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Raybon v. Alabama Space Science Exhibit Commission

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

August 31, 2018



         Tamela Raybon sued her former employer, the Alabama Space Science Exhibit Commission, doing business as the “U.S. Space & Rocket Center, ” alleging claims for race discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, as well as a supplemental state law claim for negligent hiring, retention, and supervision.[1]

         Following consideration of the pleadings, defendant's motion for summary judgment, [2] briefs, [3] oral arguments of counsel, and the declaration of Vickie Henderson filed on August 28, 2018, [4] the court enters the following memorandum opinion.


         Federal Rule of Civil Procedure 56 provides that a 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). In other words, summary judgment is proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. “[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,

[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”).

         II. FACTS

         Tamela Raybon (“plaintiff”) began her employment with the Alabama Space Science Exhibit Commission, doing business as the U.S. Space & Rocket Center (“the Center”), [5] in 1998, as a temporary employee in the accounting department. She processed payments for persons attending the Center's “Space Camp”[6] and performed other duties relating to accounts receivable.[7] She was hired as a full-time employee in 1999, and was classified as a “Camp Accounting Clerk.”[8] Her job title later was changed to “Senior Camp Accounting Clerk.”[9]

         The Center's accounting department was reorganized in 2007, and plaintiff was designated a “Camp Collections Manager, ” a position that required her to be responsible for accounts receivable, payroll processing, and customer service functions.[10] Plaintiff's initial supervisor in the accounting department (Mildred Davis) retired in 2013, and Brenda Perez was hired to replace her.[11]

         One of the goals established for plaintiff by Perez as part of her initial, January 10, 2014 performance evaluation, was: “Avoid negative politicking and gossiping amongst fellow co-workers/peers.”[12] Perez's second, May 8, 2014 evaluation of plaintiff”s performance contained instructions that she “immediately” cease personal telephone conversations during working hours, and that “Personal cell phones [were to] be used for emergencies only.”[13]

         The Center installed new accounting software during the Fall of 2014. The upgrade automated many of plaintiff's previous duties.[14] Accordingly, in order to justify plaintiff's continued employment, Perez assigned new duties to her, including the responsibility for “billing specific events” and “all of the regular accounts receivable” for which Brenda Perez previously had been responsible.[15]

         Louie Ramirez became the Center's Chief Financial Officer during January of the following year (2015), and Brenda Perez's job title was changed from “Accounting Manager” to “Controller.”[16] Plaintiff was redesignated a “Senior Accounts Receivable Specialist” and her pay was increased to $21.00 an hour.[17]

         Later that year, after plaintiff had received a written reprimand for “discourtesy” on May 8, 2015, [18] she met with Perez and Vickie Henderson, the Center's Vice President of Human Resources. Henderson explained the reason for the reprimand: an incident that had been documented on an “Employee Disciplinary/Counseling Report” authored by a Center employee identified only as “Teen.”[19] The substantive portion of that report read as follows:

Tamela Rabon [sic] from upstairs was in crew galley and scream [sic] out “there's a bug in my food” and then later says “oh, no it's not” but everyone heard her. I have been told that she does things like this all the time. She and her blonde girlfriend from upstairs do things like this all the time I am told. She refuses piazza [sic] that she is served saying she wants a “Fresh One.” This not only makes foodservice look bad but also the entire museum. Can you please speak to her. Thank you, Teen.

         Doc. no. 15-1 (Plaintiff's Deposition: Part 1), Ex. 11, at ECF 86. Perez noted on the form that the incident had been discussed with plaintiff, and that she would no longer be allowed to enter the “Crew Galley” or “Mars Grille”: the Center's two on-site food purveyors.[20]

         Plaintiff believed the reprimand to be unfair, and met with the Center's Chief Executive Officer, Dr. Deborah Barnhart, to complain.[21] Dr. Barnhart promised to look into the matter. The following week, however, she told plaintiff that she had spoken with Vickie Henderson about the incident and the reprimand would stand.[22]

         Later that same year, during November of 2015, Perez reviewed the Center's written policy on personal telephone calls and cell phone usage with all employees of the accounting department. The policy read as follows:

The Center's business phones are to be used only for official business. Personal telephone calls should be kept to a minimum so as not to interrupt the business processes. In the instance that you do not have phone access and an emergency occurs, please have the caller contact your manager who will get the message to you immediately.
If an emergency arises while you are at your workstation, contact your supervisor or manager immediately because only your manager may release you from your assigned workstation and duties.
The use of cell phones, telephone earpieces, etc. is prohibited during work hours especially if working as a “front-line” employee, interacting with our guests or with trainees. You may use your cell phone during your break periods ONLY.
Company owned telephones, cell phones, pagers, fax machines, and copiers are to be used for official Center business purposes only. Cell phone usage while operating Center vehicles or Privately Owned Vehicles (POV) on Center business should be used with caution. All employees operating Center vehicles shall obey all traffic laws to include those concerning cell phones. Please be reminded that supervisors and managers will monitor telephone and especially cell phone usage while you are at work.

