Shivers v. Credit Central LLC

Filing 33

MEMORANDUM OPINION AND ORDER directing that Defendant's motion for summary judgment (Doc. # 24 ) is DENIED, as further set out. Signed by Chief Judge William Keith Watkins on 10/14/14. (Attachments: # 1 Civil Appeals Checklist)(scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CANDACE SHIVERS,
Plaintiff,
v.
CREDIT CENTRAL SOUTH,
LLC,
Defendant.

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CASE NO. 2:13-CV-469-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court is Defendant Credit Central South, LLC’s motion for
summary judgment. (Doc. # 24.) At the court’s directive (see Doc. # 27), Plaintiff
Candace Shivers filed a response in opposition. (Doc. # 28.) No reply brief has
been submitted. Upon consideration of the parties’ arguments, the evidence, and
the relevant law, the court concludes that Credit Central’s motion is due to be
denied.
I. JURISDICTION AND VENUE
The court exercises subject matter jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1343 and 42 U.S.C. § 2000e-5(f)(3). Personal jurisdiction and venue
are uncontested.

II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there
is no genuine dispute as to any material fact and [he] is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and the
inferences from that evidence in the light most favorable to the nonmovant. JeanBaptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

This responsibility includes

identifying the portions of the record illustrating the absence of a genuine dispute
of material fact. Id.; Fed. R. Civ. P. 56(c)(1)(A). Or, the movant can assert,
without citing the record, that the nonmoving party “cannot produce admissible
evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B). If the movant
meets its burden, the burden shifts to the nonmoving party to establish – with
evidence beyond the pleadings – that a genuine dispute material to each of its
claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of material
fact exists when the nonmoving party produces evidence allowing a reasonable fact
finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276
F.3d 1275, 1279 (11th Cir. 2001).

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III. BACKGROUND
A.

Facts
Credit Central is a consumer loan company with branches in several

locations in the Southeastern United States. Ms. Shivers was employed by Credit
Central at its location in Andalusia, Alabama, from July 9, 2012, until February 26,
2013, but as explained infra, her last day of work was November 12, 2012. Credit
Central typically employs three people per office. When an office has opened one
thousand accounts, it may hire a part-time employee. The Andalusia branch where
Ms. Shivers worked reached that benchmark in June 2012, and hence, its manager,
Brennon Peavy, hired Ms. Shivers in July as a part-time customer service
representative (“CSR”) and assistant manager working approximately twenty-five
hours per week.1 Ms. Shivers had previous experience working in the consumer
loan industry and was hired to work at $10.25 per hour.2
At the time that Ms. Shivers was hired, the branch was at its appropriate
number of employees – three-and-a-half – which included a manager, Mr. Peavy, a
full-time assistant manager, Bridgett Mitchell, a full-time CSR, Terri Crenshaw,
and Ms. Shivers. Mr. Peavy allegedly anticipated growth in the business and
1

Credit Central represents that Ms. Shivers was hired as a part-time assistant manager
(“AM”). Her employment records indicate that she was to serve in both capacities part-time.
(See Doc. # 24-1, at a (indicating both “CSR” and “AM,” with “CSR” scribbled over.).) The
court accepts Ms. Shivers’s allegation that she was hired to work part-time in either role.
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The Amended Complaint states that Ms. Shivers earned $10.50 per hour, but her pay
records reflect that she was paid $10.25 per hour.
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represented to Ms. Shivers that “her hours and duties would increase eventually
and that after the tax season she would achieve full-time status in the assistant
manager position.” (Am. Compl., at 2.) At all relevant times, Ms. Shivers was the
only black employee in Andalusia’s office; all of her coworkers and managers
were white. There is no contention that Ms. Shivers’s job performance was less
than exemplary.
In August, Ms. Crenshaw needed to take a prolonged absence for a medical
condition. Mr. Peavy hired an additional part-time CSR, Trista Walker, who is
Ms. Crenshaw’s sister.

