Bram v. AT&T Mobility Servs., LLC

• Decision Date: 18 December 2018
• Docket Number: WD 81538
• Citation: 564 S.W.3d 787
• Court: Missouri Court of Appeals
• Parties: D.L. BRAM, Appellant, v. AT&T MOBILITY SERVICES, LLC, Respondent.

564 S.W.3d 787

D.L. BRAM, Appellant,

v.AT&T MOBILITY SERVICES, LLC, Respondent.

WD 81538

Missouri Court of Appeals, Western District.

Opinion filed: December 18, 2018

Charles R. Dickman, Kansas City, for Appellant.

David L. Schenberg, St. Louis, for Respondent.

Before Division One: Lisa White Hardwick, Presiding Judge, Edward R. Ardini, Jr., Judge and Thomas N. Chapman, Judge

EDWARD R. ARDINI, JR., JUDGE

Dawn Bram appeals a judgment of the Circuit Court of Cass County granting summary judgment to her former employer, AT&T Mobility Services, LLC ("AT&T"), on Bram’s claims under the Missouri Human Rights Act ("MHRA") of racial discrimination, racially hostile work environment, and retaliation. Analyzing Bram’s claims under the newly amended version of the MHRA, the trial court found that Bram failed to establish a prima facie case for each of her claims. We find the trial court erred in granting summary judgment to AT&T on Bram’s discrimination and hostile work environment claims. We find the trial court did not err, however, in granting summary judgment on Bram’s retaliation claim. We reverse in part, affirm in part, and remand for further proceedings.

Factual and Procedural Background¹

Bram (Caucasian), began working for AT&T in August of 2011 as a retail sales consultant. Bram sold phones and products in AT&T’s Oak Park retail store. Later that year, Bram was transferred to AT&T’s Belton store. In January of 2013, Deja Rogers (African-American) became the assistant manager of the Belton store. From July to October 2013, Bram took short-term disability leave for a medical condition. While Bram was on leave, Iesha Lynch (African-American) became the manager of the Belton store.

In the fall of 2013, various employees at the Belton store heard Lynch and Rogers make disparaging remarks about Caucasians. Megan Sale heard Lynch say that she would "not hire another f-cking white woman again." Sale and Crystal Clark heard Lynch say she would never hire or train another white woman. Similarly, Amy Rennau, Elizabeth Yount, and Jonathan Boren heard Lynch and Rogers say that they would not hire or train another white person. Sale and Rennau heard Lynch say the phrase "f-cking white b-tch." Sale claimed Lynch said Caucasian women were worthless, could not perform their jobs, and were a waste of Lynch’s and Roger’s time. Rennau heard Lynch say she only wanted to hire African-Americans.

Rebekah Vallejos was the area manager with authority over the Belton store. In October 2013, upon return from her disability leave, Bram contacted Vallejos for assistance. Bram informed Vallejos that she needed training on the new tablets, but Lynch and Rogers would not allow her the training. Vallejos responded that Lynch and Rogers could provide training at their discretion and that Bram needed to listen to her managers' instructions.

Lynch and Rogers criticized Bram’s performance and interactions with customers even though Bram had been performing satisfactorily. Bram achieved "#1 in sales" for the fourth quarter of 2013 and continued to be a top performer in early 2014.

Lynch and Rogers blocked sales from Caucasian employees and diverted them to African-American employees, even when customers asked for one of the Caucasian employees by name. Customers would specifically ask for Bram by name, but Lynch and Rogers gave these sales to other employees. Lynch and Rogers "made sure" African-American employees received credit for sales that were completed by other associates. These practices affected the income of the Caucasian employees.

African-American employees were given preferential treatment regarding their scheduling, break times, and parking. Lynch and Rogers permitted African-American employees to violate store policies without repercussion. For example, an African-American employee was allowed to sleep at his desk, but Caucasian employees were not allowed to sit at their desks; they had to stand on the sales floor. Lynch and Rogers instituted a policy that prohibited employees from using personal devices on the sales floor. The policy was not enforced against African-American employees. Bram was not permitted to take information from customers over the phone for a wireless sale. Doing so would have been a direct code of business conduct violation. Lynch and Rogers "overlooked" this violation when an African-American employee took customer information over the phone. Lynch and Rogers allowed African-American employees to disregard their duties related to store opening and closing procedures, which caused Bram to have to perform the duties by herself.

When Bram expressed concern about scheduling issues and a lack of breaks, Rogers became angry with her. Bram heard Rogers scream, "She is so annoying!" and "I hate her and can't stand her questions anymore!" Bram went to her car and cried.

