United States District Court, N.D. Alabama, Northeastern Division
K. KALLON UNITED STATES DISTRICT JUDGE.
Tompkins filed this lawsuit against her former employer, Cuts
By Us, Inc. (“CBU”), for alleged race
discrimination and retaliation in violations of Section 1981
of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-2. Doc. 21. More specifically, Tompkins claims that
CBU denied her two separate promotional opportunities to the
manager position at its Harvest, Alabama location and also
required her to perform managerial duties without any
increase in her pay. Doc. 52 at 15. CBU has moved for summary
judgment on both claims, contending that Tompkins cannot
establish a prima facie case or show that CBU's
articulated reasons are pretextual. Based on this record and
the relevant case law, Tompkins has failed to establish that
she applied for one of the positions she challenges, failed
to show that racial or retaliatory animus factored in the
second promotion decision or that CBU's reasons for that
selection are pretextual, and has not shown that the other
actions she challenges are adverse employment actions.
Therefore, the motion is due to be granted.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “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. “Rule 56[ ] mandates the entry of summary judgment,
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) (alteration in original). The moving party
bears the initial burden of proving the absence of a genuine
issue of material fact. Id. at 323. The burden then
shifts to the nonmoving party, who is required to “go
beyond the pleadings” to establish that there is a
“genuine issue for trial.” Id. at 324
(citation and internal quotation marks omitted). A dispute
about a material fact is genuine “if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
summary judgment motions, the court must construe the
evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v.
S. H. Kress & Co., 398 U.S. 144, 157 (1970); see
also Anderson, 477 U.S. at 255. Any factual disputes
will be resolved in the non-moving party's favor when
sufficient competent evidence supports the non-moving
party's version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002)
(a court is not required to resolve disputes in the
non-moving party's favor when that party's version of
events is supported by insufficient evidence). However,
“mere conclusions and unsupported factual allegations
are legally insufficient to defeat a summary judgment
motion.” Ellis v. England, 432 F.3d 1321, 1326
(11th Cir. 2005) (per curiam) (citing Bald Mountain Park,
Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Moreover, “[a] mere ‘scintilla' of evidence
supporting the opposing party's position will not
suffice; there must be enough of a showing that the jury
could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson, 477 U.S. at 252).
is a licensed cosmetologist who worked at eight salons, for a
year or less at each, prior to joining CBU. Docs. 43-1 at
7-8, 27; 43-9 at 2. Her work history at one of these salons,
Head Start, subsequently factored in decisions CBU made
against promoting her. Specifically, Tompkins's manager
at Head Start, Laura Middleton, who subsequently joined CBU
in a similar role, informed CBU that, while at Head Start,
Tompkins “started to slack off, ” had “low
productivity, ” was tardy, used her cell phone at work,
and was not available to service clients. Doc. 43-4 at 10.
Middleton also reported that Head Start's district
manager, Kathy Dabbs, discharged Tompkins purportedly because
of a cash drawer shortage. Docs. 43-4 at 16, 21; 43-5 at 18;
43-1 at 13-14; 43-8 at 4. Tompkins disputes this contention
and believes that Dabbs discharged her for low productivity.
Id. at 13-14. In any event, regardless of the reason
for the discharge, Head Start rehired Tompkins subsequently.
Docs. 43-1 at 15-17; 43-11 at 2; 43-1 at 16.
first employment stint with CBU lasted from June 2008 to
April 2009 at CBU's Winchester Road location, under the
supervision of Middleton, her former manager at Head Start.
Docs. 43-1 at 18; 43-11 at 2. Although Middleton described
Tompkins as a good stylist, she noted some issues with
Tompkins during this period, including once refusing to
follow directions to clean the salon and staying outside on
her phone instead, and, on another occasion, walking out on
her shift when asked to clean shelves. Doc. 43-4 at 17-18.
Tompkins's employment ended when Tompkins took maternity
leave and never returned. Id. at 20.
of 2011, CBU rehired Tompkins as a stylist. Doc. 43-1 at 19.