Ms. Walker lacked experience in the consumer loan

industry and therefore was paid less than Ms. Shivers ($9.00 per hour). During
Ms. Crenshaw’s two-month absence, Ms. Shivers saw an increase in her hours and
regularly worked forty hours per week. Ms. Walker also worked more hours than
a part-time employee normally would have worked during Ms. Crenshaw’s
medical leave, but she did not receive as many hours as Ms. Shivers. (Compare
Doc. # 24-7, at 2, with Doc. # 24-5, at 3.)
Then, in November 2012, things changed for Ms. Shivers. Ms. Crenshaw
returned to work full-time on November 12. Ms. Shivers understood that the
increased hours during September and October would end when Ms. Crenshaw
came back to work, (Shivers Dep., at 46–47), but Ms. Shivers anticipated returning
to part-time status. Instead, she says, she was not given any hours. Ms. Shivers
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alleges that, when she talked to Mr. Peavy about the situation, he told her that she
and Ms. Walker essentially would be splitting a part-time position and that he
could offer each of them around ten hours a week. Ms. Shivers said she would
work whatever hours the company would give her, but she was never scheduled to
work again.3 She even agreed to a reassignment to another company location in
South Alabama, but was not given another position. When she attempted to
contact Brandon Sanford, the regional manager, about her situation, he did not
return her calls.
Meanwhile, however, Ms. Walker continued to work hours – more than the
meager ten hours proposed by Mr. Peavy to Ms. Shivers.4 And on January 3, 2013,
Ms. Walker was promoted and given a pay raise to $9.45 an hour. She received
the latter during her part-time status – a benefit that Mr. McCormack says only
full-time employees are supposed to receive. (McCormack Dep., at 46.) Ms.
Shivers considers herself effectively terminated as of her last day in November that
3

Credit Central disagrees with Ms. Shivers’s allegation. Its corporate representative,
Vice President Tim McCormack, says that someone else beneath him in the company told him
that Ms. Shivers refused to work such measly hours, (McCormack Dep., at 45, 47), but as Ms.
Shivers asserts, his testimony is hearsay. Mr. Peavy, who would know best whether Ms. Shivers
was willing to work a reduced number of hours, was fired from his position in late February
2013, and his testimony is not in the record. Furthermore, Credit Central has not submitted any
time schedule, calendar, or other written communication showing that Mr. Peavy tried to
schedule Ms. Shivers for hours that she refused to work.
4

For the two-week periods ending November 30, 2012, December 14, 2012, December
28, 2012, and January 11, 2013, Ms. Walker worked 58.5, 70, 65.50, and 60.50 hours. Records
also show that she was compensated for eight hours of vacation and nineteen-and-a-half hours of
holiday leave during that time period. (Doc. # 24-7, at 2.)
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she worked for Credit Central, but she was not technically terminated by Credit
Central until February 26, 2013. Ms. Shivers posits that, if Credit Central’s office
was truly constrained by a lull in business, Mr. Peavy should have either tried to
distribute the limited number of hours fairly among all of the employees, or
alternatively, given Ms. Shivers the hours that it gave Ms. Walker because Ms.
Shivers had more experience and company seniority.
B.

Procedural History
Ms. Shivers filed a charge of discrimination with the Equal Employment

Opportunity Commission on February 20, 2013. She received a Notice-of-Rightto-Sue letter on or about April 26, 2013, and, proceeding pro se, she filed a
complaint with this court on July 3, 2013. After she retained counsel, counsel
amended the complaint with the court’s leave on January 3, 2014. Ms. Shivers
alleges that Credit Central refused to give her hours, effectively terminated her,
and refused to promote her on the basis of her race. Credit Central moved for
summary judgment on June 23, 2014. She brings her claims pursuant to Title VII
of the Civil Rights Act of 1964. On August 15, 2014, this court entered an order
directing Ms. Shivers to file a response, which had been neglected. On August 22,
2014, she complied.

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IV. DISCUSSION
A.

