Edwards v. National Vision Inc et al

Filing 57

MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 05/17/13. (CVA)

FILED
2013 May-17 PM 03:11
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ARETHA M. EDWARDS,

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Plaintiff,
v.
NATIONAL VISION, INC.,
Defendant.

CIVIL ACTION NO.
2:11-cv-01449-WMA

MEMORANDUM OPINION
Before the court is a motion for summary judgment filed by
defendant National Vision, Inc. (“NVI”).

(Doc. 39).

The motion

seeks dismissal of the above-entitled action brought by plaintiff
Aretha M. Edwards (“Edwards”).

Edwards, a black female, sued NVI,

her former employer, for race discrimination and harassment in
violation of 42 U.S.C. § 1981 (“§ 1981") and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”),
retaliation in violation of Title VII and § 1981, and violation of
the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.
(“FMLA”).

She appended state law claims for negligent and wanton

hiring, training, supervision, and retention; invasion of privacy;
and constructive discharge.1
Necessary to and prefatory to the consideration of NVI’s

1

Edwards initially also pled a state law claim for
intentional infliction of emotional distress, but voluntarily
dismissed the said claim in response to NVI’s motion to compel an
independent medical examination. (See Doc. 36).

motion for summary judgment are rulings on NVI’s two motions to
strike

certain

evidentiary

defense of NVI’s motion.

materials

proffered

by

Edwards

in

Because Edwards is entitled to rely only

on admissible evidence and on all reasonable inferences therefrom,
the court must first determine what evidence put forward by Edwards
is admissible and what is not. NVI challenges the admissibility of
two pieces of would-be evidence that are crucial to Edwards’s case.
For the reasons discussed below, both of NVI’s motions to strike
will be granted.
A.

Motion to Strike the Declaration of Victoria Alberson2

NVI first moves to strike the declaration of Victoria Alberson
on the ground that Edwards never disclosed the declaration to NVI
prior to her filing it in opposition to NVI’s motion.
On February 10, 2012, NVI served Edwards its First Request for
Production of Documents.

One of these requests was:

Produce all documents including, but not limited to tape
recordings, transcripts, notes, statements of witnesses,
or other documentation of oral conversations or
communications Plaintiff has had with any current or
former employee of Defendant, or any other person or
entity, pertaining to the claims, allegations and
defenses in this Litigation.
(emphasis

added).

Edwards

did

Instead, she responded that she

not

object

to

this

request.

“ha[d] no responsive documents.”

At some point thereafter, but no later than September 10, 2012,
2

Before Victoria Alberson got married, she was Victoria
Lovelady. The parties call her by both names. She will be
referred to here as “Alberson.”
2

Edwards acquired Alberson’s declaration, which is dated September
10, 2012.
On

September

12,

2012,

two

days

after

the

Alberson

declaration was ostensibly signed, NVI took Edwards’s deposition.
During the said deposition NVI’s counsel pointedly asked Edwards
whether

she

had

obtained

any

witness

statements.

Edwards

unequivocally responded that she had neither sought nor obtained
any such statements.

Her counsel did not interrupt Edwards or

attempt to correct her clearly erroneous and misleading testimony.
On November 13, 2012, discovery closed.3

Thereafter, on

January 3, 2013, NVI filed its motion for summary judgment without
any knowledge of the existence of the Alberson declaration or of
its contents.
February 11,

In response, Edwards filed her opposition on
2013,

wherein

she

boldly

attached

the

Alberson

declaration without any attempt to justify its conspicuous absence
from the record between September 10, 2012 and February 11, 2013.
She waved a flag at the bull.
Rule
obligation

26(e),
to

Fed.

R.

supplement

Civ.
in

a

P.,

places

timely

upon

manner

litigants

an

incomplete

or

incorrect responses to requests for production. If a party fails
to discharge the said obligation, he, she, or it “is not allowed
to use that information or witness to supply evidence on a motion,

3

Discovery was reopened for the limited purpose of NVI’s
deposing Edwards’s physician, Dr. Kyle.
3

at a hearing, or at trial, unless the failure was substantially
justified or is harmless.”
added).

Fed. R. Civ. P. 37(c) (emphasis

As the non-disclosing party, it is Edwards’s burden to

establish that her failure to disclose Alberson’s declaration was
substantially justified or was harmless.
Edwards

admits

that

she

failed

It was neither.
to

produce

Alberson’s

declaration until she surprised NVI and the court with it on
February 13, 2012.

The court cannot permit Edwards to circumvent

Rules 26(e) and 37(c) when her failure was neither substantially
justified nor harmless.
Edwards argues that her failure to disclose the declaration
was

“harmless”

because

potential witness.

NVI

had

notice

that

Alberson

was

a

Edwards points out (1) that in her complaint

she identified Alberson as one of the individuals hired for the
position she wanted, (2) that in her Rule 26 disclosures she
identified Alberson, and (3) that NVI’s own initial disclosures
listed Alberson as a possible witness.

Edwards relies upon

Silverstein v. Proctor & Gamble Manufacturing Co., in which a
Florida district court held that a party’s failure to identify an
expert witness is “harmless” when the opposing party had adequate
notice that the witness might be called as an expert and, in fact,
had already deposed the witness.
Fla. 2009).

700 F. Supp. 2d 1312, 1320 (S.D.

In the instant case NVI never deposed Alberson, as it

might have done if it had timely been made aware of Alberson’s
4

declaration.

Instead,

discovery

was

routinely

closed

in

accordance with the Rule 26 schedule, and NVI prepared its Rule 56
motion in accordance with the said schedule without any knowledge
of the Alberson declaration.

Not only is Silverstein not binding

on this court, but it is clearly distinguishable from a case that
involves gross and inexcusable rule violations.
Edwards identified not just Alberson but seventeen other
individuals in her initial Rule 26 disclosures.

NVI had no

obligation to depose all eighteen of these persons, or, for that
matter, any of them, when Edwards had affirmatively represented in
her initial discovery responses, and in her subsequent deposition,
that she had obtained no witness statements.
commentator

in

Moore’s

Federal

Practice:

As expressed by the
“The

duty to

amend

[contained in Rule 26(e)] is not limited to circumstances in which
the failure to amend constitutes a knowing concealment.”

6

Moore’s Federal Practice, § 26.131[3] at 26-583 (Matthew Bender 3d
Ed.) (emphasis added).

In Edwards’s case, she was guilty of the

exacerbating circumstance, i.e., “knowing concealment,” referred
to in Moore’s Federal Practice as unnecessary to an application of
Rule

37(c).

“Knowing

concealment”

adds

fuel

to

the

flame.

Edwards’s failure to disclose Alberson’s declaration two days
after she had obtained it cannot be shoved under the rug as a mere
inadvertence.

It

was

as

blatant

concealment” as this court can imagine.
5

an

example

of

“knowing

The fact that Edwards failed to supplement her discovery
responses

and,

under

oath,

denied

obtaining

the

Alberson

declaration, if not calculated to mislead NVI, certainly succeeded
in doing so.

Edwards cannot escape the embrace of Rule 26(e) by

belatedly asking that her clear violation be forgiven because of
her sudden willingness to allow the reopening of discovery for NVI
to take Alberson’s deposition, a time consuming procedure that
would require the filing of a new Rule 56 motion and revised
brief.

The striking of the Alberson declaration is the only

sanction

this

circumstances.
place

to

be

court

finds

to

be

appropriate

under

the

The procedural and discovery rules were not put in
ignored.

They

are

just

as

important

to

the

administration of justice as is the substantive law.
B.

Motion to Strike Edwards’s Deposition Testimony and
Edwards’s Declaration Regarding L. Moore’s Alleged
Statements Upon Which Edwards Would Prove a Racial
Motive by NVI Not to Promote Her

NVI moves to strike as hearsay Edwards’s testimony regarding
statements that L. Moore allegedly made to her in 2008.4

Edwards

testified at deposition and in her sworn declaration that L.
Moore, now deceased, who was the store manager while Edwards was
employed, told her that if the Ast. Mgr. CL position was going to
be filled, it would be filled with a white person, because “they”
wanted a “white token.”

(Edwards Depo. at 260, 261-65; Decl. at

4

There is a dispute, later to be discussed, as to whether
L. Moore made such a comment in May 2007.
6

¶ 15).
to

This statement is being offered to prove that NVI intended

fill the

Ast.

Mgr. CL

position with

a

white

person

and

therefore intended to deny the position to Edwards because she was
black.

This constitutes classic hearsay.

NVI points out that a

statement by L. Moore to Edwards that a white person would be
hired because ”they” wanted a “white token” is double hearsay
because it incorporates and depends upon what unidentified others,
with or without any decisionmaking authority from NVI, allegedly
told L. Moore.

(Edwards Depo. at 270:23-25).

The Federal Rules of Evidence define hearsay as “a statement,
other than one made by the declarant while testifying at trial or
hearing, offered in evidence to prove the truth of the matter
asserted.”

Fed. R. Evid. 801(c).

Unless a recognized exception

applies, hearsay statements are inadmissible.

Fed. R. Evid. 802.

