Equal Employment Opportunity Commission v. Bci Coca-Cola Bottling Company of Los Angeles

• Decision Date: 07 June 2006
• Docket Number: No. 04-2220.,04-2220.
• Citation: 450 F.3d 476
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, doing business as Phoenix Coca-Cola Bottling Company; Coca-Cola Bottling Company of Albuquerque, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 476

450 F.3d 476

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, doing business as Phoenix Coca-Cola Bottling Company; Coca-Cola Bottling Company of Albuquerque, Defendants-Appellees.

No. 04-2220.

United States Court of Appeals, Tenth Circuit.

June 7, 2006.

Susan R. Oxford (Eric S. Dreiband, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Vincent J Blackwood, Acting Associate General Counsel, and Lorraine C. Davis, Assistant General Counsel, with her on the briefs), Equal Employment Opportunity Commission, Washington, D.C., for Plaintiff-Appellant.

E. Todd Presnell (Kara E. Shea with him on the brief), Miller & Martin PLLC, Nashville, Tennessee, for Defendants-Appellees.

Before LUCERO, McKAY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

The Equal Employment Opportunity Commission ("EEOC") asks us to reverse the district court's decision granting summary judgment to BCI Coca-Cola Bottling Co. of Los Angeles ("BCI") on a claim of race discrimination arising from the termination of a black employee, Stephen Peters. It is undisputed that the human resources official who made the decision to terminate Mr. Peters worked in a different city, had never met Mr. Peters, and did not even know that he was black. In making the decision to terminate, however, the human resources official relied exclusively on information provided by Mr. Peters' immediate supervisor, who not only knew Mr. Peters' race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace. Because we find that genuine issues of material fact exist as to whether BCI's proffered explanation for the termination is a pretext for racial discrimination, we reverse the decision of the district court and remand for further proceedings.

I. Factual and Procedural Background

Stephen Peters worked as a merchandiser for BCI at its Albuquerque, New Mexico facility from May 1995 through October 2001. More than 60% of the 200 employees at the Albuquerque facility were Hispanic, while fewer than 2% were black. Merchandisers are hourly employees responsible for placement of Coca-Cola products in retail outlets such as grocery stores. Their job duties include arranging, cleaning, and rotating product displays and promotional materials. They generally work five days a week, with two days off, but because grocery stores remain open seven days a week, merchandisers' schedules are staggered and they must occasionally work overtime to cover shifts. As the most senior merchandiser in the district, Mr. Peters had the most desirable schedule, with Saturdays and Sundays off. He was generally regarded as a "good merchandiser," and in 2001 he received a certificate from BCI thanking him for five years of "service, dedication and commitment to the Company." App. 143, 151. The certificate specifically thanked him for "being a team player." Id. at 151.

Mr. Peters reported to Cesar Grado, a District Sales Manager, who is Hispanic. On a day-to-day basis, Mr. Peters was supervised by a salaried Account Manager, Jeff Katt, who is white. Although both Mr. Katt and Mr. Peters both reported directly to Mr. Grado, who handled all scheduling and route assignments for merchandisers and account managers in his district, it was common for merchandisers to call in sick to the account manager who supervised their work. Mr. Grado was responsible for monitoring and evaluating the employees under his supervision, but was not authorized to discipline or terminate anyone. Instead, Mr. Grado had broad discretion to "bring facts relating to the matter to the attention of [the] Human Resources Department," which was ultimately responsible for deciding which company policy applied and whether to take any disciplinary action. App. 34. The highest-ranking human resources official in the Albuquerque office was Sherry Pederson. Ms. Pederson's supervisor, Pat Edgar, worked 450 miles away in BCI's Phoenix, Arizona office. Neither Ms. Pederson nor Ms. Edgar had met or even heard of Mr. Peters until September 28, 2001, four days before his termination.

The weekend of September 29-30, 2001, Mr. Grado faced a serious scheduling crunch. Several stores in his district were running ads for Coca-Cola products, necessitating an extra merchandiser for the weekend, and on the morning of Friday, September 28 he learned that another merchandiser who ordinarily worked as a "floater" to cover extra shifts had suffered an on-the-job injury and would be out for a week. Sometime between midday and 2:00 pm on Friday, Mr. Grado directed Mr. Katt to direct Mr. Peters to work on Sunday, September 30.¹ When Mr. Katt relayed the instruction, Mr. Peters responded, "I can't do it. I've got plans." Id. at 67. According to Mr. Grado, when Mr. Katt recounted the conversation he added that Mr. Peters said he "might call in sick." Id. at 35. Both Mr. Peters and Mr. Katt, however, deny that Mr. Peters said anything about being sick during that conversation, and Mr. Katt denies passing along any such comment to Mr. Grado.

