Bumpass v. Verizon Wireless
| Decision Date | 27 September 2019 |
| Docket Number | Case No. 5:16-cv-00106-KGB |
| Parties | ANITA BUMPASS PLAINTIFF v. VERIZON WIRELESS DEFENDANT |
| Court | U.S. District Court — Eastern District of Arkansas |
Before the Court is defendant Verizon Wireless' ("Verizon") motion for summary judgment (Dkt. No. 34). Verizon moves for summary judgment on each of Ms. Bumpass' claims (Dkt. No. 34). Pending is a motion filed by Ms. Bumpass requesting additional time to respond (Dkt. No. 42). The Court grants that motion and considers Ms. Bumpass' response timely filed (Dkt. No. 42). Ms. Bumpass responded in opposition to Verizon's motion for summary judgment, and Verizon replied (Dkt. Nos. 43, 46). Ms. Bumpass then filed a "rebuttal to defendant's reply" and an "amendment to her memorandum and rebuttal to defendants' reply," which Verizon moves to strike (Dkt. Nos. 49, 50, 52).
In her complaint, Ms. Bumpass brings the following claims against Verizon: (1) discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, codified at 42 U.S.C. § 2000e et seq.; (2) discrimination in violation of 42 U.S.C. § 1981; (3) discrimination in violation of § 3 of the Equal Pay Act of 1963, 77 Stat. 56, codified at 29 U.S.C. § 201, et seq.; (4) pursuant to 42 U.S.C. § 1983, alleged violations of the equal protection clause of the Fourteenth Amendment of the United States Constitution;1 (5) discrimination in violation of Arkansas CivilRights Act ("ACRA"), Arkansas Code Annotated § 16-123-101 et seq.; and (6) violations of Arkansas state law, including battery, breach of contract, and the tort of outrage (Dkt. No. 1, at 1).
Ms. Bumpass claims that she worked for Verizon from 2006 to 2010 in Waco, Texas; that she was transferred to a store in Little Rock, Arkansas, in 2010 and worked there for eight months; and then that she was transferred to a store in Pine Bluff, Arkansas, in October 2010 (Id., at 3-4). Specifically, she complains of acts she alleges were taken by agents of Verizon with responsibility for the store where Ms. Bumpass worked, including Grant Leisure who was the District Manager; Katy Holmes, the Human Resource Representative; and Darrel Adams, the Assistant Manager (Id., at 3). In part, she alleges that "[p]ursuant to companywide, statewide and individual store patterns and practices [she] was not afforded promotions and/or pay increases, commiserate with black or male counter parts. . . ." (Id., at 4). She also contends that, in 2015, she was discharged allegedly in retaliation for complaining about harassment, retaliation, and hostile work environment directed toward her on the basis of age, race, and gender (Id.).
Verizon filed a statement of undisputed material facts in support of its motion for summary judgment (Dkt. No. 36). Ms. Bumpass filed a response to Verizon's statement and filed her own statement of facts along with her response to Verizon's motion for summary judgment (Dkt. Nos.44, 45). Verizon moved to strike Ms. Bumpass' "unsupported responses" within her statement of facts (Dkt. No. 47). Ms. Bumpass also responded to Verizon's motion to strike (Dkt. No. 51). Verizon then moved to strike Ms. Bumpass' rebuttal to Verizon's reply, the amendment to Ms. Bumpass' rebuttal, and Ms. Bumpass' response to Verizon's original motion to strike (Dkt. No. 52).
For the following reasons, the Court grants, in part, and denies, in part, Verizon's motion to strike plaintiff's unsupported allegations and unsupported responses to defendant's statement of undisputed material facts (Dkt. No. 47). The Court grants, in part, and denies, in part, Verizon's motion to strike Ms. Bumpass' rebuttal and amendment to her rebuttal to Verizon's reply and to strike Ms. Bumpass' response to Verizon's original motion to strike (Dkt. No. 52).
Ms. Bumpass and Verizon both filed statements of undisputed material facts (Dkt. Nos. 36, 44). Each side responded to the other's statement of undisputed material facts (Dkt. Nos. 45, 47). The following facts are taken from both statements of undisputed material facts to the extent that the parties agree on the facts, except where specified by citation. To the extent the parties disagreed on purported statements of undisputed material fact, the Court has not deemed those facts undisputed. In reaching a determination on the pending motion for summary judgment, the Court has reviewed the record evidence in this case in the light most favorable to Ms. Bumpass, as the Court is required to do at this stage.
Ms. Bumpass was formerly an employee of Verizon, and she was most recently employed at the Pine Bluff, Arkansas, location as a sales consultant (Dkt. No. 36, ¶ 1). She was an at-will employee (Id., ¶ 2). She worked at the Pine Bluff location from 2010 to 2015 (Id., ¶ 3). She transferred to the Pine Bluff location during the last part of September or the first part of October2010 (Dkt. No. 44-1, at 13). She was consistently one of the top sales people at the Pine Bluff location (Id., ¶ 4). She made more money than Shannon Wilson, a male co-worker at the Pine Bluff location (Dkt. No. 36, ¶ 5).
