Freeman v. Dal-Tile Corp.

• Decision Date: 14 March 2013
• Docket Number: No. 5:10–CV–522–BR.,5:10–CV–522–BR.
• Citation: 930 F.Supp.2d 611
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Lori FREEMAN, Plaintiff, v. DAL–TILE CORPORATION, Defendant.

930 F.Supp.2d 611

Lori FREEMAN, Plaintiff,

v.DAL–TILE CORPORATION, Defendant.

No. 5:10–CV–522–BR.

United States District Court,

E.D. North Carolina,

Western Division.

March 14, 2013.

Dominique N. Ferrera, Giselle B. Schuetz, Law Offices of Joshua Friedman, Mamaroneck, NY, Laura J. Wetsch, Winslow & Wetsch, PLLC, Raleigh, NC, Rebecca J. Houlding, Law Offices of Joshua Friedman, Larchmont, NY, for Plaintiff.

Kristine M. Sims, William J. McMahon, IV, Constangy Brooks & Smith, LLC, Winston-Salem, NC, for Defendant.

ORDER

W. EARL BRITT, Senior District Judge.

This matter is before the court on the 30 May 2012 motion for summary judgment filed by defendant Dal–Tile Corporation (“Dal–Tile”). (DE # 60.) The motion has been fully briefed and is ripe for disposition.

I. BACKGROUND¹

Dal–Tile, a wholly-owned subsidiary of Mohawk ESV, Inc., manufactures, distributes, and markets ceramic tile and natural stone products. (C. Diksa Aff., DE # 62–11, ¶¶ 1–2.) It operates eight manufacturing facilities, five regional distribution centers, and over 250 sales service centers, including both stone yards and tile showrooms. ( Id. ¶ 2.) Dal–Tile's products are sold through its company-owned sales service centers, home retail stores, and independent distributors. ( Id.)

In June 2008, Dal–Tile acquired the assets of Marble Point, Inc. (“Marble Point”), a stone yard located in Raleigh, North Carolina, from owner Marco Izzi (“Izzi”). ( Id. ¶ 3; M. Izzi Dep., DE # 78–2, at 11:9–10.) ² Dal–Tile incorporated this newly-acquired operation into a sale service center organization in Raleigh (the “Stoneyard”). (C. Diksa Aff., DE # 62–11, ¶ 3.) After this sale, Izzi purchased an ownership interest in VoStone, Inc. (“VoStone”), a Raleigh-based kitchen and bath remodeling center. (Pl.'s Dep., DE # 62–1, at 202:17–19; 210:22–211:13; 217:24–218:1; M. Izzi Dep., DE # 78–2, at 8:19–9:6.) James Vose (“Vose”) was also a co-owner of VoStone. (J. Vose Dep., DE # 62–9, at 9:5–11.) A significant percentage of VoStone's business involved working with Dal–Tile. (M. Izzi Dep., DE # 78–2, at 9:22–25.)

In August 2006, plaintiff Lori Freeman (“plaintiff”) began working as a receptionist for Dal–Tile's predecessor, Marble Point. (Pl.'s Dep., DE # 78–1, at 87:1–88:25.) She was hired on a temporary basis through a staffing agency and, after six months, she joined Marble Point as a permanent employee. ( Id.; see also id. at 90:4–14.) Throughout her tenure at Marble Point, plaintiff reported to Izzi and to assistant manager Sara Wrenn (“Wrenn”). ³ ( Id. at 88:6–12.)