         Doc. no. 15-1 (Plaintiff's Deposition: Part 1), Ex. 12, at ECF 87 (italicized emphasis supplied). Plaintiff signed a copy of the policy, thereby acknowledging that she had read and understood

         the policy on the use of company telephones and personal cell phones.

I agree to comply with the policy as a condition of my continued employment. I understand that failure to follow the policy will result in disciplinary action up to and including discharge from employment with the U.S. Space & Rocket Center.

Id. (emphasis supplied).

         Plaintiff received an annual performance evaluation from Brenda Perez on December 8, 2015.[23] She was rated on specific, but largely subjective, criteria in the areas of “Job Knowledge & Performance, ” “General Requirements, ” “Professional Standards, ” and “Teamwork Standards.”[24] Perez entered comments under three of the four categories. She recorded the following statements under the category labeled “Job Knowledge & Performance”:

Tamela had several complaints filed in the spring of 2015 regarding being discourteous to food service staff. Disciplinary action was taken on 5/7/2015 and Tamela was instructed to stay away from the Crew Galley/Mars Grille. I have had no further complaints from food staff members. However, there have been complaints regarding Tamela's behavior in the Accounting suites relating to the volume of her conversations and constant negative attitude. I have counseled her on this behavior and will monitor the progress over the coming months.

         Doc. no. 15-1 (Plaintiff's Deposition: Part 1), Ex. 13, at ECF 88. Perez recorded the following statements under the category labeled “Professional Standards”:

Tamela communicates effectively with customers but needs to improve on her interactions with co-workers. Her outspoken negativity regarding [the Center] is a problem that effects [sic] her co-workers. She has been counseled to keep her opinions to herself and to work quietly and efficiently.

Id. (alteration supplied). Perez observed under the “Teamwork Standards” category that “Tamela displays a negative attitude at times which effects [sic] other employees.”[25] In addition, Perez remarked that

Tamela has spent too much time on personal phone calls which are disrupting to the other accounting staff members. She has been instructed to refrain from all personal calls in the accounting office. The Center's Cell Phone policy has been reviewed with Tamela in November 2015, and she has been given permission to have one personal phone call in the morning (15 min) and one in the afternoon (15 min) that must be made outside the accounting suites. Tamela needs to display a more professional demeanor by avoiding negative comments and respecting her co-workers' need for a calm and quite [sic] work area.

Id. at ECF 89 (emphasis supplied). Perez's overall rating of plaintiff on the December 8, 2015 performance evaluation was only 46%[26] - a score that fell within the range designated as “Needs Major Improvement.”[27] Plaintiff denied that she had been counseled on the issues recorded in her annual performance evaluation, but admitted that her signature appeared on the form which documented the issues.[28] Brenda Perez subsequently attached the following note to plaintiff's evaluation form:

I met with Tamela briefly to review her written annual performance [evaluation]. We again discussed our policy on personal phone calls. I reiterated to her that she was to make no personal phone calls in the accounting offices. She looked at me but did not respond.
Tamela signed her evaluation and left my office.

         Doc. no. 15-3 (Perez Deposition), Ex. 9, at ECF 54 (alteration supplied); see also id. (Perez Deposition), at 104.

         Plaintiff was absent from her office for two-and-a-half hours, from 1:31 p.m. until 4:01 p.m., on Wednesday, February 17, 2016.[29] Perez annotated plaintiff's time-sheet with a hand-written note stating that plaintiff had “no prior approval [for the absence, and she] gave no explanation for being gone for 2 ½ hours for lunch.”[30]Plaintiff denied that assertion during her deposition, and testified that, prior to leaving the office, she had told Perez that she had an appointment for a medical test, and that Perez had responded: “It's fine. Go ahead.”[31] There is no evidence in the record that any formal counseling occurred as a result of plaintiff's extended absence.

         Nine days after the foregoing incident, however (i.e., on Friday, February 26, 2016), the Center posted an opening for the position of “Accounting Supervisor.”[32]Plaintiff attempted to apply for the position through the Center's on-line job application system, but was unsuccessful. When she attempted to enter her application, the computer program indicated that the posting was “closed.” In contrast, the posted position announcement stated that the vacancy was to remain “open” until Wednesday, March 2.[33] Consequently, plaintiff and a co-worker named Andrea Thrasher met with Louie Ramirez, the Center's Chief Financial Officer. Plaintiff complained about her inability to submit an on-line application, and Thrasher voiced concerns about her duties as the Accounts Payable Clerk.[34] Ramirez told plaintiff that he would “get back” with her about her inability to submit an on-line application for the Accounting Supervisor position, but he did not do so. Plaintiff not only failed to follow up with Ramirez on the issue, [35] but she also did not complain to Brenda Perez about her inability to apply for the Accounting Supervisor position after Perez returned to work.[36]

