Jones v. AT&T

Filing 42

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 8/19/13. (SAC )

FILED
2013 Aug-19 PM 02:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TWANA BOND JONES,
Plaintiff,
v.
BELLSOUTH COMMUNICATIONS,
LLC,
Defendant

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CV-11-BE-3852-S

MEMORANDUM OPINION
This Title VII case, alleging retaliation and a hostile work environment based on race, is
before the court on “Defendant’s Motion for Summary Judgment and Incorporated Memorandum
of Law.” (Doc. 29). The pro se Plaintiff filed a response (doc. 32) as well as a sur-reply (doc. 36)
to the Defendant’s reply (doc. 33). For the reasons stated in this Memorandum Opinion, because
no genuine issue of material fact exists and because the Defendant is entitled to judgment as a
matter of law, the court will GRANT the motion in its entirety.
I. FACTS
The following facts are based on the evidence submitted, viewed in the light most
favorable to the non-movant, here the Plaintiff, Twana Bond Jones. In her response and surreply, Jones does not provide additional undisputed facts or additional disputed facts, with
evidentiary cites, nor does she attach further evidence to those briefs. She does attempt to
dispute many of the facts listed in the brief of Defendant BellSouth Communications, LLC., and

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where her disputes are based on citations to evidence that does indeed contradict BellSouth’s
facts, the court accepts those disputes. However, where Jones fails to cite any evidence for her
dispute and merely provides argument in her brief that is not under oath and that is not supported
by cited evidence, the court does not consider those facts properly disputed as set forth in the
Order Setting Summary Judgment Briefing Schedule and the attached Appendix II. (Doc. 31).

Jones, who is African American, began working for Defendant Bellsouth
Communications, LLC as a sales associate in 2006. Her duties included answering inbound calls
from customers and consulting with customers to recommend and sell a variety of
telecommunications products and/or services. (Doc. 30-3, at 2). Jones had a series of immediate
supervisors called sales coaches, most of which are African American, and they reported to Jason
Pollard, the Central Sales Manager, who is white.
Bellsouth’s Method of Performance Measuring
Bellsouth sets monthly and yearly sales objectives for sales associates, and sales
associates’ supervisors monitor achievement on a daily, monthly, and year-to-date basis. A sales
associate’s performance is considered satisfactory if she receives a score of at least 100 totaling
sub-scores in four categories of critical performance: (1) average billed income; (2) retention
units sold; (3) revenue per call; and (4) customer satisfaction. The four categories do not have
the same weight, but their combined total should reach a minimum score of 100 to be
satisfactory. The scores are tracked on a scorecard.
Bellsouth’s Progressive Discipline Policy
Bellsouth has a progressive discipline policy that applies to the sales associate position
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and has four steps: step one is counseling; step two is a warning; step three is suspension (or a
letter in lieu of suspension); and step four is termination. A collective bargaining agreement
(“CBA”) governs the terms and conditions of Jones’s employment. Under the CBA, a
counseling entry will be removed after 6 months, a warning will be removed after 24 months, and
a suspension or letter in lieu of suspension will be removed after 36 months, but in each case the
removal only occurs if no disciplinary action happens in the interim period.
Jones’s Performance 2007-January 2009
At the beginning of 2007, Jones’s performance scores were satisfactory; however, in
April of 2007, her score dropped to 96.32 and remained below 100 for the rest of the year,
resulting in her yearly score as less-than-satisfactory. In accordance with the progressive
discipline policy, Jones received counseling entries on May1 3, 2007 and June 11, 2007, and
received a warning for unsatisfactory performance on July 17, 2007.
In 2008, Jones’s performance scores were unsatisfactory for every month except April,
and her yearly score was 94.32, also unsatisfactory. Tangela Morton, an African American
manager and sales coach, discussed with Jones her less than satisfactory performance for the
2008 year and reported that discussion in a document dated February 12, 2009.
In mid-January of 2009, Jones signed a copy of the “Birmingham Operational
Guidelines.” Included in the guidelines was the following statement: “The appraisal performance
measurement plan combines critical performance areas into a composite score. 100% is the

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The date of entry on this document shows the month as either a five (May) or an eight
(August). Because the text under the entry characterizes it as a counseling, not a warning, and
under the CBA counselings occur before warnings, the court assumes that the counseling
documented occurred before the July 17, 2007 warning.
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minimum acceptable score. . . .Performance less than 100 percent will require a behavior based
growth plan or corrective action plan with specific numerical targets.”
