed, must support their assertions by “citing to particular parts of materials in the record, ” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Rule 56(c)(1)(A), (B), Fed.R.Civ.P. In its review of the record, a court must credit the evidence of the non-movant and draw all justifiable inferences in the non-movant's favor. Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). At summary judgment, “the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         II. BACKGROUND[3]

         Compass is an international banking and financial institution. It hired Plaintiff in January 2011, whereupon she began working as a “Collector II” at Compass's Call Center in Decatur, Alabama. Her direct supervisor was Lisa Sharp, a “Client Service Manager II.” After Sharp retired on July 1, 2015, Summer Hastings was promoted to replace her, thereby becoming Plaintiff's supervisor. Hastings reported to Senior Vice President Keith Alderson, who, in turn, reported to Senior Vice President and Director of Collections Michael Frye.

         Plaintiff's claims in this case are based on two adverse employment actions. First, she contends that, in June 2015, she was passed over for a promotion to Case 2:16-cv-01344-JEO Document 23 Filed 07/06/18 Page 4 of 61 “Collections Client Service Advisor III, ” which the parties and many of the witnesses colloquially refer to as a “Team Lead” position. Compass ultimately awarded that job to another Compass employee, LaTasha Clemons. Second, Plaintiff challenges her termination, which occurred on September 14, 2015. In short, Plaintiff's theory is that Hastings played a role in both adverse actions, at least as a “cat's paw” that influenced the decisions formally made by others. Specifically, Plaintiff posits that Hastings harbored animus against her because she, Plaintiff, had depression, anxiety and panic attacks that rendered her disabled for purposes of the ADA and caused her to miss work on intermittent FMLA leave. Plaintiff claims that Hastings also resented her for complaining in July 2015 that a co-employee, Susan Talmadge, had made remarks that Plaintiff, who is in a same-sex marriage, took as harassment based on religion and her sexual orientation. The court further outlines below the evidence underlying Plaintiff's claims, starting with the promotion she did not receive.

         A. The “Team Lead” Vacancy

         Compass internally posted that it was seeking applicants for the Team Lead opening on June 10, 2015. The person to be selected would report to the Client Service Manager II, which was then still occupied by Sharp. It was understood, though, that Sharp would be retiring and that the new Team Lead would thus be reporting to Hastings as Sharp's successor. (Doc. 19-8 at 2-16 (“Hastings Dep.”) at 12-13). Indeed, when Clemons submitted an application for the vacancy on June 18, 2015, the internal recruiter in Compass's Human Resources (“HR”) Department, “Talent Partner” Melissa Edwards, sent an email not to Sharp but, rather, to Hastings asking her to review Clemons's attached resume and “provide feedback” to HR. (Doc. 21-4 at 3-4; Hastings Dep. at 12-13; Doc. 19-1 at 2-35 (“Edwards Dep.”) at 30-32, 34-37).

         It is also clear, however, that Sharp was intimately involved in selection process for the Team Lead. To wit, after Hastings received the aforementioned email from Edwards, she forwarded it without comment to Sharp, who then scheduled Clemons for an interview at 1:30 p.m. on Friday, June 26, 2015. (See Doc. 21-5). That interview was originally to be conducted jointly by Sharp; Hastings; and another Collections Department manager, Maurice Greer. (Id.) Because Hastings was going to be out of the office on June 26th, she asked that the interview be reset. That request was denied, however, so the interview proceeded without her. Nonetheless, in anticipation of the interview, Hastings and Sharp discussed Clemons's “performance and leadership skills, ” and they were “in agreement that [Clemons] would make a good candidate for [the position].” (Hastings Dep. at 16). Hastings denies having discussed any other potential candidates with Sharp.

         At 4:04 p.m. on June 26th, Sharp sent an email to Edwards stating: “We have interviewed Latasha Clemons and would like to extend the offer to her.” (Doc. 21-4 at 3; see also Edwards Dep. at 39, 56). Two minutes later, Edwards sent a reply to Sharp stating, “Hey, I sent the email for Summer to offer Latasha the position[. L]et me know if you have any questions[.] Summer is off today.” (Doc. 21-4 at 6). Then, at 4:12 p.m., Edwards sent another reply to Sharp, copied to Hastings and Keith Alderson advising, “I will extend the offer to Latasha Clemons.” (Id. at 2-3). Clemons ultimately accepted that offer and assumed the Team Lead position.