As a general rule, hearsay statements cannot be relied upon to
defeat summary judgment.

Jones v. UPS Ground Freight, 683 F.3d

1283, 1293 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d
1316, 1322 (11th Cir. 1999)).

A district court may consider a

hearsay statement in evaluating a motion for summary judgment if
the statement can be reduced to admissible form at trial, but this
proposition is not applicable in the instant situation, that is,
unless Edwards is allowed at trial to alter substantially what she
has said that L. Moore told her.

When a hearsay statement is

contained within another level of hearsay, both levels must meet

7

some exception to the hearsay exclusion rule in order to be
admissible.

See United States v. Pendas-Martinez, 845 F.2d 938,

942-43 (11th Cir. 1998).
Level 1: Edwards testified that L. Moore told her in 2008 in
the presence of others that if the Ast. Mgr. CL position was going
to be filled, it would be filled by a white person and that “they”
(whomever “they” consisted of) wanted a “white token.”

This

statement, made by someone other than Edwards, and offered to
prove an essential element of Edwards’s Title VII and § 1981 case,
is clearly hearsay.

The issue, then, is whether any hearsay

exception applies.
Edwards unremarkably describes L. Moore as “unavailable”
because she died before April 29, 2011, the date upon which
Edwards filed suit.

However, L. Moore was alive when Edwards

filed her EEOC charge on November 26, 2008, and was therefore
“available”
thereafter.

as

a

witness

for

some

unknown

period

of

time

What, if anything, Edwards did to obtain and to

preserve L. Moore’s testimony upon which she now relies is not
reflected in the record.

Edwards’s complaint to the EEOC was

under consideration by the EEOC for over three years.

For aught

appearing, a statement from L. Moore was a crucial piece of
evidence that finally led, after three years, to the EEOC’s
determination.

Either such a statement exists in the EEOC file

and is the best evidence of what, if anything, L. Moore knew about

8

NVI’s intentions vis-a-vies Edwards, or L. Moore’s supposedly
crucial knowledge on the subject was never sought by Edwards while
L. Moore was alive, even after Edwards knew that L. Moore had been
discharged by NVI and that L. Moore’s death was imminent.
31A

Corpus

Juris

Secundum,

Evidence,

§

405,

entitled

“Unavailability of Declarant as Witness,” states as follows a
proposition that fits this case:
A prerequisite for admission of a declaration against
interest is that the declarant be unavailable to testify
at trial, and the declarant is not considered unavailable
in the absence of a showing that the party seeking to use
the declaration has used reasonable diligence in an
effort to secure and present the declarant’s testimony.
(emphasis added).

This court finds that Edwards did not exercise

due diligence when she knew (1) the importance of L. Moore’s
testimony, (2) that L. Moore was at death’s door, and (3) that to
preserve L. Moore’s testimony she could invoke Rule 27(a), Fed. R.
Civ. P., the rule expressly designed for circumstances like these.
The same concept is expressed as follows in Weinstein’s Federal
Evidence:
The proponent must have “not been able, by process or
other reasonable means” to procure the declarant’s
attendance.
5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence, § 804.03[6][a] at 804-16 (Joseph M. McLaughlin, ed.,
Matthew Bender 2d ed. 1997) (quoting Fed. R. Evid. 804(a)(5)).
Weinstein cites several cases for this proposition, including

9

United States v. Curbello, 940 F.2d 1503, 1505-07 (11th Cir. 1991),
in which the Eleventh Circuit reversed a trial court for allowing
hearsay from a declarant incarcerated in another country because
the prosecution failed to demonstrate that it made a reasonable
effort to obtain the witness’s testimony by other means.
After Curbello and after considerable debate over the concept
discussed in Curbello, Rule 804(a)(4) was amended to recognize as
“unavailable” for purposes of a hearsay exception all declarants
who are deceased, without reference to what reasonable efforts may
have been made to acquire and to preserve the testimony of the now
deceased witness.

Rule 804(a)(5), however, can be employed to

reintroduce the Curbello idea, unless it is a mere alternative
precluded by the prior language in Rule 804(a)(4).

A careful

reading of these rules is required in order to determine their
application to the instant case.
There

may

be

a

holdover

from

Curbello in

the following

language in Rule 804(a).
But this subdivision (a) does not apply if the
statement’s proponent procured or wrongfully caused the
declarant’s unavailability as a witness in order to
prevent the declarant from testifying.
While there is no evidence that Edwards caused or contributed to L.
Moore’s untimely death, Edwards waited until after she filed this
suit and until after L. Moore died to offer hearsay obtained from
the mouth of L. Moore.

The above quoted language from Rule 804(a)

would preclude hearsay if the proponent deliberately stalled the
10

litigation while waiting for the death of the declarant.

On this

record, it is entirely possible that Edwards’s wait was no more
than a happy accident in her favor.
The significance of Cynergy, LLC v. First American Title
Insurance Co., 706 F.3d 1321 (11th Cir. 2013), was not discussed by
the parties because it was not decided until after their briefs
were filed.

In

Cynergy,

like

in

Zaben

v.

Air

Products

&

Chemicals, Inc., to be discussed infra, the appellate court was
reviewing a trial court’s admission of hearsay and found that there
had been no abuse of discretion in allowing it.

However, in

Cynergy, the deceased’s declaration was made by affidavit under
oath as distinguished from an oral unsworn statement like L.
Moore’s.

The trial judge in Cynergy admitted the hearsay under

Rule 807 after making all of the findings expressly required by
that

rule,

including

that

“the

statement

has

equivalent

circumstantial guarantees of trustworthiness,” a finding this court
cannot make under the circumstances of this case. The affidavit in
Cynergy was diligently procured in anticipation of the affiant’s
impending death, whereas Edwards made no effort to preserve L.
Moore’s testimony in face of her impending death.

The mere death

of a witness before trial should not be a guarantee of the
admissibility of hearsay from that witness in every case.
Both parties cite Zaben v. Air Products & Chemicals, Inc. 129
F. 3d 1453 (11th Cir. 1997).

In Zaben, an ADEA plaintiff relied on
11

statements

allegedly

made

by

lower-level

supervisors.

The

supervisors allegedly said that “they wanted younger employees to
train them the way they wanted them.”
pointed out that this was hearsay.

The defendant employer

The Eleventh Circuit affirmed

the trial court’s allowance of this particular hearsay, explaining
that excepted from the definition of hearsay is “‘a statement by
the party’s agent or servant concerning a matter within the scope
of the agency or employment, made during the existence of the
relationship’ which is deemed an admission by a party opponent.”
Zaben, 129 F.3d at 1455 (quoting Fed. R. Evid. 801(d)(2)(D)).

L.

Moore, who allegedly made the statement that is the subject of
NVI’s motion to strike, facially meets the Zaben exception because
L. Moore was the general manager of the Homewood location where
Edwards worked.

L. Moore can therefore be deemed to have been in

a position to make an admission against the interest of NVI, her
employer, but this is not the end of the inquiry, because L. Moore
was not relating her personal rationale for a decision being made
by her, but was merely passing along hearsay from undisclosed and
still unknown persons.
Level

2:

Because

L.

Moore’s

statement

refers

to

an

unidentified “they,” the statement must be stricken as hearsay
and/or double hearsay. Neither Edwards, nor NVI, nor the court has
found an Eleventh Circuit case on point. NVI relies upon Carden v.
Westinghouse Electric Corp., a Third Circuit case.

12

850 F.2d 996

(3d

Cir.

1988).

Carden

is

directly

on

point.

There,

the

declarant, who, like L. Moore, was an agent of the employer,
referred to what “they” wanted with respect to an employment
decision.

In Carden, if what “they” wanted could have been

attributed to the employer, it would have constituted evidence of
a proscribed motive for adverse employment action. But “they” were
not identified in Carden.

Just as in the instant case, “they”

could have been persons with no actual or ostensible authority
whatsoever to speak for or to bind the employer with respect to the
intent upon which the employer’s liability depended.
Edwards counters with Hybert v. Herst Corp., where the Seventh
Circuit held that statements similar to those made by L. Moore were
found admissible over a double hearsay objection.
1053 (7th Cir. 1990).
trial

court

there

900 F.2d 1050,

The Seventh Circuit determined that the

under

appellate

review

did

not

abuse

its

discretion in an ADEA case when it admitted statements that “it’s
a concern of some of the guys in New York that some people in their
sixties are going to be replaced” and “there is a feeling in New
York that, with the arrival of a new publisher, the people we have
in their sixties will be replaced.” Id.
There is an unmistakable and wide difference between an
appellate

court’s review

of

a

trial

court’s

exercise

of

its

discretion in the admission of evidence, and a decision by a court
in the first instance as to whether particular hearsay should be
13

allowed.

One is “after-the-fact,” where the reviewing court must

afford great deference to the court whose evidentiary ruling is
being reviewed.

The latter is de novo.

This court, as the court

of first instance, is not being called upon to decide whether some
other court properly exercised its discretion.

