Equal Emp't Opportunity Comm'n v. W. Customer Mgmt. Grp., LLC

• Decision Date: 26 September 2012
• Docket Number: Case No. 3:10cv378/MCR/CJK.
• Citation: 899 F.Supp.2d 1241
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. WEST CUSTOMER MANAGEMENT GROUP, LLC, Defendant.
• Court: U.S. District Court — Northern District of Florida

899 F.Supp.2d 1241

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.WEST CUSTOMER MANAGEMENT GROUP, LLC, Defendant.

Case No. 3:10cv378/MCR/CJK.

United States District Court,

N.D. Florida,

Pensacola Division.

Sept. 26, 2012.

Gerald Lee Miller, Julie Bean, Maricia Danielle Woodham, Equal Employment Opportunity Commission, Birmingham, AL, for Plaintiff.

Julie Ann Springer, Weisbart Springer Hayes LLP, Austin, TX, Ralph Alan Peterson, Beggs & Lane RLLP, Pensacola, FL, for Defendant.

ORDER

M. CASEY RODGERS, Chief Judge.

Plaintiff Equal Employment Opportunity Commission (“EEOC”) has filed suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–5, as amended, see42 U.S.C. § 1981a, on behalf of Derrick Roberts, who claims that Defendant West Customer Management Group, LLC (“West”) engaged in employment discrimination by refusing to hire him because of his national origin. See42 U.S.C. § 2000e–2(a)(1) (proscribing, in relevant part, discrimination on grounds of national origin). Pending before the court is the EEOC's motion for partial summary judgment on West's first affirmative defense (doc. 100), and West's motion for summary judgment against the EEOC (doc. 110). Both motions are opposed. Also pending are motions by both parties to strike declarations and expert testimony and West's objections to the EEOC's evidence in support of its opposition to summary judgment ( see docs. 105, 111, 123, 125, 128). Having fully considered the matter, the court denies the motion for summary judgment and motion for partial summary judgment because genuine issues of material fact exist on the record before the court. The remaining objections and motions to strike are therefore either moot or better addressed at the pretrial conference.

Background¹

This suit arises out of the claim of Plaintiff Derrick Roberts that in 2008, he was rejected for employment as a Customer Service Representative (“CSR”) with West because of national origin discrimination. The undisputed facts are as follows. Roberts was born in Jamaica and graduated from high school there. He moved to the United States in 1989 and became a United States citizen in 1999. His first and only language is English, but he speaks with an accent. Prior to moving to the United States, Roberts worked for 11 years as a civilian employee for the United States military at Guantanamo Bay, Cuba, as a mechanic and in a laundromat for a short time, making change and giving out soap. After moving to Florida in 1989, Roberts was employed as a mechanic from 1990 until 2001, and from 2003 through 2004. He also worked for the Escambia County Area Transit from October 2004 until 2006, when he injured his back on the job. Roberts testified that this resulted in a permanent medical restriction prohibiting him from lifting more than 10 pounds.² In September 2008, Roberts completed a four-month course in information technology and received an information technology certification.

West provides customer service to corporate clients and employs customer service representatives to resolve by telephone billing questions and technical repair issues for customers of West's clients. The successful candidate for a CSR position must satisfactorily complete an online computer skills assessment test and must have a high school diploma or GED, previous customer service experience, familiarity with a computer keyboard and mouse, a flexible schedule, and the ability to communicate using a clear, distinct voice. On November 18, 2008, Roberts completed an online application for a CSR position and a computer skills assessment test. He was interviewed the following day, November 19, 2008, by Employment Specialist Steven Henry, who asked questions about his experience with computers ³ and customers, specifically inquiring about how he had dealt with customers in particular instances in the past. During the interview, Henry asked Roberts a series of prepared questions and took notes on his answers. In question 3B, Henry asked Roberts to describe how he had dealt with a challenging customer situation in the past. According to Henry's notes, Roberts recalled a time when he was working as a mechanic and had diagnosed a mechanical problem but the customer disagreed with his conclusion and thought the problem was something else. Henry recorded that Roberts said he told the customer he could only fix what he sees, and “if someone else thinks it is something else, let them fix it.” Henry viewed this as rude. Roberts denied answering in this manner and said the notes did not accurately reflect what he had said. According to Roberts, he recalled answering simply that the customer said her dad thought something else was wrong, but Roberts replied he had to fix the car according to his own diagnostics, and she ended up allowing him to fix it. Roberts was never asked what country he was from and he did not tell Henry he was Jamaican, although it is indicated on his high school diploma, which Henry reviewed because it was a job requirement to have a high school diploma. Roberts said Henry never asked him to repeat his answers. At the end of the interview, Roberts said that a woman asked him some of the same questions relating to computers. Then, according to Roberts, Henry informed him that he did not have the requisite computer skills and told him he had “a deep accent.” (Doc. 100–3, at 13; Roberts Depo. at 52). Roberts also said Henry told him he was worried that Roberts would upset an angry customer. Later in his deposition testimony, Roberts stated he believed West refused to hire him because Henry had told him that his “thick accent” “would make matters worse to a customer” and that he did not have the requisite computer skills. (Doc. 100–3, at 25). Roberts asserts that no one had ever previously told him they could not understand him.

