McCray v. Wal-Mart Stores, Inc

Filing 67

REPORT AND RECOMMENDATIONS that 40 MOTION for Judgment on the pleadings and 42 MOTION for Summary Judgment be granted; that 52 MOTION for denial of summary judgment be denied; that this case be dismissed; Objections to R&R due by 3/9/2009. Signed by Honorable Wallace Capel, Jr on 2/23/2009. (cc, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION N A O M I McCRAY, P l a in tif f , v. W A L -M A R T STORES, INC., D e f e n d a n t. ) ) ) ) ) ) ) )

CASE NO. 1:06-cv-1123-ME

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE C u rren tly pending before the undersigned Magistrate Judge is Defendant Wal-Mart S to re s East, L.P.'s (Wal-Mart) Motion for Judgment on the Pleadings (Doc. #40), Motion for S u m m a ry Judgment (Doc. #42), and Plaintiff Naomi McCray's (McCray) Motion for Denial o f Summary Judgment (Doc. #52). For the reasons that follow, the Magistrate Judge R E C O M M E N D S the Motion for Judgment on the Pleadings (Doc. #40) and the Motion for S u m m ary Judgment (Doc. #42), be GRANTED, the Motion for Denial of Summary J u d g m en t (Doc. #52) be DENIED, and this case be DISMISSED. I. S T A N D A R D OF REVIEW A. J u d g m e n t on the Pleadings

" Ju d g m e n t on the pleadings is appropriate where there are no material facts in dispute a n d the moving party is entitled to judgment as a matter of law. [A court] must accept the f a cts alleged in the complaint as true and view them in the light most favorable to the n o n m o v in g party." Cannon v. City of West Palm Beach, 250 F.3d 1299, 1301 (11th Cir.

2 0 0 1 ). B. S u m m a r y Judgment

U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996) (quoting Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986)). T h e party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party

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to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to in t e rr o g a to r i e s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of th e non-movant and must draw all justifiable inferences from the evidence in the non-moving p a rty's favor. Anderson, 477 U.S. at 255. After the non-moving party has responded to the m o tio n for summary judgment, the court must grant summary judgment if there is no genuine is s u e of material fact and the moving party is entitled to judgment as a matter of law. See F ed . R. Civ. P. 56(c). II. FACTS T h e Court has carefully considered all deposition excerpts and documents submitted in support of the motions. In its Motion for Summary Judgment, Wal-Mart has submitted a statement of undisputed facts, as required by the Court. McCray has raised no objection to these facts.1 The submissions of the parties, viewed in the light most favorable to the n o n - m o v in g party, establish the following relevant facts: M cC ray is an African-American woman who worked as a cashier in a Wal-Mart Store in Dothan, Alabama, from April 1996 to June 2006. Wal-Mart is an international retailer
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As the Court found many of McCray's claims barred by the statute of limitations, many of the facts put forth by the parties are irrelevant.

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w ith stores in the United States, Wal-Mart is organized into divisions, which are divided into re g io n s , and sub-divided into districts known as markets. Each Wal-Mart store is headed by a manager who oversees day-to-day operations at the store, aided by assistant managers and co -m an ag e rs, and who reports to district and regional management. Individual Wal-Mart s to re s are organized into departments which operate under the supervision of a department m an ag er, who reports to the assistant managers, co-managers and manager. W al -M art opened Store #604 in Dothan, Alabama, in November 1983; the store m o v e d to a new building in the Fall of 2002. During McCray's employment at Store #604, P e te White was the store manager, Leatricia Ahmadu was assistant manager and then com a n a g er, and Judy Langford was the district manager and then market manager. McCray has elev en (11) Performance Evaluations in her personnel file. A ll evaluations, with the exception of the years 1997 and 2000, indicate McCray " m e e ts expectations." The 1997 and 2000 evaluations indicate McCray "exceeds

e x p e cta tio n s ." McCray's last evaluation, dated 10 March 2006, showed McCray met ex p ec tation s, but needed to smile and greet customers and needed to be willing to work w h e re assigned. McCray also has two Commendations in her file. The first Commendation, dated 1 S e p te m b e r 1997, gave McCray a $.20/hour increase in pay due to the federal minimum wage in c re a se . The second Commendation, dated 9 February 1998, moved McCray from part-time to full-time.

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M cC ray received three (3) Coachings for Improvement during her tenure at Wal-Mart. T h e first written Coaching was given to McCray on 14 October 1997, for violation of the c o m p a n y's policy against holding reduced-priced merchandise at her register. The second w ritte n Coaching, dated 29 November 2001, reprimanded McCray for unapproved overtime. The third Coaching, dated 10 May 2004, was given to McCray for misconduct when she re f u s e d to relieve an associate on a cash register she thought was too cold. In June 2006, Wal-Mart terminated McCray's employment for theft after Asset P r o te c tio n , the Wal-Mart department in charge of investigating potential theft, documented th a t in February 2006 McCray requested and obtained an oil change at Wal-Mart's Tire and L u b e Express Center and did not pay for it. Wal-Mart's Regional Asset Protection Manager m e t with McCray to ask for an explanation. McCray said she did not remember whether she h a d paid for the oil change. Based on the documentation, McCray's employment was te rm in a te d for her integrity violation. McCray's EEOC Charge On 11 June 2006, McCray filed a charge of discrimination with the United States E q u a l Employment Opportunity Commission (EEOC). Her charge alleged that she was d isc rim in a ted against because of her race, sex, and color and was retaliated against. The only f a ctu a l allegation in the charge is that she was falsely accused of stealing an oil change as re talia tio n for complaining about my unfair treatment at Wal-Mart. M c C ra y asserted that she paid for an oil change and that she had proof on her credit