It is being called

upon to exercise its own judgment as to the admission of hearsay in
the absence of any clear instruction from the Supreme Court or from
the

Eleventh

Circuit

as

to

whether

what

a

deceased

witness

allegedly said to a plaintiff about what “they” said should be
admitted over a hearsay objection. Under the circumstances of this
case, this court is persuaded by the logic of Carden and declines
to admit the hearsay from L. Moore about what “they” may have had
in mind respecting a “white token.”

If L. Moore was alive and

tried to testify using the exact words that Edwards now ascribes to
her and no more, her sworn testimony would not be admissible
because it would depend upon what unknown persons told her.

There

is a crucial difference between the word “I” and the word “they.”
If L. Moore had said to Edwards “I plan to hire a white token,” her
remark could be attributed to NVI, but by her expression L. Moore
was disassociating herself from the decisionmaking role and was
disclaiming responsibility for what “they” had indicated.

If

“they” were responsible for a racially motivated decision to hire
Alberson rather than to promote Edwards, it is impossible to know
who “they” consisted of.

“They” could be anybody.

14

Sham Affidavit Dispute (Alluded to in Footnote 4, Supra)
In her sworn declaration Edwards attests that in May 2007, L.
Moore told her the Ast. Mgr. CL position would not be filled, and
that later L. Moore told her that the position was going to be
filled by someone white.

(Edwards Decl. at ¶9).

NVI points out

that this directly contradicts Edwards’s prior sworn deposition
testimony, in which she unequivocally stated that the only comments
made by L. Moore regarding NVI’s motivation to hire a white person
were made at a 2008 staff meeting.

The last sentence of ¶9 of

Edwards’ declaration “flatly contradicts” her deposition testimony
and, under the sham affidavit doctrine, is due to be stricken. See
Bryant v. U.S. Steel Corp., No. 10-13165, 2011 WL 2150193, at *2
(11th Cir. May 31, 2011) (disregarding a “sham” affidavit because
it contained statements that “flatly contradicted [plaintiff’s]
earlier deposition testimony).
Edwards argues that her deposition testimony does not directly
conflict with her declaration, that she was simply “confused” about
when these comments were made, and that the differences in her
recollection only present a credibility issue.

If they present a

credibility issue, it is a serious credibility issue.
While Edwards earlier may have been “confused” over the
conversation
made

only

dates, she now admits that L. Moore’s comments were

once,

namely,

(Edwards’ Depo. at 265).

before

Alberson

was

hired

in

2008.

This is in direct and irreconcilable
15

contradiction to ¶ 9 of her declaration in which she states that L.
Moore made the same or similar comments in May 2007.

Whether this

is the type of “transparent sham” that warrants striking Edwards’s
entire declaration, or at least ¶ 9 of it, is unnecessary to this
court’s opinion.

Because the hearsay statements made by L. Moore,

no matter whether in 2007 or 2008, are being excluded for other
reasons, the “sham affidavit” question loses its significance and
will be left for another day.
Admissible Evidence Relevant to NVI’s
Motion for Summary Judgment5
NVI is a national retail optical firm with both stand-alone
stores and retail locations inside other stores.

Edwards began

working for NVI in January 2007 at NVI’s Homewood, Alabama store L.
Moore, the general manager of the Homewood store, hired her.
Edwards and L. Moore are black females.6

Both

L. Moore reported to Dave

Nichols (“Nichols”), a black male who was the district manager
responsible for the NVI stores in the Alabama market, including the
Homewood location.7

In other words, the chain of command had two

black people in the chain immediately above Edwards.
5

Due to the procedural posture of the case, all admissible
evidence and reasonable inferences therefrom will be viewed in
the light most favorable to Edwards. The court has already found
inadmissible important evidence relied upon by Edwards.
6

L. Moore inconveniently died before Edwards filed this
action, but long after Edwards’s EEOC charge was filed.
7

During Edwards’s employment, NVI operated two other stores
within a seventy-five mile radius of the Homewood store.
16

In January 2007, the Homewood staff included a full-time
optometrist and a part-time optometrist, and approximately twelve
retail employees, including a general manager and two assistant
managers, one responsible for eyeglasses and the other for contact
lenses (“Ast. Mgr. CL”).

When Edwards started, Wendi Marsh and

Beryl Parker, both black females, were assistant managers at the
Homewood store.

Edwards was hired as a Visual Acuity Technician

(“V.A. Tech”) and was primarily responsible for performing visual
tests on patients prior to doctor examinations.

Edwards also

consulted with patients to decide whether they were good candidates
for contact lenses.
Mgr. CL.

She, therefore, worked closely with the Ast.

She was, however, never a manager or supervisor.

In late spring 2007, the Ast. Mgr. CL position became vacant.
NVI did not at that time post job vacancies or formally inform its
employees that a position had become open. Employees, being human,
would, however, learn about openings.

NVI’s policy of promoting

from within allowed an interested employee to inform the store
manager of his or her interest in an open position, alleviating the
need to fill out a formal job application each time a vacancy
occurred.

Edwards

contends

that,

in

late

spring

2007,

she

approached L. Moore and expressed an interest in the open Ast. Mgr.
CL position. Edwards says that L. Moore told her that the position
was not going to be filled.

Nevertheless, the position was later

filled by Angela Ratliff (“Ratliff”), a white female.

17

There is no

evidence that Edwards voiced a complaint about being overlooked on
this occasion, unless her confused reference to a 2007 conversation
with L. Moore, now straightened out, is considered a complaint.
Ratliff remained in the position until December 2007.

Nasharee

Flournoy (“Flournoy”), a black female, was hired for the position
in February 2008, again without protest by Edwards.
In January 2008, following a district realignment, Tina Wicker
(“Wicker”) became the district manager responsible for the Alabama
market,

including

NVI’s

Homewood

store.

conducted a first quarter audit of the store.

Wicker

thereafter

The audit revealed

that the store was not being properly managed under L. Moore.
Wicker discovered that there were numerous performance problems,
including problems with housekeeping, accounts receivables, and
customer service.

There was also a problem with employees not

meeting NVI’s dress code.

L. Moore admitted to Wicker that she was

having trouble getting employees to listen to her and to follow
store procedures.
NVI contends that Edwards’s performance at the time was
lackluster, consistent with the overall lackluster performance of
the store.

In 2007, Edwards was given a performance improvement

plan after engaging in “a profanity-laden shouting match” with a
customer.

In her first performance appraisal, dated January 15,

2008, Edwards received an overall three out of five for “meets
expectations,” but received a substandard score of two out of five

18

in the categories “behavioral assessment” and

“job knowledge.”

Nevertheless, at the end of the evaluation, Edwards was given a
raise from $8.50 to $8.80 per hour.
After the audit, Wicker admonished L. Moore to hold associates
accountable and to discipline them when they failed to follow NVI
polices and

procedures.

Thereafter,

L.

Moore

associates, including Edwards, more accountable.

began

to

hold

In doing so, she

apparently got on associates’ nerves.
In April 2008, shortly after L. Moore began more carefully to
scrutinize employee performance, an employee lodged a complaint
regarding the management of the Homewood store by placing an
anonymous call to NVI’s In-Touch hotline.

The caller did not

allege racial or any other form of illegal conduct.

Instead, the

caller complained about L. Moore’s management and about Flournoy,
the Ast. Mgr. CL.

Among other complaints, the anonymous caller

said:
I’m calling about Louise Moore . . . and it’s [Nasharee
Flournoy], I think. She’s one of the new contact lens
managers. We . . . it’s several of employees that if you
all just come in and ask questions will tell. We’ve just
been having a lot of problems since she’s been there.
And notice that you all have a bad turnover. I’ve been
there it’ll be a year and you have lost 15 people. It’s
the way they treat you, the way they talk to you. They
get an attitude when they ask you questions. And then
you voice your opinion and then you retaliate and start
writing to do this and do that and moving chairs out the
front. It’s just a lot of things that you need to check
out the company . . . .
Edwards’s present contentions regarding L. Moore are consistent
19

with

this

described

anonymous
as

caller’s

generalized

complaints,

criticisms

of

which

can

only

management.

be

Also

consistent, Edwards claims that L. Moore treated all the employees
poorly and that “[e]verybody that worked there” had problems with
her.

According to Edwards, multiple employees left the Homewood

store because of L. Moore’s management style during Edwards’s first
year with NVI, and numerous employees repeatedly complained about
L. Moore.

None of these criticisms involved the race of L. Moore,

the races of any of her critics, or the races of any of the
employees who quit.
In May 2008, less than a month after the anonymous hotline
call, Flournoy walked off the job, leaving the Ast. Mgr. CL
position open again.

As before, Edwards says that she inquired

about the position, and L. Moore again told her that no one would
be hired to fill it.

In June 2008, upon L. Moore’s recommendation,

Wicker hired Victoria Alberson (“Alberson”), a white female, for
the position.

Edwards claims that Wicker was aware that Alberson

was white at the time of the hire, but offers as proof only the
fact that all applications to NVI for employment include the race
of the applicant. Wicker denies having known Alberson’s race. NVI
and Wicker

assert

that

Alberson

was

selected

because

of

her

experience in retail management at a Sam’s Club store. After being
hired, Alberson worked at the Homewood store until October 2010.
Two other assistant managers at the Homewood store during Edwards’s

20

tenure, Kimberly Wadsworth and Latasha Huey, were black.
Shortly after Alberson was hired, Edwards requested a medical
leave of absence to have elective surgery.
Edwards’s request.