Following Dal–Tile's acquisition of Marble Point, plaintiff became a Dal–Tile employee. ( Id., DE # 62–1, at 131:1–132:23.) Wrenn continued to act as plaintiff's supervisor. (S. Wrenn Dep., DE # 78–4, at 10:17–24; 11:14–16.) On 10 June 2008, Dal–Tile's Regional Human Resources Manager visited the Stoneyard and held a group meeting with the employees to review Dal–Tile's policies and employee benefitsprograms. (Pl.'s Dep., DE # 62–1, at 127:21–23; 132:16–133:3; C. Diksa Aff., DE # 62–11, ¶ 5; S. Wrenn Dep., DE # 78–4, at 11:17–22.) At that time, plaintiff received Dal–Tile's employee handbook, including its policy prohibiting harassment and discrimination. (Pl.'s Dep., DE # 62–1, at 127:10–23; 131:22–136:13 & Exs. 5–8.) Dal–Tile's policy against harassment, which was in place throughout plaintiff's tenure, states that Dal–Tile will not tolerate harassment based on an individual's sex, race, or other protected characteristics. ( Id. at 133:4–20 & Ex. 6; C. Diksa Aff., DE # 62–11, ¶ 6 & Ex. C.) It also defines the sort of conduct prohibited, provides avenues for employees to report harassment to the company, and prohibits retaliation against individuals who raise complaints under the policy. ( Id.)

Plaintiff's first position with Dal–Tile was that of General Office Clerk. (Pl.'s Dep., DE # 62–1, at 159:21–25.) Over time, plaintiff began interacting more frequently with Dal–Tile's customers, and she effectively functioned as a Customer Service Representative. ( Id., DE # 78–1, at 160:1–8; C. Diksa Aff., DE # 62–11, ¶ 14.) In May 2009, she was promoted to the role of Sales Consultant. (C. Diksa Aff., DE # 62–11, ¶ 13 & Ex. E; Pl.'s Dep., DE # 78–1, at 160:9–22.) In November 2009, plaintiff's position was reclassified to Customer Service Representative. (C. Diksa Aff., DE # 62–11, ¶ ¶ 19–20 & Exs. F, G.)

Timothy Koester (“Koester”) worked as an independent sales representative for VoStone. (M. Izzi Dep., DE # 62–5, at 12:13–23; J. Vose Dep., DE # 62–9, at 9:15–10:6; T. Koester Dep., DE # 78–8, at 17:6–15.) Plaintiff interacted with Koester “almost two or three times a day” while he was conducting business with Dal–Tile on behalf of VoStone. (Pl.'s Dep., DE # 78–1, at 101:11–12.) Plaintiff testified that she was “friendly” with Koester as long as he was not making “lewd comments.” ( Id., DE # 79–6, at 193:18–19.)

Plaintiff alleges that she heard Koester make offensive remarks during the course of her employment with Marble Point and Dal–Tile. About two weeks after plaintiff became a temporary employee with Marble Point in August 2006, she overheard Koester as he walked into Wrenn's office and, referencing a photograph of two former employees, asked Wrenn and another employee: “[W]ho are these two black bitches[?]” (Pl.'s Dep., DE # 78–1, at 108:12; see also id. at 107–109.) Wrenn replied: “[T]hey used to work here and I would appreciate you not to use that language here.” ( Id. at 108:12–14.) After the incident, plaintiff asked Wrenn about Koester, inquiring: “[W]ho was he and what was his deal[?]” ( Id. at 109:4–5.) Wrenn replied: “[H]e's an asshole, but I don't think he'll do it again.” ( Id. at 109:5–6.) The next day, plaintiff told Koester that his remark made her feel very uncomfortable, and she asked him not to use that sort of language. ( Id. at 107:19–21.) Koester apologized and said it would never happen again. ( Id. at 107:22–24.)

Plaintiff also recalled Koester making comments about women he had been with the night before. ( Id. at 116:2–4.) On one occasion, Koester showed her a photograph of a naked woman on his cell phone and remarked: “[T]his is what I left in my bed to come here today.” ( Id. at 116:18–19; see also T. Koester Decl., DE # 78–7, ¶ 7.) On a different occasion, plaintiff overheard Koester talking with one of her co-workers, Jodi Scott (“Scott”), about photographs of Scott's daughters that were displayed in Scott's office. According to plaintiff, Koester told Scott: “I'm going to hook up with one your daughters,” or “I'm going to turn one of your daughters out.” (Pl.'s Dep., DE # 78–1, at 206:17–19.) Scott replied: “[Y]ou better stay away from my kids,” or “[D]on't talk to me about my kids.” ( Id. at 206:20–21.)

