Mills v. Cellco Partnership
Filing
118
MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 3/26/2019. (JLC)
FILED
2019 Mar-26 PM 12:11
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARGO MILLS,
Plaintiff,
v.
CELLCO PARTNERSHIP d/b/a
VERIZON WIRELESS,
Defendant.
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Case No. 2:17-CV-170- KOB
MEMORANDUM OPINION
Margo Mills has worked in retail sales for Defendant Verizon Wireless since November
2012. Ms. Mills, an African American female, alleges that, beginning in 2014, her white store
manager regularly subjected her and other African American colleagues to racist remarks. She
also alleges that the store manager discriminated against her in his scheduling practices and later
retaliated against her for complaining about the schedule. When Ms. Mills complained to
Verizon, it transferred her to a new store with a new manager; Ms. Mills alleges the
discrimination and retaliation continued.
Ms. Mills filed an EEOC charge alleging racial discrimination and retaliation and later
filed this lawsuit after receiving her right to sue.
This matter now comes before the court on “Defendant’s Motion for Summary
Judgment.” (Doc. 73). In its motion, Verizon asks this court to enter judgment against Ms. Mills
for failing to establish a prima facie case or to raise a genuine issue of material fact on any of her
claims. For the reasons stated below, the court will GRANT IN PART Verizon’s motion and will
ENTER JUDGMENT on Ms. Mills’s racially hostile work environment claim; retaliation claim;
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and negligent hiring, supervision, training, and retention claim. The court will DENY IN PART
Verizon’s motion for summary judgment on Ms. Mills’s racial discrimination claim but only as
to her claim that Verizon discriminated against her by unfairly scheduling her and other African
American employees for undesirable closing shifts on weekends.
I. Factual Background
Margo Mills, an African American female, has worked at Verizon in retail sales since
November 2012 and continues to work for Verizon. She originally worked at a store in Bessemer
but moved to the Trussville store in 2014, where Kerry Gould served as one of her managers.
Ms. Mills alleges Mr. Gould, who is white, subjected her to racial discrimination and
racial harassment throughout her time at the Trussville store, creating a racially hostile work
environment. Specifically, Ms. Mills alleges Mr. Gould often made racially offensive comments
to and around her and other African American employees. She alleges Mr. Gould once
approvingly referenced the Ku Klux Klan and expressed interest in attending a Ku Klux Klan
meeting. She also alleges Mr. Gould scheduled her and other African American employees for
more undesirable weekend closing shifts than the white employees.
Ms. Mills alleges that she and another African American employee complained to Mr.
Gould in February or March 2014 about his discriminatory behavior. In response, Mr. Gould
placed Ms. Mills in charge of scheduling for one to two months but then reassumed scheduling
duties and allegedly continued to disproportionately schedule Ms. Mills and other African
American employees for the least desirable shifts.
Ms. Mills alleges Mr. Gould’s discriminatory and retaliatory behavior continued
throughout 2014 and resulted in a racially divided workplace and tension between Ms. Mills and
Mr. Gould. But Ms. Mills did not make a formal complaint to anyone in Verizon’s Human
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Resources department until December 18, 2014, when she sent an email to several Verizon
higher-ups describing Mr. Gould’s alleged mistreatment of her and other African American
employees. Verizon investigated Ms. Mills’s claims and ultimately reassigned her to the
Wildwood store, where she began working under manager Angel Burns in January 2015.
According to Ms. Mills, her reassignment did not resolve the issues. In their very first
interaction, her new manager Ms. Burns, herself an African American female, allegedly told Ms.
Mills that she wanted to help her improve her image by making sure she did not “come off as
black and loud.” (Doc. 73-1 at 110:20–111:10). As the phrase “black and loud” parroted
comments Mr. Gould had allegedly made about Ms. Mills in Trussville, Ms. Mills understood
the comment to mean that Ms. Burns knew about Ms. Mills’s history with Mr. Gould, including
her making formal complaints of racial discrimination. Ms. Mills even testified that Ms. Burns
told her that Ms. Pate and Mr. Gould had provided that information about Ms. Mills, but Ms.
Burns testified that she did not know anything about Ms. Mills’s history at the Trussville store.
(Doc. 73-1 at 111:8–10; Doc. 73-11 at 151:13–152:8).
After this inauspicious introduction, Ms. Mills alleges that Ms. Burns discriminated and
retaliated against her throughout her time under Ms. Burns’s management. Ms. Mills specifically
claims that Ms. Burns threatened her with disciplinary action and gave her unfair “coachings,”
which are internal notes managers keep on employees to identify potential areas of improvement,
track progress, and provide positive or negative feedback. The record indicates that Ms. Burns
received over fifty coachings during her time under Ms. Burns’s management, either from her or
from one of the assistant managers at the Wildwood store. (Doc. 73-2 at 1–58).
Ms. Mills would periodically contact Human Resources to complain about Ms. Burns’s
alleged mistreatment, which she alleges only led to additional retaliatory conduct by Ms. Burns.
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Ms. Mills specifically complained that Ms. Burns miscoded her leave time, spoke to her in a
derogatory and hostile manner, changed her schedule without proper notice, and followed her
around the store to heavily scrutinize her customer interactions.
Ms. Mills filed an EEOC charge of discrimination on September 18, 2015, and requested
her right to sue on January 4, 2017. She filed the instant action in this court on February 1, 2017,
alleging racial discrimination and a hostile work environment under Title VII and § 1981
(Counts One and Two), retaliation under Title VII and § 1981 (Counts Three and Four), and
negligent hiring, supervision, training, and retention under Alabama tort law (Count Five).
Standard of Review
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.
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).
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). Inferences can create genuine issues of
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material fact. Carlson v. FedEx Ground Package Systems, Inc., 787 F.3d 1313, 1318 (11th Cir.
2015).