L. Moore approved

Edwards’s leave commenced on July 21, 2008.8

The parties dispute whether Edwards was actually eligible for FMLA
leave.

NVI contends that Edwards was not FMLA eligible, but that

it nevertheless granted her request for time off. Edwards contends
that she was eligible for leave under the FMLA and points to a
document prepared by Michelle Williams (“Williams”), NVI’s benefits
specialist, entitled “Request for Leave of Absence.”

On the

document, someone, presumably Williams, marked that it had been
determined that Edwards was “eligible” for leave under the FMLA and
that the requested leave would be counted against her annual FMLA
leave entitlement.
In late July 2008, Wicker and the area manager, Andre Campbell
(“Campbell”), a

black male, visited the Homewood store.

As part

of their visit, Wicker and Campbell assessed employee morale in
relation to the aforementioned In-Touch hotline call.

Wicker

scheduled this visit while L. Moore would be on vacation so that
employees would feel comfortable discussing the store management.
They spoke with all the employees at the Homewood store except L.
Moore and Edwards, who was on medical leave.

8

During the audit, one

Edwards was released to return to work on August 25, 2008.
She returned to work on or about August 26, 2008.
21

of

the

optometrists,

Dr.

Arello,

reported

that

Edwards

was

“disgruntled,” “not a happy person,” and “in anger management
classes.” Wicker nevertheless reported to NVI that employee morale
was good and that no one complained about the management.

Other

than a few equipment issues, Wicker concluded that the store was
running well and noted that this was an improvement over what was
reflected in her first quarter audit.
In August 2008, when Edwards returned to work after her short
medical leave, Alberson was in place as the new assistant manager
for

contact

lenses.

Upset

about

being

passed

over

for

the

promotion, Edwards confronted L. Moore about it on August 30, 2008,
at a staff meeting.

According to Edwards, L. Moore refused to

discuss the matter with her because others were present. It was at
this meeting that L. Moore is supposed to have uttered the hearsay
here under consideration.

The presence of others, means that

Edwards was not the only person who heard what L. Moore supposedly
said.

There is no testimony offered from any listener except

Edwards. Where is the testimony of the other persons who heard it?
According
issues.

to

NVI,

Edwards

continued

to

have

performance

L. Moore and Alberson noted performance deficiencies by

Edwards on several occasions, including on “customer relations” and
“general attitude.”

On September 5, 2008, Edwards was placed on a

performance improvement plan after an incident on August 30, (the
same day of L. Moore’s hearsay statement) in which NVI’s records

22

indicate

that

she

failed

scheduling of patients.

to

follow

store

procedures

in

the

On the other hand, L. Moore and Alberson

gave Edwards positive feedback when she met expectations.
On September 3, 2008, shortly after she was placed on the
performance improvement plan, Edwards faxed a complaint to Keisha
Moore (“K. Moore”), an employee relations representative in NVI’s
human resources department.

K. Moore is a black female.

In her

fax, Edwards said:
I Aretha Edward [sic] wanted to report racism, reason
being I request job position requirement from Ms. Louise
Moore she stated that she wasn’t hiring for position but
she would keep in mind that I inquire for position but
instead she hire Ms. Victoria [Alberson] for position who
is white because of more experience. But upon talking to
Ms. [Alberson] she stated that she havent work as a
manager or in that particular position that she was hire
for. This wasn’t the 1st time that she hired a nonexperienced white female for the position.
On September 17, 2008, Edwards followed up with a call to K. Moore
after which K. Moore launched an investigation into Edwards’s
complaints and asked Edwards to provide her a written statement.
Edwards provided K. Moore such a statement on September 19, 2008.
In the statement Edwards made no mention of racial discrimination.
Instead, she alleged that “several employees [had] been harassed
for unknown reasons,” that “unqualified people [had] been hired for
manager position,” and that “qualified people in the management
office

[had]

advancement.”
information.

been
K.

looked
Moore

over

for

contacted

management

Edwards

to

position

get

or

additional

K. Moore made notes about Edwards’s complaint,
23

including that Edwards wanted a position as an Ast. Mgr. CL and
that L. Moore had told her they weren’t hiring within the store and
that they were ”not [hiring a] black empl[oyee].”

This was

necessarily a reference to the August 30 conversation that NVI says
should be stricken, the only conversation between Edwards and L.
Moore in which L. Moore said that “they” wanted a “white token.”
K. Moore’s investigation included interviews with multiple
employees at the Homewood store.

On October 28, 2008, K. Moore

had another follow-up phone conversation with Edwards. During this
call, Edwards says she told K. Moore that L. Moore had told her
that a black person would not be hired for the Ast. Mgr. CL
position.

If this was a reference to an occasion other than the

August 30 conversation, Edwards did not make it clear.
this allegation, K. Moore interviewed
could corroborate her allegations.

Based on

employees whom Edwards said
All employees that K. Moore

interviewed denied ever hearing L. Moore say that she was not going
to hire a black person or that she was only going to hire a white
person.

One employee, Krystal Wilson, did tell K. Moore that she

once heard L. Moore say that she wanted to get a “mixture of
people.”

Neither Title VII nor § 1981 stands in the way of

diversity as a hiring objective, although implementing such an
“ideal” is problematic and is fast becoming dangerous.
After her investigation, K. Moore concluded that there had
been no discriminatory or harassing treatment of employees by L.

24

Moore, or by any other manager at the Homewood store.
what

Edwards

said,

she

uncovered

no

evidence

Except for

of

racially

discriminatory remarks and no employment decisions that had been
made in an inappropriate or discriminatory manner.

There is no

suggestion that L. Moore admitted to K. Moore or anyone else that
she had ever said what Edwards ascribes to her.

As a result of K.

Moore’s report, NVI concluded that the store, while not having
engaged in discriminatory conduct, was being poorly managed.

NVI

thereafter provided managerial coaching and training to both L.
Moore and to Alberson and eventually put L. Moore on an improvement
plan.
On

November

26,

2008,

Edwards

filed

her

charge

of

discrimination with the Equal Employment Opportunity Commission
(“EEOC”), alleging race discrimination and retaliation on the part
of L. Moore.

Edwards’s internal complaints prior to November 26,

2008 had primarily focused on L. Moore’s poor management style, but
they did contain references to statements by L. Moore to the effect
that Edwards would not be promoted because she was not white.
The problems between Edwards and L. Moore continued.

On

January 15, 2009, L. Moore again put Edwards on a performance
improvement plan for repeated violations of NVI’s attendance policy
and for insubordination. Edwards objected, contending that she had
not violated the attendance policy.

Edwards says that L. Moore

assigned her additional and demeaning work, such as cleaning

25

baseboards, and told other employees not to talk to her.
2009,

Edwards

received

her

annual

performance

In early

evaluation.

Edwards’s scores were significantly lower than they had been the
previous year.
per hour.

Nevertheless, she received a pay increase to $9.02

Edwards did not amend her EEOC complaint to add any

allegedly retaliatory acts that occurred after the EEOC complaint
was filed.

However, the EEOC investigation did apparently cover

all of NVI’s alleged misconduct, including what it described as
Edwards’s “discharge.”
During the pendency of Edwards’s EEOC charge, the overall
performance of the Homewood store continued to deteriorate.

As a

result, NVI asked Jill Barber (“Barber”), an area manager, to visit
the store and to coach L. Moore.

Barber is a black female.

During

her visit, Barber observed significant problems. In February 2009,
L. Moore herself was placed on a performance improvement plan, just
as Edwards had been on two occasions earlier.

Because L. Moore’s

performance did not improve, NVI terminated her on June 4, 2009,
while Edwards was still an employee.

Edwards’s reaction to L.

Moore’s termination is not reflected in the record.
In July 2009, Edwards submitted a request to become a parttime employee so that she could go to school.

After NVI honored

her request and put her on a part-time schedule, she applied for
unemployment

benefits.

The

Relations denied her claim.

Alabama

Department

of

Industrial

She appealed the decision to the

26

Circuit Court of Jefferson County, Alabama, which held that because
she voluntarily decided to move to part-time, she was not entitled
to unemployment compensation.
During the summer of 2009, Edwards was scheduled to undergo
another elective surgery.

She submitted an FMLA leave request to

John Anderson (“Anderson”), who was by that time the general
manager of the Homewood store. Anderson asked Edwards if she could
delay the surgery for a few weeks because NVI did not have anyone
else

to

perform

visual

field

tests.

rescheduled her surgery for March 2010.
Edwards

submitted

her

significantly reduced.

second

FMLA

Edwards

agreed,

and

In October 2009, after

request,

her

hours

were

From late November 2009 until the end of

her employment, Edwards only worked one day a week, averaging less
than eight hours a week.