Frustrated, Mr. Grado decided to seek advice from the Human Resources Department. Ms. Pederson was out of the office on Friday afternoon, so Mr. Grado called Ms. Edgar in Phoenix. Mr. Grado said that he expected Mr. Peters was going to refuse to come to work on Sunday, and asked whether he could require Mr. Peters to come in on his day off. Specifically, he told Ms. Edgar that Mr. Peters planned to call in sick on Sunday. Ms. Edgar found that prospect "unacceptable" because, under BCI policy, an employee may not call in sick two days in advance. Id. at 23. She advised Mr. Grado to "find out what the situation was" and, unless Mr. Peters had a "compelling reason" why he could not come to work, to order Mr. Peters to work on Sunday. Id. She told Mr. Grado to characterize the instruction as a "direct order" and to say that failure to comply would amount to insubordination, which is grounds for termination. Id.

Mr. Grado then paged Mr. Peters, who called immediately. Mr. Grado ordered Mr. Peters to work on Sunday, and Mr. Peters responded that he had plans. Mr. Grado says that he asked Mr. Peters what his plans were, but that Mr. Peters angrily responded that his plans were "none of [Mr. Grado's] business," and started yelling. Mr. Peters says that Mr. Grado never asked his plans; instead, he simply told Mr. Grado that he had plans and that he had not been feeling well all week. They both agree, however, that Mr. Grado said, "I'm not asking you to come to work, I'm telling you to come to work. If you do not come to work, it could lead to insubordination and could lead to termination." Id. at 58. They also agree that the conversation ended with Mr. Peters telling Mr. Grado, "[D]o what [you] got to do and I'll do what I got to do." Id. Mr. Peters claims that he intended this statement as a way to end the conversation without a confrontation. Mr. Grado interpreted it as open defiance, and a firm intention to disobey the order to come to work on Sunday.

Late in the afternoon on Friday, Mr. Grado again contacted Ms. Edgar in Phoenix. He related "exactly what had happened": that he had asked Mr. Peters to describe his plans, but that Mr. Peters had refused to say what his plans were, had angrily said his plans were "none of [Mr. Grado's] business," and had told Mr. Grado to "do what he needed to do." Id. at 24, 65. Ms. Edgar determined at that time that Mr. Peters' conduct in that conversation, standing alone, amounted to insubordination warranting termination. Nonetheless, because it was late in the day on Friday, she did not make the decision to terminate Mr. Peters that day.

In fact Mr. Peters was sick. On the evening of Saturday, September 29 he cancelled his plans for Sunday and went to an urgent care clinic, complaining of a headache, sinus pain, and cough. A doctor diagnosed him with a sinus infection, gave him a prescription, and directed him not to return to work until Monday, October 1. That night Mr. Peters phoned Mr. Katt and explained that he had just come from the doctor's office and probably could not work Sunday because of illness. Mr. Katt "said he didn't have any problem with that," but asked Mr. Peters to call in the morning if he felt well enough to work. Id. at 197. After hanging up, Mr. Katt repeatedly tried to page Mr. Grado to describe the conversation, but for some reason Mr. Grado never responded to the pages.

Mr. Peters did not work on Sunday, September 30. Mr. Katt and Mr. Grado personally worked routes that day to ensure coverage. Mr. Peters returned to work as usual on Monday morning.

On Monday, October 1, Ms. Edgar held a series of phone calls with Ms. Pederson (who was back in the office) and Mr. Grado concerning Mr. Peters' conduct. Mr. Grado explained that Mr. Peters had not come to work on Sunday. Also, Ms. Pederson pulled Mr. Peters' file and found a Disciplinary Status Notice describing an incident in 1999 where Mr. Peters received a two-day disciplinary suspension and "final warning" for insubordination from a different supervisor. During that incident, the supervisor had called Mr. Peters on a Friday morning and ordered him to work on his day off that weekend. Mr. Peters refused and, according to the status notice, "was rude and unprofessional in his conduct." Id. at 53. He was warned that "[a]ll Coca-Cola employees must . . . follow direct orders from their supervisors. Failure to comply is considered a direct act of insubordination . . . . subject to disciplinary action up to and including termination." Id. at 54. Although Ms. Edgar did not know it, because the file provides no further details, Mr. Peters had good reason to be upset during the 1999 incident. He had learned earlier that week that his fiancée's son — whom he had raised as his own son for years — had been killed in a car accident. He could not...