Phillips v. Family Dollar Stores Inc

Filing 38

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 1/23/15. (SAC ) (Additional attachment(s) added on 1/23/2015: # 1 Exhibit Sealed Memorandum Opinion) (SAC, ).

FILED
2015 Jan-23 PM 03:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NAVOLIN PHILLIPS,
Plaintiff,
v.
FAMILY DOLLAR STORES, INC.,
Defendant.

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CV-13-BE-1208-S

MEMORANDUM OPINION
This matter, asserting discrimination based on race brought pursuant to 42 U.S.C. § 1981,
is before the court on “Defendant Family Dollar Stores of Alabama, Inc.’s Motion for Summary
Judgment.” (Doc. 20). This motion has received thorough briefing: Defendant filed a brief
(doc. 21) and evidentiary material (docs. 22 through 22-5, 24 & 37) in support of its motion; the
Plaintiff filed a brief in opposition (doc. 27) with evidentiary material (doc. 26, 31); and the
Defendant subsequently filed a reply (doc. 35). For the reasons stated in this Memorandum
Opinion, the court FINDS that the motion for summary judgment is due to be GRANTED.
PROCEDURAL BACKGROUND
On June 28, 2013, the Plaintiff filed this lawsuit against her employer, Family Dollar
Stores of Alabama, Inc., asserting race discrimination based on her termination. (Doc. 1, as
amended in Doc. 13). On May 27, 2014, Family Dollar filed the motion for summary judgment
currently under submission (doc. 20) with accompanying evidentiary material (doc. 22),
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including the Declaration of David Swanger (doc. 22-4). On June 18, 2014, the Plaintiff filed a
motion to strike (doc. 28) Swanger’s declaration, and an amended motion to strike (doc. 29).
After holding a conference to discuss the motion to strike, the court granted the motion to strike
and struck Swanger’s declaration. (Doc. 36).
FACTS
In March 2002, Family Dollar hired the Plaintif, Navolin Phillips, an African-American
female, as a clerk in the Selma, Alabama store. In October 2004, the Defendant Family Dollar
promoted her to Store Manager in the Camden, Alabama store, and then she moved back to the
Selma store in 2006 as a Store Manager. Phillips never applied for any position at Family Dollar
that she did not receive.
Phillips’s Performance Deficiencies before Midfield
During the time that she worked as Store Manager in Selma, Scott McLeod, a Caucasian
male, and later Felicia Coleman, an African-American female, held the position of District
Managers over Phillips’s store; they instituted a number of Performance Improvement Action
Plans to counsel Phillips for performance deficiencies. More specifically, when McLeod was
District Manager, he issued three counseling reports for deficiencies in Phillips’s work: (1) a
verbal counseling report on August 22, 2007 for overspending her payroll budget; (2) a written
counseling report on August 29, 2007 for failing to complete notes he had instructed her to
complete on an earlier visit; and (3) a written counseling report on February 18, 2008 for
overspending her payroll budget with an Associate’s Improvement Action Plan requiring her to
communicate via telephone the store’s total payroll information every work day.
Felicia Coleman, like McLeod before her, documented problems with Phillips’s
2

performance; she issued four disciplinary reports to document Phillips’s deficiencies during her
tenure as manager: (1) & (2) written warnings on July 21, 2010 and October 6, 2010 for
overspending her payroll budget, with accompanying Associate’s Improvement Action Plan to
attempt to remedy the problem; (3) a verbal counseling report on October 6, 2010 for failing to
transmit required paperwork; and (4) a decision-making-step on October 8, 2010 for
overspending her payroll budget with a warning that “Navolin is now on notice not to overspend
her budget again or this may result in reassignment or termination. She has to take this seriously.
She must regain control.” (Doc. 22-1, at 84; Phillips Dep. Ex. 2 ). Phillips acknowledges that a
“decision-making step” is the last step before termination, and she does not claim that these
Performance Improvement Action Plans issued during her tenure at the Selma store were based
on race.
Phillips’s Work History at Midfield
In December of 2010, Glenn Waite, the African-American Area Operations Manager over
Family Dollar District 53, moved Phillips to Store #4019 in Midfield, Alabama, one of the 24
stores within Waite’s management sphere. Julie Njoku, a female African-American, was the
Performance Manager in District 53 and functioned as an assistant to Waite. In high volatility
markets, Family Dollar assigns two supervisory personnel to a district: an Area Operations
Manager instead of a District Manager, and also a Performance Manager as his assistant.
Although the testimony varies about whether Phillips’s store was in a volatile location, Phillips
had supervision from both an Area Operations Manager and a Performance Manager. According
to Phillips, the volume of Store #4019 requires two assistants at the store, but Phillips did not
consistently have two assistant managers working at the store; different assistants were “coming
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in and out” of the store. Thus, she claims that the company did not provide her with proper,
consistent staffing. According to Richard Gibson, who was a subsequent Area Operations
Manager over the Midfield Store #4019, that store was a low volatility store in comparison to
other Family Dollar stores in that district and market.
On April 9, 2011, Waite visited the Midfield store, and completed an “Every Store Visit”
form, rating Phillips’s store at 2.75/10.00. Scores of 5.25/10.00 and below equate to an F. The
form listed the following scores: 0.5/1.25 points in the category of “Customer Experience”;
.25/.50 points in the category of “Team Member Experience”; 0/3.25 possible points in the
category of “Recovery1”; 0/1 point in the category “In Stock Position; 0/1 point in the category
“Door to Shelf”; 0.5/1 point in the category “Office/Shrink2 Control”; 1/1 point in the category of
“Schematics”; and .5/1 point in the category of “Monthly Planner.” (Doc. 22-1, at 89; Phillips
Dep. Ex. 7). Thus, Waite was the third supervisor to document problems with Phillips’s
performance. Phillips does not claim that this April of 2011 discipline was based on her race.
In the Spring of 2011, the company transferred Waite to another district, and Rich
Gibson, a Caucasian, replaced Waite. (Doc. 26-1, at 5). While Gibson was in training for his
new Area Operations duties in District 53, Sharlean Geter, an African-American female, helped
to perform Area Operations Manager duties. On May 17, 2011, Geter issued a written
counseling report to Phillips for poor store standards with a Performance Improvement Plan
documenting Geter’s advising Phillips that May 24, 2011 was her deadline to clean up the back