Whether the EEOC investigated this

decrease in Edwards’s hours or days as possible retaliatory conduct
does not appear in the record.
Edwards’s last day working for NVI was in February 2010.
Edwards says that she received a call from Williams of NVI’s human
resources department, during which Williams asked her if she had
started a rumor about Anderson having an inappropriate relationship
with an employee, Askieka Nealey (“Nealey”). Edwards denied having
said any such thing.

At Williams’s request, Edwards prepared a

written statement to that effect.

According to Edwards, that same

day, Nealey, the woman she had allegedly accused of having engaged

27

in inappropriate conduct, told her to leave work and that NVI would
be in touch with her.

Edwards left work without questioning

Nealey’s authority. Edwards asserts that the next day she received
a call from another employee, “Tasha,” who told her not to come
back to work until further notice.

What authority, if any, either

Nealey or “Tasha” had to tell Edwards not to come to work is not
reflected in the record. While no one called Edwards asking her to
return to work, Edwards never contacted Anderson, the general
manager of the store and the final decisionmaker on personnel
matters to check on what was expected of her.
Edwards remained on the work schedule.

She failed to show up

for her scheduled shifts on March 1, March 8, and March 15.

She

did not call or speak with anyone in management before any of her
said three absences.

Accordingly, on March 16, after the third

unexcused absence, Anderson notified the human resources department
that Edward had voluntarily terminated her employment through “no
call, no show” for three consecutive shifts, and she was removed
from the NVI employment rolls.
The Viability of the Several Separate Claims
I.

Race Discrimination
A. Failure to Promote

Edwards’s primary contention is that NVI passed over her for
a promotion to the Ast. Mgr. CL position because she is black.
Specifically, Edwards alleges that she was discriminated against
28

when she was not promoted (1) in July 2007 (Ratliff hired, white);
(2) in February 2008, (Flournoy hired, black); and (3) in June 2008
(Alberson hired, white).
Edwards’s Title VII claims regarding the Ratliff and Flournoy
hirings are time-barred.

Edwards concedes that the Ratliff and

Flournoy hirings occurred more than 180 days before she filed her
charge of discrimination with the EEOC and, therefore, cannot be
challenged under Title VII.

Edwards’s claim relating to the June

2008 hiring of Alberson is the only Title VII claim that is not
time-barred.
All three of Edwards’s § 1981 failure to promote claims are
subject to a two year statute of limitation period and barred.
Section 1981 does not contain a statute of limitations.

Instead,

in 1987, the Supreme Court directed federal courts to determine the
statute of limitations for § 1981 claims by applying the most
analogous state statute of limitations, which in Alabama is two
years.

See Goodman v. Luken Steel Co., 482 U.S. 656, 661, 107 S.

Ct. 2617, 2621 (1987).
Edwards argues that her

§ 1981 claims are not time-barred

because of a “catch-all” four year statute of limitations.

In

1990, Congress enacted a general four year statute of limitations
applicable to federal statutes enacted after December 1, 1990,
except as otherwise provided by law.

28 U.S.C. § 1658.

The next

year, in 1991, Congress enacted Section 101(2)(b) of the Civil

29

Rights Act of 1991, which altered § 1981.

The statutory “catch-

all” four year statute of limitation is only applicable to new
causes of action that were not cognizable under § 1981 prior to the
enactment of § 1658.

Jones v. R.R. Donnelley & Sons Co., 541 U.S.

369, 381, 124 S. Ct. 1836, 1845 (2004).

Otherwise, the two year

statute of limitations period still applies. The four year statute
of limitations does not apply to Edwards’s failure to promote claim
because such a claim was cognizable under § 1981 prior to the 1991
amendment, making them subject to the two-year limitations period.
Summerlin v. M&H Valve Co., No. 03-AR-2786-M, 2005 WL 6132650, at
*4 (N.D. Ala. Jan. 31, 2005).
Before the enactment of the 1991 Civil Rights Act, a failure
to promote claim could be brought under § 1981 if the promotion
rose to the level of an “opportunity for a new and distinct
relation between the employee and the employer.”

Patterson v.

McLean Credit Union, 491 U.S. 164, 185, 109 S. Ct. 2363, 2377
(1989).

Edwards’s desired promotion to Ast. Mgr. CL clearly met

this standard.

There is no bright line rule as to what promotions

create a “new and distinct relationship.”

Courts, however, have

recognized that promotion decisions cognizable under the pre-1991
statute include “promotions from non-supervisory to supervisory
positions and advancements from being paid by the hour to being a
salaried employee.” Smith v. Train U.S., Inc., No. 6:11-cv-3, 2011
WL 4944143, at *4 (S.D. Ga. Oct. 17, 2011) (quoting Cross v. Home

30

Depot, 390 F.3d 1283, 1289 (10th Cir. 2004)).

Similarly, the

Eleventh Circuit has held that a plaintiff states a cause of action
under pre-1991 § 1981 when she alleges that she was denied a
promotion to a position that would have brought her new duties, a
new job title, and a significant increase in salary.

Nunez v.

First Union Nat’l Bank of Fla., 996 F.2d 287, 289 (11th Cir. 1993).
In her complaint Edwards characterizes the Ast. Mgr. CL position as
a “manager position” and alleges that the promotion would have
afforded her “a higher rate of pay, greater employment benefits,
and prestige among her peers.”

In her brief, Edwards argues that,

without contradiction, if she had been promoted, she would have
received a pay increase from an hourly wage to a yearly salary of
$26,000 and would have been able to participate in an incentive
plan for managers.

Based on her own allegations, the promotion to

Ast. Mgr. CL would have afforded her the opportunity for a new
distinct relationship with her employer. See e.g., Hithon v. Tyson
Foods, Inc., No. 04-13887, 2005 WL 1820041, at *3 (11th Cir. Aug.
3, 2005); Summerlin v. M&H Valve Co., No. 03-cv-2786, 2005 WL
6132650, at *5 (N.D. Ala. Jan. 25, 2005).

Her failure to promote

claims under § 1981 are not dependent on the 1991 expansion of §
1981, so the two-year statute of limitations period applies and
bars her § 1981 claims.
Edwards’s only promotion claim that is not time-barred is her
Title VII claim that she was passed over for the Ast. Mgr. CL
31

position in June 2008 when Alberson was hired.

With the other

timeliness issues resolved in favor of NVI, the court is still
faced with the question of whether Edwards has presented evidence
to support her claim that NVI promoted Alberson instead of her on
account of their differing ethnicities.
To establish a prima facie case of race discrimination Edwards
must present either “direct evidence” or “circumstantial evidence”
of racial animus.

Collins v. Supreme Beverage Co., Inc., No. 11-

AR-0058-S, 2012 WL 4953155, *5 (N.D. Ala. Oct. 12, 2012).

“Direct

evidence of discrimination is evidence, that, if believed, proves
the existence of a fact in issue without inference or presumption.”
Id.

(quoting Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir.

2002)).
a

“On the other hand, evidence that only arguably suggests

discriminatory

evidence.

motive,

is,

by

definition,

circumstantial

It requires an application of inference or deduction.

It is not self-evident of animus.”

Id. (citing Burrell v. Bd of

Ga. Military Coll., 125 F.3d 1390, 1393-94 (11th Cir. 1997)).
Edwards has not presented any admissible direct evidence of a
racially discriminatory motive for NVI’s failure to promote her.
The only thing that could be considered direct evidence of such a
motive is the inadmissible hearsay purportedly spoken on August 30,
2008, by the now-deceased L. Moore.

Furthermore, it is undisputed

that Wicker, not L. Moore, was the decisionmaker regarding the
hiring of Alberson.

Edwards has offered no evidence that Wicker

32

was influenced by racial animus in making the decision to hire
Alberson. In fact, Edwards herself testified at her deposition that
she does not know whether people who conducted hiring for NVI were
made aware of the races of the people being hired or not hired.
According to Wicker, she did not know whether Alberson was white or
black when she approved her for the position.

Wicker’s sworn

testimony in this regard goes unchallenged, except by the fact that
all of NVI’s applications for employment include the applicant’s
race.

It is a stretch to allow this routine application form as

proof that Wicker is lying. Unless the stretch is allowed, Edwards
does not come close to proving that race played a part in Wicker’s
decision.
The analytical framework for using circumstantial evidence to
support a claim of race discrimination was established in McDonnell
Douglas Crop. v. Green.

411 U.S. 792, 93 S. Ct. 1817 (1973).

Under this framework to defeat a motion for summary judgment,
Edwards must demonstrate (1) that she is a member of a protected
class;

(2)

that

she

was

qualified

for

and

applied

for

the

promotion; (3) that she was denied the promotion despite her
qualifications; and (4) that an equally qualified or less qualified
person who is not a member of the protected class was selected.
Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n.11 (11th Cir.
1997) (citing Wu v. Thomas, 847 F.2d 1480, 1483 (11th Cir. 1988),
cert. denied, 490 U.S. 1006, 109 S. Ct. 1641 (1989)); see Summerlin

33

v. M&H Valve Co., No. 03-cv-2786, 2005 WL 6132650, at *5 (N.D. Ala.
Jan. 31, 2005).

Edwards has not presented any evidence of the

essential element that NVI hired an “equally or less qualified
person”

over

her.