During this second and final period of employment, Tompkins
worked at CBU locations in Athens, South Parkway, Madison,
and Harvest. Id. at 21. After initially assigning
Tompkins to Athens, approximately a month later, CBU
transferred Tompkins to the South Parkway location in
Huntsville, Alabama near her home. Id. According to
the South Parkway manager Jessica Brown, there were several
incidents involving Tompkins: (1) two employees informed
Brown that Tompkins entered Brown's office one day to
look at personnel files, id.; doc. 43-7 at 2; and
(2) Brown also received a report of “an incident where
Tompkins took clippers and a comb out of another
stylist's [(Rebecca Dillard)] hands and finished cutting
a customer's hair without the stylist's consent[,
]” doc. 43-7 at 3. The latter incident made it to the
attention of CBU's president and owner, Jeff Kleinman,
who received a written statement from Dillard and an oral
report from Tompkins. Docs. 43-2 at 4, 30-31; 43-8 at 2, 4,
9; 43-1 at 22. Tompkins also discussed the incident with
Janet Johnson, CBU's district manager, whom she claims
never informed her that she “could or should provide a
written statement . . . .” Doc. 53-13 at 4-5. This
incident led Kleinman to send Tompkins home for the day. Doc.
43-1 at 22.
on these two incidents, Brown asked Johnson to transfer
Tompkins, doc. 43-7 at 3, a separation that Kleinman
“deemed necessary . . . .”, doc. 43-2 at 32.
Consequently, CBU transferred Tompkins to its Madison salon,
where she reported to Johnson. Docs. 43-1 at 21; 43-3 at 9.
According to Johnson, Tompkins displayed the attributes of a
good hairdresser, albeit with some problems - one or two
times per week, Tompkins avoided cleaning the salon and went
outside instead to talk on her phone, and also changed her
own schedule without permission. Doc. 43-3 at 37-38. For her
part, Tompkins described the Madison salon as “a hard
shop to work in” because of employee conflicts. Doc.
43-1 at 24-25, 26-27. Ultimately, Tompkins became a
“key holder” which gave her the responsibility to
open and close the salon in the absence of the managers.
Docs. 43-2 at 60; 43-1 at 20.
Tompkins requested and received a transfer to the Harvest
salon which she described as a “quiet, laid back
shop.” Doc. 43-1 at 24. Concurrent with Tompkins's
request, the new manager at Harvest, Krysten Williams, who
had worked with Tompkins at the Madison location, also
requested that CBU transfer Tompkins to Harvest in light of
Tompkins's familiarity with the management paperwork.
Docs. 43-6 at 14; 53-12 at 2. Indeed, after the transfer,
Tompkins assisted Williams with the paperwork. Doc. 53-12 at
4. Williams testified that Tompkins functioned well as a
“team lead, ” provided helpful advice, took on
responsibility, was punctual, honest and reliable, interacted
well with others, and made no complaints. Doc. 53-12 at 4.
Prior to resigning as manager at the Harvest salon, Williams
recommended that CBU select Tompkins as her replacement. Doc.
53-12 at 4. Although Tompkins also expressed interest in the
position, CBU ultimately selected Tammy Orillion to succeed
Williams. Docs. 43-1 at 36; 43-8 at 5. And, because of
Orillion's unfamiliarity with the paperwork duties, she
received assistance from Johnson and Tompkins. Docs. 43-3 at
49; 53-13 at 10. Tompkins also continued to open and close as
key holder, and reviewed the schedule to ensure proper shift
coverage. Doc. 53-13 at 10.
of the process to replace Williams, Johnson interviewed
Tompkins, Orillion, Stacy Bailey, and Jamie Quick, all of
whom had expressed their interest in the position to Johnson
by writing their name on a note that Johnson posted in the
office. Doc. 43-3 at 49, 50. As part of her due diligence,
Johnson spoke with Middleton, who relayed that Tompkins had
problems at the Winchester location with authority,
performing her cleaning duties, tardiness, and receiving
direction. Docs. 43-3 at 46-47; 43-4 at 22. After the
interviews, Johnson shared her impressions with Kleinman, and
provided the strongest recommendation for Orillion. Doc. 43-3
at 50-51. Prior to making the decision, Kleinman also
reviewed reports he had received from Tompkins's managers
and co-workers in 2012, when Tompkins interviewed for a
manager's position in Madison. Doc. 43-8 at 5. These
reports included allegations of rude behavior, negative
attitude, unwillingness to perform cleaning duties, and bad
interpersonal skills. Doc. 43-2 at 37-39; 45-46. Kleinman
maintains that he selected Orillion because (1) she owned her
own salon for eight years, which demonstrated stability and
responsibility; (2) as a Redken color specialist, Orillion
could help elevate the salon and teach coloring; and (3) she
received good reviews from her manager Tammy Cantrell. Docs.
43-8 at 5; 43-2 at 74.
December 2013, the manager position at Harvest became
available again when Orillion stepped down. Docs. 43-1 at 39;
53-3 at 56. Unlike the standard practice CBU followed
requiring initial interviews by the district manager, doc.