1

Recovery means that the merchandise is pushed to the front of the shelf, that the store is
kept full, and that the merchandise is on the floor and not in the stockroom, so that the customer
can see it.
2

Shrink means inventory loss at a store.
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room, and that the failure to do so would lead to her termination. Three days later on May 20,
2011, Geter completed an “Every Store Visit” form regarding Phillips’s store, and gave Phillips a
rating of 4.75 for the visit, which equated to an F. She scored a 0.5/1 in the Office/Shrink
Control category. (Doc. 22-1, at 98; Phillips Dep. Ex. 8). Thus, Geter was the fourth supervisor
to document significant problems with Phillip’s work. Phillips does not assert that the written
counseling that Geter gave her was based on Phillips’s race.
Also in May of 2011, after Waites left as District Manager, Phillips asked Family Dollar
via Geter to allow her to step down from the Store Manager position to an Assistant Manager
position, because Geter had threatened to cut her pay and because Phillips believed that she did
not have sufficient help to keep up the store without an assistant. Geter noted this request on her
May 17, 2011 Performance Improvement Action Plan. (Doc. 22-1, at 85; Phillips Dep. Ex. 3).
The briefs’ Statements of Fact do not reflect the company’s response to this request, except that
Phillips remained in the position of Store Manager until her termination.
On June 9, 2011, Phillips received another Performance Improvement Action Plan, this
time from Performance Manager Njoku. The decision-making step stated that Phillips was not
following company direction on logbooks, cash handling, back door, door to shelf, and DVR
review. Phillips agrees that her store experienced problems in the areas that Njoku listed on June
9, 2011, and Phillips does not claim that this decision-making step was based on her race. Njoku
was the fifth supervisor to document significant problems with Phillips’s work.
On the day after the issuance of the decision-making step, June 10, 2011, Njoku
completed an “Every Store Visit” form and performed a shrink estimate. Njoku gave Phillips’s
store a rating of 4.0 on this visit, which equated to an F. She received a score of 0 in the category
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of Office/Shrink Control. (Doc. 22-2, at 12; Phillips Dep. Ex. 16).
On June 20, 2011, Njoku issued yet another Performance Improvement Action Plan to
Phillips, giving her a written warning because she was over payroll budget. Phillips does not
claim that the June 20, 2011 discipline action was based on her race.
On August 25, 2011, Gibson issued a Performance Improvement Action Plan to Phillips,
reflecting a “decision-making step” (the step before termination) for being over payroll budget.
Phillips does not claim that this disciplinary action was based on her race.
Termination of Phillips
As of the end of August of 2011, Gibson made the decision to terminate Phillips, and
Family Dollar terminated her on September 13, 2011. A document marked “Monthly Shrink
Recap,” prepared on or about August 26, 2011, reflected that the company discovered on July 15,
2011 that a serious inventory shrink problem existed with Phillips’s store. The “Monthly Shrink
Recap” document reflected a $58,134 difference between Phillips’s store inventories on May 20,
2011 and on August 26, 2011, a three-month time period. The document further stated in relevant
part as follows:
Field Resources were lent to store to shore up impacted stockroom
(approximately 300 hours). Multiple visits (announced & unannounced) were
provided to drive SOU [term undefined] around Store Standards. An estimate
was attempted on 8/4/11, but “junk boxes” and excessive freight in stockroom
would have skewed our estimate so additional resources were lent (Field
Specialists). A surprise visit on 8/11/11 revealed a total disconnect from
[Store Manager] (PPT attests) and another on 8/26/11 revealed the same.
Since 7/15/11 the [Store Manager], additionally, has received a [Performance
Improvement Plan] for Opening Late and excessive use of Payroll (excess of
budget). An estimate was completed on 8/24/11 by [Performance Manager]
and supported on 8/26/11 by [Area Operations Manager]. [Area Operations
Manager] will partner with HR to term on 8/29/11.