In January, Jones finished the month with a score of 104.11, the first satisfactory score
she had received in nine months and the highest she had ever received at Bellsouth. That score
was also the last monthly score that reached a hundred that she received while working on the
phones.
2009 Team Leader Assignment
After and as a result of her satisfactory score in January of 2009, Manager Pollard reassigned Jones to a sales associate Team Leader position. The Team Leader is a temporary nonmanagement role created under the CBA that lasts for a period varying from 30 days to 12
months and permits the sales associate to perform some limited supervisory responsibilities. The
criteria for selection includes seniority, meeting/exceeding performance objectives, satisfactory
attendance, and the absence of other active discipline. During the tenure as Team Leader, the
sales associate remains in the position of sales associate but is relieved of individual sales
objectives and answering incoming customer calls, and receives a 10% wage increase.
Accordingly, during the several months when Jones held the Team Leader assignment, she did
not receive performance objectives and had no issues with performance scores.
Attendance and FMLA before Protected Conduct
Bellsouth has an adherence policy, which governs attendance and limits the amount of
time a sales associate can be away from the phones to breaks and the lunch period, and personal
time is only allowed for required restroom visits. Ginger Minor was Jones’s supervisor regarding
adherence. Jones explained in her deposition that Bellsouth had no sick policy for the sales
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associates, so when associates were required to be absent, they take FMLA leave. The AT&T
FMLA Operations Unit handles the approval or denial of FMLA leave, not the sales coaches or
the sales managers.
Jones received counseling for unsatisfactory attendance and punctuality in November of
2007 and November of 2008. During the period in 2009 when she was a Team Leader, Jones
applied for the following FMLA leave: 8.5 hours on March 9, 2009 and 8 hours on April 20,
2009. The AT&T FMLA Processing Unit denied the claims for both 2009 FMLA requests,
because it did not timely receive documents from Jones’s medical provider supporting the
requests and from Jones justifying the untimely document submissions. Jones claims that the
denial was in error and that she did not receive numerous requests sent to her at work for the
required documents. However, the court will not discuss this denial in detail because Jones does
not identify that denial as discriminatory or retaliatory. The court mentions the denial only
because it resulted in attendance counseling and the attendance counseling affected Jones’s
eligibility for her Team Leader position, as further discussed below.
Loss of the Team Leader Assignment and Alleged Racist Comments
On May 28, 2009, Pollard advised Jones that she was no longer assigned to be a Team
Leader and would return to telephone duty. Jones claims that Pollard met with her early in the
day on May 28 to compliment her on her work but to advise her that she had lost the temporary
assignment because he had too many Team Leaders and needed more employees manning the
phones. However, later in the day, she had another meeting with Pollard and a union
representative, and in that second meeting, she acknowledges Pollard’s advising her that she was
placed back on the phones because of her unsatisfactory attendance. Although the Team Lead
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assignment was temporary and all Team Leaders remained sales associates, the assignment had
not technically been a promotion to a new permanent position. However, because the assignment
did carry with it a pay stipend, Jones considered the re-assignment to be a demotion. She stated
in her deposition that she does not believe Pollard demoted her because she is African American.
FMLA Operations – not Pollard – had handled Jones’s FMLA requests, and Jones
considered the handling of those requests to be unfair, particularly when it affected her eligibility
to be a Team Leader. When she tried to explain to Pollard that she had made inquiries with the
staff handling attendance and had been given the wrong information resulting in the FMLA
denial, Pollard told her that she needed to take personal responsibility. The discussion became
heated with Jones telling Pollard she did not agree with what he was doing. Pollard responded by
telling her that if she challenged him she would “not get anywhere within the company.” Jones
next advised Pollard that “I knew my rights and that I did work with the Human Rights
Committee as a part of a union elsewhere and that there were other avenues that could be taken.”
(Doc. 30-1, at 72).
Pollard proceeded to say two things that Jones characterizes as racist: first, he asked her if
she would key his vehicle; and second, he said that he thought Jones was threatening him and
“would possibly have him jumped” outside. (Doc. 30-1, at 72-73). Before these comments, Jones
had not experienced any conduct, statements, or actions that she considered to be racist.
Protected Activity
On May 29, 2009, Jones met with Pollard again and informed him that she considered his
comments the day before to be racist and she did not appreciate him threatening her. He reiterated
the comments. These two comments by Pollard, made on May 28, 2009 and reiterated the next
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day, are the only statements that Jones identifies as racial by any person at Bellsouth, made to her
or made in her presence.
