Mills v. Cellco Partnership

• Decision Date: 26 March 2019
• Docket Number: Case No. 2:17-CV-170-KOB
• Citation: 376 F.Supp.3d 1228
• Parties: Margo MILLS, Plaintiff, v. CELLCO PARTNERSHIP d/b/a Verizon Wireless, Defendant.
• Court: U.S. District Court — Northern District of Alabama

376 F.Supp.3d 1228

Margo MILLS, Plaintiff,

v.CELLCO PARTNERSHIP d/b/a Verizon Wireless, Defendant.

Case No. 2:17-CV-170-KOB

United States District Court, N.D. Alabama, Southern Division.

Signed March 26, 2019

Cynthia F. Wilkinson, Wilkinson Law Firm PC, Heather N. Leonard, Heather Leonard PC, Birmingham, AL, for Plaintiffs.

Andrew S. Naylor, Heath Hamilton Edwards, Pro Hac Vice, Waller Lansden Dortch & Davis LLP, Nashville, TN, Christopher A. Driskill, Heath A. Fite, Waller Lansden Dortch & Davis LLP, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

KARON OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE

Margo Mills has worked in retail sales for Defendant Verizon Wireless since November 2012. Ms. Mills, an African American female, alleges that, beginning in 2014, her white store manager regularly subjected her and other African American colleagues to racist remarks. She also alleges that the store manager discriminated against her in his scheduling practices and later retaliated against her for complaining about the schedule. When Ms. Mills complained to Verizon, it transferred her to a new store with a new manager; Ms. Mills alleges the discrimination and retaliation continued.

Ms. Mills filed an EEOC charge alleging racial discrimination and retaliation and later filed this lawsuit after receiving her right to sue.

This matter now comes before the court on "Defendant's Motion for Summary Judgment." (Doc. 73). In its motion, Verizon asks this court to enter judgment against Ms. Mills for failing to establish a prima facie case or to raise a genuine issue of material fact on any of her claims. For the reasons stated below, the court will GRANT IN PART Verizon's motion and will ENTER JUDGMENT on Ms. Mills's racially hostile work environment claim; retaliation claim; and negligent hiring, supervision, training, and retention claim. The court will DENY IN PART Verizon's motion for summary judgment on Ms. Mills's racial discrimination claim but only as to her claim that Verizon discriminated against her by unfairly scheduling her and other African American employees for undesirable closing shifts on weekends.

I. Factual Background

Margo Mills, an African American female, has worked at Verizon in retail sales since November 2012 and continues to work for Verizon. She originally worked at a store in Bessemer but moved to the Trussville store in 2014, where Kerry Gould served as one of her managers.

Ms. Mills alleges Mr. Gould, who is white, subjected her to racial discrimination and racial harassment throughout her time at the Trussville store, creating a racially hostile work environment. Specifically, Ms. Mills alleges Mr. Gould often made racially offensive comments to and around her and other African American employees. She alleges Mr. Gould once approvingly referenced the Ku Klux Klan and expressed interest in attending a Ku Klux Klan meeting. She also alleges Mr. Gould scheduled her and other African American employees for more undesirable weekend closing shifts than the white employees.

Ms. Mills alleges that she and another African American employee complained to Mr. Gould in February or March 2014 about his discriminatory behavior. In response, Mr. Gould placed Ms. Mills in charge of scheduling for one to two months but then reassumed scheduling duties and allegedly continued to disproportionately schedule Ms. Mills and other African American employees for the least desirable shifts.

Ms. Mills alleges Mr. Gould's discriminatory and retaliatory behavior continued throughout 2014 and resulted in a racially divided workplace and tension between Ms. Mills and Mr. Gould. But Ms. Mills did not make a formal complaint to anyone in Verizon's Human Resources department until December 18, 2014, when she sent an email to several Verizon higher-ups describing Mr. Gould's alleged mistreatment of her and other African American employees. Verizon investigated Ms. Mills's claims and ultimately reassigned her to the Wildwood store, where she began working under manager Angel Burns in January 2015.

