Clayton v. Golden Bird Acquisition LLC
MEMORANDUM OPINION AND ORDER For reasons as noted within, Defendant's motion for summary judgment (Doc. 14) is DENIED. Defendant's motions to strike (Docs. 23-24) are also DENIED. Unless the parties notify the court that they have made arrangements to settle the case or to participate in alternative dispute resolution, a pretrial conference shall be held, in chambers, on August 1, 2014, at 10:30 a.m. Signed by Judge William M Acker, Jr on 7/17/14. (SAC )
2014 Jul-17 PM 01:46
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SYLVIA L. CLAYTON,
GOLDEN BIRD ACQUISITION, LLC, }
CIVIL ACTION NO.
MEMORANDUM OPINION AND ORDER
Plaintiff Sylvia L. Clayton brings this Title VII action
against defendant Golden Bird Acquisition, LLC, d/b/a Krystal,
defendant’s motion for summary judgment.
For the reasons that
follow, defendant’s motion will be denied.
Defendant is a fast food restaurant chain.
Plaintiff is a
From December, 2009, until July, 2013, plaintiff
worked as a cashier at one of defendant’s stores.
course of her employment, she sought promotion to the position of
“Master Cashier.” Defendant took several steps toward awarding her
the promotion, even giving her a Master Cashier work uniform, but
never increased her pay. Plaintiff insists that she was unlawfully
denied promotion, or, alternatively, that she was promoted but
unlawfully denied pay equal to that of other Master Cashiers.
Defendant has also made two motions to strike certain
evidence upon which plaintiff relies in her opposition memorandum,
on the grounds that the evidence is irrelevant under Title VII case
law or will be otherwise inadmissible at trial.
Because the court
is convinced that a trial judge can accord this evidence the proper
weight without “striking” it from the record, the motions to strike
will be denied, without prejudice to any later motion in limine or
objection to the evidence at trial.
What remains are the merits of plaintiff’s race discrimination
The facts that gave rise to this claim are these:
Krystal and the “Master Cashier” Position
Defendant’s Trussville location (and all Krystal stores?) had
until 2012 a position called “Master Cashier.”
A Master Cashier
performed all the duties of a regular cashier, but was supposed to
be more expert and more pleasant to customers, wore a different
color shirt, and made slightly more money.
The process for
becoming a Master Cashier was mostly informal.
The employee did
not fill out any application or the like, but merely expressed
interest to the store manager.
Afterward, and with the manager’s
guidance or instruction, the employee was required to complete a
certain number of “Web-Based-Training modules” and to ace a “Master
Meanwhile, the store manager would communicate the
employee’s request to the “franchise corporate office,” which in
turn would recommend the employee to the “franchise standards
representative.” The franchise standards representative would take
the final step of certifying the employee as a Master Cashier.
The promotion process thus required succesfully passing four
evaluation steps: (1) the General Manager, (2) the trainings/test,
(3) the “franchise corporate office,” and (4) the “franchise
Any of these steps could conceivably
have been tainted by the prohibited influence of racial animus.
Further complicating matters is that defendant’s power structure
was somewhat unsettled during plaintiff’s tenure, and at least
three different people held the General Manager position over
Plaintiff does not pin down the exact spot or spots
where discriminatory intent crept into the hiring process, but
relies on the logical inference that it must have been somewhere in
the following course of events:
The Bascoe Months: December 2009 - March 2011
When plaintiff was first hired, in December, 2009, defendant
was in the midst of apparent management upheaval, and nobody
officially held the “General Manager” title.
“Assistant General Manager,” Ann Bascoe, acted as general manager,
and plaintiff claims that it was to Bascoe that she first voiced
plaintiff, Bascoe reacted favorably to plaintiff’s request and set
in motion the promotion machinery.
Shortly after the request was
made, Keith Moody, the franchise standards representative, came to
observe and evaluate plaintiff and Kelly Lawrence, another cashier
testifies that a “District Manager,” Sheryl Perlstein, told her,
informally, that she had been certified as a Master Cashier.
Defendant’s version of what happened during this time period
It denies that plaintiff ever expressed interest in
the Master Cashier position during the Bascoe months, and denies
that Moody ever evaluated plaintiff.
Moody himself testifies that
he has no record or recollection of ever observing plaintiff, and
that his visit to the Trussville location was made only to observe
This testimony is inconsistent with the testimony of
Lawrence and a few other coworkers, who were under the impression
that Lawrence and plaintiff were both being observed.
insists that this testimony will not be admissible at trial.
Whichever version of these months is correct, it is undisputed
February, 2011, and plaintiff was not.