Also on May 29, 2009, Jones wrote an email to Jay Murphy, Pollard’s boss, advising
Murphy that Pollard had made “blatant racist remarks” regarding his worry that she would key his
vehicle or have someone jump him, and that Pollard “has made my work environment very
hostile,” defaming her by those words, and treating her “like a mere thug who will resort to
vandalism.” She also stated in the letter that the demotion was an “intentional adverse action.”
(Doc. 30-3, at 33).
On June 8, 2009, Jones filed her first EEOC charge, checking the box for discrimination
based on race and stating the discrimination took place on May 28, 2009 and ended May 29, 2009.
She recounted the “racist” comments Pollard said to her regarding his worry she would key his car
or have someone jump him, and concludes: “I have been harassed and intimidated because of my
race.” (Doc. 30-3, at 31). On January 26, 2010, the EEOC issued a Dismissal and Notice of
Rights for this charge, advising her that a lawsuit must be filed in 90 days, but Jones did not file a
lawsuit in 2010.
2009 Performance after Protected Conduct
From the time that she returned to sales associate in June 2009 until the end of that year,
Jones never met her minimum performance score; she received scores of 86.30 for June, 92.92 for
July, 88.39 for August, 86.6 for September, 84.98 for October, 84.98 for November and 79.90 for
December.

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Alleged Harassment after Protected Conduct
– Harassment regarding Performance
From June in 2009 until her termination in May of 2010, Jones reported to sales coach
Alifah Furqan, who is African American. From the time she was “demoted” from Team Leader
and was placed back on the phones, Jones received what she considered to be undeserved
scrutiny and monitoring. Furqan began standing over her daily, listening to her calls with the
remote headset and coaching her about what to say while she was talking to her customers. Jones
does not specify exactly the dates or the hours of monitoring that she received from Furqan
beginning in June 2009 except to say generally that it was more than she had received previously
as a sales associate. She does not specify the amount of monitoring she received compared to
what other sales associates received, except to say that they received less. Jones recalls Furqan
sending out an email to the whole team highlighting individuals whose numbers were not up to
the satisfactory point that month, including Jones, and referring to Jones as a “slacker.”
Jones testified that she does not believe that Furqan monitored her excessively because of
her race; however, she believes that Furqan began this harassment because Pollard ordered her to
do so. Given the timing, Jones asserts that Pollard ordered the harassment in retaliation for her
May accusations that he was a racist with the attendant EEOC charge and her adherence issues
after the denial of FMLA time.
According to Jones, another form of harassing behavior was her sales coach’s conduct of
calling into her office and threatening to terminate her if she did not raise her sales numbers to the
satisfactory level. Jones claims that every employee was aware of the need to reach certain
minimum levels and that the repeated reminder was harassment.
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Further, Jones testified that someone at BellSouth tampered with her revenue numbers
during the Fall of 2009, affecting her performance scores. She claims she kept up with her
numbers on a daily basis and the revenue numbers were steadily and quickly decreasing.
Revenues can decrease if customers call and cancel orders, and Jones testified that she checked to
see if such cancellations occurred but the decrease in revenues were not caused by customers
calling and cancelling and taking products off. She has no records or notes substantiating her
claim that the revenue numbers were decreasing, and she has no evidence regarding who tampered
with her numbers. Because she does not know who tampered with her numbers, she cannot say
that the person responsible knew of her EEOC charge.
– Harassment regarding Attendance after Protected Conduct
After her protected conduct, Jones also received what she considered to be harassment
from Ginger Minor, a member of the attendance staff, regarding adherence, nit-picking about time
Jones spent away from her desk and giving her “H” entries on company records documenting
when she did not adhere to the schedule. For example, Jones indicates that when she would spend
more than a couple of minutes in the bathroom, a supervisor would come into the bathroom and
call her name out. Jones testified that Minor called her into the office and reminded her about the
need to comply with the Adherence Policy about punctuality. Jones testified that she did not
know whether Bellsouth gave “H” entries to other employees who did not adhere to the schedule.;
however, she considered this harassment to be retaliation. She says that she generally did not
believe smokers got written up for failing to comply with the adherence policy.
In her deposition, Jones testified that she does not believe that she received this
harassment because of her race but she does believe that she received it in retaliation for
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challenging Pollard about her unfair demotion and objecting when he responded to that challenge
with a threat and unfair stereotype.
Further, in August of 2009, Jones discovered that her FMLA hours were not listed
correctly. She left work in August on vacation and when she returned, she noticed that the
remaining FMLA hours had decreased during the vacation period even though she had used
vacation time for her absence, not FMLA time. She asserts that this decrease in FMLA hours was
"tampering" because no one had reason to change her FMLA time, but she has no evidence
regarding who tampered with them. When she raised the error, she was able to receive some
adjustments. As discussed later, however, she is not convinced that the FMLA adjustment was
properly reflected in the revenue numbers and performance requirements for the year.