NVI

does

not

argue

that

Wicker,

the

decisionmaker, selected Alberson for the position over Edwards
after comparing their respective qualifications.

Rather, the only

evidence is that Wicker approved Alberson for the position after
finding her qualified. There is no evidence whatsoever that Wicker
was aware that Edwards had applied for, or had otherwise expressed
interest in, the Ast. Mgr. CL position.9
9

Throughout her brief, Edwards attempts to shift focus away
from Wicker, the ultimate decisionmaker, and onto the motivation
of L. Moore, her immediate supervisor. Although Edwards does not
use the term “cat’s paw,” she appears to advance this theory,
arguing that L. Moore, a black person, was motivated by racial
animus against blacks or in favor of whites to recommend
Alberson, and not Edwards, for the Ast. Mgr. CL position. The
cat’s paw theory of liability, or “subordinate bias theory,”
seeks to hold an employer liable for the animus of a supervisor
who was not charged with making the ultimate employment decision.
Staub v. Proctor Hosp., – U.S. –, 131 S. Ct. 1186, 1190, (2011).
Under this theory, Edwards must show that L. Moore acted with a
discriminatory animus and intended the adverse action, i.e.,
Edwards not being promoted. Staub, 131 S. Ct. At 1194.
Additionally, Edwards must show that L. Moore’s actions were the
proximate cause of the ultimate employment action. Id. Edwards
cannot succeed under the cat’s paw theory of liability.
Throughout this litigation, Edwards has never argued that L.
Moore acted out of her own racial animus, but instead on behalf
of some unidentified “they.” Thus, Edwards has urged that L.
Moore was a “cat’s paw” for some other unspecified persons’
discriminatory animus, not the other way around. To now reverse
this theory to avoid summary judgment is simply not supported by
the record. It is undisputed that L. Moore hired Edwards only a
year before, recommended Flournoy, who is also black, for the
exact same position only months earlier, and that most of the
employees, including several in management positions, were black.
34

This does not mean that Alberson’s and Edwards’s relative
qualifications for the job are totally irrelevant.

A plaintiff

must demonstrate as part of her prima facie case that an “equally
or less qualified employee who was not a member of the protected
group was promoted.”
1160,

1174

(11th

Brown v. Ala. Dept. of Transp., 597 F.3d

Cir.

2010).

Using

objective

criteria,

a

comparison of Alberson’s and Edwards’s relative qualifications
arguably demonstrates that Alberson was more qualified than Edwards
despite Edwards’s longevity at NVI without management experience.
Alberson had retail management experience, including three years of
management at a Sam’s Club store, which is owned by NVI’s partner,
Wal-Mart.

On the other hand, Edwards had no retail management

experience, unless working as an assistant manager and cashier at
a gas station more than five years before her employment with NVI
is considered such. Edwards does not deny that before the Alberson
hiring NVI had disciplined her and had placed her on performance
improvement plans, hardly indications of a belief by NVI in her
managerial ability.

There is no evidence from which a reasonable

jury could find that Alberson less qualified than Edwards or only
equally

qualified

decisionmakers

for

were

the

Ast.

obviously

Mgr.

CL

position.

underwhelmed

by

NVI’s
Edwards’s

qualifications for a managerial role. They certainly had no reason
to think Alberson was less qualified than Edwards.

35

To prove that Wicker knew Alberson’s race, despite Wicker’s
sworn denial of such knowledge, Edwards must depend upon inference
from the application form and thus on circumstantial evidence. The
court cannot allow a jury to draw such an inference in this case.
Even if Edwards could meet her burden of establishing a prima
facie case of racial discrimination using circumstantial evidence,
she cannot show the pretext necessary to defeat summary judgment.
After a plaintiff establishes a prima facie case, the burden shifts
to

the

defendant

discriminatory

to articulate

reasons

for

its

one

or

more

adverse

legitimate,

employment

decision.

Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997).
met this “exceedingly light” burden.

non-

NVI has

See Turnes v. AmSouth Bank,

N.A., 36 F.3d 1057, 1061 (11th Cir. 1994).

NVI says that Wicker

approved Alberson for the position because she considered her a
good candidate based on her experience and because she was not
aware that Edwards was interested in the position.

These are

clearly legitimate, non-discriminatory reasons for the decision
Wicker made. When an employer, as NVI has done in this case,
articulates a legitimate, nondiscriminatory reason for its action,
any presumption of discrimination that may have arisen from the
plaintiff’s prima facie case “simply drops out of the picture.”
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11, 113 S. Ct.
2742, 2749 (1993). Edwards must demonstrate that NVI’s articulated
reason

is

a

mere

cover

for

statutorily
36

proscribed

acts

of

discrimination.

Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir.

1997).
Pretext means a lie, or, in this context, a phony reason.
Silvera v. Orange County School Bd., 244 F.3d 1253, 1261 (11th Cir.
2001).

A mistake does not constitute a pretext.

Id.

NVI contends

that Wicker approved Alberson for the Ast. Mgr. CL position because
she believed that Alberson was qualified and was not aware that
Edwards had an interest in the position, leaving no reason for
Wicker to compare qualifications.

There is no evidence from which

a reasonable jury could find this explanation to be a pretext.
Even if it could somehow be assumed that Wicker knew that Edwards
was interested in the position, there is absolutely no evidence
that the hiring of Alberson was a pretext for racial discrimination
against Edwards. If Edwards expressed an interest in the position
to L. Moore, that fact is immaterial.10
Wicker was

ever

made

aware

of

There is no evidence that

Edwards’s

interest.

Wicker’s

testimony that she was not aware of Edwards’s interest is the only
evidence on the subject.
Edwards attempts to show pretext by pointing to what she calls
NVI’s “shifting positions” and “mendacity” found in NVI’s position
statement during the EEOC investigation and its interrogatory
responses.

Both of these arguments are unpersuasive.

10

Edwards’s

NVI assumes that Edwards discussion with L. Moore the Ast.
Mgr. CL position for purposes of Rule 56 consideration only.
37

“shifting positions” argument fails because NVI has consistently
maintained that Wicker, the decisionmaker on the Alberson hiring,
did not consider selecting Edwards for the position because she was
unaware that Edwards was interested.

NVI has also consistently

denied that Edwards applied for the position filled by Alberson,
despite what Edwards says about her conversation with the now
deceased L. Moore.

This is not the type of “shifting of positions”

that could support a finding of pretext. Edwards’s accusation that
NVI made misrepresentations in defending her EEOC charge is both
incorrect

and

immaterial.

What

Edwards

refers

to

as

a

“misrepresentation” is nothing more than a disagreement over what
are the pertinent facts.

If such an argument can form the basis

for a finding of pretext, every plaintiff could show pretext by the
expedient of disagreeing with the defendant’s version of the facts.
Furthermore, even if NVI’s versions of certain disputed facts are
demonstrably incorrect, isolated errors in submissions do not prove
pretext.

See e.g., Clair v. Agusta Aerospace Corp., 592 F. Supp.

2d 812, 820-21 (E.D. Pa. 2009); Deal v. Grubb, 08-cv-575, 2010 WL
3418208, at *8-9 (W.D. Va. Aug. 3, 2010).

NVI is entitled to

summary judgment on Edwards’ Title VII claim for discriminatory
failure to promote.
B. Discharge
It is unclear from the record whether Edwards really means to
pursue a discrimination claim based on her purported discharge,

38

i.e., that she was fired because she is black.

What is clear,

however, is that she has not advanced any arguments in support of
such a claim. Although not necessary to her exhaustion obligation,
she never amended her EEOC charge to complain about a discharge,
and the EEOC investigation file is not in the record.

It is not

the duty of the court to uncover and discuss every potential
argument that can be made. Resolution Trust Corp. V. Dunmar Corp.,
43 F.3d 587, 599 (11th Cir. 1995).

Instead, “the onus is on the

parties to formulate arguments; grounds alleged in the complaint
but not relied upon in summary judgment are deemed abandoned.” Id.
If Edwards ever intended to mount a discriminatory discharge claim,
she has abandoned it, rendering it unnecessary for the court to
discuss whether Edwards abandoned her job or was fired.

Whether

Edwards’s departure from NVI was voluntary, as indicated by NVI’s
records, or was a racially motivated adverse employment action
proscribed by Title VII is a question that cannot be resolved
without evidence.
II.

Retaliation

To establish a prima facie case of retaliation under Title VII
or § 1981, Edwards must show (1) that she engaged in a statutorily
protected activity; (2) that NVI subjected her to some materially
adverse employment action; and (3) that there is a causal relation
between her protected activity and the adverse action.

Goldsmith

v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008).
39

NVI does not deny that Edwards engaged in statutorily protected
activity.

Instead, NVI argues that its actions that Edwards

complains of, to the extent not precluded by some statute of
limitations, were not “materially adverse” and, even if they were
materially adverse, that she cannot show the requisite “causal
connection” between her protected activity and any of the allegedly
adverse actions.
Edwards

does

not

make

it

clear

whether

her

claim

of

retaliation includes her ambiguous claim of wrongful discharge.
Her EEOC charge can fairly be construed as having a retaliation
aspect,

although

discharge.

not

retaliation

in

the

form

of

a

wrongful

Her departure did not occur until long after she filed

her EEOC complaint.