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c a rd . The EEOC found no evidence that discrimination or retaliation had occurred, and is s u e d a notice of right to sue. This lawsuit followed. Through her former counsel, McCray alleged that she was subjected to a racially h o s tile work environment, that she was discriminated against because of her race in terms o f pay, promotions, scheduling, training, discipline and termination, and that she was d is c ip lin e d , given reduced hours, denied promotions, and later discharged in retaliation for h a v in g opposed racial discrimination. See (Doc. #17). The Alleged Discrimination in Setting Schedules Wal-Mart uses a computer program to prepare schedules for all associates, including ca sh iers. The program ranks cashiers based on three factors, length of service, current score fo r the number of items scanned per hour (IPH), and self-reported availability for work. The c o m p u te r program does not have access to demographic information, such as race, and th e re f o re does not use race as a factor. The computer selects the highest ranked cashier first, th e n moves to the next ranked cashier and so on, until all available shifts are filled. T h e IPH score is computed each week, automatically. Availability is controlled by the a ss o c ia te ; each associate's personnel file includes an Availability Form completed by the a ss o c ia te which provides the hours she is willing and able to work. McCray's original application in 1996 indicated she was available for all hours. L a te r, McCray reported that she was available from around 6 a.m. to 6 p.m. Monday through S a tu rd a y, and was unavailable for work on Sunday. By October 2000, McCray had expanded

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h e r availability to 5 a.m. to 6 p.m. Monday through Saturday but unavailable on Sundays. I n 2001, McCray decreased her availability to 6 a.m. to 6:30 p.m. Monday, Tuesday, T h u rs d a y, and Friday, 6 a.m. to 6 p.m. Wednesday and Saturday, and unavailable Sunday. In 2002, McCray decreased her availability even more to 6 a.m. to 6 p.m. Monday, W e d n e sd a y, and Saturday, and 6 a.m. to 6:30 p.m. Tuesday, Thursday, and Friday, and was n o t available Sunday. In July 2005, McCray increased her availability to 6 a.m. to 6:30 p.m., M o n d a y, Tuesday, Thursday, Friday, and Saturday and from 6 a.m. to 6 p.m. Wednesday. W h e n McCray informed Wal-Mart she was unhappy about her schedule, Wal-Mart e x p la in e d to McCray how the schedule was created, and encouraged her to open up her a v a i la b i lity so that she would be selected for more shifts. A ro u n d July 8, 2005, McCray met with Wal-Mart managers to discuss her hours being " c u t up," that is, having a different schedule each day. Wal-Mart informed McCray that, for th e week of July 2-8, she was ranked twenty first among cashiers. Wal-Mart then reviewed e a c h day with McCray and explained why she was not selected for certain time slots. M c C ra y refused to make any changes to her availability. McCray also complained that she w a s omitted from the schedule for 6-12 August 2005, but was reminded that she had re q u e ste d vacation for that week. McCray persisted and was scheduled to work that week. T h e Allegedly Discriminatory Failure to Train Starting at orientation, Wal-Mart uses computer-based learning to provide c o m p r e h e n s iv e training for all associates, including cashiers. Like all Wal-Mart associates,

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M c C ra y was required to complete general training regarding company policies and p ro c e d u re s, and specific training regarding her duties as a cashier. From 1996 until 2006, M c C ra y took at least sixty training classes. From 2000 to 2005, Wal-Mart management e x p la in e d the computer scheduling system to McCray on at least ten occasions. T h e Alleged Discriminatory Discipline Wal-Mart has in place a Coaching for Improvement Policy which is used when an a ss o c ia te 's behavior fails to meet the Company's expectations in any one of three established c a te g o rie s: (1) Job Performance, (2) Misconduct, and (3) Gross Misconduct. The policy p ro v id e s that associates who fail to meet expectations regarding job performance or who e n g a g e in misconduct are subject to a four-part progressive discipline policy: (1) verbal w a rn in g , (2) written warning, (3) decision making day, and (4) termination. Associates who e n g a g e in gross misconduct are subject to immediate termination. Each written Coaching is valid for one year, but if it is advanced to the next level it remains valid for an additional ye a r from the date it is advanced. On 14 October 1997, i.e., nine years before she filed her la w s u it, McCray received a written Coaching for holding towels that were on sale at her re g iste r so that she could purchase them later. It is against company policy for an associate to hold merchandise that is on sale. McCray claims that two white cashiers committed the e q u iv a len t offense and were not disciplined. McCray did not lose pay or suffer any tangible d e trim e n t because of the Coaching. In May 2004, McCray received a written Coaching for refusing to work on a check

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o u t counter that she felt was too cold. McCray claims that she had arranged in advance to s w a p registers with another cashier. The Customer Service Manager (CSM) on duty asked M c C r a y to go a certain register, McCray refused and, according to McCray, told the CSM it was because the register was too cold. Although she did not raise any issue regarding race a t the time, McCray testified in deposition that the Coaching was unfairly based on race b e c a u se , as she stated: "some people are more cold natured than others." (Doc. #42-10 at 7 0 ). McCray also claims that in 2005 she received a pink slip for putting an X on a traveler's c h e ck . McCray alleges she was trained to put a large "X" on traveler's checks when she was f irs t employed at Wal-Mart in 1996. Wal-Mart claims to have no record of the event and d e n ie s that it happened. On another occasion, McCray alleges she received a pink slip for not maintaining an o rg a n iz e d drawer at her cashier stand even though her drawer was in order. McCray was n e v e r informed who complained about her drawer and the pink slip she received was not s ig n e d . Wal-Mart has no record of this event. The Alleged Discriminatory Pay and Raises M c C ra y started work at Wal-Mart in April 1996 at an hourly rate of $5.00. Prior to J u n e 2004, Wal-Mart's written guidelines established starting pay rates for each job in the sto re . The guidelines allowed a variance of up to $2.00 per hour above the position start rate b a se d on additional skills, experience, or education that would enhance the newly hired a ss o c ia te 's ability to perform the job. In June 2004, Wal-Mart established a formulaic pay