August and September Complaint Letters
On August 13, 2009, Jones emailed one of AT&T’s Vice-Presidents, Deborah Peoples, to
complain about “major hostility and scrutiny at work” that occurred since she challenged Pollard’s
unfairness in demoting her at the end of May. She also referred to the June EEOC Charge that she
had filed.
On September 8, 2009, Jones sent an email to Peoples, Pollard, and others, explaining that
the attendance department had made another error regarding her remaining FMLA hours and
offering to “drop all charges” if Bellsouth would reinstate her in the Team Leader role, pay her the
extra stipend for Team Leader retroactive to June 1, and permit her to remain in that role at least 8
months.
On September 30, 2009, Jones sent an email to everyone at Bellsouth above Pollard in the
chain of command, recapping the incidents that occurred in May of 2009 that led to her removal
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as Team Leader, the comments Pollard made on May 28, 2009, and the errors Jones found in her
FMLA hours in August of 2009.
2009 Discipline after Protected Conduct
– Corrective Action Plan
On September 14, 2009, Mac’Kesha Stinson, who is African American, counseled Jones
regarding her unsatisfactory job performance. Bellsouth placed her on a Corrective Action Plan of
“CAP” requiring her to gradually improve her scores, which had dropped into the 80% range
during two months in the summer. Bellsouth waited three months from the time she returned to
the phones before placing her on CAP, but Jones asserts that she should have had more than three
months of transition time to the phones. She cannot, however, name any sales associates – white
or African American – to whom Bellsouth gave more transition time before placing her on CAP.
Her CAP plan required the following gradual score improvement: to 94% for September, 97%
for October, and 100% for November. However, Jones actual scores for the months were 86.08
for September, 84.98 for October, and 84.98 for November; her scores dropped rather than
increasing, and she did not meet or exceed the CAP requirements.
On December 1, 2009, Bellsouth issued her a warning for unsatisfactory job performance
based on September, October, and November scores. Jones acknowledges that the scores were
less than satisfactory but asserts that the numbers are low because she had used FMLA leave
during this time and that the FMLA leave should have been taken into account. Upon looking at
the 2009 scorecard, she acknowledges that from June through December, her baseline objective
was revised to be lower because she had used some FMLA time. Despite acknowledging the
revision, Jones still asserts that she was performing satisfactorily in light of the FMLA time off,
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but she provides no supporting evidence for that assertion.
– 2009 Attendance and Discipline for Attendance
On October 2, 2009, Mac'Kesha Stinson again counseled Jones for adherence misconduct.
Jones admits that she was not meeting adherence standards at times and indicates that her trips to
the restroom are responsible for not adhering to the schedule. She provides no examples of
employees -- white or African American -- who did not adhere to the schedule and who did not
receive documentation in records for adherence misconduct.
Second EEOC Charge
On December 11, 2009, Jones filed a second EEOC Charge, checking the box for
"Retaliation," and stating that discrimination took place between the dates of June 8, 2009 and
December 2, 2009. In that charge, she claims that since filing the last EEOC charge she received
the following retaliation: harassment and close monitoring from supervisors, tampering with
FMLA hours and revenue figures, unwarranted discipline, and threats for discharge if her sales do
not increase. In discussing the charge in her deposition, Jones acknowledged that she was
complaining of retaliation during this period but that she had not experienced any other racially
inappropriate conduct.
2010 Discipline and Termination
Jones's 2010 scores remained significantly less than satisfactory. Her January score was
74.21, February was 83.65, March was 87.57, and April was 80.69. On February 16, 2010, Jones
received a letter in lieu of suspension for unsatisfactory performance, after she ended January
2010 with a score of 74.21. Jones filed a grievance with BellSouth over the letter.
On April 7, 2010, Jones met with Pollard, Mac'Kesha Stinson, and Vicki Grace (a union
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steward) to discuss the conflict. Jones asserted that the numbers had been miscalculated because
of the FMLA issue and other errors. According to Jones, Pollard apologized for the
miscalculation and promised to give Jones some time to pull her numbers back up. Pollard left
the meeting at some point, and Jones, Grace, and Stinson signed an agreement stating "Per
agreement with the CWA agreed to remove Letter in Lieu for Performance on October 31, 2010 if
Jones is SAT[isfactory] on her APM Scorecard" and also agreed to "remove Warning for
Performance on December 31, 2010 if Twana Bond-Jones is SAT[isfactory] on her APM
Scorecard." (Doc. 30-3, at 58 & 59). As noted previously, the CWA generally provides that a
warning will be removed after 24 months and a letter in lieu of suspension will be removed after
36 months if no disciplinary action happens in the interim period; this agreement shortened the
period for the removal of the letter in lieu, and provided that if Jones could get her performance
numbers in the satisfactory range and keep them so throughout the rest of the year, her records
would be purged of the warning and letter in lieu.
