Nolen v. Fedex Techconnect, Inc.

• Decision Date: 04 September 2013
• Docket Number: Case No. 11–cv–02832–JPM–cgc.
• Citation: 971 F.Supp.2d 694
• Parties: Clara NOLEN, Plaintiff, v. FEDEX TECHCONNECT, INC., Defendant.
• Court: U.S. District Court — Western District of Tennessee

971 F.Supp.2d 694

Clara NOLEN, Plaintiff,

v.FEDEX TECHCONNECT, INC., Defendant.

Case No. 11–cv–02832–JPM–cgc.

United States District Court,

W.D. Tennessee,

Western Division.

Sept. 4, 2013.

Clara Nolen, Cordova, TN, pro se.

Melissa Kimberly Hodges, Ben J. Scott, Memphis, TN, for Defendant.

ORDER STRIKING PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS; ORDER GRANTING DEFENDANT'S MOTION TO STRIKE; ORDER STRIKING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; ORDER OVERRULING PLAINTIFF'S OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATION; and ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JON P. McCALLA, District Judge.

Before the Court is the Report and Recommendation of Magistrate Judge Charmiane G. Claxton (the “Report and Recommendation”), filed April 19, 2013 (ECF No. 38), recommending that the Court grant Defendant FedEx TechConnect, Inc.'s (“Defendant” or “FedEx”) Motion for Summary Judgment (ECF No. 28). In the Report and Recommendation, the Magistrate Judge recommends granting summary judgment for Defendant on all of Plaintiff's claims. The Report and Recommendation states,

It is RECOMMENDED that Nolen cannot state a prima facie claim for Title VII Discrimination and cannot state a prima facie claim of [Family Medical Leave Act (“FMLA”) ] discrimination. Furthermore, the Magistrate Judge RECOMMENDS that if Nolen could state a claim for prima facie discrimination under Title VII and retaliation under the FMLA, FedEx has articulated a legitimate non-discriminatory reason for Nolen's discharge because Nolen was discharged after three deficiency notices within a twelve-month period; a policy which Nolen was aware of. As Nolen has not offered any facts to dispute FedEx's Motion, Nolen has not demonstrated that her discharge was pretextual. Accordingly, it is RECOMMENDED that FedEx's Motion for Summary Judgment be GRANTED in its entirety.

(ECF No. 38 at 716–17.)

For the reasons stated below, the Court ADOPTS the Report and Recommendation and GRANTS Defendant's Motion for Summary Judgment.

I. BACKGROUNDA. Factual Background

This action arises out of Plaintiff's allegedly wrongful termination by Defendant. In her Complaint, Plaintiff specifically assertsclaims for racial discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and retaliation pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C. § 621 et seq. (“FMLA”).

Plaintiff did not respond to Defendant's Motion for Summary Judgment (ECF No. 28), nor its Statement of Undisputed Facts (ECF No. 28–2), see infra Part II.B., therefore the following facts are undisputed.

Plaintiff, an African American female, was employed by FedEx as a Senior Customer Support Trace Representative, “reporting to African American manager Andreia Sanders [ (“Sanders”) ].” (ECF No. 28–2 ¶ 1.) In this capacity, Nolen served “a customer service function within FedEx and assist[ed] customers who call in with concerns regarding their shipments.... [T]he calls of Trace Representatives are routinely monitored by management and recorded for review and training purposes.” ( Id. ¶ 2.) “On May 12, 2009, Sanders became aware of a customer complaint regarding a call Nolen handled the previous day” and “asked Nolen to provide a written explanation of the interaction.” ( Id. ¶¶ 3–4.) Nolen's explanation stated the customer was “ ‘obnoxious from the gate,’ ‘was uncooperative,’ and ‘how she could jump down my throat was more important [than listening to Nolen].’ ” ( Id. ¶ 4 (quoting ECF No. 28–4 at PageID 180).) “Sanders reviewed the call and disagreed with Nolen's characterization,” finding “Nolen spoke to the customer with a ‘short, sarcastic’ tone and had cut the customer off on several occasions.” ( Id. ¶ 5 (quoting ECF No. 28–4 at PageID 186).) On May 27, 2009, Sanders issued Nolen a Warning Letter and suspended her for three days without pay. ( Id. ¶ 6.) After the Warning Letter and unpaid suspension, Nolen “was provided with extensive additional coaching and training to help her better handle customer issues,” including personal coaching from Sanders. ( Id. ¶ 8.) Nolen appealed the disciplinary action through FedEx's internal appeals process and the decision was upheld. ( Id. ¶ 9.)

On December 4, 2009, Nolen was advised that she had “again violated the Customer Abuse/Work Avoidance portion of the Acceptable Conduct policy by failing to make a required call to a customer.” ( Id. ¶ 10.) Nolen received a “written counseling” and was told that “further occurrences cannot be tolerated and may result in additional disciplinary action.” ( Id. ¶ 11 (quoting ECF No. 28–4 at PageID 200) (internal quotation marks omitted).)