In response, 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)) (emphasis added).
The court must “view the evidence presented through the prism of the substantive
evidentiary burden,” to determine whether the non-moving party presented sufficient evidence
on which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 254. The
court must refrain from weighing the evidence and making credibility determinations because
these decisions belong to a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Further, all evidence and inferences drawn from the underlying facts must be viewed in
the light most favorable to the non-moving party. See Graham v. State Farm Mut. Ins. Co., 193
F.3d 1274, 1282 (11th Cir. 1999). After both parties have addressed the motion for summary
judgment, the court must grant the motion only if no genuine issues of material fact exist and
if the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56.
II. Discussion
Ms. Mills’s complaint includes five counts: (1) Title VII racial discrimination /
harassment / hostile work environment; (2) 42 U.S.C. § 1981 racial discrimination / harassment /
hostile work environment; (3) Title VII retaliation; (4) 42 U.S.C. § 1981 retaliation; (5) negligent
hiring, supervision, training, and retention under Alabama tort law.
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As an initial matter, “Title VII and § 1981 claims ‘have the same requirements of proof
and use the same analytical framework.’” Chapter7 Trustee v. Gate Gourmet, Inc., 683 F.3d
1249, 1256–57 (11th Cir. 2012) (quoting Standard v. A.B.E.L Servs., Inc., 161 F.3d 1318, 1330
(11th Cir. 1998)). So for the purposes Verizon’s motion for summary judgment, the court makes
no distinction between Ms. Mills claims arising under Title VII and those arising under § 1981.
A. Racial discrimination claims
Ms. Mills’s complaint alleges that Verizon discriminated against her on the basis of her
race in violation of Title VII and § 1981 by scheduling her for undesirable shifts, subjecting her
to unfair discipline, and threatening to discipline her. In response to Verizon’s motion for
summary judgment, Ms. Mills additionally argued that Verizon denied her the necessary training
to receive a promotion.
Title VII makes it unlawful “to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s
race.” 42 U.S.C. § 2000e-2(a)(1). Establishing a prima facie case for discrimination under Title
VII requires “showing that the employer acted with discriminatory intent.” Hill v. MARTA, 841
F.2d 1533, 1538 (11th Cir. 1988). A plaintiff can show discriminatory intent in one of two ways:
“He may present direct evidence of discriminatory intent in the form of actions or remarks of the
employer reflecting a discriminatory attitude. Or, in the absence of direct evidence of
discrimination, he may rely on the combination of factors set forth in McDonnell-Douglas Corp.
v. Green . . . .” Id., at 1539.
Ms. Mills presents only circumstantial evidence of racial discrimination, so the court
applies the burden-shifting framework of McDonnell Douglas to the instant case. Under the
McDonnell Douglas framework, “the plaintiff must first create an inference of discrimination
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through his prima facie case.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir.
2005) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
“A plaintiff establishes a prima facie case of disparate treatment by showing that she was
a qualified member of a protected class and was subjected to an adverse employment action in
contrast with similarly situated employees outside the protected class.” Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) (citations omitted). Verizon challenges Ms. Mills’s
ability to establish that she ever suffered adverse employment action or that she has established
that race was a motivating factor for any employment practice.
1. Adverse employment action
“Courts have uniformly read [Title VII] to require a plaintiff suing under § 2000e-2(a) to
establish, as part of his prima facie case, that he suffered so-called ‘adverse employment
action.’” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir. 2001) (citing
Merriweather v. Alabama Dept. of Pub. Safety, 17 F. Supp. 2d 1260, 1274 (M.D. Ala. 1998),
aff’d 199 F.3d 443 (11th Cir. 1999)). Verizon argues that Ms. Mills has failed to establish that
she ever suffered adverse employment action. (Doc. 74 at 14–25).
To qualify as adverse employment action, “the employer’s action must impact the terms,
conditions, or privileges of the plaintiff’s job in a real and demonstrable way.” Davis, 245 F.3d at
1239 (internal quotation marks omitted). The impact must be “serious and material,” and a
reasonable person in the circumstances presented must have found that the action was materially
adverse. Id.
Ms. Mills’s complaint alleges that she suffered adverse employment action when her
manager at the Trussville store scheduled her to work undesirable weekend closing shifts more
often than her white coworkers. (Doc. 1 at ¶ 18; see also Doc. 73-1 at 195:10–12). Verizon has
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not pointed to anything in the record conclusively contradicting Ms. Mills’s allegations that her
manager favored white employees with preferable schedules. Instead, Verizon points to Fifth
Circuit precedent for the assertion that “changing one’s work schedule is not a change in
employment status.” (Doc. 74 at 16) (quoting Watts v. Kroger Co., 170 F.3d 505, 510 (5th Cir.
1999)). Verizon also asserts that courts “have consistently held that complaints of unfair
scheduling do not meet the threshold for an objectively adverse employment action,” citing an
unpublished Eleventh Circuit case and an unpublished case from the Northern District of
Alabama. (Doc. 74 at 16) (citing Clark v. S. Broward Hosp. Dist., 601 F. App’x 886, 893–94
(11th Cir. 2015)); Tetteh v. WAFF TV, No. 5:11-CV-825-JHE, 2014 WL 8382827, *16 (N.D.
Ala. May 14, 2014), report and recommendation adopted, 2015 WL 1419043 (N.D. Ala. Mar.
27, 2015), aff’d 638 F. App’x 986 (11th Cir. 2016)). 1 But these cases are distinguishable.
The plaintiff in Clark alleged that she received twelve night-shifts in one month instead
of her requested fourteen but did not allege that she was dissatisfied with her shift assignments
on any other occasion. Clark, 601 F. App’x at 893. The court concluded that the “difficulties and
vagaries of accommodating . . . shift preferences in any given month” prevented this isolated
incident from rising to the level of materially adverse employment action. Id. By contrast, Ms.
