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Moore v. Delta Airlines, Inc.

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

January 15, 2020




         This action proceeds before the court on Defendant Delta Airline, Inc.'s Motion for Summary Judgment. (Doc. 45). Plaintiff Dreama Moore claims defendant Delta Airlines retaliated against her, and discriminated against her on account of her race and gender, in violation of Title VII of the Civil Rights Act of 1964, et seq., as amended, and 42 U.S.C. § 1981.

         Moore bases her claims upon (1) her receipt of discipline for leaving the worksite; (2) her receipt of discipline for applying makeup at work; (3) her receipt of a Final Corrective Action Notice (“FCAN”); and (4) Delta's termination of her employment. The court concludes Moore abandoned her gender discrimination claims, and race discrimination claims based upon her discipline for leaving the worksite and applying makeup at work. Similarly, Moore's retaliation and race discrimination claims based upon the FCAN are untimely under Title VII. In addition, no reasonable juror could conclude Delta terminated Moore's employment with retaliatory or discriminatory animus in violation of Title VII or § 1981. However, there exist genuine issues of material fact whether the FCAN issued with retaliatory and discriminatory animus under § 1981.

         Therefore, based upon the following discussion the court GRANTS IN PART and DENIES IN PART Delta's Motion for Summary Judgment. The court will GRANT the Motion as to Moore's Title VII gender discrimination, race discrimination, and retaliation claims based upon her discipline for leaving the worksite and applying makeup at work, and the issuance of the FCAN and her discharge. The court will DENY the Motion as to Moore's § 1981 retaliation and race discrimination claims based upon the issuance of the FCAN.

         Standard of Review

         Pursuant to the Federal Rules of Civil Procedure, “[t]he court shall grant summary judgment 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. Rule 56(a). The party seeking summary judgment 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. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

         If the movant sustains its burden, a non-moving party demonstrates a genuine issue of material fact by producing evidence by which a reasonable fact-finder could return a verdict in its favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (citation omitted). The non-movant sustains this burden by demonstrating “that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993). In the alternative, the non-movant may “come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.” Id. at 1116-17; see also Doe v. Drummond Co., 782 F.3d 576, 603- 04 (11th Cir. 2015), cert. denied, 136 S.Ct. 1168 (2016).

         The “court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citations omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves, 530 U.S. at 151 (citation omitted). “That is, the court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'” Id. (citation omitted).[1]

         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, 477 U.S. at 322. “In such a situation, there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 322-23. In addition, a movant may prevail on summary judgment by submitting evidence “negating [an] opponent's claim, ” that is, by producing materials disproving an essential element of a non-movant's claim or defense. Id. at 323 (emphasis in original).

         There exists no issue for trial unless the nonmoving party submits evidence sufficient to merit a jury verdict in its favor; if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249. The movant merits summary judgment if the governing law on the claims or defenses commands one reasonable conclusion, id. at 250, but the court should deny summary judgment if reasonable jurors “could return a verdict for the nonmoving party.” Id. at 248. That is, a court should preserve a case for trial if there exists “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249.


         The undersigned sets forth the following facts for the summary judgment determination, drawn from the evidence taken in the light most favorable to Moore.

         I. Moore's Early Employment

         In 2007, Plaintiff Dreama Moore, an African-American woman, commenced employment for Defendant Delta Airlines Inc. as a “Ready Reserve” customer service agent at the Huntsville International Airport in Alabama. As a “Ready Reserve” customer service agent, Moore worked on a part-time, as-needed basis. In May 2010, Delta promoted Moore to a regular, full-time customer service agent position. Moore performed the same job duties in both positions: assisted Delta passengers at the ticket counter, baggage service office, and terminal gates.

         Relatedly, Delta employed Todd Kruebbe, a Caucasian male, as a regular, fulltime customer service agent at its Huntsville station. Bill Johnson worked as a Delta Operations Service Manager at its Huntsville station. Johnson reported to Randy Tiemann, who served as the Huntsville Station Manager. Johnson and Tiemann served as Moore and Kruebbe's immediate supervisors. Tiemann reported to Nancee Franklin, a Field Director for Airport Customer Service (“ACS”), and he worked closely with Matthew Morrison, a Human Resources (“HR”) Manager for ACS/Cargo. Franklin reported to Stephanie Baldwin, who was then ACS Director of Operations East, and Morrison reported to Josh Jessup, HR General Manager for ACS/Cargo.

