United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
Mills has worked in retail sales for Defendant Verizon
Wireless since November 2012. Ms. Mills, an African American
female, alleges that, beginning in 2014, her white store
manager regularly subjected her and other African American
colleagues to racist remarks. She also alleges that the store
manager discriminated against her in his scheduling practices
and later retaliated against her for complaining about the
schedule. When Ms. Mills complained to Verizon, it
transferred her to a new store with a new manager; Ms. Mills
alleges the discrimination and retaliation continued.
Mills filed an EEOC charge alleging racial discrimination and
retaliation and later filed this lawsuit after receiving her
right to sue.
matter now comes before the court on “Defendant's
Motion for Summary Judgment.” (Doc. 73). In its motion,
Verizon asks this court to enter judgment against Ms. Mills
for failing to establish a prima facie case or to raise a
genuine issue of material fact on any of her claims. For the
reasons stated below, the court will GRANT IN PART
Verizon's motion and will ENTER JUDGMENT on Ms.
Mills's racially hostile work environment claim;
retaliation claim; and negligent hiring, supervision,
training, and retention claim. The court will DENY IN PART
Verizon's motion for summary judgment on Ms. Mills's
racial discrimination claim but only as to her claim that
Verizon discriminated against her by unfairly scheduling her
and other African American employees for undesirable closing
shifts on weekends.
Mills, an African American female, has worked at Verizon in
retail sales since November 2012 and continues to work for
Verizon. She originally worked at a store in Bessemer but
moved to the Trussville store in 2014, where Kerry Gould
served as one of her managers.
Mills alleges Mr. Gould, who is white, subjected her to
racial discrimination and racial harassment throughout her
time at the Trussville store, creating a racially hostile
work environment. Specifically, Ms. Mills alleges Mr. Gould
often made racially offensive comments to and around her and
other African American employees. She alleges Mr. Gould once
approvingly referenced the Ku Klux Klan and expressed
interest in attending a Ku Klux Klan meeting. She also
alleges Mr. Gould scheduled her and other African American
employees for more undesirable weekend closing shifts than
the white employees.
Mills alleges that she and another African American employee
complained to Mr. Gould in February or March 2014 about his
discriminatory behavior. In response, Mr. Gould placed Ms.
Mills in charge of scheduling for one to two months but then
reassumed scheduling duties and allegedly continued to
disproportionately schedule Ms. Mills and other African
American employees for the least desirable shifts.
Mills alleges Mr. Gould's discriminatory and retaliatory
behavior continued throughout 2014 and resulted in a racially
divided workplace and tension between Ms. Mills and Mr.
Gould. But Ms. Mills did not make a formal complaint to
anyone in Verizon's Human Resources department until
December 18, 2014, when she sent an email to several Verizon
higher-ups describing Mr. Gould's alleged mistreatment of
her and other African American employees. Verizon
investigated Ms. Mills's claims and ultimately reassigned
her to the Wildwood store, where she began working under
manager Angel Burns in January 2015.
to Ms. Mills, her reassignment did not resolve the issues. In
their very first interaction, her new manager Ms. Burns,
herself an African American female, allegedly told Ms. Mills
that she wanted to help her improve her image by making sure
she did not “come off as black and loud.” (Doc.
73-1 at 110:20-111:10). As the phrase “black and
loud” parroted comments Mr. Gould had allegedly made
about Ms. Mills in Trussville, Ms. Mills understood the
comment to mean that Ms. Burns knew about Ms. Mills's
history with Mr. Gould, including her making formal
complaints of racial discrimination. Ms. Mills even testified
that Ms. Burns told her that Ms. Pate and Mr. Gould had
provided that information about Ms. Mills, but Ms. Burns
testified that she did not know anything about Ms.
Mills's history at the Trussville store. (Doc. 73-1 at
111:8-10; Doc. 73-11 at 151:13-152:8).
this inauspicious introduction, Ms. Mills alleges that Ms.
Burns discriminated and retaliated against her throughout her
time under Ms. Burns's management. Ms. Mills specifically
claims that Ms. Burns threatened her with disciplinary action
and gave her unfair “coachings, ” which are
internal notes managers keep on employees to identify
potential areas of improvement, track progress, and provide
positive or negative feedback. The record indicates that Ms.
Burns received over fifty coachings during her time under Ms.
Burns's management, either from her or from one of the
assistant managers at the Wildwood store. (Doc. 73-2 at
Mills would periodically contact Human Resources to complain
about Ms. Burns's alleged mistreatment, which she alleges
only led to additional retaliatory conduct by Ms. Burns. Ms.