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a d ju s tm e n t system based solely on years of work experience. Under the new system a new h ire worksheet is used to calculate total starting pay. P r io r to June 2004, an associate who "meets expectations" in annual evaluations re c eiv e d a 4% raise while an associate who "exceeds expectations" received a 5% raise. S ta rtin g in June 2004, an associate who "meets expectations" in annual evaluations received a $.40/hour raise while an associate who "exceeds expectations" received a $.55/hour raise. A s s o c ia te s who exhibit exceptional performance in the execution of their job responsibilities c a n earn additional merit increases. M c C ra y received an unscheduled raise of $.20 per hour in September 1997 when the f e d era l minimum wage increased. McCray received periodic pay raises throughout her e m p lo ym e n t so that her pay rate was $8.93 per hour at the time of her termination. Through 2 0 0 4 , McCray received an average 4% raise each year her annual evaluation determined she " m e e ts expectations" and roughly a 5% raise each year her annual evaluation determined she " e x ce e d s expectations." In 2005 and 2006, McCray received a $.40/hour raise each year b e c au s e her rating was "meets expectations." Plaintiff alleges that Wal-Mart compensated another cashier, Walden, at a higher rate d u e to race. Cashier Walden started almost four years later than McCray, on 1 March 2000, a t a pay rate of $5.75, having previously worked as a cashier at Rite-Aid and K-Mart. The fe d era l minimum wage had increased since McCray started working, and Wal-Mart's g u id e lin e s allowed for up to $2.00 per hour additional pay for appropriate experience.

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W a ld e n earned the highest possible performance evaluations - "exceeds expectations"- from 2 0 0 1 through 2006. Consistent with Wal-Mart's written guidelines for pay raises for

a ss o c ia te s whose evaluation "exceeds expectations," Walden received a 5% raise each year f ro m 2001 to 2004, and a $.55/hour raise for 2005 and 2006. Also, Walden received an A s s o c ia te Commendation in November 2003 which gave her an additional 5% raise. Walden w a s promoted to In-stock Associate in August 2006. Consequently, after that date she was in a different pay classification than McCray. Hostile Work Environment In February 2003, McCray's grandmother passed away and McCray filled out p a p e rw o rk for three days of bereavement pay. When McCray returned to work the following w e e k she checked the time clock and it indicated she was credited for the correct amount of le a v e . However, when the next pay period arrived McCray was only paid for sixteen hours, e ig h t hours fewer than she expected. McCray called the Wal-Mart Associate Hotline, and h er complaint was forwarded to Judy Langford, who investigated, discovered a clerical error, a n d corrected it. In 2004, McCray was told that she could no longer wear a beret to work because WalM a rt's rules prohibited hats unless required by the work area. Although McCray's hat was p ro h ib ite d , she was allowed to wear a scarf and was satisfied with that compromise. Alleged Discriminatory and Retaliatory Termination In February 2006, McCray took her car to Wal-Mart's Tire and Lube Center and

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o rd e re d an oil change. The Tire and Lube Center changed the oil in the car. McCray went to the Tire and Lube Center and picked up her car keys from Ashley Maccioni, who worked in the Tire and Lube Center. Wal-Mart states that McCray did not pay for the oil change, and th a t McCray told Maccioni that no work had been done on her vehicle. Later, Maccioni c a lle d McCray at home to inform her she had forgotten to pay for the oil change. Maccioni in f o rm e d Tire Lube Express Manager Adam Harrison that McCray had not paid for an oil c h a n g e. Harrison reviewed the videotape from the Tire Lube Express for the day in question, a n d determined that McCray had in fact received an oil change. Harrison also checked the c o m p u te r billing system and found that McCray had not paid for the service. Harrison asked M a c c io n i to write a statement. Then, following standard company policy for potential theft, H a rris o n referred the matter and the evidence to Wal-Mart's Asset Protection department for in v e s tig a tio n . In June, 2006, Market Asset Protection Manager Joe Faulk began an investigation of th e incident. Faulk stated the delay in time between the incident and his investigation was d u e to other investigative responsibilities. Faulk pulled a history of the oil changes purchased b y McCray. This history reflected that all of McCray's oil changes had been paid for with th e exception of the February 2006 oil change. Faulk also viewed a videotape of the oil c h a n g e, spoke to Harrison, and read Maccioni's statement about the matter. Harrison d e s c rib e d witnessing McCray ask for an oil change. Faulk stated that during the

in v e stig a tio n he did not know McCray, he did not know her race, and he did not know about

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h er history of complaints to Wal-Mart. Faulk arranged a meeting with McCray in Store M a n a g er White's office, witnessed by Assistant Manager Mary McKenzie. When shown the in v e stig a tio n materails, McCray said she did not remember whether she had paid for the oil c h a n g e. The Asset Protection's investigation concluded that McCray had stolen company p r o p e r t y. Based on the documentation reflecting McCray's failure to pay for the oil change, Mr. F a u lk , Store Manager Pete White, and Assistant Store Manager Mary McKenzie determined that McCray had engaged in gross misconduct. Wal-Mart then terminated McCray's e m p l o ym e n t . IV . D IS C U S S IO N T h e Court will first address the Motion for Judgment on the Pleadings, then the M o tio n for Summary Judgment. A . Judgment on the Pleadings. 1. M c C ra y 's 42 U.S.C. § 1983 Claims