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(Gibson Dep. Ex. 1, Doc. 24-1, Sealed).
Gibson testified that field specialists referenced in this document were Family Dollar
associates who were available to assist underperforming stores and supporting a store manager
that was struggling in a given area. He testified that Phillips’s store was a low volatility store
when compared to other stores within that market, and yet, he had to send associates to help
Phillips clean up her store, and he had warned her that she needed to improve her operation
execution. Gibson further testified that this document reflected that “Phillips was terminated for
poor performance, including deficient numbers in her store.” (Gibson Dep. Doc. 22-3, at 21, p.
82). The August “Monthly Shrink Recap” document also stated, on August 29, 2011:

“Partner

with Jennifer Lazenby [the field HR manager] to terminate [Store Manager]. In advance of
discussion, PIP’s and present documentation will be provided.”3 (Gibson Dep. Ex. 1, Doc. 24-1,
at 1 Sealed).
On September 3, 2011, prior to Phillips’s termination but after Gibson had made the
decision to terminate her, Gibson conducted a store evaluation for Phillips’s store. Gibson filled
out an “Every Store Visit” form that resulted in a score of 3.75/10.00, which equated to an F.
Phillips received no points in the categories of “Recovery,” “In Stock Position,” or “Schematics,”
and received scores of 1/1.25 in “Customer Experience”’ .25/.50 in “Team Member Experience”
and .75/1.0 for both “Office/Shrink Control” and “Monthly Planner.” Phillips received 1/1 point
on “Door to Shelf.” (Gibson Dep. Pl.’s Ex. 2, Doc. 22-3, at 38). This score was the fourth “F”
score Phillips had received from four different supervisors: Waite, Geter, Njoku, and Gibson.
3

The document was unclear whether Gibson originally intended August 29, 2011 to be
Phillips’s termination date, and then he postponed the termination to September 13, 2011, or
whether August 29, 2011 was the date he met with Lazenby to plan Phillips’s termination.
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Three of these four supervisors are African-American.
On September 13, 2011, Rich Gibson met with Phillips at her store and advised her that
she was being terminated. Gibson had arranged for a police officer to be present at the store that
day when he gave Phillips the news because Gibson was concerned about her reaction.
According to Phillips, Gibson explained that her “shrink” numbers from loss of inventory were
the reason for her termination; he said that he did not allow that type of shrinkage. The
Personnel Action Form for Navolin Phillips’s termination contained a code for the termination
reflecting that she was terminated for failure to protect company assets. Donna Barden,
Supervisor, HR Administration for Family Dollar Stores, Inc., testified that the use of this code
means that her job “performance resulted in inventory loss, not that she was terminated for
unauthorized removal of company property and/or funds.” Barden’s declaration refers to
Phillips’s Personnel Action Form but does not attach it. (Doc. 22-5, at 2).
In the conversation advising her of her termination, Gibson did not mention poor store
conditions or other performance issues as factoring into the termination. Njoku was also present
during the termination meeting, and when Gibson gave the reason for the termination, Phillips
recalled Njoku looking upset and getting up to leave. Phillips then gave Njoku the keys to the
safe and asked Njoku to count the money before Phillips left. Phillips next attempted to follow
Njoku, but Phillips claimed that Gibson grabbed her by the shirt collar from behind and pulled
her back into the swinging stockroom doors. According to Phillips, she broke free and moved to
the front of the store, where she told Njoku that Gibson had put his hands on her and that she was
mad about it. Phillips did not report Gibson’s actions to the police; she claims that the police
officer left the store before Gibson grabbed her.
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Phillips’s Post-Termination Actions
Following her termination, Phillips left the store and went directly to her attorney’s
office, and also called Family Dollar’s hotline to complain. The hotline call report reflects that
Phillips complained that Gibson had unfairly terminated her because of her race and/or because
her salary was too high, as she had worked at the company for nine years. Phillips complained
that Gibson had terminated other unnamed employees who had worked for the company for
seven years or more. The report does not mention any complaint about Gibson grabbing Phillips.
However, it does mention that Gibson had previously failed to help Phillips obtain a substitute to
work for her although he assisted a white Store Manager in finding substitutes. Phillips
acknowledged in the hotline call that she did not complain about racial discrimination to
management before her termination, but she claims she did complain during her hotline call
about Gibson grabbing her by the shirt collar even though the report did not document the
complaint.
Family Dollar’s Post-Termination Actions
The company took an inventory of the store Phillips managed on September 13, 2011, the
date of her termination. The document marked “ICD Reconciliation Worksheet - Inventory
Summary,” dated September 13, 2011 and giving the prior inventory date as September 27, 2010,
listed the inventory at Phillips’s store as short over $95,000 in inventory with a percent overshort
of more than 6%, which means the store’s actual inventory is short of the inventory number
shown on the store’s books, and also showed a slippage percent of more than -6.7%. The
document reflects that the shrink number for the prior year, inventory date September 27, 2010,
had been $56,750.00, so in one year’s time, the shrink number had almost doubled, with nearly
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$40,000.00 of additional loss to the company. (Doc. 22-3, at 15-16, pp. 60-63, Gibson Dep.;
Doc. 24-1, at 3, Pl.’s Ex. 7 to Gibson Dep., Sealed). In preparation for this inventory, Njoku
sent an employee to assist in getting store conditions under control, and that person had assisted
the day before the inventory for approximately eight hours. After this assistance with store
conditions, Phillips’s store received a “C” score on September 13, 2011, the first score during the
general period of her management4 of the store that was not an “F.”
Phillips attributed part of the poor inventory numbers to prior management and the lack
of assistant managers in the store. Phillips took over the store in December of 2010, only three
months after the September 27, 2010 inventory, so, at the time of the September 13, 2011
inventory, she had been Store Manager for nine months. The “Monthly Shrink Recap”
document reflected a $58,134 difference between Phillips’s store inventories on May 20, 2011
and on August 26, 2011, a time period when Phillips functioned as the only Store Manager.
Family Dollar replaced Phillips with Justin Simpson, who is an African-American male,
as Store Manager of Store #4019.
Lawsuit
On June 28, 2013, Phillips filed suit against Family Dollar, alleging race discrimination.
The only adverse employment action based on race discrimination that she identifies in the
Complaint and in her brief is her termination. Although Phillips acknowledged that neither
Gibson nor anyone else at Family Dollar had ever made any racially derogatory comments to her,
she nevertheless asserts that Gibson “was kind of racist” for the following reasons: (1) because