Mills alleges that her manager consistently scheduled her for weekend closing shifts, exhibiting a
pattern of discrimination against her and other African American employees. (Doc. 73-1 at
195:10–12).
The decision in Tetteh is also distinguishable. Verizon quotes the following language
from Magistrate Judge John England III’s report and recommendation: “Being required to follow
your supervisor’s schedule and being required to work sixteen consecutive days are not
1
The court notes that, in Tetteh v. WAFF TV, neither the Memorandum Opinion adopting the report and
recommendation nor the Eleventh Ciruit Opinion affirming the District Court addresses when or if scheduling
decisions can constitute materially adverse employment actions.
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materially adverse . . . .” (Doc. 74 at 16). But Verizon’s ellipsis conceals important qualifying
language, as Judge England finishes the quoted proclamation with “considering the
circumstances of Tetteh’s position.” Tetteh, 2014 WL 8382827, at *16. Judge England then goes
on to describe why “someone in Tetteh’s position would be required to work a demanding”
schedule. Id. (emphasis added). Here, Verizon has failed to articulate why the circumstances of
Ms. Mills’s position might require her to work a disproportionate number of weekend closing
shifts.
Moreover, the Tetteh opinion has limited applicability to Ms. Mills’s allegation. At best,
Tetteh stands for the proposition that asking an employee to work too much does not constitute
an adverse employment action, but the opinion says nothing about whether consistently favoring
some employees over others for more preferable shifts could constitute an adverse employment
action.
Though Ms. Mills’s allegedly unfavorable schedule did not reduce her compensation, this
court concludes that a jury could find that having to work more than her fair share of weekend
closing shifts constitutes a material change to “the terms, conditions, or privileges of
employment.” That is, the terms, conditions, or privileges of employment could reasonably
include an employee’s expectation that the workload will be allocated equally among all
employees in the same position. So the court concludes that a genuine issue of material fact
exists as to whether Ms. Mills suffered adverse employment action by having to work more
weekend closing shifts than her coworkers.
Ms. Mills also alleges that she suffered adverse employment actions when her managers
unfairly disciplined her and threatened to discipline her. (Doc. 73-1 at 61:10–62:14). She
specifically points to allegedly unfair coachings and two incidents with two different managers.
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Although in unreported cases, the Eleventh Circuit has indicated that workplace
discipline and reprimands do not typically constitute adverse employment actions unless coupled
with evidence that the alleged discipline impacted the plaintiff’s salary, title, position, or job
duties. See, e.g., Summerlin v. M & H Valve Co., 167 F. App’x 93, 97 (11th Cir. 2006) (“The
reprimand of an employee does not constitute an adverse employment action when the employee
suffers no tangible harm as a result.”). This court has also explained that “negative evaluations
are only adverse actions when a link can be shown between the review and an alteration of the
terms of employment.” Hill v. Branch Banking and Trust Co., 264 F. Supp. 3d 1247, 1260 (N.D.
Ala. 2017) (Bowdre, C.J.).
Ms. Mills has not provided any such link. Ms. Mills speculated in her deposition that the
coachings factored into her performance reviews and could have kept her from larger pay raises
or promotions. (Doc. 73-1 at 67:7–20). But she admitted in her deposition that she does not
actually know if or how the coachings impacted her performance reviews or compensation.
(Doc. 73-1 at 69:5–15). She has not provided any evidence substantiating her conclusory
allegation that they did. Moreover, the coachings in the record are overwhelmingly positive, and
she has not received any negative performance evaluations as a result of them. So Ms. Mills has
failed to establish that the coachings she received qualify as adverse employment actions.
Ms. Mills’s allegations about two managers threatening to discipline her similarly fail.
Ms. Mills acknowledged in her deposition that she never received any formal discipline, whether
verbal or written, and has not pointed to a single alteration of the terms of her employment as a
result of these managers threatening to discipline her. The court concludes that Ms. Mills’s
managers’ threats of discipline did not constitute adverse employment actions.
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Finally, Ms. Mills alleges that her managers removed her from and denied her entry to
management training programs. These allegations do not appear anywhere in Ms. Mills’s
complaint, but she testified extensively about the subject during her deposition. (Doc. 73-1 at
31:22–59:7). So, despite Verizon’s argument to the contrary, this court concludes that Ms. Mills
properly pled these allegations of discriminatory conduct. (See Doc. 117 at 15). Verizon does not
appear to dispute that removing Ms. Mills from or denying her access to a management training
program would constitute an adverse employment action, so the court concludes Ms. Mills has
sufficiently alleged that element of her prima facie case.
2. Motivating factor
Title VII requires that a plaintiff demonstrate that her race “was a motivating factor for
any employment practice, even though other factors also motivated the practice.” § 2000e-2(m).
Under the McDonnell Douglas framework, a plaintiff can satisfy her burden by pointing to
similarly situated employees outside her protected class, so-called “comparators,” who did not
suffer the same adverse employment action. See B/E Aerospace, 376 F.3d at 1091. As the
Eleventh Circuit recently clarified, to be a valid comparator, an employee must be similarly
situated “in all material respects” but need not be “nearly identical” to the plaintiff. Lewis v.
Union City, Ga., No. 15-11362, 2019 WL 1285058, at *2 (Mar. 21, 2019) (en banc).
Here, Ms. Mills not only alleges that she had to work more undesirable shifts than her
coworkers—she alleges that she and other African American employees had to work more
undesirable shifts than the white employees. The white and African American employees all had
the same rank and position and were all under the jurisdiction of the same supervisor who
determined the schedules. And Verizon has not pointed to anything in the record indicating that
any employee had more or fewer responsibilities than the others. Stated differently, the white
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employees appear to be similarly situated in all material respects to Ms. Mills. See Lewis, 2019
WL 1285058, at *9.
