WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendant Infinity Staffing Solutions, LLC d/b/a Lyneer Staffing Solutions' ("Defendant" or "ISS") Objections [128] to Magistrate Judge Janet F. King's Final Report and Recommendation [124] ("R&R"). In her R&R, Magistrate Judge King recommends that Defendant's Motion for Summary Judgment [81] be denied.
Plaintiff Tamika Trice ("Plaintiff") is an African-American woman. From April 2011 to October 2013, she worked as a mail sorter for Staffmark, a temporary staffing company, at the UPS Mail Innovations Warehouse ("UPS Warehouse"). (Plaintiff's Statement of Disputed Material Facts [95.1] ("PSMF") ¶ 1; [95.3] at 38).
When Defendant replaced Staffmark, African-Americans constituted a majority of the UPS Warehouse staff. ([101] at 11). ISS Supervisor Veronica Burnice ("Burnice") testified, during her deposition, that ISS Executive Vice President Robert Lake ("Lake") told her that UPS wanted Defendant to "diversify" the workforce and "to get more Hispanics." (PSMF ¶ 4). Latisha DeSota ("DeSota") testified that her supervisor, Senior Recruiter Marisel Zayas ("Zayas"), had been instructed by Anwar Ahmed ("Ahmed"), an ISS Support Services Manager, to "hire a diverse workplace other than blacks" and that "she needed more candidates that were not black." (PSMF ¶ 5; [101] at 11-12). Zayas referred to black applicants as "thugs" and "ghetto," and repeatedly directed DeSota to hire non-blacks. (PSMF ¶ 7). For example, while DeSota was speaking with an Asian applicant, Zayas whispered to her, "He's Asian, hire him." ([101] at 32-33). Zayas also instructed DeSota to hire two women "because they were white." ([101] at 89). Zayas hired an equal number of black and non-black applicants to work at the UPS Warehouse, even though approximately 80% of applicants were black. (PSMF ¶ 6). On November 4, 2013, Defendant terminated DeSota's employment, less than a month after she reported concerns about Defendant's discriminatory recruitment and hiring processes. (PSMF ¶ 8).
Burnice testified that, shortly after Defendant replaced Staffmark, Lake walked through the UPS Warehouse and selected several black employees for termination on sight. (PSMF ¶ 10; [95.3] at 40). Burnice said that Lake did not ask her questions about the employees' performance, and that he "seemed to base his [termination] decisions . . . solely on their appearance." ([95.3] at 40). Lake also told Burnice "not to call back" three black employees because they were talking as they worked. ([95.3] at 40-41; PSMF ¶ 10). Later that day, Lake praised two Hispanic employees who talked while they worked, and who worked more slowly than the black employees that Lake previously criticized. ([95.3] at 41; PSMF ¶ 10).
On December 2, 2013, Plaintiff asked ISS Supervisor Carlos Lopez ("Lopez") when she and her colleagues would get a pay increase. Lopez responded, "If you [were] Mexican, you would already have a raise." (PMSF ¶ 13). Plaintiff immediately reported Lopez's comment to Burnice and provided a written statement describing the incident. (PSMF ¶¶ 14-15). Plaintiff also complained to Zayas that she "was being discriminated against" and that black employees were having their hours cut. (PSMF ¶ 15; [83.1] at 122). Lopez sent Plaintiff home shortly after she complained to Zayas. (PSMF ¶ 16). Defendant's disciplinary log states that Lopez sent Plaintiff home for "disorderly conduct" after Plaintiff "initiate[d] conversation . . . regarding pay unfairness based on race." ([95.3] at 49).