         Notwithstanding the fact that plaintiff did not actually submit an application for the Accounting Supervisor position, she possessed neither experience in nor knowledge of several of the qualifications required for the position.[37] For example, plaintiff testified during deposition that: she had not created and managed balance sheets; she was not familiar with generally accepted accounting principles; she had not created or managed financial statements; she had not directed an audit; she was “not sure” what information was recorded on a balance sheet; and, she did not know how to reconcile a general ledger.[38]

         Patricia Kimberlin, a white female employed in the Center's accounting department, was selected for the Accounting Supervisor position. Perez announced Kimberlin's selection during a staff meeting on March 2, 2016.[39] While doing so, Perez also stated her belief that “the Accounting suites had become too noisy, ”[40] and directed a rearrangement of the cubicles and office furniture.[41] Plaintiff's cubicle was moved to the back of the suite, about seven feet from its prior location.[42] Plaintiff testified that, after the rearrangement, employees from other departments came to see where her cubicle had been moved.[43] According to plaintiff, those employees laughed and made comments that she considered “discriminatory” and “humiliating.”[44]

         Plaintiff voiced her dissatisfaction with the rearrangement to Perez, but she did not say that, in her opinion, the relocation of her cubicle to the rear of the suite was racially motivated.[45] Perez attempted to reassure plaintiff that the suite was rearranged in an attempt to reduce noise levels.[46] According to plaintiff, following the rearrangement, Patricia Kimberlin, the newly-appointed Accounting Supervisor, instructed her to use the “back door” to enter and exit the office.[47]

         Plaintiff believed that Perez and Kimberlin labeled her as “loud” as a euphemistic substitute for a racial comment.[48] Even so, plaintiff testified that neither Perez nor Kimberlin specifically described plaintiff, as opposed to the office generally, as “loud.” Instead, plaintiff simply believed that a racially derogatory sentiment was implied by their comments about the noise level in the suite.[49]

         Plaintiff also complained about Patricia Kimberlin's annotation of the staff calendar to indicate that plaintiff was out of the office due to illness on March 28, 2015.[50] Plaintiff believed that, when other employees were absent from work due to illness, the reason for their absence was not specified on the calendar.[51] She complained to Kimberlin on some unspecified date, and Kimberlin complied with plaintiff's request to remove the annotation.[52]

         During the same timeframe as the rearrangement of cubicles within the accounting suite, Perez assigned plaintiff the responsibility for maintaining the Center's petty cash.[53] That duty required her to be present in the accounting suite between the hours of 9:00 a.m. and Noon each Friday.[54] As a result, plaintiff was unable to attend the Center-wide quarterly staff meeting conducted by the Center's Chief Executive Officer with plaintiff's co-workers in the accounting department. Even so, the quarterly staff meetings were repeated in the afternoons for employees who, like plaintiff, were unable to attend the morning session, and plaintiff attended the afternoon meeting, albeit without her co-workers.[55] That made her feel isolated.[56]

         The pertinent part of the Center's “policy and procedure statement” on workplace harassment read as follows on the dates of the events leading to this suit:

The U.S. Space & Rocket Center [“USSRC”] is committed to the principle that all individuals should enjoy a work environment free from all forms of harassment including, but not limited to, sexual and physical harassment, intimidation and/or coercion. The USSRC is committed to providing a favorable environment to all individuals it serves including, but not limited to, trainees, families, employees, and guests.

         Doc. no. 15-3 (Perez Deposition), Ex. 2, at ECF 41 (alteration supplied).[57] There was a corresponding reporting procedure that provided:

1. Employees shall be made aware of this [harassment] policy upon employment and the policy shall be reviewed on a semiannual basis.
2. Any employee who believes that he/she is being harassed by a supervisor, co-worker, or non-employee, should promptly take the following steps:
a. Discuss the situation directly with the person doing the harassing.
b. Politely request that the person cease the harassment because it is offensive, uncomfortable, and/or intimidating.
c. However, if for any reason an employee is not comfortable with confronting the individual, the employee should seek assistance from their supervisor and immediately report the situation to the Equal Employment Opportunity Officer (identified as the Director of Talent and Acquisition Development, Human Resources).
d. The employee may also report the incident to one of the following individuals:
i. Vickie Henderson, VP of Human Resources
ii. Louie Ramirez, VP and CFO
iii. Brenda Carr, VP Development 3. Any employee who has knowledge of [the] behavior of another employee which was offensive, uncomfortable, and/or intimidating is encouraged to contact his/her supervisor or one of the individuals listed in “c” above.
4. Any supervisory personnel who has knowledge of or receives a harassment complaint shall immediately contact the EEO Officer/VP of HR so that a thorough investigation can be undertaken as set forth in Policy #1510.9A.
5. If harassment is found to have occurred, appropriate disciplinary action will be taken up to and including termination of employment of the harassing party.
6. If a complaint is made against a vendor or contractor, the USSRC will investigate the complaint according to Policy #1510.9A. If the investigation supports the allegations, the Center may terminate the services of the vendor or contractor.