Verizon has not pointed to any evidence that definitively contradicts Ms. Mills’s
allegation of scheduling disparities, which she included in her complaint and testified to in her
deposition. Instead, Verizon argues that the allegation “is too vague and speculative” and that
none of her manager’s alleged racial comments related to scheduling. (Doc. 74 at 25). The court
disagrees. Ms. Mills has personal knowledge of her store’s shift schedule, so the allegations are
not speculative. And while Ms. Mills has not provided copies of the shift schedules to
substantiate her claim, her allegations refer to particular types of shifts (weekend closing shifts)
during a particular time period (2014) at a particular branch (Trussville store). The court does not
agree that these allegations are vague.
Finally, while Ms. Mills does not allege that her manager made racial comments related
to scheduling, plaintiffs may use the McDonnell Douglas framework to create an inference of
discrimination even in the absence of such direct evidence. Having determined that a jury could
find unfair scheduling to constitute adverse employment action and that Ms. Mills has alleged
facts showing disparity among white and African American employees, the court concludes that
Ms. Mills has created an inference of discriminatory intent as to her unfair scheduling claim.
Ms. Mills also alleges that her race motivated Verizon’s decision to deny her access to
management training programs. But she has failed to produce any evidence, circumstantial or
direct, that Verizon denied her this access because of her race. She merely speculates that her
race motivated the action and offers no comparator under the McDonnell Douglas framework to
establish a prima facie case. Ms. Mills argues that “Defendant offered no evidence of why it
denied Mills this training.” (Doc. 106 at 38). But this argument ignores her initial burden of
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creating an inference of discrimination. See Vessels, 408 F.3d at 767 (“Under the familiar
McDonell Douglas framework, the plaintiff must first create an inference of discrimination
through his prima facie case.”). Having failed to do that, Verizon bears no obligation to provide a
legitimate, non-discriminatory reason for denying Ms. Mills access to management training
programs. Thus, her claim that Verizon denied her access to training because of her race fails.
So the court concludes that Ms. Mills has established a prima facie of racial
discrimination case only as to her claim that her manager disproportionately scheduled her and
other African American employees for undesirable weekend closing shifts.
3. Legitimate, non-discriminatory reason and pretext
Once a plaintiff establishes her prima facie case of discrimination, the defendant then
bears the burden to articulate a non-discriminatory basis for its employment action. Vessels, 408
F.3d at 767 (11th Cir. 2005) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981)). “If the employer meets this burden, the inference of discrimination drops out of the case
entirely, and the plaintiff has the opportunity to show by a preponderance of the evidence that the
proffered reasons were pretextual.” Id. (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993)).
Verizon argues that Ms. Mills’s claims “fail as a matter of law because Mills cannot meet
the proffered reasoning for her schedules ‘head on and rebut it’ with evidence that the scheduling
was pretext for discrimination.” (Doc. 74 at 26). But Verizon confusingly never proffers any
reason for Ms. Mills to rebut. The closest Verizon comes to offering a non-discriminatory reason
is that schedules are “auto-populated” by a computer program, but the schedules are then
modified according to store needs and employee requests. Verizon does not point to any specific
store needs or employee requests that would justify modifications that Ms. Mills has alleged
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consistently favored white employees and disfavored African American employees. Verizon also
points out that when Ms. Mills complained to her manager about the unfair schedules, he placed
her in charge of scheduling for some period of time no shorter than a month.
This court acknowledges that the gesture of placing Ms. Mills in charge of scheduling
could support a non-discriminatory reason as being non-pretextual. But without offering a nondiscriminatory reason for that gesture to support, Verizon asks this court to remove the inference
of discrimination based solely on conduct that took place after the alleged discrimination
occurred. This court declines to do so.
For the reasons stated above, this court will DENY Defendant’s motion for summary
judgment as to Ms. Mills’s claim that Verizon unlawfully discriminated against her when her
manager scheduled her for more weekend closing shifts than her white coworkers.
B. Racial harassment / hostile work environment claims
Ms. Mills’s complaint also alleges that Verizon subjected her to a hostile work
environment. To establish such a claim, a plaintiff must show:
(1) that [she] belongs to a protected group; (2) that [she] has been subject to
unwelcome harassment; (3) that the harassment must have been based on a
protected characteristic of the employee . . . ; (4) that the harassment was
sufficiently severe or pervasive to alter the terms and conditions of employment
and create a discriminatorily abusive working environment; and (5) that the
employer is responsible for such environment under either a theory of vicarious or
of direct liability.
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). Verizon argues that
Ms. Mills has not alleged harassment severe or pervasive enough to alter the terms and
conditions of her employment. For the reasons discussed below, the court agrees and will
GRANT Verizon’s motion for summary judgment as to Ms. Mills’s hostile work environment
claim.
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“Conduct that is not severe or pervasive enough to create an objectively hostile or
abusive work environment—an environment that a reasonable person would find hostile or
abusive—is beyond Title VII’s purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
The court considers the follow factors in evaluating whether conduct is severe or pervasive
enough to create an objectively hostile or abusive work environment: “(1) the frequency of the
conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes
with the employee's job performance.” Miller, 277 F.3d at 1275. Courts must employ common
sense and “an appropriate sensitivity to social context” when determining whether a plaintiff has
alleged facts that a jury could reasonably find created an objectively hostile or abusive work
environment. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).
Ms. Mills alleges her manager in Trussville, Kerry Gould, subjected her to daily racial
remarks and negative treatment throughout 2014. Specifically, Ms. Mills alleges the following:
•
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•
•
•
•
•
•
•
•
Gould said he “felt like KKK was one of the greatest organizations anyone
could ever be in”
Gould said he would go to more KKK meetings if he knew exactly where
they were
Gould said that black people come off as being hood
Gould called Mills “black and loud” numerous times
When black customers came in the store, Gould directed the black
employees to wait on them, and he would say that he saw the black
customers as fraud risks
Gould said black employees used ebonics language that would not work
well with corporate America
In reference to the black employees, Gould said he wanted to change the
vernacular of the store.