4

Although the inventory occurred after Phillips’s termination, it occurred on the same
day as her termination.
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he promoted two other Store Managers to training positions but did not promote her, although
she received every promotion for which she applied; (2) because Gibson declined to help her find
a substitute for her store so that she could attend a district-wide Store Manager meeting, but on
another occasion, Gibson helped a white Store Manager find a substitute by sending an email to
Store Managers soliciting a substitute; and (3) because Family Dollar did not terminate Mike
Richards, a white Store Manager in her district with what she characterizes as poor inventory
results.
Comparator Mike Richards
(1) Resigned or Terminated?
Phillips testified that Richards, a white Store Manager in her district, had similar
inventory loss but was not terminated. In her deposition testimony, Phillips acknowledged that
she did not have any personal knowledge about whether Richards still worked for Family Dollar
or, if he did not, about the circumstances of his separation. In her Statement of Additional Facts,
Phillips pointed to a “Separation” form for Michael Richards that was an exhibit to Gibson’s
deposition, and that listed a separation effective date of November 23, 2011, a couple of months
after Phillips’s own termination. The form also provided the following information:
Eligible for Rehire:
Separation Code:
Method of Separation:
Two Weeks Notice?
Employee Evaluation:

N
14
Y
Y
5

(Doc. 22-3, at 72, Gibson Dep. Ex. 8).
Gibson, who only worked for Family Dollar for fifteen months and was working
elsewhere at the time of his deposition, did not authenticate the form, interpret it, or verify that
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the information on the form had been keyed correctly; he testified that he did not recall having
anything to do with Richards’s separation, and he could not testify whether Richards left
voluntarily or whether he was terminated.
(2) No History of Discipline
The personnel file of Richards is not part of the record on summary judgment. The
Declaration of Traci Wiggins, a paralegal for Phillips’s counsel, stated that she had reviewed
Richards’s personnel file that Family Dollar produced, and found no documents in the file
counseling him or otherwise disciplining him for poor performance, nor did any document in the
file show that Family Dollar terminated his employment. In the reply brief, Family Dollar
admitted that “Phillips has no document or testimony indicating that Family Dollar terminated
Richards’ employment.” (Doc. 35, at 5, ¶ 49).
Manager Glen Waite, who was not the same District Manager terminating Phillips,
performed a Performance Review of Richards dated October 25, 2010. The scores Richards
received under Business were: Controllable Expenses - needs improvement; Slippage Shrink and
Markdown - “0"; Controllable Profit - Good; Store Standards - Unsatisfactory; HR Programs Unsatisfactory score; FD Competencies - 18/20 points; and under Overall Appraisal, the
comments read: “Mike need [sic] to focus on shrink and shrink controls. Mike has to understand
that he must get the right team in place in order to be successful. Worry about the things you can
controll [sic] and take care of these first. Mike places too much emphasis on things he has no
control over. Usually company culture and the way we do business. Change and he will be
successful. Overall rating was a need improvement mostly due to unsatisfactory shrink results.”
(Doc. 31, at 15-18, Sealed).
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In her deposition testimony, Phillips acknowledged that she did not have personal
knowledge of Richards’s discipline history at Family Dollar; she did not know whether Richards
had ever received an “F” score on an Every Store Visit form, whether Richards had received any
disciplinary action for being over budget, whether Richards had received any disciplinary action
for poor store conditions, or, as referenced earlier, whether Family Dollar terminated his
employment. Phillips presented no documents reflecting that Richards had received disciplinary
action, written or oral, and no document or testimony indicating that Family Dollar terminated
Richards’s employment.
(3) Inventory Numbers
Because Phillips argues that Richards had a similar problem with inventory shrink at the
Family Dollar store he managed, Store #2618, yet was not terminated, those inventory numbers
are potentially relevant. Family Dollar admitted or provided the following inventory information
about that store, and although Richards did not take the position of Store Manager until 2010, the
parties provided 2008 and 2009 store information to document the store status prior to his arrival
as a comparison to the store status under his leadership.
As of February 2008, when another employee managed the store before Richards’s
arrival, the inventory numbers reflected that the inventory was short $80,523.30, which was a
4.98 % shortage, and that the slippage was ($85,509.92), which was -5.29%. (Doc. 31, at 20,
Sealed). As of March of 2009, when another employee managed the store before Richards’s
arrival, the inventory numbers reflected that the inventory was short $127,218.66, which was a
8.45% shortage, and that slippage was ($145,154.92), which was -9.64%. (Doc. 37-1, at 1-2,
Sealed).
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As of October 2010, when Richards was the Store Manager and Waite was the Area