Jones understood that this agreement meant that she would receive no discipline for
performance scores until October of 2010, and that she was given breathing space until October to
increase her numbers gradually to the satisfactory level. Although Pollard had left the meeting at
one point and did not sign the agreement, she testified that she was assured he had agreed to it.
However, Pollard subsequently met with Jones that same day to clarify the agreement. He wanted
to make sure Jones understood that she would still be subject to progressive discipline if she did
not get her results to a satisfactory level each month in the interim period before the end of
October. When he confirmed that Jones had been "confused" about the agreement, he advised
Jones that she would not receive discipline for unsatisfactory March numbers, which generally
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came out after the end of the month, but that she would be disciplined if her April numbers were
not satisfactory.
The next day, April 8, 2010, Jones wrote a letter to Pollard, Peoples, and others objecting
to Pollard's revision of the agreement, complaining about the mistakes the attendance staff had
made, and offering to forgive and forget the conflicts she had experienced if BellSouth would
simply give her until October 31, 2010 to reach a satisfactory level. In other words, she was
asking if BellSouth would honor her understanding of the April 7 agreement. In that letter, Jones
made an interesting statement: “To be brutally honest. Had I been given proper information from
the attendance staff, who actually (per the FMLA dept.) I am to go to. None of this would have
happened. If AT&T would have taken responsibility that yes staff can make errors (which has
occurred many times since then) I believe I would not be in this predicament.”
On May 6, 2010, BellSouth terminated Jones's employment for continued unsatisfactory
performance. The April score was 80.69, significantly less than satisfactory.
Third EEOC Charge
On May 7, 2010, Jones filed the third EEOC Charge, alleging that BellSouth terminated
her in retaliation for the two previous EEOC charges. On August 23, 2011, the EEOC issued a
Dismissal and Notice of Rights for the second and third EEOC Charges, filed in December of
2009 and May of 2010. Jones filed the instant suit on November 8, 2011, within 90 days of the
August Notice of Rights letter.
II. STANDARD OF REVIEW
Summary judgment is an integral part of the Federal Rules of Civil Procedure. Summary
judgment allows a trial court to decide cases when no genuine issues of material fact are present
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and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. When a
district court reviews a motion for summary judgment it must determine two things: (1) whether
any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c).
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56). The moving party can meet this burden by offering
evidence showing no dispute of material fact or by showing that the non-moving party’s evidence
fails to prove an essential element of its case on which it bears the ultimate burden of proof.
Celotex, 477 U.S. at 322-23. Rule 56, however, does not require “that the moving party support
its motion with affidavits or other similar materials negating the opponent’s claim.” Id.
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Disagreement between the parties is not
significant unless the disagreement presents a “genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) Substantive law determines which facts are
material and which are irrelevant. Id. at 248. In responding to a motion for summary judgment,
the non-moving party “must do more than simply show that there is some metaphysical doubt as
to the material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
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(1986). The non-moving party must “go beyond the pleadings and by [its] own affidavits, or by
the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P.
56(e)); see also Advisory Committee Note to 1963 Amendment of Fed. R. Civ. P. 56(e), 28
U.S.C. app. (“The very mission of summary judgment procedure is to pierce the pleadings and to
assess the proof in order to see whether there is a genuine need for trial.”). “The non-moving
party need not present evidence in a form admissible at trial; however, he may not merely rest on
his pleadings.” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999) (citing
Celotex, 477 U.S. at 324). If he does, or if the evidence is “merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50
(citations omitted).
In reviewing the evidence submitted, the court must “view the evidence presented through
the prism of the substantive evidentiary burden,” to determine whether the nonmoving party
presented sufficient evidence on which a jury could reasonably find for the nonmoving party.
Anderson, 477 U.S. at 254; Cottle v. Storer Commc’n, Inc., 849 F.2d 570, 575 (11th Cir. 1988).
The court must refrain from weighing the evidence and making credibility determinations,
because these decisions fall to the province of the jury. See Anderson, 477 U.S. at 255; Stewart v.
Booker T. Washington Ins. Co., 232 F.3d 844, 848 (11th Cir. 2000); Graham v. State Farm Mut.
Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). Furthermore, all evidence and inferences drawn
from the underlying facts must be viewed in the light most favorable to the non-moving party.
Graham, 193 F.3d at 1282. The non-moving party “need not be given the benefit of every
inference but only of every reasonable inference.” Id. The evidence of the non-moving party “is
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to be believed and all justifiable inferences are to be drawn in [its] favor.” Anderson, 477 U.S. at
255. After both parties have addressed the motion for summary judgment , the court must grant
the motion if no genuine issues of material fact exist and if the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56.
Even if a district court “‘believes that the evidence presented by one side is of doubtful
veracity, it is not proper to grant summary judgment on the basis of credibility choices.’”
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (quoting Miller v.
Harget, 458 F.3d 1251, 1256 (11th Cir. 2006)). The court should not disregard self-serving
statements made in sworn testimony simply because they are self-serving at the summary
judgment stage, and if the self-serving statements create a genuine issue of material fact, the court
should deny summary judgment on that basis. Id. at 1253.
III. DISCUSSION
In her second Amended Complaint, Jones alleges that she experienced harassment and
disparate treatment after her May 28, 2009 meeting with her manager and that she was
“terminated from her employment based, in whole or part, upon her race and retaliation in
violation of Title VII....” (Doc. 22). Although the current Amended Complaint is not entirely
clear whether she is asserting any claims except retaliation, Jones’s briefs state that she is indeed
asserting claims for racial discrimination and what she characterizes as “harassment” and
“disparate treatment” in addition to retaliation, all occurring after May 28, 2009. Her current
Amended Complaint and briefs consistently state that she is not making a discrimination claim
based on her May 2009 demotion, because the allegations of the pleading and her briefs indicate
that, while she considered the demotion unfair, the alleged discrimination began after she
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complained about the demotion. Accordingly, the court does not address the reassignment from
Team Leader in May 2009 as part of this action.
A. Hostile Work Environment based on race
1. Alleged “racial” comments on May 28-29, 2009
Jones filed her first EEOC Charge on June 8, 2009, complaining of alleged racist
comments that Pollard made on May 28-29, 2009 after she challenged the fairness of her reassignment from Team Leader back to the phones. On January 26, 2010, the EEOC issued a
Dismissal and Notice of Rights for this charge, advising her that a lawsuit must be filed in 90
days. However, Jones did not file a lawsuit in 2010; she filed the instant suit in November of
2011. To be timely, a complaint alleging unlawful discrimination in violation of Title VII must be
filed within 90 days of receipt of a Right to Sue letter. See 42 U.S.C. § 2000e-5(f)(1).
The court does not find the comments that offended Jones to be racial in nature. It does
find that her claims of harassment and racially hostile work environment based on those
comments are untimely and are barred.
2. Harassment from June 8, 2009 to termination
In her second and third EEOC Charges and deposition testimony, Jones recounts conduct
occurring at her workplace that harassed and offended her. However, in her second and third
EEOC Charge, she does not check the “race” box; rather, she checked the “retaliation” box and
continually relates the harassment not to her race but to retaliation for filing an EEOC charge.
Given Jones’s pro se status and the court’s obligation to be lenient with her filings, the court will
nevertheless address this claim to determine whether she has established a prima facie case.
To establish her prima facie case of hostile work environment based on race, a plaintiff
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must establish that “(1)[she] belongs to a protected group; (2) [she] was subjected to unwelcome
harassment; (3) the harassment was based on his membership in the protected group; (4) it was
severe or pervasive enough to alter the terms and conditions of employment and create a hostile or
abusive working environment; and (5) the employer is responsible for that environment under a
theory of either vicarious or direct liability.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1292
(11th Cir. 2012). In its motion for summary judgment, BellSouth argues that Jones has not
established element three because the alleged harassment was not based on her race, and that she
has not established element four because the harassment was not severe or pervasive. For the
reasons stated below, the court agrees that Jones has not presented evidence establishing element
three.
In her deposition testimony, Jones very clearly states again and again that she does not
claim that the identified harassment was based on race. Significantly, when discussing the second
EEOC Charge filed in December of 2009 in which she checked the box for “retaliation” but not
“race,” Jones testified as follows:
Q. This is an EEOC charge, Charge Number: 420-2010-00621, filed by you on
December 11th, 2009; correct?
A. Yes.
Q. And it is discrimination based on retaliation, correct?
A. Yes.
Q. And it is June 8, 2009, the earliest date; and 12/2/2009, the latest date;
correct?
A. Yes.
Q. Okay. So at this point, you had not experienced any other conduct that you
thought was racially inappropriate; correct?
A. Correct.
(Doc. 30-2, at 30).