Speaking about President Barak Obama, Gould said “he’s just for the
black people. He just wants to get in so all the blacks can get on food
stamps and welfare.”
Gould asked Mills if Cedric Atchison, Black employee, was a drug dealer
because he drove an expensive car.
Gould commented about Atchison’s fiancé, who is white, how does she
end up getting with him? What made her choose him? That white girl
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want that black guy? She want a black guy? She don’t look like she would
be the person to do that.
(Doc. 106 at 31–32).
Ms. Mills also points to Mr. Gould’s allegedly discriminatory scheduling practices and
alleges that Mr. Gould “used a hostile and derogatory tone of voice when addressing Black
employees but was polite when speaking to white employees.” (Doc. 106 at 33). Finally, Ms.
Mills alleges Angel Burns, her manager beginning in January 2015, told Ms. Mills she wanted to
help her from “com[ing] off as black and loud.” (Doc. 73-1 at 267:13–19).
Verizon argues the infrequency of the alleged conduct weighs against this court
considering it pervasive enough to create an objectively hostile or abusive work environment.
According to Verizon, “Mills’s allegations of eight comments by Gould in 2014 and one alleged
comment by Burns at the beginning of 2015 are far from ‘pervasive[.]’” (Doc. 74 at 35). Verizon
also asks this court to disregard Ms. Mills’s “vague allegation that Gould made unspecified
‘racist statements every day[.]’” (Doc. 117 at 20) (citing Alexander v. Opelika City Schs., 352 F.
App’x 390, 393 (11th Cir. 2009)).
In Alexander, the Eleventh Circuit noted “there was not sufficient evidence presented for
a reasonable person to conclude that the harassment was frequent,” because the plaintiff “could
only recall eight specific instances [of racial comments] over the course of two years.” 352 F.
App’x at 393. But this court hesitates to rely too heavily on this unreported opinion for two
reasons. First, the Eleventh Circuit has at least partially relied on similarly “vague” testimony to
affirm a trial court’s finding of a racially hostile work environment. EEOC v. Beverage Canners,
Inc., 897 F.2d 1067, 1070 n. 6 (11th Cir. 1990) (“There was testimony that [racially offensive]
comments and incidents occurred ‘daily.’”). Second, in Alexander, the court only noted that the
plaintiff testified as to the frequency of the comments and could recall just eight specific
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instances. 352 F. App’x at 393. Here, although Ms. Mills can similarly recall only nine specific
incidents (eight involving Mr. Gould), her coworkers at the relevant times echo the allegation
that Mr. Gould frequently made racially offensive comments. (Docs. 73-24 at 14:14–19; 103-4 at
177:10–16; 104-6 at 133:5–11). So the court concludes that Ms. Mills has sufficiently alleged
frequent conduct for the purposes of analyzing whether the conduct could create an objectively
hostile work environment.
But the three remaining factors used to determine whether conduct is objectively severe
or pervasive weigh against Ms. Mills. “Conduct is objectively severe when the workplace is
permeated with intimidation, ridicule, and insult.” Hollingsworth v. O’Reilly Auto. Stores, Inc.,
No. 4:13-CV-1623, 2015 WL 412894, at *13 (N.D. Ala. Jan. 30, 2015) (Bowdre, C.J.) (citing
Miller, 277 F.3d at 1276–77)). The alleged conduct here simply did not rise to the level
necessary to give rise to a viable Title VII claim.
Of the alleged comments, Mr. Gould’s allegedly approving references to the Ku Klux
Klan do strike this court as the types of comments that could be objectively severe because of
their capacity to intimidate an employee, especially an African American. But Ms. Mills’s
testified that both of Mr. Gould’s comments about the KKK occurred during a single
conversation, very early in her time working under his management. (Doc. 73-1 at 163:4–22).
Ms. Mills also testified that Kathy Williams, another African American employee who heard the
comments, responded by taking Mr. Gould aside and explaining to him that he, as the manager,
could not make such comments about the KKK. (Doc. 73-1 at 165:13–22). Ms. Mills also
specifically testified that she did not feel physically threatened at the time Mr. Gould made these
comments but rather “felt hurt [she] was working with a racist.” (Doc. 73-1 at 166:10–15). Ms.
Mills did not testify that Mr. Gould ever made any subsequent comments about the KKK from
17
that day forward, positive or negative, although he allegedly continued to make racially offensive
comments generally.
While offensive and potentially threatening, Mr. Gould’s single incident of making
allegedly approving comments about the KKK fails to create an objectively hostile work
environment, because Mr. Gould never made any subsequent reference to the KKK or any other
potentially threatening comments. The record instead indicates that Ms. Williams’s rebuke was
effective in communicating that such comments were flatly inappropriate. The only other KKKrelated incident Ms. Mills alleges involved her asking Mr. Gould whether he allowed a white
employee to leave early every Tuesday to attend KKK meetings. (Doc. 73-1 at 173:11–174:11).
Mr. Gould allegedly declined to answer her question at all, instead responding, “Oh Margo.”
(Doc. 73-1 at 174:12–20). But Mr. Gould was under no obligation to provide Ms. Mills with
information about how the white employee spent his Tuesday evenings, and his refusing to do so
is hardly sufficient to create an objectively hostile or abusive work environment.
Except for the isolated KKK comments, none of Ms. Mills’s other allegations are severe
enough to create a racially hostile work environment under Title VII. In fact, the Eleventh
Circuit has affirmed summary judgment against a racially hostile environment claim when
plaintiffs alleged conduct worse than Ms. Mills’s alleges in the instant case. See Barrow v. Ga.