On 3 June 2009, Koester called plaintiff about covering a customer appointment for him because he had been partying the night before. ( Id. at 125:23–126:18; 136:20–25; id., DE # 62–1, at 121:12–23 & Ex. 4 at 00088.) Koester indicated that he could not come into the office, saying: “I'm just too fucked up, don't take offense, but I'm as fucked up as a nigger's checkbook.” ( Id., DE # 78–1, at 139:13–15; see also id., DE # 62–1, at 121:12–23 & Ex. 4 at 00088.) Plaintiff told Wrenn about Koester's comment that same day ( id., DE # 78–1, at 141:13–143:8), but Wrenn just “scoffed and shook her head” ( id. at 142:2). Plaintiff also reported Koester's remark to Vose, one of the co-owners of VoStone. ( Id. at 145:20–148:1.) Vose laughed and said: “[Y]ou got to admit that's kind of funny, just do what I do and hit him because he's an asshole.” ( Id. at 147:19–21.)

Subsequently, on 29 July 2009, Koester called Dal–Tile's general office line, and plaintiff answered the phone.⁴ ( Id., DE # 62–1, at 151:18–24.) Koester had his daughter Angelina with him at the time. ( Id., DE # 78–1, at 152:2–22.) Angelina kept interrupting Koester while he was trying to talk with plaintiff about a customer order. ( Id.) Plaintiff, who knew Angelina, asked Koester to tell Angelina that she said “hi.” ( Id. at 152:22–23; see also id., DE # 79–6, at 194:4–195:17.) Instead, Koester put plaintiff on speaker phone so that she and Angelina could talk with one another. ( Id., DE # 78–1, at 152:24–153:1.) Plaintiff then heard Angelina ask: “Daddy, who's that [?]” ( Id. at 153:1–2.) Koester replied: “[T]hat's the black bitch over at Marble Point.” ( Id. at 153:2–3; see also id., DE # 62–1, Ex. 4 at 00080.) Plaintiff “immediately became very irate.” ⁵ ( Id., DE # 78–1, at 153:4.) She told Koester: “[D]on't you ever call me a black bitch as long as you live.” ( Id. at 153:8–9.) Koester responded: “[O]h, word.” ( Id. at 153:10.) Plaintiff promptly told Wrenn about Koester's comment, but Wrenn appeared uninterested and continued a conversation that she had been having with some other co-workers. ( Id. at 154:3–24; id., DE # 62–1, Ex 4 at 00080.)

The next day, 30 July 2009, plaintiff called the Stoneyard around 6:45 a.m. and told her co-worker Scott that she was very upset and that she would not report to work that day. ( Id., DE # 78–1, at 157:5–158:12; id., DE # 62–1, Ex. 4 at 00080.) Plaintiff then called Dal–Tile's Regional Human Resources Manager, Cathy Diksa (“Diksa”), and left a message on her cell phone. ( Id., DE # 78–1, at 166:10–168:8; id., DE # 62–1, Ex. 4 at 00080.) Diksa returned plaintiff's call the same day around 9:00 or 9:30 a.m., and plaintiff told Diksa that Koester had called her a black bitch. ( Id., DE # 78–1, at 167:12–15; 168:9–19; id., DE # 62–1, Ex. 4 at 00080.) Diksa asked plaintiff what she would like to have done, and plaintiff said that she could not work with Koester anymore. ( Id., DE # 78–1, at 168:20–25; id., DE # 62–1, Ex. 4 at 00081.) Diksa replied: “[O]kay, that's it, he's banned.” ( Id., DE # 78–1, at 168:25–169:1; id., DE # 62–1, Ex. 4 at 00081.)

After Diksa reminded plaintiff to notify her manager of her absence, plaintiff contactedWrenn and apologized for not...