She identified excessive monitoring by her performance supervisor, Furqan, who is
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African American, as one type of harassment. In addition to the monitoring, Furqan called Jones
into her office to remind Jones that she was not performing satisfactorily, and Jones felt that this
action also constituted harassment. Jones also cited as another harassing act from Furqan a rude
email sent to sales associates calling Jones a “slacker,” and highlighting those, including Jones,
who were not performing satisfactorily. When asked whether she felt Furqan was harassing and
monitoring her excessively because of her race, Jones responded simply “No.” (Doc. 30-1, at
103). Because Jones also testified that she believed Pollard was responsible for ordering the
excessive monitoring, she was asked whether Pollard ordered the monitoring because of her
race, and Jones again answered definitely “No.” (Doc. 30-1, at 106).
Another type of harassment Jones identified was Ginger Minor’s “nit-picking” with
adherence issues such as too much time spent in the bathroom, and calling Jones into her office
to remind her that she was not complying with adherence issues. Once again, when asked
whether this adherence harassment was because of her race, Jones answered, “No.” (Doc. 30-1,
at 113).
Another type of harassment she claims to have experienced involved someone
“tampering” with her hours of family leave. As noted in the facts, Jones had experienced
problems and what she considered to be errors with her FMLA hours before May of 2008, and
she does not complain that those previous errors were racial in nature. She provides no evidence
supporting an inference that the alleged FMLA errors after May of 2008 were a result of
intentional conduct that was racial in nature. Jones acknowledges that she does not know who
tampered with her hours, but the evidence reflects that the persons who were responsible for the
excess monitoring – Furqan and Pollard – have nothing to do with input of FMLA hours; the
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AT&T FMLA Operations Unit handles FMLA hours. Further, as Jones also acknowledges, the
evidence reflects that the FMLA hours were revised at some point, and Jones presents no
evidence that the FMLA hours were incorrect after the revision. In sum, no evidence supports
Jones’s allegations that the problems with FMLA hours had some racial tie.
Jones also asserts that someone allegedly “tampered” with her revenue numbers. She has
no evidence to support that assertion other than her vague testimony that she was keeping track
of her numbers, noticed the revenue numbers decreasing, and performed a check that confirmed
that the decrease was not justified. If she were keeping track of such numbers and noticed
discrepancies, logic suggests that she would copy the records to document the discrepancy or at
least take notes showing the numbers decreasing without explanation. She provides no
documentation whatsoever. While her testimony itself is evidence of dropping revenue
numbers, Jones provides no evidence that the dropping numbers represent intentional tampering
as opposed to computer or human error. Further, she provides no evidence tying the dropping
revenue numbers to race or even providing a reasonable inference that race was somehow
implicated.
As is clear from this review, Jones has not presented evidence that the harassment was
race-based. In fact, her own deposition testimony specifically and unequivocally states that most
of the harassment was not race based, and the remainder of the harassment is not tied to race by
any evidentiary thread. The court notes that Jones argues in her briefs that the harassment is
race-based, but her unsupported arguments do not represent evidence and cannot contradict her
clear deposition testimony. Because the claim based on the May 2009 comments are barred and
because Jones has not established element three of her prima facie case regarding harassment
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that began in June of 2009, the court need not address the absence of evidence that the alleged
harassment was severe or pervasive. The motion for summary judgment is due to be GRANTED
as to the claim for racially based hostile work environment.
B. Disparate Treatment based on Race
As discussed previously, when Jones filed the second and third EEOC Charges upon
which this suit is based, she did not check the “race” discrimination box. Because Jones
mentions disparate treatment in her briefs, the court simply states, in an abundance of caution,
that Jones has identified no white comparators, and, thus, cannot establish a prima facie case on a
disparate treatment theory. See Holifield v. Reno, 114 F.3d 1555, 1562 (11th Cir. 1997)
(explaining that “[a]s part of the Title VII plaintiff’s prima facie case, the plaintiff must show that
the employer treated similarly situated employees outside [her race] more favorably than
herself.”). To the extent, if any, that Jones presents a claim for disparate treatment based on race,
she cannot establish her prima facie case, and the motion for summary judgment is due to be
GRANTED.
C. Retaliation
Jones’s final claim is for retaliation. To establish her prima facie case based on this
claim, she must show that “(1) she engaged in statutorily protected expression; (2) she suffered
an adverse employment action; and (3) the adverse action was causally related to the protected
expression.” Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311-12 (11th Cir. 2002). If she
meets her prima facie case, under the McDonnell Douglas framework, the burden shifts to
BellSouth to “articulate some legitimate, non-discriminatory reason for the employee’s [adverse
treatment].” See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 526 (1993). If BellSouth so
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articulates, Jones next has the burden to prove that the legitimate reasons offered by the
defendant “were not its true reasons but were a pretext for discrimination.” See id. (quoting
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)).