Wal-Mart moves for judgment on the pleadings as to McCray's claims made pursuant to 42 U.S.C. § 1983, because Wal-Mart is not a state actor. In order "[t]o establish a claim under 42 U.S.C. § 1983, [McCray] must prove (1) a v io la tio n of a constitutional right, and (2) that the alleged violation was committed by a p e rs o n acting under color of state law." Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2 0 0 5 ) (emphasis added) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Defendants acting

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u n d e r color of state law are "clothed with the authority of state law," West, 487 U.S. at 49 (c itatio n s omitted), and their "deprivation of a federal right [must] be fairly attributable to th e State." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). M c C ra y's Complaint, as Amended (Doc. #17), alleged neither state action, nor any c o n stitu tio n a l violations by a person acting under color of state law. The Complaint, as A m e n d e d (Doc. #17), alleged that Wal-Mart, a private corporation, engaged in d is c rim in a tio n , but did not allege that Wal-Mart was a state actor.2 "[T]he

u n d e r-c o lo r-o f -sta te- law element of § 1983 excludes from its reach merely private conduct, n o matter how discriminatory or wrongful." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 4 0 , 49-50 (1999) (citations omitted). Therefore, this Court does not have subject matter ju risd ictio n over McCray's 42 U.S.C. § 1983 claims against Wal-Mart, Nail v. Community A c tio n Agency of Calhoun County, 805 F.2d 1500, 1501 (11th Cir. 1986), and judgment on th e pleadings is appropriate. 2. M c C ra y 's Title VII claims

W a l-m a rt also moves for summary dismissal on the basis that "McCray failed to c o m p ly with the statutory prerequisites for a lawsuit under Title VII on her claims regarding

"Only in rare circumstances can a private party be viewed as a `[S]tate actor' for section 1983 purposes." Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992). To find Defendant Wal-Mart a state actor, this Court must find either: "(1) the State has coerced or at least significantly encouraged the action alleged to violate the Constitution (`State compulsion test'); (2) the private parties performed a public function that was traditionally the exclusive prerogative of the State (`public function test'); or (3) `the State had so far insinuated itself into a position of interdependence with the [private parties] that it was a joint participant in the enterprise[]' (`nexus/joint action test')." Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001) (quoting NBC, Inc. v. Commc'n Workers of Am., 860 F.2d 1022, 1026-27 (11th Cir. 1988)). None of those factors exist in this case.

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p a y, scheduling, discipline, training, promotion, retaliation (for incidents other than her a lle g e d ly retaliatory discharge) and hostile work environment racial harassment because th e s e claims were not included in her EEOC charge." (Doc. #41 at 5). "[A] private plaintiff must file an EEOC complaint against the discriminating party a n d receive statutory notice from the EEOC of his or her right to sue the respondent named in the charge." Forehand v. Fl. State Hosp. at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1 9 9 6 ) . "The purpose of this exhaustion requirement `is that the [EEOC] should have the first o p p o rtu n ity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts.'" Gregory v. Georgia D e p t . of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (quoting Evans v. U.S. Pipe & F o u n d r y Co., 696 F.2d 925, 929 (11th Cir. 1983)). Thus, "[n]o action alleging a violation o f Title VII may be brought unless the alleged discrimination has been made the subject of a timely-filed EEOC charge." Alexander v. Fulton County, Ga., 207 F.3d 1303, 1332 (11th C ir. 2000). However, McCray's newly raised claims can be heard, if they are "like or related to , or grew out of, the allegations contained in her EEOC charge." Gregory, 355 F. 3d at 1 2 7 9 -8 0 . Wal-Mart argues McCray's claims "regarding pay, scheduling, discipline, training, p ro m o tio n , retaliation (for incidents other than her allegedly retaliatory discharge) and hostile w o rk environment racial harassment . . . were not included in her EEOC charge." (Doc. #41 a t 5). McCray's EEOC complaint alleges discrimination on the basis of race, color, sex, and

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re ta lia tio n . In the EEOC complaint, McCray makes a general allegation of discrimination a n d states that she was wrongfully terminated because of unfair treatment. (Doc. #42-7) 3 . S p e c if ica lly, McCray alleges that she was wrongfully terminated after being accused of theft. H o w e v e r, the only factual allegation in McCray's EEOC complaint relates to her claim of re ta lia tio n . In her Response (Doc. #51) McCray re-alleges discrimination in a general manner, b u t then specifically points the Court to her termination based on the allegation of theft. M c C ra y's general allegations of discrimination in the EEOC complaint would not likely lead to an investigation regarding pay, scheduling, discipline, training, promotion, retaliation (for in c id e n ts other than her allegedly retaliatory discharge) and hostile work environment racial h a ra ss m e n t. In the EEOC complaint, McCray merely checked the boxes for race, color and g e n d e r, but provided no relevant facts in support of these claims, much less the new claims in her complaint. McCray included a facts sheet with her complaint that only goes to the facts s u rro u n d in g the accusation of theft and her discharge. There is nothing in her EEOC c om plaint related to pay, scheduling, discipline, training, promotion, retaliation (for incidents o th e r than her allegedly retaliatory discharge) and hostile work environment racial

Although, generally, under Federal Rule of Civil Procedure 12(c), if matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment, the Court can consider the EEOC complaint in this case without converting the Motion for Judgment on the Pleadings, because the EEOC complaint is attached to Wal-Mart's pleading and is "(1) central to the plaintiff's claim; and (2) undisputed." Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).