Zayas reported Plaintiff's complaint to Lake and Ahmed, who conducted an investigation into the matter. (PSMF ¶ 17; DSMF ¶ 18). Plaintiff told Lake about Lopez's comment, stated that she was being discriminated against, and complained that her hours were being cut because she was black. (PSMF ¶ 17). Lake spoke with Keyonna Davis, an ISS employee, who provided a written statement and corroborated Plaintiff's account of Lopez's comment. (PSMF ¶ 18). Lake and Ahmed concluded, based on their investigation, that Plaintiff and Lopez both acted inappropriately and that there was no evidence that African-Americans were denied a pay increase based on race. (DSMF ¶ 20). Lake explained his findings to Plaintiff, stating that Lopez was "not a bad person" and that Plaintiff had "misunderstood" Lopez's comment. (PSMF ¶ 19; DSMF ¶ 21).
Plaintiff and ISS employee Takita Edwards ("Edwards") testified that a Hispanic employee, named Will, often used the word "nigger" around black employees and said it to them directly. ([95.4] ¶¶ 23-26; PSMF ¶ 11; [83.1] at 93-94]. Will, on one occasion, said "I kill all them niggers." (PSMF ¶ 11). Will continued to use the word after Plaintiff and Edwards reported his language to Lopez. (PSMF ¶ 12).
In December 2013, Lopez assumed control over the work schedule at the UPS Warehouse. ([95.3] at 23; [87.4] at 269; [83.2] at 58). ISS Supervisor Antonio Edler ("Edler") testified that the number of Hispanic employees grew substantially—by a factor of four or five—and that "the African-American ratio dropped tremendously." ([83.7] at 40). Plaintiff was not assigned work from December 29, 2013, through January 7, 2014, which she claimed was unusual. (PSMF ¶ 20; [85.3] at 157-158, 179; [87.4] at 56;
On January 6, 2014, Plaintiff submitted a written complaint alleging that Lopez removed her from the work schedule because of their "disagreement" on December 2, 2013. (PSMF ¶¶ 21-22; [95.3] at 23). When Lake and Ahmed investigated the complaint, Plaintiff told them that Lopez reduced her hours to retaliate for her complaint about Lopez's comment. ([85.4] at 162, 165; PSMF ¶ 23). Lopez told Lake that he tried to schedule Plaintiff for work but that Plaintiff said she was unavailable to work or she did not answer her telephone. (DSMF ¶ 24). Lopez said he focused on scheduling employees who were more reliable. (DSMF ¶ 24). Lopez also told Lake that there was less work available after the holiday season. (DSMF ¶ 25). Although Lopez and his team were trained to log "every employee concern," Plaintiff's disciplinary log, as of January 6, 2014, did not reflect any attendance or scheduling issues, other than a single day on which she reported car trouble and was unable to come to work. ([95.3] at 49; [87.3] at 177-178; PSMF ¶ 3). Lake instructed Lopez to confirm Plaintiff's availability by telephone and text message, to avoid conduct that could be perceived as retaliation, to schedule Plaintiff to work as much as possible, and to escalate any further problems to Lake and Ahmed. (DSMF ¶ 27; [85.4] at 51-52).
Plaintiff repeatedly complained to Zayas and Burnice that Lopez cut her work hours because she was black, and in retaliation for her discrimination complaint on December 2, 2013. ([83.2] at 43, 57, 134-135; PSMF ¶ 30). Burnice received similar complaints from other black employees. ([83.2] at 44). Burnice reported these complaints to Lopez, and told him that the black employees "who were displaced to make spots for the Hispanics [were] better at their jobs than the Hispanic people who were replacing them." ([83.2] at 46, 133-134; PSMF ¶ 29). Burnice told Lopez that the staff changes "slowed down the mail processing" at the warehouse. (PSMF ¶ 29).