Operations Manager, the inventory numbers in Richards’s store reflected improvement from
2009: the inventory was short $52,639.67, which was a 5.97% shortage, and slippage was
($65,970.510), which was -7.48%. (Doc. 31, at 10, Sealed). As of October 2011, when Richards
continued as the Store Manager and Gibson was his supervisor, the inventory numbers in
Richards’s store reflected that the inventory was short $110,192.14, which was a 5.96% shortage,
and the slippage was ($142,054.60), which was -7.69%. (Doc. 31, at 8, Sealed).
The court notes that although Swanger’s declaration addressed Richards’s separation
from the company, the court granted Phillips’s motion to strike that declaration. See doc. 36.
(4) Gibson’s Testimony about Comparing Shrink Rates at Different Stores
Gibson testified that comparing shrink rates from one store to another would not be
comparing apples to apples, because some stores are located in more volatile neighborhoods with
high a customer count as compared to others; without knowing the shrink history at a particular
locations and other specific information, he could not make a judgment from looking only at
numbers whether the Store Manager was working successfully. He explained that “[y]ou have to
be able to look at each store individually.” (Gibson Dep. Doc. 22-3, at 20 p. 77). According to
Gibson, Richards’s store in Ensley was one of the most volatile stores and one of the hardest
retail operations to run in the entire state of Alabama. In Gibson’s opinion, during his own
tenure supervising Richards, Richards was driving operational improvement in his store despite
those challenges, and he had “greater mastery over his freight ... getting his freight out in a timely
manner, significantly better rate of time than he had prior; and the recovery of the store, just the
general cleanliness was significantly more aesthetically pleasing to customers.” (Gibson Dep.
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Doc. 22-3, at 19, p. 73-74).
LEGAL STANDARD
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
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.
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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
(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.
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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 nonmoving party “is 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.
DISCUSSION
Phillips brings one claim pursuant to Section 1981: that Family Dollar terminated her
because of her race. Because she provides no direct evidence of race discrimination, she relies
upon the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) to present a case based on circumstantial evidence. Although McDonnell Douglas is a
Title VII case, the Eleventh Circuit has explained that the standards of proof and analytical
elements are the same under both Title VII and Section 1981, so the court analyzes Section 1981
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claims, such as the current one, under the same framework. See, e.g., Jimenez v. Wellstar Health
Sys., 596 F.3d 1304, 1312 (11th Cir. 2010) (citing Standard v. ABEL Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998)).
Under that framework, to establish a prima facie case for disparate treatment based on
race in a disciplinary matter, a plaintiff must show that “(1) she is a member of a protected class;
(2) she was subjected to an adverse employment action; (3) her employer treated similarly
situated employees outside of her protected class more favorably than she was treated5; and (4)
she was qualified to do the job.” Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th
Cir. 2006).
The undisputed evidence establishes that Phillips is an African American who was
terminated from her position as Store Manager, and Family Dollar does not assert that she was
unqualified for her position. Rather, Family Dollar challenges element three of the prima facie
case, arguing that the evidence does not reflect that Family Dollar treated her differently than any
similarly situated comparator, and that the comparator Phillips has identified, Michael Richards,
is not similarly situated. Accordingly, the court will focus on element three, the “different
treatment of a similarly situated comparator” issue.
“In determining whether employees are similarly situated for purposes of establishing a
prima facie case, it is necessary to consider whether the employees are involved in or accused of
the same or similar conduct and are disciplined in different ways.” Holifield v. Reno, 115 F.3d
1555, 1562 (11th Cir. 1997). To satisfy the similar offenses prong, the Eleventh Circuit
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A plaintiff may also establish element three by showing that her employer replaced her
with someone outside her protected class, but, in the instant case, the undisputed facts show that
Family Dollar replaced Phillips with another African American.
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“require[s] that the quantity and quality of the comparator’s misconduct be nearly identical to
prevent courts from second-guessing employers’ reasonable decisions and confusing apples with
oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999); see Brooks v. CSX Transp.,
Inc., 555 F. App’x 878, 883 (11th Cir. 2014) (quoting with approval Maniccia’s “nearly