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h a r a s sm e n t . "EEOC regulations provide that charges should contain, among other things, `[ a ] clear and concise statement of the facts, including pertinent dates, constituting the a lle g e d unlawful employment practices.'" Alexander, 207 F.3d at 1332 (quoting 29 C.F.R. § 1601.12(a)(3)). Likewise, in her response to the Motion for Judgment on the Pleadings, M c C ra y reiterates only the facts relevant to her discharge rather than any of the newly raised c la im s . In this case, based on the claims and facts contained in the EEOC complaint, it is not r e a so n a b l e to expect that the scope of the EEOC investigation would have included these n e w claims. Although this Court is "extremely reluctant to allow procedural technicalities to bar claims brought under [Title VII]," Sanchez v. Standard Brands, Inc., 431 F.2d 455, 4 6 0 -6 1 (5th Cir. 1970), McCray's claims regarding pay, scheduling, discipline, training, p ro m o tio n , retaliation (for incidents other than her allegedly retaliatory discharge) and hostile w o rk environment racial harassment, "are inappropriate." Gregory, 355 F. 3d at 1281; see, e .g . Andrews-Willmann v. Paulson, 287 Fed. App'x 741, 745-46 (11th Cir. 2008) (finding f a ilu re to exhaust administrative remedies where plaintiff's only reference to failure to p ro m o te was one sentence "devoid of any information regarding specific positions or p ro m o tio n a l opportunities."). Therefore, as to these claims judgment on the pleadings is a p p r o p r i a te .4

Because the Court finds that judgment on the pleadings is appropriate on McCray's Title VII claims regarding pay, scheduling, discipline, training, promotion, retaliation (for incidents other than her alleged retaliatory discharge) and hostile work environment racial harassment are inappropriate, the Court declines to address Wal-mart's arguments that Plaintiff's Title VII claims are time-barred.

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3.

M c C ra y 's Title § 1981 claims

N e x t, Wal-Mart moves for judgment on the pleadings with regard to McCray's claims p u rs u a n t to 42 U.S.C. § 1981 that occurred outside the statute of limitations. Specifically, W a l-M a rt argues that McCray's § 1981 claims regarding pay, scheduling, discipline, training, a n d retaliation (for incidents other than her alleged retaliatory termination) based on events o c c u rrin g before 20 December 2002, are barred by the four-year statute of limitations and her c la im regarding promotion is barred by the two-year statute of limitations. P r io r to the enactment of 28 U.S.C. § 1658(a), federal courts applied the analogous s ta te statute of limitations to § 1981 claims. See Goodman v. Lukens Steel Co., 482 U.S. 656, 6 6 0 -6 1 , (1987) (superseded by statute as stated in Jones v. R.R. Donnelley & Sons Co., 541 U .S . 369 (2004)). Under the Civil Rights Act of 1991, Congress amended § 1981 to include n e w causes of action. See 42 U.S.C. § 1981. In Jones, the Supreme Court held that C o n g re ss 's enactment of § 1658 created a four-year statute of limitations for all newly c re a te d causes of action. Jones, 41 U.S. at 382. Therefore, McCray's § 1981 claims regarding pay, scheduling, discipline, training, a n d retaliation (for incidents other than her alleged retaliatory termination) based on events o c c u rrin g before 20 December 2002, are barred by the four-year statute of limitations "catcha ll" under § 1658. "Under Patterson v. McLean Credit Union, 491 U.S. 164, [185] (1989), superseded b y statute as stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 [] (2004), which

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a p p lie d to § 1981 before the amendments contained in the Civil Rights Act of 1991, a f a ilu re -to -p ro m o te claim was actionable under § 1981 if the promotion rose `to the level of an opportunity for a new and distinct relation between the employee and the employer.'" P r ic e v. M & H Valve Co., 177 Fed. App'x 1, 7 (11th Cir. 2006) (citing Patterson, 491 U.S. a t 185). McCray claims that she was denied a promotion to department manger. This type o f promotion rises "to the level of an opportunity for a new and distinct relation between the e m p lo ye e and the employer." See Hithon v. Tyson Foods, Inc., 144 Fed. App'x 795, 799 (1 1 th Cir. 2005) (finding a promotion to human resources manager rises "to the level of an o p p o rtu n ity for a new and distinct relation between the employee and the employer."). " T h e re f o re , [McCray's] failure[-]to[-]promote claims were cognizable before Congress's 1 9 9 1 expansion of § 1981 and thus remain subject to the Alabama two-year statute of lim ita tio n s as mandated by Goodman." Hithon, 144 Fed. App'x at 798. T h e re f o re , Wal-Mart is entitled to judgement on the pleadings with regard to M c C ra y's § 1981 claims regarding pay, scheduling, discipline, training, and retaliation (for in c id e n ts other than her alleged retaliatory termination) based on events occurring before 20 D e c e m b e r 2002, and McCray's § 1981 claim regarding failure-to-promote based on events o c c u rin g prior to 20 December 2004. B. S u m m a r y Judgment

W a l-M a rt has moved for summary judgment as to McCray's remaining Title VII and § 1981 claims. "Both of these statutes have the same requirements of proof and use the same

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a n a lytica l framework, therefore [the Court] shall explicitly address the Title VII claim with th e understanding that the analysis applies to the § 1981 claim as well." Standard v. A.B.E.L. S e rv ic e s, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). 1. D is c rim in a to r y Termination