According to Ms. Mills, her reassignment did not resolve the issues. In their very first interaction, her new manager Ms. Burns, herself an African American female, allegedly told Ms. Mills that she wanted to help her improve her image by making sure she did not "come off as black and loud." (Doc. 73-1 at 110:20–111:10). As the phrase "black and loud" parroted comments Mr. Gould had allegedly made about Ms. Mills in Trussville, Ms. Mills understood the comment to mean that Ms. Burns knew about Ms. Mills's history with Mr. Gould, including her making formal complaints of racial discrimination. Ms. Mills even testified that Ms. Burns told her that Ms. Pate and Mr. Gould had provided that information about Ms. Mills, but Ms. Burns testified that she did not know anything about Ms. Mills's history at the Trussville store. (Doc. 73-1 at 111:8–10; Doc. 73-11 at 151:13–152:8).

After this inauspicious introduction, Ms. Mills alleges that Ms. Burns discriminated and retaliated against her throughout her time under Ms. Burns's management. Ms. Mills specifically claims that Ms. Burns threatened her with disciplinary action and gave her unfair "coachings," which are internal notes managers keep on employees to identify potential areas of improvement, track progress, and provide positive or negative feedback. The record indicates that Ms. Burns received over fifty coachings during her time under Ms. Burns's management, either from her or from one of the assistant managers at the Wildwood store. (Doc. 73-2 at 1–58).

Ms. Mills would periodically contact Human Resources to complain about Ms. Burns's alleged mistreatment, which she alleges only led to additional retaliatory conduct by Ms. Burns. Ms. Mills specifically complained that Ms. Burns miscoded her leave time, spoke to her in a derogatory and hostile manner, changed her schedule without proper notice, and followed her around the store to heavily scrutinize her customer interactions.

Ms. Mills filed an EEOC charge of discrimination on September 18, 2015, and requested her right to sue on January 4, 2017. She filed the instant action in this court on February 1, 2017, alleging racial discrimination and a hostile work environment under Title VII and § 1981 (Counts One and Two), retaliation under Title VII and § 1981 (Counts Three and Four), and negligent hiring, supervision, training, and retention under Alabama tort law (Count Five).

Standard of Review

Summary judgment allows a trial court to decide cases when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56.

The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P. 56 ).

Once the moving party meets its burden of showing the district court that no genuine issues of material fact exist, the burden then shifts to the non-moving party "to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991). Disagreement between the parties is not significant unless the disagreement presents a "genuine issue of material fact."

Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Inferences can create genuine issues of material fact. Carlson v. FedEx Ground Package Systems, Inc. , 787 F.3d 1313, 1318 (11th Cir. 2015).

In response, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material fact." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial. ’ " Celotex , 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(e) ) (emphasis added).

The court must "view the evidence presented through the prism of the substantive evidentiary burden," to determine whether the non-moving party presented sufficient evidence on which a jury could reasonably find for the nonmoving party. Anderson , 477 U.S. at 254, 106 S.Ct. 2505. The court must refrain from weighing the evidence and making credibility determinations because these decisions belong to a jury. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Further, all evidence and inferences drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. See Graham v. State Farm Mut. Ins. Co. , 193 F.3d 1274, 1282 (11th Cir. 1999). After both parties have addressed the motion for summary judgment, the court must grant the motion only if no genuine issues of material fact exist and if the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56.

II. Discussion

Ms. Mills's complaint includes five counts: (1) Title VII racial discrimination / harassment / hostile work environment; (2) 42 U.S.C. § 1981 racial discrimination / harassment / hostile work environment; (3) Title VII retaliation; (4) 42 U.S.C. § 1981 retaliation; (5) negligent hiring, supervision, training, and retention under Alabama tort law.

As an initial matter, "Title VII and § 1981 claims ‘have the same requirements of proof and use the same analytical framework.’ " Chapter 7 Trustee v. Gate Gourmet, Inc. , 683 F.3d 1249, 1256–57 (11th Cir. 2012) (quoting Standard v. A.B.E.L Servs., Inc. , 161 F.3d 1318, 1330 (11th...