         When the above emails were exchanged on the afternoon of June 26th, Plaintiff had not submitted an application for the Team Lead vacancy. Rather, it was not until the next morning, Saturday, June 27th, that Plaintiff applied. Specifically, Compass's online applicant tracking system shows, and Plaintiff does not contest, that her first attempt to submit an application was at 8:34 a.m. on June 27th, but it was rejected as “incomplete, ” whereupon she resubmitted another at 9:55 a.m. that was accepted. (See Doc. 19-1 at 58; Pl. Dep. at 167-68).

         For her part, Hastings denies involvement in the decision to fill the Team Lead vacancy other than by forwarding Edwards's email to Sharp and by favorably opining generally on Clemons's candidacy in her discussion with Sharp before Clemons's interview. Plaintiff testified in her deposition, however, that that, while she was “actually filling out the application, ” Hastings came to her and said: “I know you're applying. You're more than qualified for the position. However, due to your medical, I need one that is --- can be here to work all the time, and you have medical and you have to miss days.” (Pl. Dep. at 114). At another point, Plaintiff characterized that exchange this way: “Whenever I applied for the new job position, [Hastings] told me that I was more than - more than qualified to perform the new position's responsibilities, but, unfortunately, due to my medical condition, she would have to choose another - another person.” (Id. at 157; see also Id. at 168-69 (wherein Plaintiff testified: “Right after I applied for the position, …. [Hastings] said I was more than qualified but they were selecting someone else”); id. at 170 (“[Hastings told] me that I was more than qualified, but due to my medical and having to take time off from time to time for doctor's appointments and things, she needed someone that could be there all the time.”)[4].

         B. Susan Talmadge's Comments

         Over the course of “two or three days” in July 2015, a co-worker in Plaintiff's area, Susan Talmadge, made several remarks to Plaintiff and in her presence to the effect that Talmadge and other employees “need[ed] to talk to [Plaintiff] about Jesus” and “about getting a man in her life.” (Pl. Dep. 208-09, 210). Plaintiff, who is married to a woman, was offended, taking the comments as harassment based on religion and her sexual orientation. When asked how many times she heard Talmadge make the comments, Plaintiff couldn't recall and that she was “unsure” whether it was more than five. (Id. at 210).

         On July 15th, Plaintiff approached Greer and complained about what Talmadge had said. (See Docs. 21-9, 21-10; Pl. Dep. at 171, 208-09, 212, 221). Greer responded by contacting his supervisor, Alderson, who, in turn, consulted with Edwards in HR. (See Doc. 21-10 at 3; Edwards Dep. at 42-49). The next day, July 16th, with Alderson present, Greer verbally counseled Talmadge on Compass's policy of “diversity and inclusion, ”[5] cautioning her to keep her workplace discussions “professional and respectful.” (Doc. 21-10 at 3). Plaintiff acknowledges that, after she complained to Greer, she experienced no further problems with Talmadge. (Pl. Dep. at 213). Although Hastings was on vacation when this episode occurred, she was notified of it upon her return. (Hastings Dep. at 23-24).

         C. Plaintiff's Termination

         Plaintiff's termination occurred on September 14, 2015. However, the events leading up to it began about a month earlier. According to Plaintiff, in mid- August 2015, a rumor began going around that Amanda Mitchell, a supervisor in another area, had an arrest mugshot on the internet. On or about August 15th, an employee under Mitchell's supervision named Chasity Terry told Plaintiff about the mugshot and pulled it up on her phone and showed it to her. Plaintiff recognized the person in the photo as Mitchell, but saw the listed name was “Amanda Darlene Findley.” The site further indicated that the photo was from an arrest on December 26, 2009, in Baldwin County, Alabama, on a charge of negotiating a worthless instrument. (See Doc. 21-13).

