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Smelter v. Southern Home Care Services Inc.

United States Court of Appeals, Eleventh Circuit

September 24, 2018

BRENDA SMELTER, Plaintiff-Appellant,
v.
SOUTHERN HOME CARE SERVICES INC, d.b.a. Rescare Homecare, Defendant-Appellee.

          Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 5:14-cv-00358-LJA

          Before WILLIAM PRYOR, JILL PRYOR and ANDERSON, Circuit Judges.

          JILL PRYOR, Circuit Judge.

         Brenda Smelter, a black woman, was hired by Southern Home Care Services, Inc. d/b/a/ ResCare Homecare as a Customer Service Supervisor. She was the only black person who worked in her office, and she often overheard her co-workers making racist comments, some of which were directed at her. The severity of these racist comments peaked on the last day of her employment when a co-worker called her a "dumb black nigger" during an argument. According to Smelter, she was fired for reporting this epithet, along with her co-workers' other racist comments, to her direct supervisor. She sued Southern Home under Title VII and 42 U.S.C. § 1981, asserting claims for discriminatory termination, hostile work environment, and retaliation. The district court granted summary judgment for Southern Home on each of Smelter's claims, and Smelter appealed.

         After careful review, and with the benefit of oral argument, we affirm in part and reverse in part. We agree with the district court that Smelter's discriminatory termination and retaliation claims fail as a matter of law because she provided insufficient evidence of pretext in response to Southern Home's legitimate, nondiscriminatory reasons for terminating her. But we disagree with the district court's conclusions that, as a matter of law, the harassment Smelter suffered was not severe or pervasive and Southern Home lacked notice of that harassment. We therefore reverse the grant of summary judgment for Southern Home on Smelter's hostile work environment claim and remand that claim to the district court for further proceedings.

         I. BACKGROUND

         A. Southern Home and Its Perry Office

         Southern Home provides personalized home health care services for people of all ages, physical conditions, and cognitive abilities. Its caregivers travel to clients' homes to provide personal care services and other assistance as requested. These home visits are managed by Southern Home's Customer Service Supervisors, who coordinate with clients and caregivers to schedule the visits and to ensure that clients receive the requested services.

         Customer Service Supervisors coordinate with caregivers in two ways. First, they provide caregivers with client care plans and other information pertaining to their scheduled visits. If a client cancels or reschedules a visit, or if a caregiver is added to or removed from a schedule, the Customer Service Supervisor is responsible for relaying that information to the caregiver, usually by calling the caregiver directly. Second, Customer Care Supervisors ensure that caregivers' work time is accurately reported for payroll purposes. Caregivers are supposed to report when their client visits begin and end by calling in to an automated system called Telephony. Sometimes, however, caregivers fail to use Telephony and have to call a Customer Service Supervisor, who then records the caregivers' time manually. Regardless of how the caregivers report their time, Customer Service Supervisors are responsible for "linking" the reported time with the master client schedule to ensure that the caregivers are properly compensated. Because linking is easier for the Customer Service Supervisors if the caregivers use Telephony, the Customer Service Supervisors are responsible for making sure they do so.

         During the time period relevant to this case, Southern Home operated out of several branch offices in Georgia, including one in Perry. Executive Director Kelly McDougal oversaw operations at Southern Home's branch offices across middle Georgia, including the Perry office. Although McDougal provided general oversight, the Perry office fell under the direct management of Branch Manager Brandi Talton. Prior to Smelter's hire, in addition to Talton, four other employees worked at the Perry office: Connie Raleigh, the Office Manager; Catherine Smallwood, a Customer Service Supervisor; Vanessa Lind, another Customer Service Supervisor; and Mary Noll, a nurse. McDougal, Talton, and all of the other Perry office employees are white.

         In addition to her duties at the Perry office, Talton also supervised marketing and helped with operations at the Macon office. This meant that she often was absent from the Perry office while working in Macon or out in the field developing clients.

         B. Smelter's Hiring

         In April 2013, Southern Home accepted applications to fill a vacant Customer Service Supervisor position in the Perry office. The vacant position had been occupied by Lind, but it opened up when Lind went on maternity leave. Smelter applied for the open position, and McDougal hired her. Smelter's employment was subject to a six month probationary period.

         Smelter began a week of orientation and training on July 2, 2013. Even though Smelter was hired to work in the Perry office, her orientation and training took place in the Macon office, as was customary for all new hires. Typically, new Customer Service Supervisors would receive step-by-step training on payroll, timesheets, and Telephony. This would include a full week of one-on-one training with Southern Home's lead Customer Service Supervisor, Merri Jo Hortman. According to Hortman, Smelter received the customary amount of training and indicated that she was comfortable with the requirements of her new position before leaving training in Macon and taking up her position in Perry. Smelter, in contrast, testified that she received "no training in Macon at all" because the employees were in the middle of payroll and "didn't have time." Doc. 27 at 144, 155.[1]

         While Smelter was in training at the Macon office, she claimed that $100 was stolen from her purse while it was stored in a co-worker's desk. Although Smelter did not know who was responsible, she accused the co-worker and notified McDougal and Talton. McDougal investigated Smelter's claim but was unable to determine who, if anyone, stole the money. McDougal told Smelter that she would be fired if she continued to talk about the alleged theft.