Mills specifically complained that Ms. Burns miscoded her
leave time, spoke to her in a derogatory and hostile manner,
changed her schedule without proper notice, and followed her
around the store to heavily scrutinize her customer
Mills filed an EEOC charge of discrimination on September 18,
2015, and requested her right to sue on January 4, 2017. She
filed the instant action in this court on February 1, 2017,
alleging racial discrimination and a hostile work environment
under Title VII and § 1981 (Counts One and Two),
retaliation under Title VII and § 1981 (Counts Three and
Four), and negligent hiring, supervision, training, and
retention under Alabama tort law (Count Five).
Summary judgment allows a trial court to decide cases when no
genuine issues of material fact are present and the moving
party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56.
moving party “always bears the initial responsibility
of informing the district court of the basis for its motion,
and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56).
the moving party meets its burden of showing the district
court that no genuine issues of material fact exist, the
burden then shifts to the non-moving party “to
demonstrate that there is indeed a material issue of fact
that precludes summary judgment.” Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Disagreement between the parties is not significant unless
the disagreement presents a “genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). Inferences can create genuine issues
of material fact. Carlson v. FedEx Ground Package
Systems, Inc., 787 F.3d 1313, 1318 (11th Cir. 2015).
response, the non-moving party “must do more than
simply show that there is some metaphysical doubt as to the
material fact.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
non-moving party must “go beyond the pleadings and by
[its] own affidavits, or by the ‘depositions, answers
to interrogatories, and admissions on file,' designate
‘specific facts showing that there is a genuine
issue for trial.'” Celotex, 477 U.S.
at 324 (quoting Fed.R.Civ.P. 56(e)) (emphasis added).
court must “view the evidence presented through the
prism of the substantive evidentiary burden, ” to
determine whether the non-moving party presented sufficient
evidence on which a jury could reasonably find for the
nonmoving party. Anderson, 477 U.S. at 254. The
court must refrain from weighing the evidence and making
credibility determinations because these decisions belong to
a jury. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
all evidence and inferences drawn from the underlying facts
must be viewed in the light most favorable to the non-moving
party. See Graham v. State Farm Mut. Ins. Co., 193
F.3d 1274, 1282 (11th Cir. 1999). After both parties have
addressed the motion for summary judgment, the court must
grant the motion only if no genuine issues of
material fact exist and if the moving party is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56.
Mills's complaint includes five counts: (1) Title VII
racial discrimination / harassment / hostile work
environment; (2) 42 U.S.C. § 1981 racial discrimination
/ harassment / hostile work environment; (3) Title VII
retaliation; (4) 42 U.S.C. § 1981 retaliation; (5)
negligent hiring, supervision, training, and retention under
Alabama tort law.
initial matter, “Title VII and § 1981 claims
‘have the same requirements of proof and use the same
analytical framework.'” Chapter7 Trustee v.
Gate Gourmet, Inc., 683 F.3d 1249, 1256-57 (11th Cir.
2012) (quoting Standard v. A.B.E.L Servs., Inc., 161
F.3d 1318, 1330 (11th Cir. 1998)). So for the purposes
Verizon's motion for summary judgment, the court makes no
distinction between Ms. Mills claims arising under Title VII
and those arising under § 1981.
Racial discrimination claims
Mills's complaint alleges that Verizon discriminated
against her on the basis of her race in violation of Title
VII and § 1981 by scheduling her for undesirable shifts,
subjecting her to unfair discipline, and threatening to
discipline her. In response to Verizon's motion for
summary judgment, Ms. Mills additionally argued that Verizon
denied her the necessary training to receive a promotion.
VII makes it unlawful “to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race.” 42 U.S.C. § 2000e-2(a)(1).
Establishing a prima facie case for discrimination under
Title VII requires “showing that the employer acted
with discriminatory intent.” Hill v. MARTA,
841 F.2d 1533, 1538 (11th Cir. 1988). A plaintiff can show
discriminatory intent in one of two ways: “He may
present direct evidence of discriminatory intent in the form
of actions or remarks of the employer reflecting a
discriminatory attitude. Or, in the absence of direct
evidence of discrimination, he may rely on the combination of
factors set forth in McDonnell-Douglas Corp. v.
Green . . . .” Id., at 1539.
Mills presents only circumstantial evidence of racial
discrimination, so the court applies the burden-shifting
framework of McDonnell Douglas to the instant case.
Under the McDonnell Douglas framework, “the
plaintiff must first create an inference of discrimination
through his prima facie case.” Vessels v. Atlanta
Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005)
(citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973)).
plaintiff establishes a prima facie case of disparate
treatment by showing that she was a qualified member of a
protected class and was subjected to an adverse employment
action in contrast with similarly situated employees outside
the protected class.” Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) (citations
omitted). Verizon challenges Ms. Mills's ability to
establish that she ever suffered adverse employment action or
that she has established that race was a motivating factor
for any employment practice.