         Later that day, Plaintiff went to Hastings, and Plaintiff used her phone to show Hastings the mugshot of Mitchell. According to Plaintiff, she told Hastings that she had heard some other agents talking about the online mugshot and that she believed this was it. Plaintiff also said she was “kind of freaking out” because she was wondering whether she and Mitchell might be distantly related, because Plaintiff was originally from the county adjacent to where Mitchell was arrested and Plaintiff's aunt appears to have also had the maiden name “Findley.” (Pl. Dep. at 176). Finally, Plaintiff says that she also reported to Hastings that she, Plaintiff, had overheard other agents by her door saying that, if Mitchell “made them mad one more time, they're going to show” the photo. (Id. at 176-77). At the conclusion of their conversation, Hastings told Plaintiff that she would “take care of” the situation. (Id. at 176).

         Although Plaintiff says that she reported to Hastings that she, Plaintiff, had overheard other agents grousing about Mitchell suggesting that they would publicize the mugshot if Mitchell were to displease them, Hastings testified that she took Plaintiff's report to be itself “a form of harassment, of blackmail, ” against Mitchell by Plaintiff herself. (Hastings Dep. at 27-28; see also Id. at 29-30, 32-33). In that vein, Hastings explains that, although Mitchell did not supervise Plaintiff, some agents in Hastings's group, including Plaintiff, had been “assisting” on another collections “product” that Mitchell did manage. (Id. at 28). In connection with that, Hastings says, Mitchell was “grading usually like one quality call on each agent for each month.” (Id.; see also Id. at 53-54). As such, Hastings says she took some of Plaintiff's remarks as indicating that she was going to “use [the mugshot] to get [Mitchell's] job” if she “made one more bad remark about [Plaintiff's] quality or comment or sent another coaching e-mail.” (Id. at 29).

         On August 18th, Hastings followed up by asking Plaintiff to send a text message with a link to the webpage with Mitchell's mugshot. Plaintiff complied. (Pl. Dep. at 177; Doc. 21-12). That same day, Hastings called the director of the collections department, Frye, and told him about Plaintiff's report of Mitchell's mugshot and that Hastings believed Plaintiff was harassing and might potentially blackmail Mitchell. (Hastings Dep. at 29-30, 32). Frye instructed Hastings to contact HR. On August 19th, Hastings spoke by phone with Edwards, at which time Hastings again related her view that Plaintiff had indicated she was going to use the mugshot against Mitchell. (Id. at 31). Specifically, Hastings says that she told Edwards “that [Plaintiff] had found that mug shot and [Plaintiff] had advised that a few agents - it was going around the office and that if her quality issue was still a concern and they were sending coaching emails, that [Plaintiff] was going to use it against [Mitchell].” (Id.) Also on August 19th, Hastings sent an email to Edwards; Alderson; Frye; and Mitchell's supervisor, Senior Vice President Eric Adams. There Hastings wrote:

On Saturday, August 15, 2015, Krystal Brakeman came to my desk sometime between 9:00 - 10:30 AM and showed me a picture on her cell phone. The content was of an arrest record for Amanda Mitchell.
Krystal made the comment that an agent in CF had/has this information as well and would be holding it to use against Amanda if needed in the future.
Comment was made, Krystal and Amanda are apparently from the same area “Baldwin County” and her maiden name sounded familiar. Apparently they were related (long distance) at some point. She mention [sic] her cousin (?) married someone in Amanda's family

(Doc. 21-16).

         On August 20th, Adams drove from Compass's main office in Birmingham to the Decatur Call Center to talk to Mitchell about the mugshot. Edwards also participated in that conversation on speakerphone. (Edwards Dep. At 62-64). According to Edwards, Mitchell told them that the whole incident was a “misunderstanding” and the matter “was dropped” without her being “formally charged” and that there was “nothing on her criminal record.” (Id. at 64). When asked at her deposition whether those statements by Mitchell were truthful, Edwards replied, “Yes.” (Id. at 65). However, Edwards could not recall whether she had done anything to verify Mitchell's account. (Id.) Indeed, any such statements by Mitchell to the effect that she was not prosecuted would have been clearly false: whether arising from a misunderstanding or otherwise, Mitchell's arrest resulted in her pleading guilty in early 2010 to a violation of Ala. Code § 13A-9-13.1, negotiating a worthless instrument, a Class A misdemeanor conviction for which Mitchell was ordered to pay restitution. (Doc. 21-18).