Burnice testified that Plaintiff's hours "went down tremendously" in the months after ISS replaced Staffmark. ([83.2] at 27-28). Plaintiff worked 43.5 hours in November 2013, 89.75 hours in December 2013, 54.5 hours in January 2014, 43.25 hours in February 2014, and 37.75 hours in March 2014. (DSMF ¶¶ 16, 28, 35; PSMF ¶ 28). Defendant's "peak season" was from late November through approximately December 22, 2013. ([87.4] at 160, 237). Although Defendant initially experienced a decline in business after December 22, 2013, the volume of work went "back up" in the period that followed. ([87.4] at 167; PSMF ¶ 28;
On March 5, 2014, Lopez, at Lake's direction, issued a written "Final Warning" to Plaintiff, alleging that she was "not reliab[le] on attendance or availability" and that it was "hard to communicate with her" about the work schedule. (PSMF ¶ 32; DSMF ¶ 32; [81.11]). A list of Plaintiff's alleged infractions, beginning December 23, 2013, was attached to the warning. (PSMF ¶ 37; [95.3] at 36-38).
Plaintiff immediately told Zayas that the Final Warning was retaliatory and that its allegations were false. (PSMF ¶ 38). Plaintiff showed Zayas her cell phone, explaining that she had not missed any calls from Defendant's onsite staff. (PSMF ¶ 39). Plaintiff also told Lake that she was being discriminated and retaliated against, that the attendance allegations were false, that she believed Defendant was trying to terminate her, and that she had not previously received a written warning. (PSMF ¶ 40).
Defendant did not consistently enforce its disciplinary policies regarding attendance because "there was a substantial number of employees that were . . . non-compliant with the attendance guidelines." ([87.4] at 209). During the first six months of Defendant's involvement at the UPS Warehouse, 90% of employees failed to report, or reported late, to work at least once, and up to 50% of employees incurred three or more unexcused absences. (PSMF ¶ 36; [86.3] at 62-64, 89-91, 95-100). Edler testified that at least 40% of employees were late more frequently or egregiously than Plaintiff, and that Hispanic employees who were late were treated more leniently than others. ([83.7] at 177-178). Burnice testified that Plaintiff's attendance was the same as the average employee at the UPS Warehouse. ([83.2] at 129).
Plaintiff did not work at the UPS Warehouse after March 14, 2014. (PSMF ¶ 41). On-Site Coordinator Indiana Palacios ("Palacios") testified that, on March 21, 2014, Plaintiff picked up her paycheck from Defendant's office and told Palacios she was no longer "available to work due to issues going on at home." ([88.3] at 111-112). Defendant then removed Plaintiff from the work schedule because "obviously [Defendant] couldn't confirm her for work." ([88.3] at 113). Plaintiff testified that she did not ask to be removed from the schedule, did not state that she was unavailable to work, and did not ask to move to a different location. (PSMF ¶ 42). Plaintiff further testified that, from mid-March through mid-April 2014, she continued to visit Defendant's office, seeking work hours and asking Zayas why she had been removed from the work schedule. (PSMF ¶ 45). In April 2014, Plaintiff provided Defendant with a document certifying that she was medically cleared for work. (DSMF ¶ 38).
On September 28, 2015, Plaintiff filed her Complaint [1], asserting discrimination and retaliation claims under 42 U.S.C. § 1981. Count 1 asserts that Defendant "discriminated against [Plaintiff] in the terms and conditions of her contract because of her race by, among other things, reducing her hours, denying her a raise, and terminating her." (Compl. ¶ 78). Count 2 asserts that Defendant "retaliated against [Plaintiff] in the terms and conditions of her contract because she opposed the company's race discrimination by, among other things, threatening her job, reducing her hours, denying her a raise, and terminating her." (Compl. ¶ 87). The Complaint seeks declaratory relief, injunctive relief, back pay, reinstatement or front pay, and attorney's fees. (Compl. at 16).
On October 17, 2016, Defendant filed its Motion for Summary Judgment. On July 5, 2017, the Magistrate Judge issued her R&R, recommending that Defendant's Motion for Summary Judgment be denied. The Magistrate Judge found that there is sufficient evidence to support that Plaintiff's conditions of employment were altered as a result of racial animus, and that there is sufficient evidence that Defendant's claimed reasons for the change in Plaintiff's work conditions were pretextual. The Magistrate Judge further found that a reasonable jury could find that there was a "but for" causal link between Plaintiff's protected activity and her reduction in hours and termination, and that Defendant's claimed reasons for its actions were pretextual. Finally, the Magistrate Judge found that Defendant failed to show its after-acquired evidence of Plaintiff's wrongdoing was so serious that immediate termination would have occurred. The Magistrate Judge recommended that Defendant's Motion for Summary Judgment be denied.