         Customer service agents receive job performance feedback - positive and negative - from both supervisors and customers. Supervisors may reward customer service agents for outstanding performance with Delta “honor roll passes” and “spot awards, ” and customers may compliment an agent's performance via surveys or letters. Contrariwise, supervisors may discipline agents for poor performance, and customers may lodge complaints for unsatisfactory customer service. Supervisors maintain a “one-on-one journal” for each agent, in which they document job performance feedback and other employment-related notes.

         To discipline a customer service agent, supervisors follow Delta's tiered disciplinary system. The system comprises a series of increasingly punitive disciplinary actions: verbally “coaching” the agent, issuing the agent a Written Corrective Action Notice, issuing the agent a written Final Corrective Action Notice (FCAN), and submitting to Delta officials a recommendation for termination of the agent's employment. When a supervisor recommends termination, Delta officials must either accept or deny the recommendation.[2] (Franklin Dep. at 46:18-47:19; Morrison Dep. at 101, ll. 19-23; 104, ll. 13-16).

         Johnson and Tiemann disciplined Huntsville customer service agents, including Moore and Kruebbe, under Delta's disciplinary system. Before 2016, Kruebbe's journal reflects he received coaching three times for failing to use guest names “100% of the time” and once for failing to observe a scheduling change. (Doc. 49-14 at 4-5). In addition, his journal depicts Kruebbe arrived to work tardy twice, had a face-to-face discussion regarding safety, and received a customer complaint for rudeness. Id. Each incident occurred in 2014, except for a tardy arrival on January 1, 2015. Kruebbe's journal only includes entries during the years 2014 to 2017.

         II. Moore's 2007-2015 Job Performance History

         Moore's journal includes the following job performance feedback for each year between 2007 and 2015[3]:

2007: received “counseling” for tardiness on two occasions; received one “verbal warning” and “Warning Letter” for tardiness
2008: marked tardy on three occasions; “advised” once for tardiness; received one customer complaint for poor service
2009: marked tardy on nine occasions; received one “Final Warning” letter for tardiness; received two customer compliments and one honor roll pass for excellent service
2010: marked tardy on six occasions; promoted to full-time customer service agent; received four customer compliments and one honor roll pass for excellent service
2011: absent on fourteen occasions;[4] had one “discussion on reliability;” received one “Final Warning” letter for the failure to attend a mandatory training; received seven customer compliments, one spot award, and two honor roll passes for outstanding service
2012: marked tardy on two occasions; received one customer compliment and one “Spot Award” for excellent service; received one customer complaint for poor service
2013: marked tardy on two occasions; received three customer compliments for excellent service; received one customer complaint for poor service
2014: had a “discussion” regarding the failure to complete a mandatory training
2015: marked tardy on one occasion; called in sick on one occasion

(Doc. 47-7 at 7-35).

         III. Moore's Early 2016 Job Performance History

         According to Moore's journal, Johnson verbally coached Moore regarding several topics in the first half of 2016. In January 2016, Johnson discussed with Moore an occasion on which she called in sick after her request to use vacation time was denied. In April 2016, Johnson and Moore discussed her “recent absences, ” and Johnson advised her that “further [issues] could result in administrative action.” (Doc. 47-7 at 8). Johnson also instructed Moore to improve her performance related to “teamwork, presence in the [workstation] and breaks, lunches and assistance in the [workstation].” Additionally, Moore received two customer complaints for rudeness in April 2016. Johnson coached Moore regarding one complaint, and Tiemann coached her regarding the other.

         At some point in May 2016, Moore discussed with Tiemann her concern that Johnson was racially discriminating against her. (Moore Dep. at 128, ll. 12-19). According to Moore, she told Tiemann “other people had made the statement” that Johnson engaged in such discrimination. (Moore Dep. at 128, ll. 15-17). Johnson testified he never knew of Moore's complaint against him. (Johnson Dep. at 16, ll. 14- 17).