         The day after the meeting with Mitchell in Decatur, Adams sent an email to Edwards and Frye. (Doc. 21-17 at 6). There Adams advised: “Amanda is extremely upset over this situation, as I would expect. She feels she has been ‘maliciously attacked' by the agent because of her firm management style. I wanted to make her feelings known ….” (Id.) Adams's email also attached a written statement from Mitchell addressing her arrest. (Doc. 19-9 at 27). Mitchell there claimed she had inadvertently written a bad check at a Wal-Mart in Baldwin County in the early 2000s. She said she also believed the matter had been resolved at that time until she was stopped for a traffic offense some six years later in 2009 while visiting her hometown and discovered there was a warrant out for her arrest. Finally, Mitchell related that she had been booked, released immediately on bond, and went to court two months later, at which time, she said, she “paid a bunch of money, and all is taken care of.” (Doc. 19-9 at 27).

         At this point, Plaintiff was ignorant of the fact that Hastings had been reporting to HR and management that Plaintiff's act of bringing the mugshot to Hastings's attention itself amounted to a threat to blackmail and harass Mitchell. Plaintiff was also unaware of any investigation or other action then being undertaken by the company, which Plaintiff thought unusual because, in her experience, she had seen that HR normally got involved in such matters within three days. (Pl. Dep. 181). With that period having passed, Plaintiff went back to Hastings. Plaintiff asked her, “Have you heard anything about the jailbird situation?” (Id. at 181-82). Hastings laughed and replied that she hadn't.

         On August 27th, with nothing else significant having transpired in the interim on the mugshot investigation, Plaintiff called Hastings and said that she was having some medical issues and that her doctors were going to be running some tests. Plaintiff further related that her doctors had taken her off work until September 6th, and she requested FMLA leave through that date. On that score, Compass had approved Plaintiff to take intermittent FMLA leave each year between 2012 and 2015 for periodic episodes of depression, anxiety, and panic attacks. After Plaintiff's call, Hastings reviewed an attendance spreadsheet log she kept for Plaintiff, [6] which prompted Hastings to write an email to HR. Noting that Plaintiff would be out until September 6th, Hastings quoted from a memo issued on January 8, 2015, by Tasha Hardy, Compass's FMLA Coordinator, pre-approving Plaintiff to take intermittent FMLA leave during that calendar year “to attend [doctor's] appointments at least twice a year and for flare ups that may occur 1 time every 3 months.” (See Doc. 21-7 at 3; Doc. 21-1 at 2). Hastings then observed that, according to her log, Plaintiff had, “on average, ” been “missing 3-4 days per month” on FMLA leave. (Doc. 21-7 at 3). Finally, Hastings asked whether someone could “review [Plaintiff's] case and reach out to her if needed” and whether she, Hastings, was supposed to code Plaintiff's pending leave as “FMLA.” (Id.).

         On September 1st, Hardy, who had been out of the office for several days, replied to Hastings email. (Doc. 21-7 at 2). Hardy asked Hastings for further details about Plaintiff's current leave and whether Plaintiff had said it was “due to her FMLA reason.” (Id.) Hastings responded with an email, copied to Edwards, stating:

Yes, she called 8/27 she stated per doctor she would not be back to work until 9/6 due to FMLA.
Per her approved [leave of absence], this exceeds the amount of events she is covered and has been using more time than she is approved for.

(Id.) Later on September 1st, Plaintiff provided a note from one of her doctors to excuse her leave. (Doc. 19-6 at 19-20). The next day, Plaintiff also supplied an updated FMLA certification form from another doctor. (Doc. 21-2). Ultimately, Compass designated all days of Plaintiff's leave commencing on August 27th as FMLA. (See Doc. 21-8 at 3).