43-8 at 3, Kleinman chose to personally conduct the
interviews for this vacancy, doc. 43-2 at 42. In light of
this, when Tompkins contacted Johnson to express interest in
the position, Johnson instructed Tompkins to contact Kleinman
directly. Doc. 43-1 at 39. Tompkins failed to do so based on
her belief that Kleinman would not select her. Doc. 43-1 at
39. Kleinman selected Quick, docs. 43-1 at 39; 43-2 at 42,
and sometime thereafter, Quick rescinded Tompkins's key
holder status purportedly because a stylist told Quick that
she saw Tompkins going through personnel files without
Quick's authorization, docs. 21 at 10; 43-12 at 2.
Tompkins maintains that Orillion informed her that Johnson
directed Quick to do so because of an EEOC charge Tompkins
filed. Doc. 43-1 at 75-76.
to contacting the EEOC, Tompkins attempted first to complain
internally. Specifically, on October 8, 2012, Tompkins sent a
letter to CBU expressing, among other things, concerns about
the failure to select her as a manager in Madison and
Harvest, and being “labeled the problem because of
[her] race.” Docs. 21 at 6; 43-1 at 73-74; 43-24 at 2.
However, Tompkins sent the letter to the wrong address, 1216
S. Hwy. 97, doc. 43-20 at 3, rather than the actual address,
1261 S. Hwy. 97, doc. 43-8 at 2,  and CBU maintains it never
received the letter, docs. 43-8 at 6; 43-2 at 45.
August 21, 2013, Tompkins submitted a complaint to the EEOC
about race and sex discrimination. Doc. 43-20 at 2. In her
letter, Tompkins again listed the wrong address for CBU,
id. at 3, and CBU maintains that it only received a
copy after Tompkins filed this lawsuit, docs. 43-8 at 2; 43-2
at 45. A month after sending the letter to the EEOC, Tompkins
filed a formal charge of discrimination in connection with
the decision to select Orillion for the manager position.
Docs. 43- 19 at 2; 43-20 at 2. In CBU's response to the
charge, it stated, in part, that “Tompkins has not
demonstrated the necessary skill set for promotion to
assistant manager or salon manager[, ]” and that
“Ms. Tompkins has not demonstrated the leadership
skills and abilities to get along with co-workers and
management that [CBU] feels is necessary.” Doc. 43-28
two and a half years later, the EEOC informed CBU that it
intended to find against CBU. Doc. 43-29 at 2. In response,
Kleinman requested an opportunity to review the EEOC's
evidence and correct inaccuracies. Id. Kleinman then
provided additional information, including statements from
Middleton, Christina Pinkerton, and Johnson, that described
Tompkins as a “very experienced hairstylist, ”
but also that Head Start had discharged Tompkins for
allegedly stealing, and that Tompkins had problems with
authority and interacting with co-workers, examined personnel
files without permission, and changed her schedule without
permission. See docs. 43-7 at 2; 43-3 at 38-39;
43-35 at 2; 43-30 at 2. While the charge was pending,
Tompkins took a leave of absence for health reasons, and
resigned shortly thereafter. Doc. 21 at 11. Tompkins
subsequently filed this lawsuit.
alleges that CBU denied her two promotional opportunities to
manager of the Harvest salon and required her to perform the
duties without the title or pay. However, Tompkins has failed
to show that she applied for the position filled by Quick,
her discrimination and retaliation claims for this position
fail. The court will analyze her remaining claims and the
parties' respective contentions below beginning with the
VII and Section 1981 prohibit racial discrimination in the
employment context. See 42 U.S.C. § 2000e-2(a);
Siddiqui v. Netjets Aviation, Inc., No. 18-13463,
2019 WL 2323785, at *1 (11th Cir. May 31, 2019) (citing 42
U.S.C. § 1981; and Standard v. A.B.E.L. Servs.
Inc., 161 F.3d 1318, 1330 (11th Cir. 1998)).
“Section 1981 and Title VII discrimination claims are
analyzed under the same framework.” Siddiqui,
2019 WL 2323785, at *1 (citing Standard, 161 F.3d at
1330). Specifically, where, as here, Tompkins is relying on
circumstantial evidence, Tompkins must establish a prima
facie case by showing: “(1) [s]he is a member of a
protected class; (2) [s]he was qualified for the position;
(3) [s]he suffered an adverse employment action; and (4)
[s]he was replaced by a person outside [her] protected class
or was treated less favorably than a similarly-situated
individual outside [her] protected
class.” Maynard v. Board of Regents, 342
F.3d 1281, 1289 (11th Cir. 2003).