         In June 2016, Moore called Franklin with misgivings about Johnson and Tiemann. (Moore Dep. at 217, ll. 8-10). Moore expressed her concern that Johnson was discriminating against her, and complained that Tiemann refused her request to work apart from a coworker with whom she was quarreling, even though Tiemann had granted similar requests in the past. (Moore Dep. at 220, ll. 7-10; 225, ll. 6-17).

         Contemporaneously in June 2016, Johnson issued Moore a “Written Coaching” for reliability. Johnson conferred with Tiemann and Morrison before doing so, and Tiemann instructed Johnson to specify the instances of Moore's absences or tardy arrivals and confirm the accuracy thereof. The Written Coaching states Moore was “absent 9 days on 6 occasions and tardy once in the last 12 months.” (Doc. 49-2 at 2- 3). It also notes Moore received “verbal coachings for reliability issues on . . . 12/05/2015, 1/17/2016, 4/3/2016 and 4/4/2016, ” and declares, “[t]he Verbal counseling is not having the impact that we had expected on your attendance, as seen by your most recent absence on 5/23/2016.” Id. Moore refused to sign the Written Coaching.

         On July 2, 2016, at approximately 3:30 a.m., Johnson witnessed Moore leaving her shift with her child. Johnson notified Tiemann via email two days later after receiving a forwarded text message from an American Airlines employee stating, “This guy has been at y'alls desk for 42 minutes ringing a buzzer and no one is helping him. He said [Moore] was here last night [July 2] and was rude to him with the baby.” (Doc. 47-4 at 177). Johnson later understood from Moore “that her babysitter had to bring the baby to work and drop her off . . . because it was getting so late and the babysitter couldn't babysit any longer. Our flights were late that evening. So she didn't get off as scheduled.” (Johnson Dep. at 205, ll. 16-22).

         Tiemann asked airport officials “to look at film, ” which produced images of Moore holding her child behind a baggage or ticket counter on six occasions between April 16, 2016 and July 16, 2016. (Doc. 47-2 at 89-104). Moore testified she permitted her teenage son and his father to idle behind the baggage service counter on more than one occasion. (Moore Dep. 116: 4-23, 117: 1-5).

         On July 25, 2016, Morrison and Tiemann convened a conference call with Moore to discuss two customer complaints, Moore exceeding her allotted break times, and “reports that [Moore] was bringing her baby to work and holding the baby at the [baggage] counter while working and assisting customers.” (Tiemann Dep. at 210, ll. 8-9). During their conversation, Moore told Morrison and Tiemann that Kruebbe brought his two children to work, and she queried the reasons Tiemann did not reprimand Kruebbe for having his children at work. Tiemann responded, “it's different for you.” (Moore Dep. at 119, l. 10).

         On August 8, 2016, Moore emailed Tiemann to express disquietude regarding his statement, “it's different for you.” She wrote:

I've tried to talk to you and felt as though I didn't matter when our conversation was over. One recent conversation that you and I had, I mentioned that [a co-worker] said, she thought [Johnson] didn't like me because I was black. Then, when you tell me that it's different for me when I bring my child than when [Kruebbe] brings his children bothers me. . . . I couldn't get an answer as to how it's different . . . . The only difference is that he is a white male and I am a black female. We both have our personal home and childcare issues.

(Doc. 47-4 at 105).

         Tiemann forwarded Moore's email to Morrison, who forwarded the email to Jessup. Jessup replied to Morrison, “I wouldn't recommend responding via email, but a sit down discussion that is clearly documented in her journal addressing her concerns would be a good option.” (Id.) Morrison never asked Johnson whether he disliked Moore because of her race for the following reason:

[Y]ou got to remember people are human and the last thing I want to do is plant that in somebody's mind that they're going to treat someone either potentially or unintentionally different after knowing that situation. The supervisors work day in and day out with these employees. The last thing I want to do is have my supervisor now, whether he wanted to or not, treating that person differently.

(Morrison Dep. 62, ll. 9-17).

         Prior to her August 8, 2016, email to Tiemann, Moore emailed Morrison on three occasions to convey concerns that Johnson and Tiemann treated her unfairly. (Doc. 47-2 at 69; 71; 74). In a reply to one email, Morrison thanked Moore for sharing her concerns and asked her to clarify her misgivings. (Doc. 47-2 at 73-74).