On July 24, 2017, Defendant filed its Objections to the R&R and, on July 31, 2017, Plaintiff filed her response [129] to the Objections. Defendant argues that "[Plaintiff's] story that [Defendant] subjected her to race discrimination by denying her a raise, reducing her work hours, and terminating her employment [is] blatantly contradicted by the record." ([128] at 12). Defendant argues further that a reasonable jury could not find that Defendant retaliated against Plaintiff by reducing her hours and terminating her employment. ([128] at 21-22). Defendant also objects to the Magistrate Judge's rejection of Defendant's after-acquired evidence defense. ([128] at 24).
"Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying [materials] which it believes demonstrate the absence of a genuine issue of material fact."
"If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted."
"At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a `genuine' dispute as to those facts."
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1);
Count 1 of the Complaint asserts a race discrimination claim under section 1981. Plaintiff alleges that Defendant discriminated against her by denying her a pay raise, reducing her work hours, and terminating her employment.
Section 1981 provides that all persons "shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C § 1981(a). This includes equal rights in "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C § 1981(b). Section 1981 requires a showing of "purposeful discrimination,"
Where, as here, an employee relies on circumstantial evidence to support her section 1981 claims, courts apply the burden-shifting framework set out in
This burden-shifting test "is not, and never was intended to be, the sine qua non for a plaintiff to survive a summary judgment motion in an employment discrimination case."
Plaintiff may establish a prima facie case of intentional discrimination in several ways, including by showing "(1) she belongs to a protected class; (2) she was qualified to do the job; (3) she was subjected to adverse employment action; and (4) her employer treated similarly situated employees outside her class more favorably."
The Magistrate Judge found, and the Court agrees, that Plaintiff belongs to a protected class and was qualified to perform her job. "There is no dispute that [Plaintiff] is African-American, and [she] therefore falls into a protected class."
Plaintiff claims she satisfies the third element—that she was "subjected to adverse employment action"—because she was denied a pay raise, her work hours were reduced, and her employment was terminated. The undisputed evidence is that Plaintiff, unlike some of her co-workers, did not receive a pay raise during her employment with Defendant. (DSMF ¶ 12). Plaintiff also has shown that her hours were reduced. After Lopez assumed control over the work schedule, Plaintiff was not assigned work from December 29, 2013, through January 7, 2014. (PSMF ¶ 20; [85.3] at 157-158, 179; [87.4] at 56). Her hours fell from 89.75 hours in December 2013, to 54.5 hours in January 2014, 43.25 hours in February 2014, and 37.75 hours in March 2014. (DSMF ¶¶ 16, 28, 35; PSMF ¶ 28). Burnice testified that Plaintiff's hours "went down tremendously" in the months after Defendant replaced Staffmark. ([83.2] at 27-28). A reasonable jury could find that Plaintiff's work hours were reduced.
A jury also could find that Defendant terminated Plaintiff's employment. Plaintiff did not work at the UPS Warehouse after March 14, 2014. (PSMF ¶ 41). Palacios testified that, on March 21, 2014, Plaintiff picked up her paycheck from Defendant's office and told Palacios she was no longer "available to work due to issues going on at home." ([88.3] at 111-112). Defendant then removed Plaintiff from the work schedule because "obviously [Defendant] couldn't confirm her for work." ([88.3] at 113). Plaintiff testified, however, that she did not ask to be removed from the schedule, did not state that she was unavailable to work, and did not ask to move to a different location. (PSMF ¶ 42). Plaintiff further testified that, from mid-March through mid-April 2014, she continued to visit Defendant's office, seeking work hours and asking Zayas why she had been removed from the work schedule. (PSMF ¶ 45). In April 2014, Plaintiff provided Defendant with a document certifying that she was medically cleared for work. (DSMF ¶ 38). Based on these facts and the reasonable inferences that can be drawn from them, the Court finds that a jury could believe Plaintiff's testimony and find that she was terminated.