M c C ra y alleges she was terminated on the basis of race and color in violation of Title V II and 42 U.S.C. § 1981. Title VII prohibits an employer from "discharg[ing] any in d iv id u a l . . . because of such individual's race, color, religion, sex, or national origin." 42 U .S .C . § 2000e-2(a). "A prima facie claim of discrimination can be established three ways: 1 ) direct evidence; 2) circumstantial evidence; or 3) statistical proof." Davis v. City of P a n a m a City, Fla., 510 F. Supp. 2d 671, 681 (N.D. Fla. 2007) (citing Earley v. Champion In t'l Corp., 907 F. 2d 1077, 1081 (11th Cir.1990)). A review of the evidence submitted in th is case shows that McCray believed she was receiving disparate treatment based on the n u m e ro u s and varied complaints she made to Wal-Mart. Those complaints were not related to racial discrimination. McCray fails to offer evidence for this Court to consider that she w a s terminated based on discrimination; she merely alleges it, and thus cannot establish a p rim a facie case of discriminatory termination. The only possible evidence of discrimination in the entire record consists of a h a n d w ritte n note by McCray, dated 20 October 1997, wherein McCray writes that she and a n o th e r black woman were "written up" for intending to buy towels improperly and that two w h ite people who had committed the same act were not, and a letter, dated 13 November

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2 0 0 1 , sent to "intake" regarding scheduling. (Docs #53 at 26 & 54 at 23). Both of these in c id e n ts took place outside of the statute of limitations and, in any event, are not sufficient to establish a prima facie case of discrimination. At best, this evidence would be considered circumstantial. W h e n a plaintiff offers circumstantial evidence to prove a Title VII claim, we u s e the analytical framework established by the Supreme Court in McDonnell D o u g la s Corp. v. Green, 411 U.S. 792 [] (1973). Under this framework, the p la in tif f must establish a prima facie case of discrimination. The establishment o f a prima facie case creates a presumption of discrimination. The employer m u s t then offer legitimate, nondiscriminatory reasons for the employment a c tio n to rebut the presumption. If the employer successfully rebuts the p re su m p tio n , the burden shifts back to the plaintiff to discredit the proffered n o n d is c rim in a to ry reasons by showing that they are pretextual. Id., at 802-04, 9 3 S.Ct. at 1824-25. S ta n d a r d v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1332 (11th Cir. 1998). "U n d er McDonnell Douglas, a plaintiff establishes a prima facie case of race d is c rim in a tio n under Title VII by showing: (1) [she] belongs to a racial minority; (2) [she] w a s subjected to adverse job action; (3) [her] employer treated similarly situated employees o u ts id e his classification more favorably; and (4) [she] was qualified to do the job." Holifield v . Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). The Court does not find that the handwritten n o te or the letter establish a prima facie case of discriminatory termination. McCray was not te rm in a te d based on the allegation of improperly buying a towel. Nor does this handwritten n o te, which appears to recount a conversation between McCray and another Wal-Mart e m p lo ye e in 1997, establish that Wal-mart terminated McCray in 2006 for complaining about ra c ia l discrimination. Further, the letter establishes that the employee McCray claims was 21

re c ie v in g better treatment had been employed by Wal-Mart for seventeen years, which means th a t the employee and McCray were not similarly situated. See Holifield v. Reno 115 F.3d 1 5 5 5 , 1563 (11th Cir. 1997); see also discussion regarding disparity in pay, infra. E v e n if this Court were to assume that McCray did establish a prima facie case, WalM a rt has provided the Court with legitimate, non-discriminatory reasons for terminating M c C ra y's employment. Specifically, Wal-Mart states that they terminated McCray for theft. M c C ra y admits in her pleadings that Wal-Mart proffered a non-discriminatory reason for her te rm in a tio n . Thus, the burden shifted to McCray to prove WalMart's reasons to be a pretext f o r unlawful discrimination. McCray has failed to prove pretext. Instead, in her Reply, she m e re ly reasserts her original allegations. Therefore, even were this Court to assume McCray h ad shown a prima facie case of discrimination, she has failed to rebut the non-discriminatory re a s o n s given for her termination, and summary judgment is appropriate. See Pace v. S o u t h e r n Ry. Sys., 701 F.2d 1383, 1389 (11th Cir.1983). 2. R e ta lia to r y Discharge

" T o establish a claim of retaliation under Title VII or section 1981, a plaintiff must p r o v e that [she] engaged in statutorily protected activity, [she] suffered a materially adverse a c tio n , and there was some causal relation between the two events." Goldsmith v. Bagby E le v a to r Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008). McCray states that she was falsely a c cu s e d of theft (failing to pay for an oil change) in retaliation for numerous complaints of ra c e discrimination. Thus, in order to establish a case of retaliation, McCray would need to

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s h o w a causal link between her complaints of racial discrimination and her termination. Wal-Mart admits that McCray complained on a frequent basis during her employment, b u t that none of her complaints were based on race discrimination. As stated above, after re v ie w in g the volumes of records documenting McCray's employment history, her c o m m u n ic a tio n s with Wal-Mart, and deposition testimony, McCray is unable to provide a ca u sal link between complaints of discrimination and her termination because McCray's c o m p la in ts were not based on racial discrimination. Thus, McCray is unable to establish a p rim a facie case of discrimination. E v e n if the Court were to consider the handwritten note from 1997 or the letter from 2 0 0 1 , discussed supra, as evidence, the temporal proximity of the note and letter, and M c C ra y's 2006 termination is far too distant to establish a causal link. Higdon v. Jackson, 3 9 3 F.3d 1211, 1220 (11th Cir.2004) ("Where there is no other evidence of causation, a c o m p l a in t of retaliation fails as a matter of law if there is a substantial delay between the p ro tec ted activity and the adverse employment action."); c.f. Summers v. Winter, 2008 WL 5 2 2 7 1 9 2 , *4 (11th Cir. 2008) (temporal proximity of several months too far); Curtis v. B ro w a rd County, 292 Fed. App'x. 882, 884 (11th Cir. 2008) (finding temporal gap of nine m o n th s insufficient to establish a causal connection); Scalone v. Home Depot U.S.A., Inc., 2 8 0 Fed. App'x. 905, 909 (11th Cir. 2008) (finding temporal gap of five months insufficient to establish a causal connection). F u r th e r, even if the Court were to find that McCray had established a prima facie case,