The Moore Months: March 2011 - September 2011
In March, 2011, Bascoe was replaced by Ray Moore, a fullblooded “General Manager.” Plaintiff claims that, as soon as Moore
was hired, she repeated her request for a promotion to him.
testifies that Moore confirmed what Perlstein had said earlier,
namely, that plaintiff had been certified as a Master Cashier and
would soon be officially promoted.
She further testifies that,
when she later asked what the status of the promotion was, Moore
told her that he was working on it.
Defendant again has a different story.
It says that Moore
never communicated that he would promote plaintiff, and indeed that
he never had any intention or inclination to do so.
testifies that plaintiff was not much of an employee: “she wouldn’t
dress appropriate, she wasn’t good with the customers, and she
Moore Dep., Def.’s Ex. F, at 35-36.
In fact, he says
that he came close to firing her on a few occasions, and that only
pity for her difficult financial situation moved him to keep her on
A jury might choose to take Moore’s testimony with a grain of
In September, 2011, just six months after he was hired,
Moore was caught embezzling money from the company and was fired.
His testimony that plaintiff was a lousy employee is not supported
elsewhere in the record. The opinions of plaintiff’s coworkers and
other supervisors, for whatever they are worth, were that plaintiff
was diligent and responsible.
A mysterious endnote to Moore’s tenure is that, just after he
was fired, plaintiff received an official Master Cashier work
The Master Cashier shirts are a different color from the
normal cashier shirts, and are specially embroidered with the
employee’s name: here, a nice, cursive “Sylvia.”
See Pl.’s Ex. 7.
The shirt was delivered to plaintiff by a fellow cashier.
plaintiff nor defendant can explain where the shirt came from.
Could it be that Moore, with his last gasp, heroically came through
with the promised promotion?
Was Perlstein right when, months
plaintiff had been certified by the powers that be?
Was the shirt
ordered then, and for some reason took several months to be
The mystery remains unsolved.
Whatever the case, the
Master Cashier shirt was never accompanied by a Master Cashier
title and, more importantly, was never accompanied by a Master
Cashier pay raise.
The Allison Months: November 2011 - July 2013
After Moore’s unexpected departure, defendant hired Scott
Allison, another full-time General Manager.
For a third time,
plaintiff expressed that she wanted to be officially granted the
Master Cashier position.
She now expressed additionally that she
felt she was already entitled to it.
Plaintiff says that Allison,
like Moore, told her that he was “working on” getting her the
Allison denies this, but does confirm that he was well
aware of plaintiff’s interest in the position, as well as the facts
that plaintiff had expressed interest during the previous regime
and had already received a shirt for it.
But Allison says he never
had any intention of giving plaintiff the promotion.
explains, “[t]hey were dissolving the master cashier position, so
Allison Dep., Def.’s Ex. D, at 71.
least one cashier for promotion.
He did, however, consider at
Sarah Blalock, a white cashier,
has testified that she was chosen by Allison to become a Master
Cashier and was evaluated for the position by Moody, but left the
company just before receiving the promotion for unrelated reasons.
Blalock Dep., Pl.’s Ex. 1, at 15-16.
occasion, he allegedly shared a racially-charged joke with her.
Plaintiff says that when she asked at the end of a shift whether
she was free to go home, Allison responded “Are you free?
know. Ask Lincoln.” On another occasion, he reprimanded plaintiff
for wearing a burgundy hairpiece in violation of a company policy
against unnatural hair colors.
Plaintiff did not feel the policy
was applied equally against white employees, though defendant has
defendant, and had her pay increased only once, by $0.05 per hour,
during her four years with the company.
She left voluntarily in
July, 2013, for a job at Sonic, a rival fastfood chain.
discrimination, and thus is analyzed according to the tired and
sometimes tiresome burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
First, the complainant “must
carry the initial burden under the statute of establishing a prima
facie case of racial discrimination”; second, the burden “shift[s]
to the employer to articulate some legitimate, nondiscriminatory
reason for the employee's rejection”; and finally, the complainant
must show that the employer’s “stated reason for respondent's
rejection was in fact pretext.”