Although Plaintiff does not identify a similarly situated comparator outside her class who was treated more favorably, she argues that circumstantial evidence supports a prima facie case of intentional discrimination. (R&R at 21). "[P]laintiff[] can establish a prima facie case, as required by
On December 2, 2013, Plaintiff asked Lopez when she and her colleagues would get a pay increase. Lopez responded, "If you [were] Mexican, you would already have a raise." (PMSF ¶ 13). This supports an inference that Plaintiff was denied a pay raise because of her race.
Defendant's Executive Vice President, while walking through the UPS Warehouse, terminated black employees on sight without seeking information about their performance. He selected other black employees for termination because they were talking while working, but praised two Hispanic employees who also talked while working and who worked more slowly than the black employees. ([95.3] at 41; PSMF ¶ 10). Burnice testified that Lopez scheduled Hispanic employees to work instead of superior black employees, and that this undermined the quality of Defendant's work. ([83.2] at 46, 133-134; PSMF ¶ 29). Edler testified that, after Lopez took control of the work schedule, the number of Hispanic employees grew substantially—by a factor of four or five—and that "the African-American ratio dropped tremendously." ([83.7] at 40). Plaintiff repeatedly complained internally that her hours were cut because she is black. The Magistrate Judge found that a jury could conclude that Defendant intentionally sought to limit the number of black employees at the UPS Warehouse, and that this motivated Defendant to reduce Plaintiff's hours and terminate her employment. The Court agrees with the Magistrate Judge's finding that Plaintiff has established a prima facie case of race discrimination because Defendant denied her a pay raise, reduced her work hours, and terminated her employment.
Plaintiff having established a prima facie case of discrimination, the burden shifts to Defendant to "produc[e] evidence that its action was taken for some legitimate, non-discriminatory reason."
Defendant claims that Lopez was not involved in setting Plaintiff's pay, and that pay raises were determined on the basis of hours worked, "which had nothing to do with race." ([84.1] at 19). Defendant states that Plaintiff's hours were reduced because of "the post-holiday slow down and difficulties in scheduling her," and that hour reductions "applied across the board without respect to race." ([84.1] at 9, 15). Defendant claims that Plaintiff voluntarily resigned and, even if she did not, she was terminated because she had "attendance issues" and because of "the personal animus between [Plaintiff] and Lopez." ([84.1] at 16). The Magistrate Judge found, and the Court agrees, that Defendant has met its "exceedingly light" burden of offering legitimate, non-discriminatory reasons for the adverse employment actions taken against Plaintiff.
Defendant having articulated non-discriminatory reasons for Plaintiff's alleged mistreatment, the burden shifts to Plaintiff to show that Defendant's proffered reasons are pretextual. Plaintiff can establish pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."
The Magistrate Judge found, and the Court agrees, that a jury could conclude that "a discriminatory reason more likely motivated [Defendant]" to deny Plaintiff a pay raise, reduce her hours, and terminate her employment.
A jury also could find that Defendant's proffered reasons for cutting Plaintiff's hours and terminating her employment are "unworthy of credence."
Defendant's claim that Plaintiff resigned is contradicted by Plaintiff's testimony. Defendant's argument that Plaintiff was terminated for her attendance issues is contradicted by evidence showing that most employees were "non-compliant with the attendance guidelines" and that Defendant did not consistently enforce its disciplinary policies. ([87.4] at 209;
Count 2 of the Complaint asserts a retaliation claim under section 1981. Plaintiff alleges that Defendant reduced her hours and terminated her employment in retaliation for her complaints about race discrimination. ([95] at 21-22).