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w h ich she did not, and a presumption of discrimination applied, the burden would shift to W a l-M a rt to articulate "legitimate, nondiscriminatory reasons for the challenged employment a c tio n ." Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). As discussed a b o v e , Wal-Mart has articulated nondiscriminatory reasons for McCray's termination, and M c C ra y has not met her "ultimate burden of proving the reason to be a pretext for unlawful d is c rim in a tio n ," Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001). Therefore, s u m m a ry judgment is appropriate. 3. D is p a r ity in Pay

M c C ra y claims that she was paid less than a white cashier, and that this discrepancy in pay was due to discrimination. "To establish a prima facie case of disparate pay, Plaintiff m u s t show that [she] occupies a job similar to that of higher paid persons who are not m e m b e r s of [her] protected class." Nicholas v. Bd. of Tr. of Univ. of Alabama, 251 Fed. A p p 'x. 637, 642 (11th Cir. 2007) (citing Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1019 (1 1 th Cir. 1994)). McCray has shown that the other cashier was not a member of her p rotec ted class. However, she cannot show that the other cashier occupied a similar job. In o rd e r to show that they occupied a similar job, McCray must show that she and the white c a sh ie r were "similarly situated in all relevant respects," Holifield, 115 F.3d at 1563, in c lu d in g in terms of training, experience, and performance. See Smith v. Stratus Computer, In c ., 40 F.3d 11, 17 (1st Cir. 1994) (similarly situated in terms of performance, qualifications a n d conduct, "without such differentiating or mitigating circumstances that would

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d isting u ish " their situations). U n lik e McCray, the other cashier continually received the highest possible p e rf o rm a n c e ratings and an Associate Commendation, which led to higher raises. (Doc. # 1 0 1 ). McCray received a lower performance rating, which led to a slightly lower annual ra is e . (Dcos #38-48). In addition, the other cashier started working for Wal-Mart with prior e x p e rie n c e as a cashier. (Doc. #42-68 & 99). Thus, McCray cannot show that the white c a sh ie r was similarly situated in terms of performance and she therefore cannot establish a p rim a facie case. F u rth e r, McCray fails to challenge Wal-Mart's race-neutral reasons for the disparity i n pay. Wal-Mart set forth the reasons why the other cashier was better paid, including e x p e rie n c e and performance. Thus, McCray has failed to meet her burden to prove the re a so n to be merely pretext. Therefore, summary judgment is appropriate. 4. S c h e d u lin g , Training, and Discipline

Next, Wal-Mart moves for summary judgment on McCray's complaints of d is c rim in a tio n in regard to scheduling, training, and discipline. Wal-Mart summarizes M c C ra y's complaint as such: R e g a rd in g scheduling, Plaintiff complains: 1) other Associates received " b e tte r" Saturday hours than she did; 2) she was the only full-time employee s c h e d u le d to work on Thanksgiving Day in 2003; 3) her request to be off the S a tu rd a y before Mother's Day in 2004 was denied; 4) during the first week in J u ly of 2005 her hours were "cut up," meaning that her schedule started at d if f e re n t times each day, and that her hours were different each day and 5) her n a m e was omitted from the schedule for one week in August 2005. Regarding d is c ip lin e , she complains: 1) in March 2003, she was written up for a customer 25

c o m p l a in t; 2) in May 2004, she received a written Coaching for refusing her C u s to m e r Service Manager's direct order to work on a check out counter; 3) in 2005, she allegedly received a pink slip for putting an "X" on a traveler's c h e ck ; and 4) on another occasion, she allegedly received a pink slip for not m a in t a in in g an organized drawer at her cashier stand. Regarding training, P la in tif f testified only that if she had been properly trained, she would have k n o w n better than to put an "X" on the traveler's check. (Doc. #46 at 18-19). Wal-Mart asserts that McCray is unable to establish a prima facie case o f discrimination as to any of these claims. These claims are based on disparate treatment. In order to establish a prima facie case o f disparate treatment, McCray must show: "(1) she is a member of a group protected by T itle VII; (2) she was qualified for the position or benefit sought; (3) she suffered an adverse e f f e c t on her employment; and (4) she suffered from a differential application of work or d is c ip lin a ry rules." Spivey v. Beverly Enterprises, Inc., 196 F.3d 1309, 1312 (11th Cir.1999). "[T]o prove adverse employment action[ ], an employee must show a serious and m a te ria l change in the terms, conditions, or privileges of employment. Moreover, the e m p lo ye e 's subjective view of the significance and adversity of the employer's action is not c o n tro llin g ; the employment action must be materially adverse as viewed by a reasonable p e rs o n in the circumstances." Davis v. Town of Lake Park, 245 F.3d 1232, 1245 (11th Cir. 2 0 0 1 ). McCray has failed to establish, or even allege, that changes in her schedule, the d is c ip lin e she received in the form of memorandum, or her training were serious, material c h a n g e s in the terms, conditions, or privileges of her employment. See id. (finding that poor jo b performance memos and changes in work-assignment were not adverse employment

