Mills v. Cellco Partnership

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         Margo 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.

         Ms. Mills filed an EEOC charge alleging racial discrimination and retaliation and later filed this lawsuit after receiving her right to sue.

         This 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.

         I. Factual Background

         Margo 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.

         Ms. 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.

         Ms. 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.

         Ms. 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.

         According 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).

         After 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 1-58).

         Ms. 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 interactions.

         Ms. 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).

         Standard of Review

          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.

         The 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).

         Once 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).

         In 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).

         The 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).

         Further, 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.

         II. Discussion

         Ms. 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.

         As an 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.

         A. Racial discrimination claims

         Ms. 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.

         Title 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.

         Ms. 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)).

         “A 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.

         1. Adverse employment action

         “Courts 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).

         To 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.

         Ms. 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)).^[1] But these cases are distinguishable.

         The 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).

         The 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 shifts.

         Moreover, 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.

         Though 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 ...