Adverse employment action
have uniformly read [Title VII] to require a plaintiff suing
under § 2000e-2(a) to establish, as part of his prima
facie case, that he suffered so-called ‘adverse
employment action.'” Davis v. Town of Lake
Park, Fla., 245 F.3d 1232, 1238 (11th Cir. 2001) (citing
Merriweather v. Alabama Dept. of Pub. Safety, 17
F.Supp.2d 1260, 1274 (M.D. Ala. 1998), aff'd 199
F.3d 443 (11th Cir. 1999)). Verizon argues that Ms. Mills has
failed to establish that she ever suffered adverse employment
action. (Doc. 74 at 14-25).
qualify as adverse employment action, “the
employer's action must impact the terms, conditions, or
privileges of the plaintiff's job in a real and
demonstrable way.” Davis, 245 F.3d at 1239
(internal quotation marks omitted). The impact must be
“serious and material, ” and a reasonable person
in the circumstances presented must have found that the
action was materially adverse. Id.
Mills's complaint alleges that she suffered adverse
employment action when her manager at the Trussville store
scheduled her to work undesirable weekend closing shifts more
often than her white coworkers. (Doc. 1 at ¶ 18; see
also Doc. 73-1 at 195:10-12). Verizon has not pointed to
anything in the record conclusively contradicting Ms.
Mills's allegations that her manager favored white
employees with preferable schedules. Instead, Verizon points
to Fifth Circuit precedent for the assertion that
“changing one's work schedule is not a change in
employment status.” (Doc. 74 at 16) (quoting Watts
v. Kroger Co., 170 F.3d 505, 510 (5th Cir. 1999)).
Verizon also asserts that courts “have consistently
held that complaints of unfair scheduling do not meet the
threshold for an objectively adverse employment action,
” citing an unpublished Eleventh Circuit case and an
unpublished case from the Northern District of Alabama. (Doc.
74 at 16) (citing Clark v. S. Broward Hosp. Dist.,
601 Fed.Appx. 886, 893-94 (11th Cir. 2015)); Tetteh v.
WAFF TV, No. 5:11-CV-825-JHE, 2014 WL 8382827, *16 (N.D.
Ala. May 14, 2014), report and recommendation
adopted, 2015 WL 1419043 (N.D. Ala. Mar. 27, 2015),
aff'd 638 Fed.Appx. 986 (11th Cir.
2016)). But these cases are distinguishable.
plaintiff in Clark alleged that she received twelve
night-shifts in one month instead of her requested fourteen
but did not allege that she was dissatisfied with her shift
assignments on any other occasion. Clark, 601
Fed.Appx. at 893. The court concluded that the
“difficulties and vagaries of accommodating . . . shift
preferences in any given month” prevented this isolated
incident from rising to the level of materially adverse
employment action. Id. By contrast, Ms. Mills
alleges that her manager consistently scheduled her for
weekend closing shifts, exhibiting a pattern of
discrimination against her and other African American
employees. (Doc. 73-1 at 195:10-12).
decision in Tetteh is also distinguishable. Verizon
quotes the following language from Magistrate Judge John
England III's report and recommendation: “Being
required to follow your supervisor's schedule and being
required to work sixteen consecutive days are not materially
adverse . . . .” (Doc. 74 at 16). But Verizon's
ellipsis conceals important qualifying language, as Judge
England finishes the quoted proclamation with
“considering the circumstances of Tetteh's
position.” Tetteh, 2014 WL 8382827, at
*16. Judge England then goes on to describe why
“someone in Tetteh's position would be
required to work a demanding” schedule. Id.
(emphasis added). Here, Verizon has failed to articulate why
the circumstances of Ms. Mills's position might require
her to work a disproportionate number of weekend closing
the Tetteh opinion has limited applicability to Ms.
Mills's allegation. At best, Tetteh stands for
the proposition that asking an employee to work too
much does not constitute an adverse employment action,
but the opinion says nothing about whether consistently
favoring some employees over others for more preferable
shifts could constitute an adverse employment action.
Ms. Mills's allegedly unfavorable schedule did not reduce
her compensation, this court concludes that a jury could find
that having to work more than her fair share of weekend
closing shifts constitutes a material change to “the
terms, conditions, or privileges of employment.” That
is, the terms, conditions, or privileges of employment could
reasonably include an employee's expectation that the
workload will be allocated equally among all employees in the
same position. So the court concludes that a genuine issue of