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Tompkins v. Cuts By US, Inc.

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

July 26, 2019

CUTS BY US, INC., Defendant.



         Tamara 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.[1] 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.


         Under 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).

         On 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).


         Tompkins 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.

         Tompkins's 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.

         In July 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.[3] 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.

         Based 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.[4]

         Eventually, 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.

         As part 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.

         In 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.

         Prior 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, [5] and CBU maintains it never received the letter, docs. 43-8 at 6; 43-2 at 45.

         On 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 at 2.

         Roughly 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.

         III. ANALYSIS

         Tompkins 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, [6] and 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 race claim.

         A. Race Discrimination

         Title 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.”[7] Maynard v. Board of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).

         If 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. 2011).

         Lastly, “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.” Id.

         The 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 claim.

         1. Whether racial animus factored in CBU's decision to hire Orillion as the Harvest salon manager

         CBU 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.

         Therefore, 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 thought ...

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