Shepherd v. SUMMIT MANAGEMENT CO., INC.

• Decision Date: 24 March 2000
• Citation: 794 So.2d 1110
• Parties: Dorothy SHEPHERD v. SUMMIT MANAGEMENT COMPANY, INC.
• Court: Alabama Court of Civil Appeals

794 So.2d 1110

Dorothy SHEPHERD v.SUMMIT MANAGEMENT COMPANY, INC.

2981143.

Court of Civil Appeals of Alabama.

March 24, 2000.

Rehearing Denied May 19, 2000.

Samuel Fisher and Robbie Steele Martin of Gordon, Silberman, Wiggins & Childs, P.C., Birmingham, for appellant.

Richard E. Smith, Deborah Alley Smith, and R. Brett Adair of Rives & Peterson, P.C., Birmingham, for appellee.

PER CURIAM.

Dorothy Shepherd sued her employer, Summit Management Company, Inc.("Summit"), on April 23, 1996.She alleged that Summit had discriminated against her on the basis of her race with respect to various aspects of her employment, in violation of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e-5;she also alleged violations of 42 U.S.C. §§ 1981and1981A, and she stated a state-law claim alleging the tort of outrage.Pursuant to Summit's motion, and after a hearing, the trial court entered a summary judgment for Summit as to all of Shepherd's claims on December 12, 1997.Shepherd appealed, and this court affirmed the trial court's judgment in Shepherd v. Summit Management Co.,726 So.2d 686(Ala.Civ.App.1998).Her subsequent application for rehearing was overruled and her petition for writ of certiorari to the Supreme Court of Alabama was denied on December 18, 1998.

On December 24, 1997, Summit filed a motion for attorney fees as the prevailing party.On April 13, 1999, after the time for a petition for writ of certiorari to the Supreme Court of the United States had expired, Summit renewed its motion for attorney fees.The parties entered a joint stipulation on May 26, 1999, that the total amount of Summit's attorney fees, $45,550.59, and the hourly rates of the attorneys for Summit were reasonable.On May 28, 1999, after an evidentiary hearing, the trial court entered the following order on the circuit court's case action summary sheet:

"This cause came on to be heard at the time scheduled for the Defendant to prove attorney's fees.The Court finds that the plaintiffs action in this case was frivolous, unreasonable, without foundation and quite possibly even brought in bad faith.The Court determines the amount of attorney's fees and costs due the defendant to be $45,550.59 and assesses that amount against the Plaintiff.Costs of this action are taxed to the Plaintiff."

Shepherd appealed to the Supreme Court of Alabama; that court transferred the appeal to this court, pursuant to § 12-2-7,Ala.Code 1975.

With respect to the facts surrounding Shepherd's claims, we quote from our opinion on appeal from the summary judgment on those claims:

"Shepherd, a black female, began working for Summit Management Company, Inc., (`Summit'), on June 27, 1994, as a housekeeper at Wood Springs, one of the apartment complexes managed by Summit.Shepherd found out about the housekeeping position by telephoning Wood Springs and speaking with Lisa Springer, the assistant manager, who informed Shepherd of the opening.Shepherd went to Wood Springs, completed an application, and was interviewed by Springer.A couple of days later, Shepherd was interviewed by Sara Fredericks, property manager of Wood Gardens, another apartment complex managed by Summit.The next day Shepherd returned to Wood Springs and Springer offered her the housekeeping position.Her starting pay rate was $6.25 an hour plus a $150 monthly bonus.On December 2, 1994, her pay rate was increased to $6.56 an hour.

"Shepherd's duties as a housekeeper included cleaning the leasing office before 9:00 a.m.; cleaning the laundry room, fitness center, bathrooms, and model apartment; checking the guest apartment to see if it needed cleaning; and preparing vacant apartments for new tenants.When Shepherd started working at Wood Springs, her immediate supervisor was Jody Phillips, the maintenance supervisor.In approximately May 1995, Wood Gardens and Wood Springs swapped maintenance supervisors, so that Jody Phillips was replaced as maintenance supervisor by the Wood Gardens maintenance supervisor, Charles English.

"Assuming that Shepherd's allegations are true, in approximately May 1995, Springer radioed Shepherd and asked her to report to the office.When Shepherd arrived at the office, Springer informed her that she needed to clean a guest apartment for a resident.Shepherd radioed English from the office to tell him she needed to clean the guest apartment before she could finish cleaning a vacant apartment.English came to the office and, according to Shepherd, he yelled at her and they eventually had a discussion.

