United States District Court, N.D. Alabama, Southern Division
E. Ott, Chief United States Magistrate Judge.
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 (“Complaint”
or “Compl.”). The cause now comes to be heard on
Compass's motion for summary judgment. (Doc. 17). Upon
consideration, the court concludes that the motion is due to be
SUMMARY JUDGMENT REVIEW STANDARDS
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.
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).
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.
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.
The “Team Lead” Vacancy
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).
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.
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.
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).
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
Susan Talmadge's Comments
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).
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, ” 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).
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.
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).
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).
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
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
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.
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
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
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,  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.”
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).
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
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
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).
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).
next morning, September 9th, Edwards received a follow-up
email from ...