Pac. Corp., 144 F. App’x 54, 57–58 (11th Cir. 2005). In Barrow, African American plaintiffs
alleged that they saw Confederate flag stickers, the letters “KKK,” and a noose at work on
several different occasions. Id. And one plaintiff alleged that his superintendent called him a
particularly egregious racial epithet three times and “boy” repeatedly. Id. If the conduct alleged
in Barrow falls short of being severe enough to create a racially hostile work environment, so too
must the conduct Ms. Mills has alleged here.
18
So the court concludes that a jury could not reasonably find that Mr. Gould’s repeated
racial statements, including approving references to the KKK, were severe and pervasive enough
to create hostile work environment under Title VII. The court will GRANT Verizon’s motion for
summary judgment on Ms. Mills’s racially hostile work environment claim.
C. Retaliation claims
Ms. Mills also alleges that Verizon engaged in retaliatory conduct against her after she
complained about race discrimination, harassment, and retaliation. Like claims of racial
discrimination, Title VII retaliation claims based on circumstantial evidence are governed by the
McDonnell Douglas framework. Brown v. Ala. Dep't of Transp., 597 F.3d 1160, 1181 (11th Cir.
2010). A plaintiff can establish a prima facie case of retaliation by showing that “(1) she engaged
in an activity protected under Title VII; (2) she suffered an adverse employment action; and (3)
there was a causal connection between the protected activity and the adverse employment
action.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Once the plaintiff meets this
burden, the employer has an opportunity to articulate a legitimate non-retaliatory reason for its
employment action, which the plaintiff can rebut with evidence of pretext. Brown, 597 F.3d at
1181–82.
Verizon does not dispute that Ms. Mills has engaged in activity protected under Title VII.
Verizon instead argues that Ms. Mills has failed to establish that she suffered any adverse
employment action, and, alternatively, that she has failed to make any causal connection between
any adverse employment action and her engaging in protected activity. While her race
discrimination and retaliation claims feature considerable factual overlap, the court’s analysis
differs for each because the standard for what constitutes adverse employment action in the
retaliation context differs from the standard in the Title VII discrimination context.
19
To establish an adverse employment action in the retaliation context, a plaintiff must
show that the employer’s action would “dissuade[] a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
68 (2006) (internal quotations omitted). Whether an employment action qualifies as adverse
“depends upon the circumstances of the particular case, and should be judged from the
perspective of a reasonable person in the plaintiff's position, considering all the circumstances.”
Id. at 70–71.
The Eleventh Circuit has recognized that the Burlington decision “strongly suggests that
it is for a jury to decide whether anything more than the most petty and trivial actions against an
employee should be considered ‘materially adverse’ to [her] and thus constitute adverse
employment actions.” Crawford, 529 F.3d at 973–74, n. 13 (citing Burlington, 548 U.S. at 68).
“In deciding whether employment actions are adverse, [the court] consider[s] the employer’s acts
both individually and collectively.” Akins v. Fulton Cty., Ga., 420 F.3d 1293, 1301 (11th Cir.
2005).
Ms. Mills’s allegations of retaliation can be divided into two timeframes: (1) retaliation at
the Trussville store during 2014 for complaints she made directly to her manager Mr. Gould, and
(2) retaliation at the Wildwood store beginning in January 2015 for several formal complaints
starting with an email she sent to Human Resources on December 18, 2014.
1. Retaliation at Trussville store
Ms. Mills alleges she complained to Mr. Gould several times throughout 2014 that he
unfairly scheduled her and other black employees for a disproportionate number of undesirable
weekend closing shifts. After a one-to-two month period during which Mr. Gould placed Ms.
Mills in charge of scheduling, she alleges that he subsequently took that responsibility away
20
from her and retaliated against her by again scheduling her for undesirable shifts and removing
her from a management training program.
a. Undesirable shift assignments
The court noted above that a jury could reasonably find that undesirable shift assignments
constitute adverse employment action for Title VII race discrimination purposes, and the same
analysis applies here. But Ms. Mills’s claim that she suffered this adverse employment action
because she complained to Mr. Gould must fail; she presented no evidence, direct or
circumstantial, showing a causal connection between the protected activity and the adverse
employment action. While Ms. Mills indicated that African Americans, herself included,
received more undesirable shifts than white employees, she never alleged or testified that she
received more undesirable shifts than employees who had never complained about racial
discrimination. She has also not alleged that her rate of working undesirable shifts increased after
she started complaining. In fact, Mr. Gould initially responded to her scheduling complaints by
placing her in charge of scheduling for the store. So this court concludes Ms. Mills cannot rely
on unfair scheduling as an adverse employment action for her retaliation claim.
b. Denial of access to management training programs
Ms. Mills’s claim that her managers retaliated against her by removing her from and
denying her access to management training programs fails for the same reason. The court already
discussed that Ms. Mills failed to produce any evidence connecting her alleged exclusion from
the programs to a racially discriminatory purpose. The same analysis applies in the retaliation
context—Ms. Mills’s naked assertions, absent any other evidence whatsoever, that her
complaints about racial discrimination motivated her exclusion from training programs are
simply insufficient to establish a causal link between her protected activity and the adverse
21
employment action. In fact, the record does not even clearly indicate that the supposed retaliatory
conduct came after she complained about Mr. Gould’s behavior. Ms. Mills has failed to establish
a prima facie case that Verizon retaliated against her by denying her access to training programs.