In late 2014, Ms. Bumpass activated a new customer account, which included running a credit check for the new customer, over the phone without having the new customer present in the store (Id., ¶ 6). Ms. Bumpass, in her deposition, did not contest that this event occurred, although she clarified that the customer paid Ms. Bumpass cash that Ms. Bumpass then deposited into "the drawer." (Dkt. No. 44-1, at 14).
Ms. Bumpass contends that "[n]otwithstanding written policy prohibiting such actions," this action did not violate Verizon's "defacto" policy (Dkt. No. 45, ¶ 7). The record evidence includes Verizon's "ID Requirements" policy, which states that "[a]ll employees must authenticate the identities of partners and customers when performing sales transactions," including "new activations," "equipment upgrades," and "contract renewals." (Dkt. No. 36-1, at 6). The ID Requirements policy also states that "an acceptable form of ID must be presented and verified for all transactions requiring authentication." (Id.). Katie Mosley, a Senior Manager with Verizon,2 avers that "[a]ctivating a new account (which would include checking a new customer's creditworthiness and obtaining their signature on the contract terms and conditions for service) over the phone is against Verizon policy" and is a "terminable offense." (Id., at 2). Jonathan Grant Laisure, a Project Manger for Verizon3 who was a District Manager for the region including thePine Bluff, Arkansas, location from December 2014 until December 2016, also avers that activating a new account over the phone is against Verizon policy (Dkt. No. 36-5, at 1).
At the time, Ms. Bumpass' supervisor was Kisha White (Gaddy) (Dkt. No. 36, ¶ 8). In late October 2014, Ms. Gaddy learned that Ms. Bumpass had activated the new account over the phone when the customer had questions about the service and requested a refund; Ms. Gaddy was told that the customer had not been informed about the charges she was incurring (Id., ¶ 10). The record evidence includes an email dated October 22, 2014, from Darryl Adams to Ms. Gaddy in which he explains that he spoke with Shirley Owens who told him that she went into a store in California to get information about a Verizon service and that she then called into the Pine Bluff location (Dkt. Nos. 36-1, at 5; 44-3, at 1, 4). Ms. Owens told Mr. Adams that Ms. Bumpass helped her set up services over the phone (Id.). Mr. Adams noted that there were two accounts open for Ms. Owens, "one for the Sure Response and HPC." (Id.). Mr. Adams stated that Ms. Owens claimed that Ms. Bumpass did not tell her that the Sure Response service was extra and would cost an extra $30.00 a month in addition to the HPC service (Id.). Mr. Adams also noted that he "[p]ulled up the order number and the contract is not signed, this is a clear indicator that [the] process was done without the customer being in the store." (Id.).
Ms. Mosely and Mr. Laisure aver that activating a new account and checking creditworthiness of a new customer over the phone is against Verizon's Code of Conduct (Dkt. No. 45, ¶ 11). Ms. Bumpass contends that, contrary to Verizon's written policy and based on the defacto policy, her actions were permitted (Id.). The record evidence includes Verizon's Code of Conduct, which states that "the customer must be clearly informed of all monthly and per-use fees and any other material terms and restrictions for obtaining the advertised rate in marketing and promotional materials." (Dkt. No. 36-1, at 9). Ms. Moseley and Mr. Laisure aver that failing towarn a customer about continued charges is against Verizon's Code of Conduct (Dkt. Nos. 36-1, at 2; 36-5, at 1). Ms. Bumpass disputes this contention, claiming that no such failure has been established and that there is no specific rule which declares her alleged actions were a code violation under the circumstances (Dkt. No. 45, ¶ 12).
Ms. Gaddy also learned that, earlier in 2014, Ms. Bumpass had processed a transaction for a friend on which she earned a commission (Dkt. Nos. 36-2, at 4-5; 44-3, at 5). In her deposition, Ms. Bumpass admits that in August 2014 she activated a line of service for a friend and was paid a commission on the sale (Dkt. No. 44-1, at 14).
Ms. Moseley and Mr. Laisure aver that processing a transaction for friends or family is against Verizon's Code of Conduct (Dkt. Nos. 36-1, at 2; 36-5, at 1. Verizon's Code of Conduct states that "[y]ou may not access account information concerning yourself, your friends, acquaintances, family or co-workers without prior approval by your supervisor." (Dkt. No. 36-7, at 1). Ms. Bumpass disputes that such conduct violates Verizon's Code of Conduct (Dkt. No. 45, ¶ 14).
At some point, Verizon learned that Ms. Bumpass had asked Mr. Wilson about adding a line to Ms. Bumpass' account. Mr....
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