identical” language). Even if a plaintiff and the comparator are similar in some respects,
distinctions in overall job performance may mean they are not “similarly situated” for the
purposes of meeting the burden of proof on a prima facie case. See Knight v. Baptist Hospital of
Miami, Inc., 330 F.3d 1313, 1317 (11th Cir. 2003) (finding that the comparator was not similarly
situated to the plaintiff because, even though their histories with co-workers were similar and the
plaintiff’s placement on decision-making leave arose out of conflict with a co-worker, the overall
performance records of the plaintiff and comparator were dissimilar and the leave decision
occurred after a review of the plaintiff’s entire record ).
One of Family Dollar’s primary arguments is that Phillips has failed to show that Phillips
and Richards were disciplined in different ways, in that she has not provided evidence about the
reason for Richards’s separation from the company. The company asserts that Phillips has the
burden to establish that Family Dollar terminated Phillips but not Richards, and that she has not
done so; she has provided Richards’s separation form that Family Dollar produced to her in
discovery but no testimony authenticating it, interpreting it, or explaining the reasons behind his
leaving. The separation form, an exhibit to Gibson’s deposition, provides a separation code, with
no explanation for the code, and it also contains a “Y” next to the words “Two Weeks Notice,”
but Family Dollar asserts that this information does not necessarily mean that Richards left
voluntarily, and no testimony explains the information provided or verifies that it was keyed in
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correctly. Accordingly, the company insists that Phillips has not met her burden.
Phillips argues that she has indeed met her burden of raising a genuine issue of material
fact that Family Dollar did not terminate Richards. The court agrees. Richards’s separation form
contains a “Y” after the words “Two Weeks Notice,” and the court finds that a common sense
interpretation of that information is that Richards gave a two weeks notice, indicating that the
separation was voluntary on his part. That information on the separation form, together with the
acknowledged absence of any document in the personnel file indicating that Family Dollar
disciplined him or terminated him, support a reasonable inference that he was not terminated, or,
at the very least, raise a genuine issue of fact about the issue.
The court notes that Family Dollar obviously could provide evidence explaining and
verifying the information and codes on its own separation form, a document the company
produced to Phillips during discovery. The company has chosen not to do so, arguing that
Phillips has the burden to prove her case. While she does indeed have that burden, to the extent,
if any, that this choice represents a “hide the ball” strategy, that strategy has no place in the
summary judgment process. Richards was terminated or left voluntarily, and determining which
occurred according to the company’s separation form should be no deep secret; Family Dollar
should have that information and should have provided it to Phillips. That said, the court, having
rejected Family Dollar’s argument that Phillips has not raised a genuine issue of material fact on
the termination issue, finds that she has met her burden on that point. Accordingly, the court
next proceeds to address the key disputed issue: whether the two were similarly situated.
Phillips argues that Richards is similarly situated because he was a Store Manager in the
same district as Phillips, had the same supervisor in 2011, and had similarly poor inventory
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percentages: in 2010 (under supervisor Waites, before Family Dollar moved Phillips into her
current district), the inventory shortage for Richards was -5.97%, and slippage was -7.48%; in
September 2011 (under supervisor Gibson since April), the inventory shortage for Phillips was
-6.15 % and for Richards was -5.96%; and the slippage for Phillips was -6.76 % and -7.69 % for
Richards. According to Phillips, despite these similar inventory numbers, Family Dollar treated
the two Store Managers differently, terminating Phillips but not Richards, and citing inventory as
the reason.
Family Dollar first argues that the Fall 2011 inventory numbers that Phillips is comparing
to Richards’s were not part of the decision to terminate her, and should not be part of the
“similarly situated” calculation. The September 13, 2011 inventory of Phillips’s store occurred
after her termination, so her termination was not based on these inventory numbers. Rather,
according to a document Marked “Monthly Shrink Recap,” Gibson made the decision to
terminate her no later than August of 2011 after discovering a $58,134 difference between
Phillips’s store inventories on May 20, 2011 and on August 26, 2011, a three-month time period
during which Phillips was the Store Manager. Although the subsequent September 13, 2011
inventory, performed after the termination conversation, confirmed a significant shrinkage
problem in the store, Gibson did not have these numbers when he made his decision or when he
communicated the decision to Phillips. Therefore, Family Dollar argues that May through
August 2011 inventory numbers are the appropriate ones on which to focus and use as a
comparison. This court agrees.
The record does not reflect a corresponding monthly inventory for the Ensley store under