         Doc. no. 15-3 (Perez Deposition), Ex. 2, at ECF 41 (alterations supplied, telephone numbers of the individuals designated to receive reports omitted). There is no evidence that plaintiff availed herself of the foregoing harassment procedure.

         Plaintiff was absent from her office from 10:41 a.m. until 1:14 p.m. on Wednesday, April 6, 2016, without prior authorization from either Patricia Kimberlin or Brenda Perez.[58] Kimberlin met with plaintiff the following day to address not only her extended absence, but other workload issues.[59] Kimberlin told plaintiff that she needed prior permission if she intended to be absent from the office for longer than an hour.[60] Plaintiff responded that she had not planned to be absent for more than an hour on April 6th, but she apparently did not contact Kimberlin or anyone else to report that she would be delayed in returning to work.[61] Kimberlin documented her conversation with plaintiff as follows:

Finally I showed her a screen shot I had of her time that week. She clocked out Wednesday at 10:41 and did not return until 1:14. I thanked her for at least clocking out and not just leaving the building. She said nothing and just stared at me. I stated this was either an early lunch or a doctor's appointment but regardless she needed to either let me know she was leaving the building or to sign out on our calendar we have in the supply room when she is going to be away at a time that is not normally a lunch hour. She still said nothing and just stared at me. I said [“]people were looking for you[”] and nobody had any idea where she was. All she said was “Who was looking for me?” I replied just people from other departments and that was why we [need to] let someone know if we're going to be out. She didn't say anything, not okay in the future . . . or sorry I was . . ., just nothing. Her smug attitude left me with the feeling she did not plan to let me know in the future her schedule.

         Doc. no. 15-3 (Perez Deposition), Ex. 14 (Patricia Kimberlin's Notes), ¶ 7, at ECF 60-61 (emphasis and alterations supplied, ellipses in original); see also doc. no. 15-14 (Patricia Kimberlin's Notes), ¶ 7, at ECF 2-3 (same).

         Plaintiff contacted the Equal Employment Opportunity Commission (“EEOC”) following her meeting with Kimberlin; and, on April 6 or 7, 2016, she mailed to the Commission an “intake form” complaining about her treatment.[62] Plaintiff received a letter dated April 13, 2016 from the EEOC on April 15, 2016 - the same date that her employment was terminated.[63] That letter enclosed an “EEOC Form 5, Charge of Discrimination, ” which summarized the information that plaintiff had provided on the “intake form.” Plaintiff was instructed to review, sign, and return the “Charge” form to the EEOC in order to initiate an investigation of her complaint.[64]Significantly, however, the EEOC's April 13th letter also stated that: “Because the document that you submitted to us [i.e., the “intake form” mailed by plaintiff on or about April 6 or 7] constitutes a charge of employment discrimination, we have complied with the law and notified the employer that you filed a charge.[65]

         The EEOC's notice that plaintiff had submitted an intake form (the “Charge Notice”) was received by Vickie Henderson, the Center's Vice President of Human Resources, on Monday, April 18, 2016.[66] Plaintiff's employment, however, had been terminated by Brenda Perez three days before, on Friday, April 15, 2016.

         The termination occurred in the office of Derrik Landman, the Center's Director of Talent Acquisition and Development.[67] Perez testified that, a couple of days prior to April 15, 2016, she had attempted on several occasions to speak with plaintiff about Center business, but each time that Perez approached plaintiff's desk, plaintiff was engaged in personal telephone calls.[68] That frustration fed Perez's decision to terminate plaintiff's employment.[69] Perez testified that she had regularly consulted her supervisor, Louie Ramirez, and Vickie Henderson, the Vice President of Human Resources, about plaintiff's performance and conduct issues, [70] and before actually terminating plaintiff's employment, Perez also sought advice from Louie Ramirez.[71] He told Perez that it was “her decision” to make.[72]

         The “Termination of Employment” form completed by Perez identified the reason for firing plaintiff as her “insubordination and lack of respect for co-workers.”[73] Even though that form states that “[i]nvoluntary termination of a fulltime employee must have approval of the President/CEO, the appropriate Vice President of the Department and be coordinated with the Vice President of Human Resources, ”[74] it does not appear that Perez complied with all of those requirements. (The initials “VH” and date “4/18/16” appear on the line adjacent to “Reviewed by V.P. of HR.”[75])

         During deposition, Perez recited the following as examples of the reasons she considered plaintiff's ...

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