She has never claimed constructive discharge

or a discharge formally rendered by someone at NVI with authority
to fire her.

Edwards does not address any of NVI’s arguments in

support of its Rule 56 motion as addressed to her retaliation
claim.

There is no evidence that Anderson knew of Edwards’s EEOC

complaint or any other complaint by Edwards when he entered the “no
call no

show”

voluntary

termination

for

her.

Her protected

activities took place in September and November 2008, nearly a year
before Anderson was hired.

There is no evidence whatsoever that

Anderson’s reason for removing Edwards from the employment rolls,
i.e., his belief that she had abandoned her job, was a pretext to
cover a retaliatory motive.

40

Taken singularly or in the aggregate, the complained of acts
of NVI do not provide the essential elements of a prima facie case
of

retaliation.

To

satisfy

the

adverse

employment

action

requirement, Edwards must show that “a reasonable employee would
have found the challenged action materially adverse.”

Burlington

N. & Santa Fe. Ry. Co., 548 U.S. at 68, 126 S. Ct. at 2415
(emphasis added).

An action is said to be “materially adverse” if

it “well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.”

Id.

Edwards points to

several NVI actions which she insists were acts of retaliation.
These include:
- On September 5, 2008, L. Moore put Edwards on an employee
improvement plan;
- L. Moore instructed Alberson to “write-up” Edwards;
- On January 9, 2009, L. Moore put Edwards on another
performance improvement plan, which was subsequently reversed;
- On February 24, 2009, L. Moore and Wicker issued Edwards a
less than perfect performance evaluation that nevertheless did
not prevent a pay increase; and
- L. Moore required Edwards to see “more than double” the
number of patients than her co-workers were required to see,
required her to clean baseboards, and instructed co-workers
“not to talk with [her] or associate with her.”
These acts are not sufficiently onerous to support a claim of
retaliation.

NVI reasonably relies on Burlington Northern & Santa

Fe Ry. Co. v. White, in which the Supreme Court cautions courts to
“separate significant from trivial harms” and emphasizes that “[a]n
employee’s

decision

to

report

discriminatory
41

behavior

cannot

immunize that employee from those petty slights or minor annoyances
that often take place at work and that all employees experience.”
548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006).

The actions about

which Edwards complains are of the type that the Supreme Court has
instructed lower courts to weed out.

Reprimands and lowered

performance evaluations are not “materially adverse,” particularly
when one of Edwards’s reprimands was reversed and her performance
evaluation resulted in a raise.

See e.g., Forbes v. City of North

Miami, No. 11-cv-21200, 2012 WL 1135820, at *11-12 (S.D. Fla. Apr.
4, 2012); Blackledge v. Ala. Dept. Of Health & Mental Retardation,
No. 06-cv-321, 2007 WL 3124452, at *30 (M.D. Ala. Oct. 25, 2007).
Being asked to perform additional work is not a materially adverse
employment action, especially when, as Edwards admits, she had
always been required to clean the store. Title VII does not anoint
the courts

with

the

power

to

decide that

routine management

decisions, even if resented by an employee, are so awful that they
are actionable as retaliation.
If Edwards, arguendo, has met her burden of showing some
materially adverse action or actions, she must show a causal
connection between her protected activity, here conceded by NVI,
and an adverse employment action. Goldsmith v. Bagby Elevator Co.,
Inc., 513 F.3d 1261, 1278 (11th Cir. 2008) (citing Olmsted v. Taco
Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)).

Causation may

be inferred from close temporal proximity between the protected
42

expression or opposition and the adverse employment action. Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
When a significant amount of time has elapsed between the protected
activity and the adverse action, a causal connection can exist if
and only if the protected activity and the adverse action are
linked by a chain of intervening retaliatory acts.

See Wideman v.

Wal-Mart Stores, Inc., 141 F.3d 1453, 1457 (11th Cir. 1998).

When

causation is based solely on temporal proximity, the two events
must be “very close” to establish the requisite causal connection.
Cooper Lighting, Inc., 506 F.3d at 1364 (citing Clark County Sch.
Dist. v. Breeden, 532 U.S. 268, 121 S. Ct. 1508 (2001)).

Edwards

places great store on the fact that she was put on a performance
improvement plan on September 5, 2008, two days after she says she
voiced a complaint to K. Moore.

It is undisputed that the

improvement plan was imposed upon Edwards on the heels of incidents
that occurred on August 30 or shortly thereafter.

Even if there

was a relationship between these closely proximate incidents and
Edwards’s being placed on an improvement plan, this NVI action was
not a materially adverse employment action.

It seems more likely

to have been an effort to help Edwards than to punish her.

Edwards

does not argue and cannot argue that she never needed to improve
her performance.

It is undisputed that this was not the first time

L. Moore had placed Edwards on an improvement plan.
proof

that

Edwards

was

singled
43

out

for

being

There is no

placed

on

an

improvement plan.

L. Moore herself was put on an improvement plan

and was subsequently discharged for not improving.
The April 2008 anonymous hotline call demonstrates that many
employees had difficulties working with L. Moore.

According to

Edwards, L. Moore treated all subordinates badly and “[e]verybody
that worked there” had problems with her. Edwards has presented no
evidence that any of the alleged adverse employment actions,
whether

material

activity.

or

not,

were

causally

related

to

protected

The court cannot speculate, or let a jury speculate, in

order to find the existence of such essential elements in a Title
VII case.
Assuming arguendo that Edwards has established a prima facie
case, NVI nevertheless is entitled to summary judgment on Edwards’s
retaliation claim because Edwards has offered no evidence that
NVI’s articulated reasons for any of its employment actions,
whether innocuous or material, were a pretext to cover retaliation.
In fact, Edwards does not even address pretext in her brief.
On April 24, 2013, the Supreme Court heard oral argument in
University of Texas Southwestern Medical Center v. Nassar, in which
the petitioner argued that for a Title VII retaliation claim to be
viable, the retaliatory motive must be the “but for” cause of the
adverse employment action. From a quick look at the oral argument,
it seems that the Supreme Court is divided on whether to apply to
retaliation claims the same reasoning it applied to ADEA claims in

44

Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S. Ct.
2343 (2009).

Edwards does not allege or argue that NVI’s alleged

adverse employment actions would not have occurred but for its
retaliatory motive.

This court will not speculate as to what the

Supreme Court will hold in Nassar, or what effect its holding will
have on Edwards’s claim of retaliation.
the

Supreme

Court,

Edwards

cannot

If the petitioner wins in
proceed

on

a

theory

of

retaliation while continuing to pursue her current mixed-motive
claim.

The court will not wait for the Supreme Court.

For the foregoing reasons, NVI is entitled to summary judgment
on Edwards’s retaliation claim.
III. Racial Harassment
Edwards

has

failed

to

present

any

evidence

of

racial

harassment, particularly not any possibly harassing conduct by NVI
that is not time barred.

She concedes that she never heard anyone

in management use racist language.

Instead, at her deposition she

premised her harassment claims on several race-neutral actions
taken by L. Moore, including standing behind her while she was on
the phone, making her take break time differently from everyone
else, telling other employees not to talk to her, and preventing
her from answering phone calls.
poor management skills.

These actions bear the mark of

They do not bear the mark of racism,

especially when they involve a black supervisor with whom the
subordinate obviously does not get along.
45

There are a lot of

obnoxious supervisors who may or may not be Title VII Simon
Legrees.

Edwards

necessarily

is

reduced

to

premising

her

harassment claim on her recollection of her conversation of August
30, 2008, with L. Moore, the conversation that has been stricken as
hearsay. Edwards wants this court not only to find a racial motive
for her being passed over for a promotion, but that her allegation
of racial motive is proof that the treatment that bothered her (and
other employees) was racial harassment.
NVI is entitled to summary judgment on Edwards’s racial
harassment claims.
IV.

FMLA

Edwards claims interference and retaliation in violation of
the Family and Medical Leave Act (“FMLA”) related to her 2009 leave
request.11

To bring a claim under the FMLA, Edwards must first be

an “eligible employee.” The FMLA defines “eligible employee” as an
employee who has worked at least 1,250 hours during the preceding
twelve-month period. 29 U.S.C. § 2611(2)(A). Even if the employee
has worked 1,250 hours an employer has no FMLA obligation if it
employs less than fifty employees within a seventy-five mile radius
of the employee’s worksite.
It

is

undisputed

that

Id. at § 2611 (2)(B)(ii).
at

11

the

time

Edwards

quit

or

was

To the extent that Edwards made any claims based on her
2008 FMLA leave, those claims were not addressed in her brief and
are deemed abandoned.
46

terminated,12 she had worked only 790 hours in the preceding twelve
months.

This fact alone precludes her from FMLA eligibility.13

Edwards argues, however, that this case is an exception because,
after she submitted her FMLA request to Anderson, he “interfered”
with her right to take leave.