Richards’s management, and certainly shows no such inventory with a significant difference of
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over $58,000 between inventories in a short, three-month period. The inventory numbers for
Richards’s store showed numbers for inventories performed once a year, and the annual
difference in inventory loss for the Ensley store between October 2010 and October 2011 was
$57,552. In other words, the inventory shortage over a twelve-month period for Richards’s store
($57,552) was less than the inventory shortage over a three-month period for Phillips’s store
($58,134). Obviously, the inventory shortage is comparable but the time period in which the loss
occurred is not, and if the inventory loss at Phillips’s Midfield store continued throughout a
twelve-month period at the rate of $57,000 per quarter, the annual loss at Midfield would be over
$228,000, twice the annual inventory loss at the Ensley store. The court FINDS that these
inventory numbers are not sufficiently similar to establish Phillips’s prima facie case.
Second, the inventory numbers for Phillips and Gibson are from two different stores, and
Family Dollar argues that these stores are not comparable. According to Gibson, comparing
inventory shrink rates for different stores is like comparing apples to oranges, because some
stores are located in more volatile neighborhoods with high customer counts; he testified that
“[y]ou have to be able to look at each store individually.” (Doc. 22-3; Gibson Dep. at 20 p. 77).
Gibson said he would need to have specific information, such as the shrink history at a particular
location, to know whether two stores were comparable and whether the manager was performing
successfully. In this case, Gibson testified that Richards’s store in Ensley was not comparable to
the one Phillips managed in Midfield, because Phillips’s store had low volatility in comparison
with the Family Dollar stores in that market whereas Richards’s store was one of the most
volatile stores and one of the hardest retail operations to run in the entire state of Alabama.
Phillips provided no contrary evidence, except that the two stores were in the same district and
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that her store had enough volatility to warrant an Area Operations Manager and Performance
Manager, instead of only a District Manager.
Further. the evidence reflects the following inventory history for Richards’s store: 2008 (2
years before Richards took over as Store Manager) inventory shortage of $80,523.30 (-4.98%)
and slippage of $85,509.92 (-5.29%); 2009 (the year before Richards took over) inventory
shortage of $127,218.66 (-8.45%) and slippage of $145,154.92 (-9.45%); in 2010 (the year
Richards took over) the inventory was short $52,639.67 (-5.97%), and slippage was $65,970.51
(-7.48%); in 2011 the inventory was short $110,192.14 (-5.96 % ), and the slippage was
($142,054.50) or (-7.69%). These roller-coaster numbers support Gibson’s characterization of
the Ensley store as volatile and also reflect that Richards’s 2011 inventory shortage and slippage
numbers, which appear high at first blush, are significantly lower than the inventory numbers in
2009, the year before he became Store Manager. Therefore, given the evidence that Richards’s
Ensley store was not comparable to Phillips’s Midfield store and the evidence providing the
Ensley store’s inventory history, the court FINDS that Phillips has not established that comparing
inventory numbers from the two stores would be comparing apples with apples. Having so ruled,
the court need not consider the arguments addressing issues other than inventory numbers in the
“similarly situated” analysis, but it will address them briefly in a desire to be thorough.
Family Dollar also argues that Phillips and Richards were not similarly situated
employees because the evidence reflected that Gibson saw improvement in the performance of
Richards but not in Phillips. Gibson testified that, in his opinion, Richards was driving
operational improvement in his store and that Richards “was improving with respect to getting
freight out in his store and keeping the store clean and aesthetically pleasing to customers.”
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(Gibson Dep. Doc. 22-3, at 17-19, pp. 66, 73). Phillips does not contradict that testimony except
to point to Richards’s inventory numbers. However, those inventory numbers provide data once
a year on specific dates, October 2010 and October 2011, and Gibson only became Richards’s
supervisor in April of 2011, halfway between those dates. The inventory numbers provided do
not reflect monthly inventory numbers during the short seven months that Gibson supervised
Richards, beginning in April 2011; annual numbers do not necessarily facilitate a comparison of
Richards’s performance during the particular months of Gibson’s tenure as supervisor, and thus,
do not confirm or contradict Gibson’s testimony that he personally saw improvement during
those months.
In contrast, no evidence reflects any improvement on the part of Phillips. On each “Every
Store Visit” form prepared during her tenure as Store Manager at Midfield up to her termination,
Phillips received an “F” score. In the forms prepared in May and June of 2011, during Gibson’s
tenure, she received “F” scores, and on the June 2011 form, the last one performed before
Gibson’s August decision to fire her, she received a score of “0" on inventory shrinkage.