         C. Smelter's Post-Training Performance

         By Smelter's own admission, she struggled with her job duties after she left training and began working in the Perry office. She testified that she did the best she could to learn Southern Home's computer system, but did not "g[e]t it" until Raleigh started helping her. Id. at 158. Even then, she "still had some issues" with caregivers failing to clock in and out using Telephony. Id. at 158-59. In late July, a few weeks after she began working at the Perry office, Smelter told Talton that she still was struggling with Telephony and felt that she had not received enough training. Because of Smelter's difficulties, Talton asked Hortman to travel to the Perry office to provide Smelter with supplemental training. This was the first time that Hortman had been asked to provide a Customer Service Supervisor with additional training beyond orientation.

         Smelter's supervisors and co-workers observed Smelter continuing to have performance issues. In particular, Smelter was having trouble understanding how to do linking, so Talton asked Raleigh to help her. Raleigh explained that, of all the Customer Service Supervisors with whom she had worked, Smelter required the most retraining. At times, Raleigh would do some of the Customer Service Supervisors' linking for them, but Smelter needed the most help. Raleigh testified that Smelter never "totally" understood Southern Home's computer system and that her skills on that system "were not that good." Doc. 33 at 133, 139.

         Like Raleigh, Talton observed Smelter struggling with her core duties like linking and scheduling. Smelter repeatedly asked Talton the same questions and made the same errors, even though Talton had instructed her to take notes so that she could remember what she had learned. McDougal was aware of Smelter's performance problems because Talton communicated "[e]verything" to her, and both Talton and Raleigh were "[c]onstantly" reporting Smelter's errors. Doc. 32 at 15, 26. McDougal testified that none of the other Customer Service Supervisors under her direction struggled with linking as much as Smelter did.

         In addition to her struggles with Southern Home's computer system, Smelter also had difficulty coordinating with caregivers. In early September-two months into her employment-Smelter caused a caregiver to be late to an appointment with a new client because she failed to timely provide the caregiver with the client's address. Smelter received a written warning as a result of this incident. The very next day, Smelter failed to inform the same caregiver about a client's schedule change, which caused the caregiver to arrive at the client's house three hours early.

         D. Smallwood's and Raleigh's Racist Comments

         Smelter endured racist remarks by her co-workers nearly every day that she worked in the Perry office.[2] Smallwood made most of these remarks. For example, Smallwood told Raleigh that black men were "lazy" and "the scum of the earth." Doc. 27 at 190. Smallwood also said that "black women[] ha[d] babies on welfare," President Barack Obama's "big ears" made him "look[] like a monkey," and she did not know that black people could be buried on Sundays. Id. at 190, 297. On one occasion, Smallwood said that Smelter's hair made her look like a "mixed monkey" from the movie Planet of the Apes. Id. at 296.

         Raleigh made racist remarks, too. She once described an occasion when she saw black people exiting a bus at a Wal-Mart store and commented that it looked like they were "chained together." Id. at 193. Raleigh added that she wished she could "send them all back . . . to Africa." Id.

         Smelter never reported any of these comments to McDougal, Talton, or any other supervisor at Southern Home until the last day of her employment. But she testified that Talton overheard at least some of the remarks. According to Smelter, Smallwood's and Raleigh's racist comments were "funny to everybody that worked in the Perry office" with her, "even Brandi Talton." Id. at 34.

         E. Smelter's Termination

         Smelter's final day of employment with Southern Home was September 9, 2013. On that day, a caregiver reported that Smelter again had failed to notify her about a client's schedule change. Smelter insisted that she had reported the schedule change to the caregiver and asked Smallwood to confirm because she believed that Smallwood had overheard her conversation with the caregiver. But Smallwood told Smelter that she did not remember it. A verbal altercation between Smelter and Smallwood ensued. Smallwood told Smelter to "shut up and get out of my office." Id. at 249. Smelter tried to explain that she was "just trying to make sure that [she] got everything documented," but Smallwood "jumped up . . . in a rage" and said "get out of my office . . . you dumb black nigger." Id. As Smallwood stood up, she "hit the desk" like she was about "to charge at" Smelter. Id. The altercation ended when Smelter left Smallwood's office.

         Talton, who was out of the office, learned about the incident from Raleigh, who emailed Talton to report that Smelter was "in the back [of the office] yelling at [Smallwood]." Doc. 35 at 77-78. Talton then called the Perry office and spoke with Smelter and Smallwood in turn. Afterward, Smelter spoke with Talton for a second time and explained that it was Smallwood, not herself, who was being difficult. Smelter testified in her deposition that she told Talton "everything that went on." Doc. 27 at 250. Although during the deposition she did not explain what she meant by this, she clarified her testimony in a declaration filed after Southern Home moved for summary judgment:

When I said "everything that went on" I meant that I told Ms. Talton about the all [sic] racial statements made in the office including, but not limited to, the comments about black men being lazy and black women being on welfare to [sic] [Smallwood] telling me to get out of ...

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