2. Retaliation at Wildwood store
Ms. Mills made her first formal complaint to Verizon’s Human Resources department on
December 18, 2014, when she emailed her complaints about Mr. Gould’s alleged racial
comments and discriminatory treatment. Ms. Mills moved to a different store location in
Wildwood in January 2015. Her remaining allegations of retaliation come from her time working
at Wildwood and predominantly stem from conduct by her manager Angel Burns. Specifically,
Ms. Mills alleges Ms. Burns retaliated against her by threatening to discipline her, subjecting her
to unfair coachings, miscoding her leave time, scheduling shift changes without properly
notifying her, and following her around the store to heavily scrutinize her.
a. Unfair coachings
Ms. Mills alleges that Ms. Burns gave her unfair coachings as retaliation for filing a
complaint against Mr. Gould and later for repeatedly filing claims against Ms. Burns. Ms. Mills
alleges these unfair coachings “limited the amount of a raise she could receive,” although
Verizon disputes whether the coachings had any effect on Ms. Mills’s compensation. (Doc. 106
at 39).
Verizon argues that the allegedly unfair coachings do not constitute adverse employment
action because they are overwhelmingly positive. (Doc. 74 at 13 n. 4). The record indicates that
Ms. Mills received over fifty coachings but that almost all of them were neutral or even positive.
Upon the court’s review, the only coachings even somewhat critical of Ms. Mills include (1) a
suggestion on how to upsell a customer a tablet, (doc. 73-2 at 14); (2) a comment that Ms. Mills
22
had “made strides in addressing her verbiage with customers,” perhaps suggesting a prior
problem, (doc. 73-2 at 18); (3) an insinuation that Ms. Mills did not spend enough time on the
sales floor and too much time behind the sales counter, (doc. 73-2 at 21); (4) a comment that Ms.
Mills handled a customer interaction perfectly except for “not approaching the floor manager
first or taking the name out [of] the queue,” (doc. 73-2 at 40); and (5) a summary of a customer
interaction in which the customer did not like Ms. Mills’s tone, (doc. 73-2 at 42). The remainder
of the coachings are universally positive or, at worst, neutral. And most of the potentially critical
coachings also include positive comments. (Doc. 73-2 at 14) (“Margo was very polite with the
customer and did her best to address the customers [sic] issue as he was escalating as soon as he
walked in the door. . . . After a few minutes of this the customer saw she was helping him and
cooled down a bit.”).
Far from being materially adverse, the court cannot even infer that these coachings
amount to action against Ms. Mills at all. Title VII’s anti-retaliation provision does not protect
employees from superiors’ occasional constructive—and even negative— feedback. So Ms.
Mills’s contention that these coachings constituted adverse employment action must fail as a
matter of law.
b. Threats of discipline
Ms. Mills also alleges she suffered retaliation when Ms. Burns twice verbally threatened
to discipline her for negative customer interactions. (Doc. 73-1 at 126:12–127:6). Ms. Mills
alleges Ms. Burns gave her a negative coaching both times, coupled with an indication that
subsequent incidents could result in formal discipline. 2
2
Ms. Mills’s testimony is not clear on which coachings involved the threats. The record indicates only one negative
coaching about a specific customer interaction in April 2015 and another vague but seemingly negative coaching in
late June 2015 about “proper expectations for interacting with a customer.” (Doc. 73-2 at 21, 42).
23
Verizon contends that, as a matter of law, unfulfilled threats of discipline cannot serve as
the basis of a retaliation claim, but the court disagrees. (See Doc. 74 at 19–22). To support its
argument, Verizon chiefly relies on opinions from the Seventh Circuit and opinions from the
Eleventh Circuit that pre-date the Supreme Court’s decision in Burlington. For example, Verizon
cites Summerlin v. M & H Valve Co., in which the Eleventh Circuit stated: “To be considered an
adverse employment action for purposes of Title VII’s anti-retaliation provision, the action must
either be an ultimate employment decision or else must meet some threshold level of
substantiality.” 167 F. App’x 93 (11th Cir. 2006) (citing Stavropoulos v. Firestone, 361 F.3d
610, 616–17 (11th Cir. 2004)).
But in Crawford, the Eleventh Circuit recognized that “the Burlington Court effectively
rejected the standards applied by this court in both Stavropoulos and Gupta that required an
employee to show either an ultimate employment decision or substantial employment action to
establish an adverse employment action for the purpose of a Title VII retaliation claim.” 529
F.3d at 973–74 (11th Cir. 2008). So, applying the more liberal Burlington standard, threats of
discipline qualify as precisely the type of employment action an employer might use to dissuade
a reasonable worker from making or supporting a charge of discrimination.
But Ms. Mills fails to meaningfully distinguish her allegations of Ms. Mills’s “threats”
with her allegations of “unfair coachings.” And even assuming Ms. Burns’s alleged threats of
discipline rise to the level of materially adverse employment actions, Ms. Mills has failed to
causally connect the threats to any protected activity. She could not remember the specific dates
of the threatened discipline and makes no attempt to tie them to the protected activity by
temporal proximity. The language of the coachings indicates that specific interactions with
customers prompted the alleged threats of discipline, rather than Ms. Mills’s engaging in
24
protected activity. And Ms. Mills has not offered any evidence, direct or circumstantial, to
contradict those indications, such as proximity to protected activity or disparate treatment of
employees who had not engaged in protected activity. Instead, Ms. Mills simply offers
conclusory allegations that the threatened discipline was retaliatory. Such conclusory allegations
cannot establish retaliatory intent, so Ms. Mills’s allegations that she suffered retaliation in the
form of threats of discipline must fail as a matter of law.
c. Miscoded time, written consent, schedule change, and heavy scrutiny
Ms. Mills alleges she also suffered retaliation in the form of one instance of miscoded
leave time, one instance of Ms. Burns requiring written consent before approving a shift swap,
and one instance of Ms. Burns changing her schedule without proper notice to her. Ms. Mills
also alleges Ms. Burns followed her around the store and scrutinized her customer interactions
much more closely than other employees. But such workplace grievances, even taken
collectively, would not be sufficient to dissuade a reasonable employee from engaging in
protected activity.