         IV. Moore's FCAN

         On August 12, 2016, Tiemann issued Moore a Final Corrective Action Notice (“FCAN”). The FCAN references the July 4, 2016, customer complaint that Moore attended to her child while working, and other occasions when her child was present in the workplace. The FCAN advised this behavior was “not only unprofessional but also unsafe which is unacceptable, ” and “negatively reflects on the Delta brand, the Delta team, and your ability to focus on customers.” (Doc. 49-8 at 2). The FCAN also referenced Moore's various coachings in 2016, including the June 12, 2016, Written Coaching for reliability.

         Tiemann discussed the FCAN with Moore upon issuing it to her, and emailed a summary of their conversation to Franklin and Morrison. Tiemann wrote in his summary: “I then took the time to briefly address her [August 8, 2016] email to me, stating I took it personally and felt it was misrepresenting and she was drawing conclusions. I told her everyone matters equally to me.” (Doc. 47-4 at 126). Moore remembers that Tiemann “expressed . . . he was offended that [she] would say anything about him being racist toward [her].” (Moore Dep. at 183, ll. 15-18). Franklin represented that Tiemann was upset by the accusation. (Franklin Dep. at 27-28).

         The same day Tiemann issued Moore the FCAN, he discussed with Kruebbe “the time that [Kruebbe] asked and I allowed his children to sit in the break room . . . about 4-5 years ago.” (Doc. 47-3 at 19). Tiemann testified that in or around 2011, Kruebbe's ex-spouse unexpectedly brought his children to the workplace during his shift. (Tiemann Dep. at 226, ll. 2-4). According to Tiemann's documentation of their 2016 discussion, Kruebbe's children were present on three to five additional occasions between 2011 and 2014, during which the children sat in the “back office, ” and other occasions when Kruebbe sat his son in a restaurant area. (Doc. 47-3 at 19). During the 2016 discussion, Tiemann reminded Kruebbe “that we must not allow our children to be in [the] workplace, distracting us from our duties or otherwise interfering with our jobs.” (Id.) Neither Tiemann nor Johnson disciplined Kruebbe for having his children at work. Moore declared she has seen Kruebbe's children “behind the ticket counter.” (Moore Dep. at 120, ll. 14-15).

         After Tiemann issued Moore the FCAN, she continued to email Morrison complaints alleging Tiemann treated her differently on the basis of her race. (Doc. 47-2 at 76-77; 78-80. She also notified Morrison she believed Tiemann issued her the FCAN in retaliation for her August 8, 2016, email. (Doc. 47-2 at 79).

         V. Moore's Termination

         After the FCAN, Moore received three customer complaints between August 13, 2016, and August 26, 2016, regarding her assistance at the baggage service counter. First, on August 13, 2016, a customer complained that Moore “was unprofessional and did not possess the basic knowledge of [Delta's] policies” regarding misplaced baggage. (Doc. 47-2 at 63). In addition, the customer stated “[m]ultiple customers waited at the counter while [Moore] socialized with an acquaintance who was on our flight.”[5] (Id.) Next, on August 14, 2016, a customer complained that Moore became “nasty” and “irate” when the customer inquired about misplaced baggage. (Doc. 47-2 at 64). The customer added, “[Moore] refused to talk to me or give me any information about my bag. She was just nasty and so rude.”[6] (Id.) Finally, on August 26, 2016, a customer complained that Moore “was both rude and unhelpful” at the baggage service counter, and “is not the kind of representative you want handling customers at Delta.” (Doc. 47-2 at 65). Tiemann verbally coached Moore regarding each complaint. (Doc. 47-7 at 15-16).

         On September 16, 2016, Moore emailed Tiemann to notify him she experienced a troubling interaction with a customer that could provoke a complaint. Tiemann thanked Moore for the alert, yet he did not otherwise respond to her email.