Specifically, Edwards argues that

after she requested FMLA leave in late summer/early fall 2009,
Anderson asked if she would defer her leave because she was needed
at work.14

She contends that he then began purposefully and

systematically to reduce her hours to a point where, by November
12

Because Edwards never took her requested FMLA leave in
2009, the date of her termination is the most relevant date for
the purposes of calculating hours.
13

The parties dispute whether NVI employed less than fifty
employees within a seventy-five mile radius of the Homewood
store. NVI has offered Wicker’s declaration that, during the
time that Edwards was employed by NVI, the total number of
employees within seventy-five miles was less than fifty. In
response, Edwards has provided documentation that when she
applied for FMLA leave in 2008, NVI granted her leave and
confirmed in writing that she was eligible for leave under the
FMLA. She argues that this evidence is sufficient to create a
jury issue as to whether there were greater than fifty employees
within seventy-five miles of the Homewood store.
Although NVI denies that it employed more than fifty people
within seventh-five miles of the Homewood store, at least at some
relevant point in time, NVI represented to Edwards that it was a
covered employer by issuing the coverage letter to Edwards. The
conflicting evidence before the court, the Wicker declaration and
the coverage letter, create a disputed issue of fact as to
whether NVI employed enough individuals to be a covered employer
under FMLA. This issue is not dispositive of the FMLA claim.
14

When leave is foreseeable due to planned medical
treatment, as it was here, an employer may ask an employee to
postpone or delay her procedure without interfering with her FMLA
rights. See Franks v. Indian Rivers Mental Health Ctr., No.
7:08-cv-1035, 2012 WL 4736444, at *15 (N.D. Ala. Sept. 30, 2012).
47

2009, she was only working one day a week.

Edwards argues that

these actions violated FMLA by interfering with her right to take
FMLA leave.
Edwards offers no evidence to support her allegation that
Anderson, with Machiavellian intent, reduced her hours in order to
make her ineligible for FMLA leave. Furthermore, her allegation in
this regard cannot be reconciled with her deposition testimony.
When asked the basis for her FMLA claim, Edwards testified that
Anderson had only delayed her requested leave in 2009 for a short
period and that she had agreed to it.

When asked if Anderson had

done anything other than delay her leave to interfere with or
oppose her FMLA leave, Edwards answered “[n]othing else.”

Edwards

admits in her brief that she requested that her hours be reduced
and that she become a part-time employee in July 2009 so that she
could go to school.

She explained, also, that around this time,

NVI was remodeling, so she was already working on and off three
days a week.

It was not until months after her FMLA request, in

October 2009, that Edwards’s schedule was reduced to one day a
week.
Edwards has offered only hopeful conjecture to support her
theory that NVI reduced her hours so that she would be ineligible
for FMLA. She has offered nothing but speculation to provide a
causal connection between her reduced hours and her 2009 FMLA leave
request.

Speculation and conjecture are not enough.

48

Without

evidence,

Edwards

has

presented

the

court

with

nothing

but

“arguments of counsel.” The undisputed evidence shows that Edwards
worked 790 hours during the twelve-month period preceding her
termination. Based on this single undisputed fact, Edwards was not
eligible for

FMLA.

Accordingly,

NVI is

entitled

to

summary

judgment on the FMLA claim.
IV.

State Law Claims
A. Constructive Discharge

NVI is entitled to summary judgment on Edwards’s so-called
“constructive discharge” claim because no such claim exists in
Alabama.

See Johnson v. Wal-Mart Stores, Inc., 987 F. Supp. 1398,

1406 (M.D. Ala. 1997) (“There is no Alabama cause of action for
constructive discharge, particularly in view of the fact that
[plaintiff]

was

protection.”).

an

employee-at-will

with

no

contractual

Even if Alabama recognized such a claim, NVI would

be entitled to summary judgment as to it because Edwards does not
address such a claim in her brief, abandoning this spurious claim.
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995).
B. Invasion of Privacy
Alabama

recognizes

“invasion of privacy.”
the

plaintiff’s

four

distinct

torts

under

the

label

These wrongs include: “(1) intruding into

physical

solitude

or

seclusion;

(2)

giving

publicity to private information about the plaintiff that violates
49

ordinary decency; (3) putting the plaintiff in a false, but not
necessarily

defamatory,

position

in

the

public

eye;

or

(4)

appropriating some element of the plaintiff’s personality for
commercial use.”

Ex parte Birmingham News, Inc., 778 So. 2d 814,

818 (Ala. 2000) (quoting Johnston v. Fuller, 706 So. 2d 700, 701
(Ala. 1997)).

Edwards contends that NVI invaded her privacy by

giving publicity to private information about the her that violates
ordinary decency and by putting her in a false position in the
public eye.

NVI is entitled to summary judgment on both of

Edwards’s said claims.
Edwards contends that after she was terminated, NVI repeatedly
revealed private information about her and falsely claimed that she
was terminated because she was a “no call, no show.”

Edwards also

asserts that her privacy was invaded when someone at NVI spread the
rumor that she was attending anger management classes and told
people to stay away from her.

None of these facts, if true,

support a claim for invasion of privacy.
Both of Edwards’s theories of privacy invasion require that
defendant gave publicity to private or false information.

See

Johnston, 706 So. 2d at 703 (quoting the Restatement (Second) of
Torts § 652D); Schifano v. Greene County Greyhound Park, Inc., 624
So. 2d 178, 180 (Ala. 1993) (quoting Restatement (Second) of Torts
§ 652E).

In the context of invasion of privacy, “publicity” means

“making . . . public, by communicating it to the public at large,

50

or

to

so

many

persons

that

the

matter

must

be

regarded

as

substantially certain to become one of public knowledge.” Ex parte
Birmingham News, Inc., 778 So. 2d at 818 (quoting Comments to
Restatement (Second) of Torts § 652).

No one gave “publicity” to

the private and allegedly false information upon which Edwards
bases her claims.

“Ordinary decency” did not require NVI to alter

its regular business practices by walking on egg shells.
The alleged comments regarding Edwards being a “no call, no
show” were not given publicity or made known to the public at
large.

Although Edwards asserts that this information was spread

to “all individuals who were involved in the processing of any
correspondence concerning Edwards, including letters of reference,”
there is no such evidence in the record.

If, Edwards is referring

to the internal payroll action form in her personnel file that
Anderson signed, indicating that she had voluntarily terminated her
employment through “no call, no show” for three consecutive shifts,
the memo is far from “communicating to the public at large” or “to
so many persons that the matter must be regarded as substantially
certain to become one of public knowledge.”

Furthermore, such an

intra-corporate

to

Alabama law.

communication

is

entitled

privilege

under

See Cantrell v. North Ala. River Homes, Inc., 628 So.

2d 551, 552-54 (Ala. 1993) (recognizing that intra-corporation
communications

are

protected

by

defamation).

51

privilege

in

the

context

of

The

comment

within

Edwards’s

personnel

file

regarding

Edwards’s participation in anger management classes also fails to
meet the publicity requirement.

Although not articulated in her

brief, presumably Edwards is referring to comments made by Dr.
Arello, an optometrist at the Homewood store, to Wicker, which
Wicker reported

to

K.

Homewood store in 2008.

Moore

during the

investigation

of

the

There is no evidence that this comment was

communicated outside of NVI’s managerial employees, and there is
certainly no evidence that it was communicated to the “public at
large.”

Furthermore, such a communication made during an internal

investigation would be privileged for reasons similar to the
internal personnel action form.
NVI is entitled to summary judgment on both of Edwards’s
invasion of privacy claims.
C. Negligent/Wanton Hiring, Training, Supervision, and
Retention
Edwards’s

claim

for

negligent/wanton

hiring,

training,

supervision, and retention fails because she cannot establish an
underlying tort on which to base her claim.

See Leahey v. Franklin

Collection Serv., Inc., 756 F. Supp. 2d 1322, 1328-29 (N.D. Ala.
2010) (citing Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F.
Supp. 2d 1314, 1320 (N.D. Ala. 2002)).

In her brief, Edwards

asserts that L. Moore was an “ineffective manager” and that Wicker,
NVI’s district manager, knew it.
believe that

L.

Moore

was

Whether Wicker had any reason to

harassing
52

Edwards

and

causing

her

emotional distress is unknown.

The court agrees with Edwards that

NVI thought that L. Moore was an ineffective manager.
fired her.

It finally

After Edwards withdrew her claim for intentional

infliction of emotional distress, and now that all other state law
claims have been dismissed under Rule 56, there is no underlying
tort upon which to base a claim for negligent or wanton hiring,
training, supervision, and retention, and NVI is entitled to its
dismissal.
Conclusion
During over thirty years on the bench this court has denied a
great many more motions for summary judgment than it has granted.
This is as it should be.
dispute resolution.

A trial is the gold standard for civil

But Rule 56 was adopted for a reason.

When

there are no disputes of material fact, there is no reason to
empanel a jury.

This is one of those relatively few cases.

For the foregoing reasons, NVI’s motion for summary judgment
will be granted in its entirety.

A separate order will be entered

effectuating this opinion.
DONE this 17th day of May, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

53

54