In an unreported opinion, the Eleventh Circuit noted that “glaring, slamming a door in an
employee’s face, inquiring into retirement plans, commenting that an employee is not a team
player, blaming an employee for failed union negotiations, or harboring concerns over an
employee’s dependability and trustworthiness are not actions that would dissuade a reasonable
worker from making or supporting a charge of discrimination.” Smith v. City of Fort Pierce, Fla.,
565 F. App’x 774, 778 (11th Cir. 2014). Such appears to be the case here.
Ms. Mills’s complaint about Ms. Burns following her around the store resembles the
complaint about “glaring,” which the Eleventh Circuit indicated is insufficient. Smith, 565 F.
App’x at 778. And while Ms. Mills’s remaining allegations of retaliation appear to be isolated
25
incidents or mistakes, the conduct alleged in Smith appeared to intentionally target the plaintiff.
Id. The court finally notes that, as with her previous allegations of retaliation, even if Ms. Mills
had alleged materially adverse employment action, she has failed to provide anything more than
conclusory allegations of a causal connection between the conduct and her protected activity.
The court concludes Ms. Mills has failed to establish a prima facie case for her retaliation
claim under Title VII and will GRANT Verizon’s motion for summary judgment on Ms. Mills’s
retaliation claim.
D. Negligent hiring, supervision, training, and retention claims
Ms. Mills’s complaint finally alleges that Verizon “negligently hired, trained, supervised
and retained Caucasian employees and/or supervisory employees who subjected Plaintiff to
racial discrimination, racial harassment, a racially hostile environment, and retaliation.” (Doc. 1
at ¶ 325). Verizon moves this court to dismiss Ms. Mills’s negligence claim, arguing that a
plaintiff can only bring such a claim when an employee has committed a state law tort. (Doc. 74
at 36).
Alabama law provides a cause of action when an employer negligently hires, supervises,
trains, or retains an employee who commits a tortious act against someone. Thrasher v. Ivan
Leonard Chevrolet, Inc., 195 F. Supp. 2d 1314, 1320 (N.D. Ala. 2002) (citing Stevenson v.
Precision Standard, Inc., 762 So. 2d 820, 824 (Ala. 1999)). But for the employer to be liable, the
employee’s conduct must be considered tortious under Alabama law. Id. The Alabama Supreme
Court has recognized an exception to this rule in the sexual harassment context, holding that “the
manner in which a sexual-harassment complaint is handled when sexual harassment has, in fact,
occurred, could form the basis for a claim for negligent or wanton supervision.” Stevenson v.
26
Precision Standard, Inc., 762 So. 2d at 825; see also Andazola v. Logan’s Roadhouse, Inc., 871
F. Supp. 2d 1186, 1225–26 (N.D. Ala. 2012) (recognizing the sexual harassment exception).
No similar exception exists in the racial harassment context. In fact, Judge C. Lynwood
Smith, Jr. explicitly ruled to the contrary:
Here, plaintiff's claim for negligent hiring, training, supervision, and retention is
based entirely on the same alleged conduct that supports her claims for race
discrimination, hostile work environment, and retaliation under Title VII and 42
U.S.C. § 1981. Plaintiff does not allege any independent conduct that would
support an Alabama tort law claim. Accordingly, her negligent hiring, training,
supervision, and retention claim must be dismissed.
McCaulley v. Harvard Drug Grp., LLC, 992 F. Supp. 2d 1192, 1199 (N.D. Ala. 2014) (emphasis
in original) (footnote omitted). But Ms. Mills now asks this court to expand the sexual
harassment exception to include claims of racial harassment as well. (Doc. 106 at 35–37). Ms.
Mills has not cited a single example of another court, state or federal, similarly expanding the
scope of negligent hiring, training, supervising, and retention claims.
The court notes that while Alabama law does not recognize an independent cause of
action for sexual harassment, plaintiffs can effectively bring sexual harassment claims under
common-law tort theories such as assault and battery, invasion of privacy, and outrage. See
Stevenson v. Precision Standard, Inc., 762 So. 2d at 825 n. 6. The court knows of no analogous
Alabama tort for racial harassment claims. Given this important distinction between sexual and
racial harassment claims, along with the complete lack of precedent for expansion, this court
declines to create an exception to Alabama law to allow Ms. Mills’s claim that Verizon
negligently hired, trained, supervised, and retained employees who allegedly subjected her to
racial discrimination and harassment.
The court will GRANT Verizon’s motion for summary judgment on Ms. Mills’s
negligence claim.
27
III. Conclusion
For the reasons discussed, the court will GRANT IN PART and DENY IN PART
Verizon’s motion for summary judgment. The court will DENY Verizon’s motion for summary
judgment on Ms. Mills’s claim that Verizon violated Title VII and § 1981 when its manager
racially discriminated against her by scheduling her for a disproportionate number of closing
shifts on weekends. The court will GRANT Defendant Verizon’s motion for summary judgment
as to Ms. Mills’s alternative claims of racial discrimination and will ENTER PARTIAL
JUDGMENT for Verizon and against Ms. Mills on those claims. The court will GRANT
Defendant Verizon’s motion for summary judgment on Plaintiff Margo Mills’s claims of a
racially hostile work environment and will ENTER JUDGMENT for Verizon and against Ms.
Mills on Counts One and Two of the complaint, as those counts relate to racially hostile work
environment claims. The court will GRANT Verizon’s motion for summary judgment on Ms.
Mills’s claims of retaliation under Title VII and § 1981 and will ENTER JUDGMENT for
Verizon and against Ms. Mills on Counts Three and Four of the complaint. Finally, the court will
GRANT Verizon’s motion for summary judgment on Ms. Mills’s negligence claim and will
DISMISS WITHOUT PREJUDICE Count Five of the complaint.
DONE and ORDERED this 26th day of March, 2019.
____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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