Prima Facie Case
Id. at 802-04.
defendant’s promotion decisions,1 plaintiff must show “(1) that the
plaintiff belongs to a protected class; (2) that she applied for
and was qualified for a promotion; (3) that she was rejected
It is not important to distinguish plaintiff’s “disparate
pay” claim from her “failure-to-promote” claim. Whether plaintiff
is said to have been unlawfully denied a promotion, or said to have
been granted a promotion but unlawfully denied an appropriate pay
increase, the analysis is essentially the same.
less-qualified employees outside her class were promoted.”
v. Ala. Dep't of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010)
These elements are met with the following
evidence: (1) plaintiff is black, and thus a member of a protected
class, Pl.’s Facts ¶ 1; (2) she applied for a job as a Master
Cashier by expressing interest in it to her supervisors, id. ¶¶ 4,
34, 54; and completed the required trainings and tests and was a
competent employee, id. ¶¶ 40-43, 62-65, 68; (3) she was never
promoted; and (4) several white employees, including Kelly Lawrence
and Sarah Blalock, were chosen for the promotion that she sought,
id. ¶¶ 27, 59.
Legitimate, Non-Discriminatory Reason
Defendant meets its initial burden as well. It offers several
non-discriminatory reasons for its decision to leave plaintiff as
a regular cashier throughout her employment.
During the Bascoe
months, defendant says, plaintiff had not yet applied for the
position, or at least, her interest in the position never reached
the ears of Keith Moody, the certifying manager.
Def.’s Facts ¶¶
During the Moore months, plaintiff was not qualified
inappropriate attire, a poor attitude, and a rude demeanor toward
Def.’s Mem. at 18-19.
Regardless of these reasons, or
in addition to them, plaintiff was unqualified during both the
Bascoe and Moore months because, according to defendant’s records,
she did not complete the required training courses until January,
Def.’s Reply at 15.
Finally, by the time the Allison months
rolled around, the company was in financial turmoil, and for that
reason nobody was or could have been promoted.
The final, and most important, step of the inquiry is a
On defendant’s motion for summary judgment, plaintiff
must present “sufficient evidence for a reasonable jury to find
that the employer's asserted non-discriminatory reason was not the
actual reason and that the employer intentionally discriminated
against the employee on the basis of race, color, religion, sex, or
Brady v. Office of Sergeant at Arms, 520 F.3d
490, 494 (D.C. Cir. 2008).
Crucially, the question of whether the
employer was motivated by plaintiff’s race involves peeking into
the mind of the decision-maker, a task which only a jury can
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993) (“[After the parties meet their initial burdens,] the trier
of fact proceeds to decide the ultimate question.”) (emphasis
Frankly, both parties’ cases are fragile when subjected to the
closer inspection of step three of McDonnell Douglas.
for her part, has made a strong case that defendant’s failure to
promote her was callous, blundering, and even dishonest, but has
presented little evidence that race had anything to do with it.
The entirety of her evidence with direct relation to race is one
garden-variety racist joke made by Allison, and one instance of
verbal discipline, unaccompanied by punishment of any kind, for
wearing a hairpiece that violated company policy.
that these were examples of unequal treatment based on race (and
the evidence is at best mixed as to the latter incident), these
incidents were isolated, not pervasive.
Furthermore, if defendant
discriminated based on race, it did so inconsistently.
Two of the
three supervising general managers, Bascoe and Moore, were the same
race as plaintiff.
So too was one of plaintiff’s co-cashiers,
Tellisa Heard, who received the promotion that plaintiff desired.
Pl.’s Facts ¶ 46-47.
And so too were managers elsewhere in the
company, including Jacqueline Hearns, the General Manager that
succeeded Allison, Pl.’s Facts ¶ 73, and Jacqueline McClellan, one
of plaintiff’s trainers/shift managers, Pl.’s Facts ¶¶ 36-37.
Plaintiff’s lack of affirmative evidence, however, is not
fatal to her case. “[I]t is permissible [though not mandatory] for
the trier of fact to infer the ultimate fact of discrimination from
the falsity of the employer's explanation.”
Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (emphasis in
original) (qualifier added for context); see also Alvarez v. Royal
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer's proffered legitimate reasons for its action that
a reasonable factfinder could find them unworthy of credence”)
(quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th
So, plaintiff can rest her case entirely on the
inadequacy of defendant’s explanation, rather than the adequacy of
Defendant has certainly provided her the opportunity to
The claim that plaintiff never expressed interest in the
position during the Bascoe months is inconsistent with plaintiff’s
The claim that Moore considered plaintiff
an undeserving employee is based solely on the post hoc testimony
of Moore, a witness of dubious credibility, and is undermined by
other evidence, including abundant evidence that plaintiff’s work
expressed optimism about her promotion throughout his tenure.
claim that plaintiff did not complete the required trainings until
2012 and thus could not have been promoted before that time is
undermined by the overall informality of the promotion process, the
fact that other employees were apparently promoted without having
completed all the required courses, and the fact that a Master
Cashier shirt was produced for plaintiff, despite the incomplete
trainings, in 2011.