"About two weeks after this incident, Shepherd received a `personal improvement plan'(`PIP'), which apparently is Summit's terminology for a written warning.The PIP, dated June 8, 1995, states:

"`1.Desired areas of improvement or shortcomings in job performance are identified below:

"`(1) Attitude—not talking to [English](ignoring him) "`(2) Job performance—speed at which units are completed

"`2.In order to correct these deficiencies, the attached Action Plan must be completed.The following items should be included in your Action Plan:

"`Attitude, have a business relationship with [English]—teamwork.

"`Job performance—work with [English] on completing units at a more effective speed.

"`3.Associate's Comments:

"`I feel [English] has a very bad attitude himself, as he says he's the MFIC (if you know what that means).I don't like being rushed to do my job if I'm going to do it well.I'm sorry if I take my time doing so, but that's the way I work.It's not the quantity, it's the quality.'

"The PIP was signed by Shepherd, English, and Clements.An action plan dated June 9, 1995, and signed by Shepherd, English, and Clements was attached to the PIP.It provided that Shepherd was to meet with English every morning and afternoon, and it instructed her to complete units at `a pace that is expected.'

"English admitted referring to himself as `the MFIC,' but claimed that he did so only once in a joking manner.He was never disciplined for making this remark.

"Shepherd testified that, after receiving the PIP on June 8, she reported to English each morning.However, she received another PIP on June 16, 1995. She testified that approximately one week before receiving the second PIP, she and English had another altercation.According to Shepherd, she went to English on a Friday and asked him what work he wanted her to do in a unit that was to be cleaned by a contract cleaner.In response to her question, English said something to the effect that `that's why I don't like niggers.'He then got in his car and drove to the office.About an hour later, Clements asked Shepherd to come to the office.In the office, Shepherd received a second PIP, which stated that her attitude had not improved since her June8 PIP and that she refused to be courteous to her supervisor and to cooperate.It instructed her to improve her attitude and working relationship by June 30, 1995, or else face possible termination.Shepherd refused to sign the PIP but did write on it that she had discussed the problems with Clements.Shepherd told Clements that English had an attitude problem, that he had made comments to her regarding her race, that she did not want to be treated like a slave, and that English had told her that `sometimes you have to be treated like slaves.'She testified that English had made this remark in response to her statement to him that she was not a slave and could not be treated like one.

"During this period, Shepherd was seeking to move from her housekeeping position to a leasing position.She testified that when she was hired, Springer and Fredericks had informed her that Summit had a policy of promoting from within the company.Shepherd testified that in June 1995, she discovered that a part-time position was available in leasing at Wood Gardens.She informed Clements that she would like to move into a leasing position, and that Clements told her she would have to complete an `interest analysis,' a type of personality/job-placement test required by Summit.Shepherd testified that she completed the analysis and that she was allowed to see only a faxed copy of the results.She testified that Clements did not show her the `hard copy' until after the leasing position had been filled.The record contains a faxed copy of the analysis results, dated August 21, 1995, and with a fax stamp showing the same day.The consulting service that evaluated the analysis recommended Shepherd for a leasing position, finding that she should achieve above-average productivity.

"Shepherd testified that Clements told her she would inform Sara Fredericks at Wood Gardens that Shepherd was interested in the part-time position there, but that when Shepherd telephoned Fredericks, Fredericks informed her that Clements had never informed her of Shepherd's interest and that the position had already been filled.On August 3, 1995, Kevin Hodges applied for a leasing position at Wood Springs.This position was created by the resignation of Lisa Springer, assistant manager of Wood Springs.Hodges was hired and his first day of work was August 29, 1995; the exact date he was hired is not clear from the record.Also in August 1995, Phillips and English swapped positions again, so that Phillips resumed his position as maintenance supervisor at Wood Springs and English went back to Wood Gardens.

"On August 31, 1995, Shepherd submitted a resignation letter, which stated:

"`This is to inform you that I am resigning from the position of housekeeper as of today with my last day being Sept. 8th.Reasons being: # 1 I feel that I will never be able to advance with this company due to the fact that 4 positions as leasing has [sic] come and gone and I was never informed that there were any, even though Summit has such a great promotion policy.I have enjoyed working here and has [sic] no animosity towards anyone, even though I feel that management thinks I'm only capable of being a cleaner due to the

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