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a c tio n s ). The facts do not establish that McCray suffered any adverse employment action. H o w e v e r , even were the Court to presume a prima facie case as to each of these c laim s, Wal-Mart has, again, articulated nondiscriminatory reasons for its actions. With re g a rd to scheduling, Wal-Mart provided the Court with evidence that scheduling was done b y a computer, involving a formulation of the employee's availability, shift times, and e m p lo ye e rankings not based on race. In regard to discipline, Wal-Mart has provided the Court with the documentation s u rr o u n d in g McCray's discipline as well as testimony in support, see e.g. (Docs. #42-1, 42-9 & 42-17), which articulate nondiscriminatory reasons for the discipline. Further, McCray's o w n deposition testimony provides similar, non-discriminatory explanations for the d is c ip lin e . In her depositions, McCray states that, in 2002, she was written up for refusing to go to an assigned cash register. (Doc. #42-10 at 70). McCray said that she did not want to work at the cash register because it was too cold, and that, if Wal-Mart was going to e m b ra c e every race of people, they would have to consider that "some people are more cold n a tu re d than others." Id. at 71. Thus, McCray admits that her disciplinary write-up was b e c au s e she refused to work at an assigned cash register. She also admits that the supervisor w h o wrote her up was also black, that no other cashier refused to go to an assigned register, a n d that neither the write-up, nor her written response to it mentioned anything about race b e in g a factor in the disciplinary action. Id. at 72-73. W ith regard to training, McCray states that her lack of training led to her receipt of

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a "pink slip" for having an unorganized drawer. Wal-Mart states that it is not aware of the in c id e n t and that there is no record or evidence of the incident occurring. McCray has not p ro v id e d any evidence of the "pink slip." In essence, McCray has made the allegation, p ro v id e d a nondiscriminatory reason for the incident, then failed to prove the reason pretext. T h e Court finds that McCray is not able to prove a prima facie claim of disparate tre a tm e n t and that, even if the Court were to assume that she did, Wal-Mart has articulated n o n d isc rim in a to ry reasons for the employment actions and McCray has not met her "ultimate b u rd e n of proving the reasons to be a pretext for unlawful discrimination." Denney v. City o f Albany, 247 F.3d 1172, 1183 (11th Cir. 2001). a p p r o p r i a te .5 5. H o stile Work Environment Therefore, summary judgment is

F inally, Wal-Mart moves for summary judgment on McCray's claim of hostile work e n v iro n m e n t based on racial harassment.6 As the Court of Appeals for the Eleventh Circuit h a s stated: T h is court has repeatedly instructed that a plaintiff wishing to establish a

In this Circuit, "[t]he `ultimate question' in a disparate treatment case is not whether the plaintiff established a prima facie case or demonstrated pretext, but `whether the defendant intentionally discriminated against the plaintiff.'" Nix v. WLCY Radio/Rahall Commc's, 738 F.2d 1181, 1184 (11th Cir.1984) (quoting Aikens, 460 U.S. at 714-15). Thus, even after undertaking the prima facie analysis above, the Court has reviewed the entire record in consideration of the motion for summary judgment and finds that there was no intentional discrimination against McCray. Wal-Mart already moved for Judgment on the Pleadings for McCray's claim of hostile work environment racial harassment, as the claim had not been exhausted in her EEOC complaint. Wal-Mart also moves for Summary Judgment on the claim to the extent that McCray has fashioned a claim of harassment by combining the existing exhausted claims.
6

5

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h o s tile work environment claim show: (1) that he belongs to a protected group; (2 ) that he has been subject to unwelcome harassment; (3) that the harassment m u s t have been based on a protected characteristic of the employee, such as n a tio n a l origin; (4) that the harassment was sufficiently severe or pervasive to a lter the terms and conditions of employment and create a discriminatorily a b u siv e working environment; and (5) that the employer is responsible for s u c h environment under either a theory of vicarious or of direct liability. Miller v. Kenworth of Dothan, Inc., 277 F. 3d 1269, 1275 (11th Cir. 2002). In this claim, M c C ra y relies on all of her previously discussed allegations of discrimination as well as two in c id e n ts involving underpayment of paychecks, and a dress code incident. The Court has a lr e a d y determined that McCray was not discriminated against in her pervious allegations. A s to the paycheck incidents, McCray never claimed that those incidents were related to her race. In addition, those paycheck issues were resolved in McCray's favor in a timely m a n n e r and she can not show that it altered the terms and conditions of employment and c re a t e d a discriminatorily abusive working environment. See (Doc. #42-10 at 57-59). S im ila rly, with regard to the dress code incident, McCray can not show a hostile working e n v iro n m e n t. In 2004, McCray wore a beret while on the job. (Doc. #42-10 at 76). Her s u p e rv is o r informed her that it was against store policy to wear hats, so McCray asked if she c o u ld wear a scarf, to which Wal-Mart agreed. Id. at 77. The issue was resolved to McCray's s a tis f a c tio n . Id. These are hardly the type of discriminatory actions that would render a " w o rk p lac e [] permeated with discriminatory intimidation, ridicule, and insult that is s u f f ic ie n tly severe or pervasive to alter the conditions of the employment and create an a b u siv e working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal

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q u o tation s and citations omitted). T h e Court finds McCray is unable to make a prima facie case of hostile work e n v iro n m e n t based on racial harassment. Therefore summary judgment is appropriate. IV . CONCLUSION F o r the reasons specified above, the Magistrate Judge RECOMMENDS that the M o tio n for Judgment on the Pleadings (Doc. #40), and the Motion for Summary Judgment (D o c . #42), be GRANTED, the Motion for Denial of Summary Judgment (Doc. #52) be D E N IE D , and this case be DISMISSED. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a tio n by 9 March 2009. Any objections filed must specifically identify the f in d in g s in the Magistrate Judge's Recommendation objected to. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and recommendations in the M a g is tra te Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain e rr o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th C ir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11th C ir. 1981) (en banc), adopting as binding precedent all of the

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d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D O N E this 23rd day of February, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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