According to Henry, he had difficulty understanding Roberts and had to ask some questions several times before understanding Roberts's response. ⁴ Henry testified that the ability to communicate clearly and be understood were important considerations for the hiring decision, as well as the answer to question 3B, illustrating rudeness to a customer and weak computer skills. Because of his difficulty understanding Roberts, Henry at some point asked a nearby co-worker, Pamela Thomas, to listen to the interview to hear if she had difficulty understanding Roberts. She testified by deposition that she tried to listen and could hear that Roberts was talking, but it was difficult for her to hear him well enough to understand Roberts during the interview. Henry testified that when he concluded asking Roberts the prepared questions, he advised Employment Supervisor And reina Fowler that he had a gentleman whom he was having difficulty understanding, and he asked for her opinion on the matter. Fowler testified that this was unusual, but she then asked Roberts some questions and agreed Roberts was difficult to understand and had difficulty communicating. Fowler also testified by deposition that, upon reviewing Roberts's answers regarding customer service and computers, she felt he was not a qualified applicant. Henry testified that he may have commented on Roberts's accent at the end when he informed Roberts he would not be considered for the position; Henry testified that Roberts “suddenly got very loud” and demanded to know the reasons. (Doc. 112–2, at 29). Toward the end of his deposition, Henry testified that Roberts got loud after Henry advised him he would not be considered but was eligible to reapply after six months.⁵ Roberts disputes that he was told he could reapply.

Following the interview, Henry completed a candidate disposition form, which listed options for the interviewer to select as reasons why this candidate would not be considered. Henry selected “lacked experience/knowledge as indicated by answers to interview questions,” and “other,” and he specifically noted Roberts's computer skills and customer service experience as the reason. Henry further wrote on this form that Roberts was “very difficult to understand” and had a “heavy accent,” and noted that Fowler confirmed his impressions.⁶ (Doc. 112–2, at 72). Henry testified that he rejected Roberts based on three considerations: Roberts gave a deficient answer to question 3B on the prepared interview questions, regarding how he had dealt with a difficult customer; he was concerned about Roberts's computer skills because he had replied that he was “not versed on maneuvering through the computer;” and Henry was concerned about Roberts's communication skills. (Doc. 112–2, at 41).

The record shows that in November 2008, West was busy hiring for several training classes at one time. Henry testified that he and other interviewers were interviewing 10 to 15 persons on a typical day at that time. According to West's representative, Penny Ann Majeski, and documentary evidence, West hired 1,405 CSRs in Pensacola, Florida, between May 1, 2008 and January 31, 2009. Fowler testified that she did not know of any Jamaicans who were hired at any time since she began working for West in October 2005. According to Majeski, West did not hire anyone with problems it identified in Roberts, that is, having weaknesses in customer service skills, computer skills and difficulty communicating clearly. She identified that the minimum computer skills would require a candidate to be able to identify basic trouble-shooting procedures, such as pressing “control-alt-delete” for a frozen screen; Roberts stated that he would “reboot.” EEOC, however, identified records of West containing interviewer notes and candidate disposition reports reflecting that West had hired candidates despite answers indicating a lack of customer service experience or lack of computer troubleshooting skills, according to the criteria Majeski and Henry described as critical in the decision not to hire Roberts, and showing that other candidates who...