         Plaintiff returned to work on September 8, 2015, the day after Labor Day. That afternoon, Hastings called her into a meeting, whereupon they were joined on speakerphone by Edwards, with whom Plaintiff had never previously spoken. According to Plaintiff, Edwards immediately began questioning her about the mugshot in a “very aggressive” manner. Following the interview, Edwards documented her recollection of what was said in an email to Frey, Alderson, and Adams, as follows:

I spoke with Krystal with her manager Summer. I asked how did she become aware of [Amanda Mitchell's mugshot photo] and she stated that she has heard people discussing it in the breakroom, in the hallways, parking lots and in the smoking area. She could not recall the names of the employees but recalled that she had a glance of a coworkers [sic] phone and a picture then took it upon herself to look it up. I asked by what name did she look it up and she said that she did not remember, but she looked it up solely to bring to managers [sic] attention of what was going on on the floor and between team members. Chain of Command- I asked again was apart [sic] of the conversations? She said I speak to everyone, I don't know everyones [sic] names. I said are you or have you ever been related to Amanda by blood or marriage? No, not that I am aware of? [sic] I asked again what name did she use to look the information up? She said not Mitchell but Finley? How did she know to use that name? She must have heard that in the conversations. I asked her if she recalled telling Summer, her manager that she and Amanda were related by marriage distant cousin [sic]? No, I asked has she shown or shared the information and the photo with any other BBVA employee? No. I asked her if she recalled making the statement to Summer who was walking out of a meeting with Amanda “You been with the Jail Bird, jail mate or in mate [sic]? Summer seemed puzzled and said what who, Amanda you have been with Amanda right? Summer said I have been in a meeting with Amanda and by the way what is that website again that you showed me and you walked summer through the internet to get to this particular website, a website you do not recall today. I asked her if she recalled making the statement to Summer, “We put two and two together and we said if Amanda keeps pushing us we will use this against her.” She said I can not [sic] recall word for word what I said to Summer it has been several weeks and you are making me feel defensive.
I again asked for the names of co workers [sic] that has [sic] been in discussion about Amanda and she said I don't know. I then stated that we have a zero tolerance for harassment at BBVA and right now all that I have is information that she is the person with the information on her phone and that she made statements to Summer her manager and now she is not being forth right [sic] with the details and will have to place her on PAID Admin[istrative] leave until the investigation … is complete. I instructed Krystal to send me an email by the close of business tomorrow with a recap of her memory details regarding the interview we had today.
I spoke with Michael Frye and reviewed my interview and told him that Krystal is on PAID Admin[istrative] leave until the investigation is complete. He supported and will wait to hear from me. I also left [a] message for Eric Adams to call me so I could update him as well.
I asked Summer to send me a recap as well, she mentioned that Krystal stated during the interview are you going to fire me if so go ahead and get it over with.

(Doc. 21-19 at 8-9).

         According to Edwards, upon interviewing Plaintiff, she believed Plaintiff had been less than honest and forthcoming. (See Edwards Dep. at 106-13). In particular, Edwards cites that Plaintiff had at first claimed not to recall either that she had said in her initial conversation with Hastings about the mugshot that she, Plaintiff, might be distantly related to Mitchell or that she had referred to Mitchell as a “jailbird” in a later exchange with Hastings. In each case, Edwards says, Plaintiff was “called out” by Hastings whereupon Plaintiff then admitted having made such remarks. (Id. at 107-08). Edwards says she also felt Plaintiff was withholding information because Plaintiff said she did not know the names of any of the employees she said she heard talking about the mugshot, which Edwards thought unlikely. In addition, Edwards says that Hastings had reported that, in the meeting where she first brought the mugshot to her attention, Plaintiff had stated, “We put two and two together and we said if Amanda keeps pushing us we will use this against her.” (Id. at 112). That suggested to Edwards, she says, that Plaintiff was part of the group of employees contemplating use the mugshot to harass and blackmail Mitchell. Edwards then asked Plaintiff in the interview whether she had made such a statement, but Plaintiff ultimately failed to clearly deny it, responding, rather, that she could not recall “word for word” what she might have said to Hastings. (Id. at 113).

         The next morning, September 9th, Edwards received a follow-up email from ...

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