The claim that the company did not and could
not, because of financial hardship, promote anybody during the
Allison months is significantly undermined by the fact that Allison
selected, and the company approved, the promotion of Blalock in
Substantial evidence thus exists on which a jury
could, though not must, disbelieve all of defendant’s proffered
Furthermore, defendant’s presentation of facts throughout the
litigation process has tended toward exaggeration-–a tendency which
a jury may very well view unfavorably.
In proceedings before the
explained that Allison “stutters in the early morning hours due to
exhaustion,” and that this probably caused plaintiff to hear an
“ask Lincoln” joke where none was actually uttered.
Mem., Ex. 15, at 2.
This would-be explanation is dubious, at best,
as well as somewhat misleading.
There is some testimony that
Allison sometimes “mumbles,” but he does not have and has never had
a problem with “stuttering,” see Allison Dep., Def.’s Ex. D, at
170, and there is no evidence that anybody has ever had trouble
understanding Allison’s speech, see, e.g., Stephenson Dep., Def.’s
Ex. E, at 202 (“Q.
Does Scott Allison stutter?
Have you ever
known him to stutter?
plaintiff misheard Allison.
Nor is it likely that
While defendant originally claimed
that plaintiff and Allison were the only two people present when
the comment was made, defendant has since admitted that Jacqueline
McClellan, a Shift Manager, was also present.
See id. at 199-200.
McClellan not only understood Allison to say “ask Lincoln,” but
filed her own, separate EEOC complaint about the comment.
Mem. at 39.
Elsewhere in its correspondence with the EEOC, defendant’s
factual postulates are similarly outlandish.
In one paragraph,
defendant bravely announces that plaintiff “cannot demonstrate she
began or expressed an interest in the master cashier program,” that
“Mr. Allison had no knowledge Ms. Clayton took the web-based
training classes or completed her master cashier training program,”
and that “no evidence exists [that] Ms. Clayton ever applied with
Mr. Allison’s predecessor [Moore].”
Pl.’s Mem., Ex. 15, at 3-4.
In sum, “Ms. Clayton never asked to go through the program or
indicated any interest in it.”
Id. at 4. These statements venture
beyond aggressive advocacy and into the realm of blatant untruth.
The record is clear that plaintiff expressed interest in the Master
Cashier position early and often, to just about anyone who would
listen. Both Allison and Moore have specifically and unequivocally
testified that they were aware of her interest in the position.
See Allison Dep., Def.’s Ex. D, at 62; Moore Dep., Def.’s Ex. F, at
Defendant’s fast-and-loose treatment of the facts continues in
its briefs before this court.
In an effort to emphasize the
significance of the fact that Moore is the same race as plaintiff,
for example, defendant claims that “[t]he only promotions to Master
Cashier occurred while Ray Moore served as the Gen[e]ral Manager.”
Def.’s Mem. at 18.
This is probably inaccurate.
records show that the pay raise for Lawrence was approved in
February, 2011, one month before Moore arrived.
See Pl.’s Ex. 10.
Nevertheless, defendant doubles down on the next page, claiming
that Moore’s successor, “Mr. Allison[,] never considered anyone for
promotion to Master Cashier.”
Def.’s Mem. at 19 (emphasis in
The court ought to coin a new legal Latinism to capture
the phenomenon that the more emphasis is placed on text, the less
likely the text is to be true.
The maxim would apply here; if
former Krystal employee Sarah Blalock is believed, Allison not only
considered someone for the Master Cashier position, but selected
the person he considered and went through the full promotion
process with her.
See Blalock Dep., Pl.’s Ex. 1, at 15-16.
only reason that Allison never actually “promoted” anyone is that
the selected person chose to decline the promotion, at the last
second, for medical reasons.
In sum, the evidence in this case is widely disputed, and
there is considerable room for disagreement as to the degree of
decisions, as well as the degree any untruthfulness is relevant to
and/or probative of the ultimate issue of discriminatory intent.
These are ambiguities that can only be resolved by the jury.
For all the foregoing reasons, the court concludes that this
matter contains genuine disputes as to material facts, so that
Defendant’s motion for summary judgment (Doc. 14) is therefore
Defendant’s motions to strike (Docs. 23-24) are also
Unless the parties notify the court that they have made
arrangements to settle the case or to participate in alternative
chambers, on August 1, 2014, at 10:30 a.m.
A court reporter shall
The court strongly encourages the parties to consider
DONE this day 17th day of July, 2014.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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