In December 2013, Bram was scheduled against AT&T policy to work nine days in a row. Bram spoke with her union representative, and as a result the schedule was changed. The following week, the schedule was nearly the same as the previous week. When Bram questioned Lynch and Rogers about the schedule, they yelled at her "What is it with you and the schedule!" Lynch and Rogers did not yell at African-American store employees. By this time, Bram had begun having a stress twitch in her eye because of the stressful work environment.

On the morning of January 28, 2014, Bram’s attorney sent an e-mail to Lynch, Rogers, Vallejos,² Kevin Masse (Director of Sales), and Kelly King (Regional President for South Center). Attached to the e-mail was a letter advising that Bram had retained counsel to pursue MHRA claims against AT&T, Lynch, and Rogers, and that Bram would soon be filing a charge of discrimination with the Equal Employment Opportunity Commission and the Missouri Commission on Human Rights ("MCHR").

Later that same day, at 1:58 p.m., Bram’s co-worker Brandon Lockwood sent an e-mail to Lynch and Vallejos advising that he had overheard Bram talking about her sex life to a co-worker on the sales floor while Bram was on the clock. Lockwood said he overheard Bram tell the co-worker "how [Bram’s] sex drive is so high." Lockwood did not recall when he had heard Bram make this comment; it could have been days or months before he sent the e-mail.

Also that day, Lynch asked Vallejos to come to the store to meet with Bram. At 2:30 p.m. Vallejos met with Bram and discussed previous issues that Bram had brought to Vallejos' attention, such as scheduling, parking, and personal phone usage on the floor. Vallejos said she did not feel as if Bram’s managers had retaliated against her or had treated Bram differently from her peers. Vallejos also reminded Bram that "if it is not ‘PG’ it does not belong at work."

The following day, Rogers forwarded Lockwood’s e-mail alleging Bram’s inappropriate behavior to AT&T’s Human Resources Department.

On February 1, 2014, Bram left work 15 or 20 minutes early. The following day, Lynch asked a store employee, Ijeoma Okafor (African-American), why he had not come with them to the 54th Street Grill the previous night. Bram overheard and said to Lynch, "Oh, you guys all went to the 54th Street Grill?" Lynch responded, "Yep, everybody went to the 54th Street Grill." "Everybody" included Lynch, Rogers, and "one other person." Bram thought that everybody who was at work the night before had been invited and that the employees were invited after she left work.

Bram missed work on February 25, 26, and 27, 2014 for medical issues related to past surgeries. On February 28, 2014, Lynch informed Vallejos that current Belton store employee Lockwood had been assisted at a LensCrafters store by a former Belton store employee, Jonathan Boren. Boren told Lockwood that Boren speaks with Bram and Bram was "preparing to take disability leave but had not yet informed management."

On March 11, 2014, Bram was interviewed by AT&T employee Monique Forbes regarding the allegation in Lockwood’s January 28th e-mail that Bram spoke about her sex life on the sales floor while on the clock. Bram denied the allegation and refused to sign the interview form.

On March 13, 2014, Vallejos opened an investigation of Bram related to possible FMLA abuse based on the information reported from Lockwood and Boren.

On March 15, 2014, Bram resigned from AT&T. In her resignation letter to Lynch, she stated that she was "forced to resign due to hostile work environment due to AT&T and your discrimination against me because of my race, as well as the retaliation of staff, management, and AT&T." Bram later testified that "[i]t wasn't because of the investigation that [she] tendered [her] resignation" (referring to the investigation related to Lockwood’s allegation that Bram talked about her sex life on the sales floor).

Bram subsequently filed a charge of discrimination with the MCHR, and was issued a right to sue letter.

Between September 2013 and March 2014, six Caucasian employees at the Belton store (not including Bram) resigned, were terminated, or took medical leave. All filed charges with the MCHR alleging racial discrimination. During that time, three African-American AT&T employees were transferred to the Belton store.

In August of 2014, Bram filed this action against AT&T alleging counts for racial discrimination, racially hostile work environment, and retaliation for complaining of discrimination.³ AT&T moved for summary judgment on all three counts, and the trial court granted AT&T’s motion. The trial court found Bram failed to establish prima facie cases of race discrimination, hostile work environment based on race, and retaliation. In a footnote, the trial court noted that "[t]he parties briefed and argued orally regarding whether the August 28, 2017 MHRA amendments applied to this case," and while the trial court found that "the Amendments and the new ‘motivating factor’ standard applied[d], the result in this case would be the same even under the contributing factor standard."

This appeal...