Tompkins establishes a prima facie case, the burden shifts to
CBU to articulate a legitimate non-discriminatory reason for
the adverse employment action. Wascura v. City of S.
Miami, 257 F.3d 1238, 1242 (11th Cir. 2001). CBU must
“raise a genuine issue of fact as to whether it
discriminated against [Tompkins, ]” but it “need
not persuade the court that it was actually motivated by the
proffered reasons.” Id. at 1242-43 (internal
quotation marks and citation omitted). Once CBU satisfies its
burden of production, “[Tompkins] must show that the
proffered reason really is a pretext for unlawful
discrimination.” Rioux v. City of Atlanta, 520
F.3d 1269, 1275 (11th Cir. 2008) (internal quotation marks
and citations omitted). Tompkins may demonstrate pretext by
showing “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action
that a reasonable factfinder could find them unworthy of
credence.” Id. (internal quotation marks and
citations omitted). However, “[a] reason is not pretext
for discrimination ‘unless it is shown both that the
reason was false, and that discrimination was the real
reason.'” Brooks v. County Comm'n
of Jefferson Cty, 446 F.3d 1160, 1163 (11th Cir. 2006)
(quoting St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 515 (1993)). A plaintiff may show pretext using
circumstantial evidence “so long as the circumstantial
evidence raises a reasonable inference that the employer
discriminated against the plaintiff . . . .” Smith
v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.
“establishing the elements of the McDonnell
Douglas framework is not, and never was intended to be,
the sine qua non for a plaintiff to survive a
summary judgment motion in an employment discrimination
case.” Smith, 644 F.3d at 1328. A plaintiff
may instead show that the “record, viewed in a light
most favorable to the plaintiff presents ‘a convincing
mosaic of circumstantial evidence that would allow a jury to
infer intentional discrimination by the
decisionmaker.'” Id. And, “the
plaintiff will always survive summary judgment if he [or she]
presents circumstantial evidence that creates a triable issue
concerning the employer's discriminatory intent.”
alleged racially discriminatory conduct here consists of (1)
the decision to promote Orillion to manager of the Harvest
salon and (2) requiring Tompkins to perform
“manager's duties to support a lesser qualified
manager [i.e. Orillion], and in the absence of a manager,
when white hairstylists were not.” Doc. 52 at 15. As
shown below, Tompkins has failed to meet her burden on either
Whether racial animus factored in CBU's decision to hire
Orillion as the Harvest salon manager
argues that Tompkins cannot establish a prima facie case
because Tompkins was not qualified, and, alternatively, that
Tompkins cannot show that CBU's reasons for selecting
Orillion are pretextual. Doc. 42 at 23-24, 26-29. As to the
first contention, CBU contends basically that Tompkins did
not have the skills for a manager position based on its
preference for managers who possessed good technical skills,
honesty, an ability to interact well with others, and
leadership skills. Id. at 23-24; doc. 43-2 at 22.
CBU maintains that although Tompkins had good technical
skills, it concluded that Tompkins lacked the other skills
from conversations Kleinman had with Tompkins's former
managers and colleagues, and from reports that Head Start
discharged Tompkins for theft. Docs. 42 at 24; 43-2 at 37,
38-39, 45-46; 43-8 at 4-5. Notably, however, the evidence
suggests that Tompkins had performed managerial tasks,
including completing management paperwork, reviewing the
schedule, distributing paychecks, and holding a mailbox key
and key to the salon. Doc. 53-13 at 10. Tompkins also refuted
CBU's arguments about her inter-personal and leadership
skills through Williams's testimony that Tompkins
“got along well with her co-workers, ” and
“functioned well as a team lead.” Doc. 53-12 at
4. This evidence is sufficient to create a material dispute
regarding Tompkins's qualifications. Therefore, because
establishing a prima facie case is not an onerous task,
see Texas Dept. of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981), the court finds that Tompkins has met
her initial burden.
the burden shifts to CBU “to produce evidence that
there is a legitimate, non-discriminatory reason for the
challenged employment action.” Kelliher v.
Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002). CBU's
burden at this stage is “‘exceedingly
light.'” Turnes v. AmSouth Bank, NA, 36
F.3d 1057, 1061 (11th Cir. 1994) (quoting Meeks v
Computer Assocs. Int'l, 15 F.3d 1013, 1019 (11th
Cir. 1994). CBU identifies two reasons for its decision: (1)
“Tompkins lacked meaningful management experience and
had a history of only short stints with prior employers,
” and (2) that “Orillion was far more qualified
than Tompkins.” Doc. 42 at 25. An employer's
explanation “that several candidates are well-qualified
for a single position, and . . . that it chose the person it