On May 18, 2010, Nolen was again disciplined in a Warning Letter regarding an incident on April 21, 2010, where she “repeatedly interrupted and talked over a customer, provided inaccurate information, challenged [the customer's] expressions of anger and frustration and provided little or no help in assisting [the customer] to resolve her issue,” and an incident on April 29, 2010, where Nolen failed to advise a customer that his package was being returned to him. ( Id. ¶¶ 11–13 (quoting ECF No. 28–4 at PageID 202) (internal quotation marks omitted).) The letter stated that Nolen's actions showed a “recurring pattern of Customer Abuse ... [that] cannot be tolerated.” ( Id. ¶ 13 (quoting ECF No. 28–4 at PageID 203).)

FedEx has a written policy, the Acceptable Conduct Policy, “indicating that recurrent patterns of misconduct will not be tolerated and may subject an employee to termination.” ( Id. ¶ 14 (citing Zaborski Decl. ¶ 3, ECF No. 28–5; ECF No. 28–5 at PageID 237).) The Acceptable Conduct Policy stated, “Three notifications of deficiency within a 12–month period normally result in termination. However, an employee'sentire employment history should be reviewed. Based on the severity of the occurrence, an employee may be terminated with less than 3 notifications of deficiency within a 12–month period.” ( Id. (citing Zabroski Decl. ¶ 3, ECF No. 28–5; ECF No. 28–5 at PageID 237).) The Acceptable Conduct Policy is “reinforced in the Standard Operating Procedure of Customer Support addressing Customer Abuse/Work Avoidance, which also describes the types of behavior that will be considered violations of the Acceptable Conduct Policy as it relates to customer abuse.” ( Id. ¶ 15 (citing Zaborski Decl. ¶ 4, ECF No. 28–5; ECF No. 28–5 at PageID 242–44).) Nolen was aware of these policies and acknowledged her awareness and familiarity “multiple times.” ( Id. ¶ 16.)

On May 18, 2010, FedEx terminated Nolen as she had “demonstrated a recurring pattern of violating the Acceptable Conduct Policy and Customer Abuse/Work Avoidance policies, and because she had accumulated three notices of deficiency within a twelve-month period,” in violation of the Acceptable Conduct Policy. ( Id. ¶ 17.)

It is also undisputed that “Nolen applied for FMLA leave on August 17, 2009 to attend therapy for depression and anxiety,” and was granted leave from August 17, 2009, through February 17, 2010. ( Id. ¶¶ 20–21.) “Nolen did not request any days off for FMLA leave that she was not granted.” ( Id. ¶ 22.)

As it relates to the instant Motion, it is further undisputed that former FedEx employee Brian Kohanyi (“Kohanyi”), a Caucasian employee, was terminated on December 14, 2009, and “had accumulated three deficiency notices within the immediately preceding twelve-month period: one for poor attendance and two for violating the Customer Abuse/Work Avoidance portion of the Acceptable Conduct [P]olicy.” ( Id. ¶ 18.) Additionally, Kohanyi had “no history of FMLA activity.” ( Id.)

B. Procedural History

Magistrate Judge Claxton set forth the procedural history of the case as follows:

On September 23, 2011, Plaintiff Clara Nolen (“Nolen”) filed a Pro Se Complaint [ECF No. 1] pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Family and Medical Leave Act of 1993, 29 U.S.C. § 621 et seq. (“FMLA”) against Defendant FedEx Services (“FedEx”). Prior to Nolen filing the instant action, she initially filed charges of discrimination with the Tennessee Fair Employment Commission and with the Equal Employment Opportunity Commission on June 1, 2010. [ (ECF No. 1 ¶¶ 6–7.) ] The Equal Employment Opportunity Commission issued a notice of Nolen's Right to Sue on July 7, 2011. [ ( Id. ¶ 8.) ] The District Court then permitted Nolen to proceed in forma pauperis. [ (ECF No. 5).] The District Court next issued an Order correcting the docket to add Defendant FedEx Corporate Services, Inc., and remove Defendant FedEx Services. [ (ECF No. 6.) ]

Defendant FedEx Corporate Services answered Plaintiff's complaint on December 21, 2011. [ (ECF No. 8.) ].... [With leave of Court,] Defendant filed its First Amended Answer on February 20, 2012 [ (ECF No. 17) ].

On January 4, 2013, Defendant[ ] filed the instant Motion for Summary Judgment. [ (ECF No. 28.) ].... The Magistrate Judge issued an order on March 27, 2013 for the Plaintiff to show cause as to why the Court should not consider the Motion for Summary Judgment and recommend granting of the motion. [ (ECF No. 32.) ] Plaintiff has yet to respond to the Motion for Summary Judgment. Plaintiff instead moved for an Extension to Show Cause [ (ECF No. 33) ] and moved to Amend her Complaint [ (ECF No. 34) ] on April 9, 2013. The Magistrate Judge denied the Motion to Compel and Motion for Extension to Show Cause on April 12, 2013. [ (ECF No. 36.) ] The Magistrate Judge recommended that the District Court deny Plaintiff's Motion for Leave to Amend on April 12, 2013, 2013 WL 1796408. [ (ECF No. 37.) ]

(ECF No. 38 at 708–09.) This Court adopted the Magistrate Judge's April 12, 2013, Report and Recommendation and denied Plaintiff's Motion for Leave to Amend on April 29, 2013, 2013 WL 1796314. (ECF No. 40.)

Magistrate Judge Claxton filed the instant Report and Recommendation of Defendant's ...