In the instant case, BellSouth argues that Jones has not established any of the three
elements of her prima facie case. The court notes that BellSouth’s challenge to element two is
not well taken, and the failure to concede that particular element wastes the court’s time and is
not effective advocacy; in what alternate universe does termination of employment not represent
an adverse employment action?
BellSouth also argues that Jones has failed to show protected conduct and causation. The
court further notes that Jones has filed three EEOC Charges, two of which were filed before
termination, and thus, her activity falls within the “participation clause,” which protects an
employee who “has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 20003-3(a). The court
need not address BellSouth’s other arguments on the prima facie case. Even assuming arguendo
– without deciding – that Jones meets her prima facie case, summary judgment is appropriate
because BellSouth has articulated legitimate, nonretaliatory reasons for its employment
decisions, and because Jones has so clearly failed to show pretext as a matter of law, as further
discussed below.
BellSouth’s Legitimate, Non-Retaliatory Reason
To meet its burden of articulation, BellSouth need only present a legitimate,
nonretaliatory reason for its termination of Jones, one that would “motivate a reasonable
employer” to terminate her. See Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266
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(11th Cir. 2010).

The court finds that BellSouth has indeed articulated a legitimate

nonretaliatory reason: Jones’s unsatisfactory performance as measured by unacceptable
performance scores for most of her tenure at BellSouth.
Thus, Jones has the burden of proving BellSouth’s proffered reason was not its true
reason. To show pretext, she must demonstrate “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reason for
its action that a reasonable factfinder could find them unworthy of credence. . . .Provided that the
proffered reason is one that might motivate a reasonable employer, an employee must meet that
reason head on and rebut it. . . .” Id. at 1265-66.
Jones does not meet BellSouth’s reason head-on and rebut it with evidence that her
performance was satisfactory. Rather, the record is replete with evidence that Jones’s
performance was unsatisfactory. Indeed, the evidence reflects that out of the four years Jones
was employed with BellSouth, she only met performance goals when working on the phones for
five months: the first three months she was employed in 2007, April of 2008, and January of
2009. Further, this performance problem began well before her protected conduct; her
performance had failed to meet the required levels for nine months in 2007 and eleven months in
2008. The evidence also reflects that she received discipline for those pre-protected conduct
performance issues: counseling entries on May 3, 2007; June 11, 2007; a warning on July 17,
2007; and a discussion with coach Tangela Morton in February 2009 about her poor 2008
performance scores.
The evidence reflects that her poor performance in 2009 and 2010 was merely a
continuation of that pattern when, after returning to the phones, she never reached satisfactory
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performance scores. In light of that rather dismal performance history, the conduct that Jones
considers to be harassment – monitoring, supervision, establishment of a corrective action plan,
calling Jones into offices to remind her of goals and requirements – could instead reasonably be
viewed as a conduct of good business attempting to ensure that its struggling employee received
not only mentoring and tools to assist her but also notice that her current performance was not
acceptable so that she would have a last chance to improve.
Jones’s only attempt to rebut BellSouth’s articulated reason for her termination and the
wealth of evidence of unsatisfactory performance scores is to assert that the revenue numbers
were incorrect. To that end, she provides merely her own testimony that the revenue numbers
were higher and then dropped mysteriously. While this testimony is evidence of a revenue drop,
albeit uncorroborated with any kind of documentation, Jones provides no evidence linking the
drop to retaliation. She has no evidence that the drop was human rather than computer error.
She has no evidence tying the drop to employees who knew of the EEOC charge. Further, she
has no evidence about the exact amount of the drop to gauge whether her performance scores
would have been satisfactory without the drop. In short, she has no evidence creating a
reasonable inference that the drop occurred as a result of a retaliatory act. Rather, the evidence
reflects that Jones’s post-protected unsatisfactory performance was simply a continuation of the
pre-protected unsatisfactory performance.
The court finds that Jones has not presented evidence of pretext. Accordingly, the motion
is due to be GRANTED as to the retaliation claim.
Having found that BellSouth’s motion for summary judgment is due to be GRANTED as
to all claims against it, the court WILL ENTER SUMMARY JUDGMENT in its favor and
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against the Plaintiff, Ms. Jones. The court will enter a separate Order simultaneous with this
Memorandum Opinion.
Dated this 19th day of August, 2013.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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