The Title VII Framework
Title VII of the Civil Rights Act of 1964, as amended, prohibits employers

from “discriminat[ing] against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race.”
42 U.S.C. § 2000e–2(a)(1). Where there is no direct evidence of unlawful racebased discrimination, which is usually the case, a Title VII plaintiff must use the
burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), to show indirect evidence of discrimination. See Brown v. Ala. Dep’t
of Transp., 597 F.3d 1160, 1174, 1181 (11th Cir. 2010). Under this paradigm, the
plaintiff must first make a prima facie case of discrimination. She does so by
demonstrating that: “(1) she is a member of a protected group; (2) she was
qualified for her position; (3) she suffered an adverse employment action; and (4)
employment or disciplinary policies were differently applied to her.” Chapter 7
Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012). “[S]ummary
judgment . . . is appropriate if [the plaintiff] fails to satisfy any one of the elements
of a prima facie case.” Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1433
(11th Cir. 1998).
But if the plaintiff makes her prima facie case of discrimination, “the burden
shifts to the defendant to articulate a legitimate nondiscriminatory reason for its
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actions.”

Gate Gourmet, 683 F.3d at 1255.

If the defendant proffers a

nondiscriminatory reason, the burden returns to the plaintiff, who must show that
the proffered reason is a ruse for the real, discriminatory reason. Id. “Provided
that the proffered reason is one that might motivate a reasonable employer, [the
plaintiff] must meet that reason head on and rebut it.” Chapman v. AI Transp., 229
F.3d 1012, 1030 (11th Cir. 2000). She does not rebut the reason “by simply
quarreling with the wisdom of that reason,” id., but by exposing “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in

the

defendant’s reasoning. Springer v. Convergys Customer Mgmt. Grp. Inc., 509
F.3d 1344, 1348 (11th Cir. 2007).
B.

Application of the Framework
1.

Prima Facie Case of Discrimination

Defendant contends that Ms. Shivers cannot make a prima facie case of
unlawful, race-based discrimination because (1) Ms. Shivers made more money
per hour than Ms. Walker ever did and (2) Ms. Walker was not promoted to parttime assistant manager “at the time of the alleged discriminatory treatment in
November of 2012.” (Doc. # 24, at 10.)5 In other words, Credit Central proposes
that Ms. Walker cannot serve as the better-treated comparator because she and Ms.
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Credit Central does not dispute that (1) Ms. Shivers is a member of a protected class,
(2) that she was qualified for continued employment in her part-time capacity as a CSR or
assistant manager or in those same roles on a full-time basis, or (3) that she suffered an adverse
employment action.
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Shivers were not “similarly situated.” (Doc. # 24, at 12 (quoting Lathem v. Dep’t
of Children & Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999)).)

The

requirement that a comparator be “similarly situated” – at least as the term is used
in Lathem and the line of cases it cites – is pertinent where a plaintiff claims that a
defendant applies its rules, particularly disciplinary rules, differently to her and not
to other employees. The requirement ensures that an employer is not judged
wrongly for meting out different punishment when the comparator’s case called for
no discipline or different discipline than what the plaintiff received. See Wilson v.
B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004) (“The comparator must
be nearly identical to the plaintiff to prevent courts from second-guessing a
reasonable decision by the employer.”).
A disciplinary situation is not before the court in this case. It is not clear,
therefore, why Credit Central invokes Lathem. What is clear is that Credit Central
is attempting to argue that Ms. Shivers received better treatment than Ms. Walker
during her tenure, and hence, there is no comparator and no prima facie case of
discrimination. Ms. Shivers maintains that Ms. Walker is an adequate comparator.
She asserts that Ms. Walker did not receive the same reduction in hours, even
though Ms. Walker had less experience in the loan business and had worked for
Credit Central for less time than Ms. Shivers.