Section 1981 retaliation claims, like claims for discrimination, are governed by the
The Magistrate Judge found, and the parties do not dispute, that Plaintiff engaged in statutorily protected activity because, beginning on December 2, 2013, she repeatedly complained about racial discrimination and retaliation. ([84.1] at 20-21; R&R at 34). For the reasons explained earlier in this Order, the Court also finds that Plaintiff suffered an "adverse employment action" when her hours were reduced and her employment was terminated. (
To establish the third element of the prima facie test, Plaintiff must establish that Plaintiff's discrimination and retaliation complaints were "a but-for cause" of the adverse employment actions about which she complains.
On December 2, 2013, Plaintiff complained about Lopez's discriminatory remark, and Lopez, who was aware of the complaint, dismissed her from work later that day. Less than a month later, Lopez cut Plaintiff from the work schedule for the December 29, 2013, through January 7, 2014, time period. On January 6, 2014, Plaintiff engaged in further protected activity by complaining that Lopez retaliated and discriminated against her. Lopez was aware of Plaintiff's complaint. Evidence supports that Lopez continued to reduce Plaintiff's hours after January 6, 2014. On March 5, 2014, Plaintiff received a Final Warning even though she had not received a written warning previously. Plaintiff immediately complained to Lake and Zayas that the Final Warning was retaliatory and that she was being discriminated against. Evidence supports that Plaintiff was terminated approximately 10 days later, because Defendant declined to put her on the work schedule after March 14, 2014. The temporal proximity between Plaintiff's complaints and the adverse employment actions alleged, is sufficient to demonstrate a causal link and to establish the third element of the prima facie test for retaliation.
For the reasons explained earlier in this Order, (
Defendant argues that, under the after-acquired evidence rule, Plaintiff's "claim for equitable relief is barred and [her] claim for back pay is limited to the period of time from the date of her last day of work on March 13, 2014 to July 7, 2016." ([84.1] at 25). July 7, 2016, is the date on which Defendant allegedly discovered Plaintiff previously engaged in misconduct for which she would have been terminated. The after-acquired evidence doctrine provides that, "in cases in which an employee commits an act during employment that would lead to termination and the employer finds out about the act during the course of litigation, neither reinstatement nor front pay is an appropriate remedy."
Defendant relies on two pieces of after-acquired evidence. First, Plaintiff's husband, Greg Dewberry, testified during his deposition that he "normally" drove Plaintiff to work and that the family car did not "break down" during Plaintiff's employment at the UPS Warehouse. ([83.6] at 67). Plaintiff previously told Defendant that she could not get to work on December 23, 2013 and February 21, 2014, because of "car trouble" and "car issues." ([95.3] at 48-49). Second, Plaintiff's mother, Doris Carthan, testified during her deposition that Plaintiff "had to stop going to work" because of the "discrimination, the prejudice, [and] the disrespect. . . . She was going to be crazy in jail or somebody going to be hurt." ([83.3] at 60). Defendant claims this evidence "would have formed a legitimate basis for an adverse employment action," because Lopez testified that "lying to a supervisor about the reason for missing work/being late and threatening to commit acts of violence at the workplace are reasons the company will take adverse employment action, up to and including termination." ([81.5] ¶ 3; [128] at 24-25).
Defendant's argument fails because a jury could find that Plaintiff did not lie to her supervisor and did not threaten physical violence at the workplace. Plaintiff's statement to her supervisor that she had "car trouble" and "car issues" is not inconsistent with her husband's testimony that the family car did not "break down" during Plaintiff's employment at the UPS Warehouse. Even if it was, this inconsistency creates an issue of fact for the jury to resolve. Ms. Carthan's testimony does not establish that Plaintiff threatened violence at the workplace. Ms. Carthan stated only that she believed Plaintiff would "be crazy in jail" or "somebody [would] be hurt" if she had continued working at the UPS Warehouse.
Even if this after-acquired evidence did show Plaintiff lied to her supervisor and threatened workplace violence, Defendant has not established that Plaintiff "in fact would have been terminated on those grounds alone."
For the foregoing reasons,