         Two days later, Customer DP[7] submitted a complaint regarding the incident via Delta's online customer service portal. According to the complaint, DP approached Moore at the service counter to locate her lost baggage. DP complained:

As I was telling [Moore] my bag tag number, she showed no concern, was not attentive, and as I was explaining my issue she proceeded to walk away from me mid sentence [sic] to retrieve other abandoned bags left on the carousel as if to say she didn't have time to listen to my issue. . . . As she returns with bag tags stuck to her fingers, she continues to act as if I was not there and begins typing on her computer.
[. . .]
So I proceeded to tell her my bag tag number and she tells me it . . . did not get on the plane to [Huntsville] . . . . So I ask . . . couldn't I arrange for a delivery be made to my home address and she tells me “No we don't deliver.” I then say, “Yes, you do because I have had delayed luggage on more than one occasion and Delta has always delivered if I was unable to pickup from the airport.”
[. . .]
She then gets loud and condescending and says, “IF you would let me FINISH my sentence, I was going to say we won't deliver TONIGHT.” So at this point, my patience has run out. . . . I then say “There is absolutely no reason for you to be so rude and act like such an asshole.” She then throws the bag tags at me and begins to wave her hands in the air and say “Oh I know you didn't call me out of my name . . . .”
[. . .]
She then . . . refused to help us further. He then tries to ask more about our luggage and she says if we don't leave she will call the police on us. My husband asks her if she was threatening to call the police on us and she responded by actually calling the airport police on both of us.
[. . .]
The police arrive. . . . One officer gets my luggage tag number and proceeds to the counter to try to get information about our luggage and [Moore] refused to even give the police officer the information . . . . The police . . . looked at us and said “This happens frequently with this particular agent.”
[. . .]
I have never been so publicly humiliated, angry, and mistreated in my life. YOUR agent was extremely rude, unprofessional, ill mannered, and it was completely uncalled for. . . . I will be switching airlines permanently. I refuse to travel with a company that has such terrible customer service. . . . Also, I work for a corporation which employs roughly 900, 000 employees throughout the company and I will make sure to send out a mass email describing my experience so my fellow travelers will be made aware. I will also make sure to post my experience to every social media outlet available to me so that other weekly travelers, such as myself, can be made aware of the type of characters you employ at Delta.

(Doc. 49-11 at 2-3).

         Approximately one month later on October 17, 2016, a Delta official forwarded the complaint to Moore's supervisors and asked one of them to contact DP. Tiemann spoke with DP's husband, JP, later that day to discuss the incident. Morrison emailed Tiemann the following day instructing him to investigate the circumstances surrounding the DP complaint. Morrison directed Tiemann to discuss the incident with Moore in detail, and listed specific questions Tiemann should ask Moore during their discussion. Morrison further instructed Tiemann to obtain video footage of the incident and contact the responding police officers.

         On October 24, 2016, Moore provided Tiemann her account of the DP incident, which he recorded in Moore's journal. (Doc. 47-4 at 16-17). According to Moore, when she traced the bag tag number DP initially provided, the system portrayed the bag had arrived at the Huntsville airport. Accordingly, Moore walked to the bag carousel to look for the bag. Moore denied she did so while DP was speaking mid-sentence. When Moore did not find the bag, JP provided a different bag tag number for Moore to trace. The system demonstrated that bag failed to arrive in Huntsville, and when Moore told DP that Delta could not deliver the bag that evening, DP started yelling and cursing at Moore. Moore denied she threw the bag tags after DP cursed at her, but confirmed she refused to provide any further assistance. According to Moore, she called the police when DP continued to curse her. Tiemann recorded Moore's version of the events in her journal, and emailed Franklin and Morrison a copy of the entry.

         On October 26, 2016, Franklin emailed Baldwin a copy of the DP complaint, Tiemann's record of the discussion with Moore about the complaint, and a summary of Moore's disciplinary history. Baldwin requested this information in advance of a meeting with Moore. Referencing the DP complaint, Franklin wrote, “This should be the trigger for RFT and I am sure that is why she wants to talk to you.” (Doc. 47-4 at 147). Baldwin responded, “Let's move forward…this is unbelievable. I will call her later today but good grief.” (Id.)

         The next day, Morrison emailed Tiemann, “Are we done investigating the [DP complaint]? Do we feel it should warrant a coaching or something more?” Tiemann responded, “I am waiting to review video. . . . I think we've ...

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