Although the form prepared on the date Phillips was fired reflected a “C” score, this score
occurred after another employee spent eight hours cleaning and organizing the store. In the
“Monthly Shrink Recap” document prepared in late August of 2011, Gibson noted Phillips’s
“total disconnect” on two surprise visits to her store on August 11 and August 26, 2011. In sum,
the evidence also reflects that Gibson did not see the performances of Phillips and Richards as
similar because he saw Richards as improving and Phillips as repeatedly failing and
disconnected.
Finally, Family Dollar argues that it terminated Phillips not only because of her inventory
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problems but also because of her other well-documented performance problems; because
Richards did not have similar performance problems in areas outside of the inventory shrink
issue, he is not a similarly situated comparator. The court agrees that the record reflects no
general performance problems with Richards except his shrink numbers. His personnel file
contained no disciplinary actions, and the only evaluation in the record, which occurred before
Gibson’s tenure, gave him a “needs improvement” and focused on the shrink issue. In contrast,
Phillips’s failing evaluations and repeated, frequent discipline for problems such as payroll
overages and failure to clean up the storage room are referenced above.
Phillips cannot and does not argue that the two employees have a similar history of
employment discipline at Family Dollar. Instead, she asserts that Phillips’s other performance
problems are irrelevant because Gibson told her that the termination was because of the shrink
problem and did not mention any other performance problems supporting the termination.
Further, the Family Dollar form documenting Phillips’s termination provides a termination code
stating that she was terminated for failure to protect company assets, meaning that her
performance resulted in inventory loss, and does not list other performance issues.
The court recognizes that forms with codes do not always allow the person keying in
reasons to put multiple reasons where multiple reasons exist, so common sense suggests that the
fact that the Personnel Form only gave one reason does not render others irrelevant. Similarly,
the fact that a supervisor focuses on one major performance problem in the difficult termination
conversation does not mean that he did not consider other performance problems in making the
decision. Listing every single performance problem could make the termination conversation
long and humiliating when, as here, the list is extensive and when, as here, the employee has
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received notice of those problems through evaluations, performance action plans, and other
feedback. Certainly, if the employer ignores performance issues in documentation at the time of
termination and subsequently focuses on them for the first time in litigation, that timing would
raise a genuine issue of material fact about their truth, but such is not the case here. The
“Monthly Shrink Recap” report that Gibson prepared in August of 2011, which reports his
decision to terminate Phillips, not only identifies an unacceptable inventory shrink problem as
the key performance issue but also documents other performance problems with Phillips: “‘junk
boxes’ and excessive freight in stockroom,” Phillips’s “disconnect” regarding these issues,
problems with “Opening Late,” and “excessive use of Payroll.” (Doc. 24-1, at 1, Sealed). Given
the repeated, pervasive nature of Phillips’s other performance problems, and the repeated
notifications to Phillips that termination might result from them, the court cannot find these
problems irrelevant to a “similarly situated” analysis. Phillips’s profound performance problems
in areas other than inventory loss, problems that comparator Richards did not share, provide yet
another reason that the two employees are not similarly situated.
For all of these reasons, the court FINDS that Phillips has failed to raise a genuine issue
of material fact that alleged comparator Richards was similarly situated to her and yet was treated
differently. Therefore, she has failed to meet her prima facie case within the McDonnell Douglas
framework to establish that her termination was discriminatory pursuant to Section 1981. In light
of that ruling, the court need not and does not address Phillips’s arguments regarding pretext.
The court acknowledges the Eleventh Circuit’s instruction that “establishing the elements
of the McDonnell Douglas frameword is not, and never was intended to be, the sine qua non for
a plaintiff to survive a summary judgment motion in an employment discrimination case.” Smith
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v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) However, Phillips makes no
arguments under Lockheed-Martin, and if she intends to establish her case by presenting a
convincing mosaic of discrimination, she has the burden to connect the mosaic tiles; the court
need not piece together a mosaic when she has not done so.
Accordingly, the court FINDS that Family Dollar’s motion for summary judgment is due
to be GRANTED. The court will enter a simultaneous Order consistent with this Memorandum
Opinion.
Dated this 23rd day of January, 2015.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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