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Upon consideration of the parties’ contentions, the court concludes that Ms.
Walker has demonstrated disparate treatment. There is no testimony or evidence in
the record to suggest that the differences between Ms. Shivers and Ms. Walker that
have been identified by Credit Central are relevant. Specifically, there is no
evidence that Ms. Walker’s slightly lower rate of hourly pay and her status as CSR
(as opposed to an assistant manager) made any difference to Mr. Peavy when he
decided to reduce or to stop assigning hours to Ms. Shivers.6 On this record, Ms.
Walker and Ms. Shivers were both part-time employees who could have been
scheduled to work roughly ten hours each. Instead, Ms. Walker was given all of
the part-time position’s hours (and more), even though she had less experience and
seniority than Ms. Shivers. Because there is evidence that a white employee was
treated more favorably, Ms. Shivers makes a prima facie case of discrimination,
and the burden shifts to Credit Central to offer a legitimate non-discriminatory
reason for denying Ms. Shivers her part-time hours and terminating her
employment.

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Ms. Shivers has alleged and testified that she performed the duties of both a CSR and
assistant manager. Credit Central has not argued that Ms. Shivers training as a part-time
assistant manager made her a less useful part-time employee. Credit Central’s argument that Ms.
Shivers and Ms. Walker could have split the available part-time hours evenly suggests that the
additional training or responsibilities that Ms. Shivers may have had made no difference in the
assignment of hours.
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2.

Proffered Non-Discriminatory Reason and Rebuttal

Credit Central asserts that, even if Ms. Shivers could prove her prima facie
case of discrimination, she cannot show that Credit Central’s proffered reason for
its reduction of her hours is a pretext for discrimination. Credit Central claims that
Ms. Shivers’s hours were reallocated to Ms. Crenshaw upon Ms. Crenshaw’s
return from medical leave.
There is no dispute that Credit Central had a legitimate reason for reducing
Ms. Shivers’s hours once Ms. Crenshaw returned to work. But a partial reduction
in hours is not in Ms. Shivers’s complaint. Ms. Shivers is vexed that her hours
were eliminated altogether and given to a white employee with less seniority and
experience who was promoted less than two months later into the position that Ms.
Shivers once held. Credit Central offers no reason for Ms. Shivers’s complete
reduction in hours except that Ms. Shivers told Mr. Peavy that she refused to work
if it meant that she must accept such a drastic reduction in hours. Assuming that
Credit Central can offer admissible evidence to show that Ms. Shivers refused to
work ten hours,7 her refusal is a genuinely disputed issue of fact because Ms.
Shivers testifies that she stood willing to accept any hours, or even an alternative
work assignment in another branch location.

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Her contention that her former

“[T]he defendant must clearly set forth, through the introduction of admissible
evidence, the reasons for the [adverse employment action against the plaintiff.]” Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981).
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employer’s proffered reason is false is sufficient for Ms. Shivers’s claim to survive
summary judgment. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1332
(11th Cir. 1998) (allowing a plaintiff to rebut the proffered non-discriminatory
reasons by either “showing that the . . . reasons should not be believed” or
alternatively, “by showing that, in light of all of the evidence, discriminatory
reasons more likely motivated the decision than the proffered reasons.”).
Acknowledging that Ms. Shivers’s alleged refusal of the hours is a disputed
issue, Credit Central still argues that the allegations of race discrimination are
conclusory and supported by only “[Ms. Shivers’s] own impressions of the
situation.” (Doc. # 24, at 15–16.) Indeed, there may be little else to suggest
discriminatory animus in this case, but Ms. Shivers has cleared the hurdles
imposed by the McDonnell Douglas burden-shifting framework, and the question
of whether Credit Central discriminated on the basis of race is now a question for a
jury. See Wilson, 376 F.3d at 1088 (“A plaintiff may prevail on an employment
discrimination claim by either proving that intentional discrimination motivated the
employer or producing sufficient evidence to allow a rational trier of fact to
disbelieve the legitimate reason proffered by the employer, which permits, but does
not compel, the trier of fact to find illegal discrimination.”) (citing Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147–48 (2000)). Hence, the
motion for summary judgment is due to be denied.
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V. CONCLUSION
Based on the foregoing analysis, it is ORDERED that Defendant’s motion
for summary judgment (Doc. # 24) is DENIED.
DONE this 14th day of October, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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