Sanders v. Benjamin Moore & Co., Paints

Filing 83

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 3/31/2015. (KAM, )

FILED
2015 Mar-31 PM 03:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
)
)
)
Plaintiff,
)
)
vs.
)
BENJAMIN MOORE & CO., )
PAINTS, a business or corporation, )
)
)
Defendant.
TRACY SANDERS

Civil Action No. 4:11-cv-0397-JEO

MEMORANDUM OPINION
Plaintiff, Tracy Sanders, an African American, asserts claims against her
former employer, Benjamin Moore & Co. (“Benjamin Moore”), for racial
discrimination and retaliation pursuant to 42 U.S.C. § 1981 and Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. (“Title VII”); interference
and retaliation pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C. §
2601 et seq. (“FMLA”); a retaliatory hostile work environment pursuant to Title VII,
§ 1981, the FMLA, and the Occupational Safety and Health Act of 1970, 84 Stat.
1590, as amended, 29 U.S.C. § 651 et seq.; and a supplemental state-law claim,
asserted under 28 U.S.C. § 1367, for negligent or wanton supervision.1
Benjamin Moore asserts counterclaims against plaintiff for constructive trust,

1

See doc. no. 37 (Third Amended Complaint).

equitable lien, restitution, equitable offset, or other equitable relief pursuant to 29
U.S.C. § 1132(a)(3); unjust enrichment pursuant to federal common law; and
attorneys fees and costs pursuant to 29 U.S.C. § 1132(g).
The case currently is before the court on Benjamin Moore’s motion for
summary judgment on all claims, including its counterclaims,2 and motion to strike
plaintiff’s evidentiary submission in opposition to summary judgment.3 Upon
consideration of the pleadings, briefs, and evidentiary submissions, this court
concludes that the motion to strike is due to be denied, and the motion for summary
judgment is due to be granted, but only in part.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

2

Doc. no. 64.

3

Doc. no. 76.
2

“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the nonmoving party are not unqualified, however. “[A]n inference is not reasonable if it is
only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat
summary judgment unless that factual dispute is material to an issue
affecting the outcome of the case. The relevant rules of substantive law
dictate the materiality of a disputed fact. A genuine issue of material
fact does not exist unless there is sufficient evidence favoring the
nonmoving party for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)
(asking “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law”).

3

II. SUMMARY OF FACTS4
Benjamin Moore is a national manufacturer and retailer of high-quality paints
and coatings,5 operating five paint manufacturing facilities in the United States and
one manufacturing facility in Canada.6

The company maintains an Equal

Employment Opportunity Policy and a zero tolerance harassment and retaliation
policy,7 as well as an ADA policy which requires employees who wish to make a
request for accommodation to cooperate with Human Resources in arriving upon a
reasonable accommodation.8 At all relevant times, Elizabeth Edwards, an African
American, was Benjamin Moore’s Human Resources Director.9
Benjamin Moore hired plaintiff on October 8, 2007, as a Controls Engineer at
its Pell City, Alabama facility.10 The Benjamin Moore Manufacturing Payroll
Authorization Request Form indicated that plaintiff was originally scheduled 86.67

4

The following statements are the “facts” for summary judgment purposes only, and may not
be the actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th
Cir. 1994). All reasonable doubts have been resolved in favor of plaintiff, the nonmoving party. See
Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002).
5

Doc. no. 66-20 (Recca Declaration), ¶ 3. Dennis Recca was Benjamin Moore’s Lead
Engineer. Id. ¶ 1.
6

Doc. no. 66-7 (Recca Deposition), at 11-12.

7

Doc. no. 66-21 (Edwards Declaration), ¶¶ 3-4; 9-10. Liz Edwards is an African American
and Benjamin Moore’s Director of Human Resources. Id. ¶ 1.
8

Id. ¶¶ 5-6.

9

Doc. no. 66-10 (Edwards Deposition), at 5.

10

Doc. no. 66-1 (Plaintiff Deposition), at 21, 37-38.
4

hours per every semi-monthly pay cycle, with no other hours listed.11 On-call duties
were not in plaintiff’s original job description.12
At the time of plaintiff’s hire, there were four other engineers working in the
“Controls Group,” a subset of Benjamin Moore’s Engineering Department.13 Plaintiff
was the only engineer at the Pell City facility,14 and her primary responsibility was to
program controls that affected the dispensing of paint into Benjamin Moore’s
manufacturing system.15 As a Controls Engineer, plaintiff did not have to be
physically present at the plant to perform her job.16 She initially reported to the
Engineering Department Manager, Art Mengon.17 Mengon permitted plaintiff to
work under a Flexible Work Arrangement (“FWA”), whereby plaintiff could work

11

Doc. no. 66-12 (Exhibits to Pallozzi Deposition), at ECF 23. “ECF” is the acronym for
“Electronic Case Filing,” a system that allows parties to file and serve documents electronically. See
Atterbury v. Foulk, No. C-07-6256 MHP, 2009 WL 4723547, *6 n.6 (N.D. Cal. Dec. 8, 2009).
Bluebook Rule 7.1.4 permits citations to the “page numbers generated by the ECF header.” Wilson
v. Fullwood, 772 F. Supp. 2d 246, 257 n.5 (D.D.C. 2011) (citing The Bluebook: A Uniform System
of Citation R. B. 7.1.4, at 21 (Columbia Law Review Ass’n et al., 19th ed. 2010)). Even so, the
Bluebook recommends “against citation to ECF pagination in lieu of original pagination.” Wilson,
772 F. Supp. 2d at 257 n.5. Thus, unless stated otherwise, this court will cite the original pagination
in the parties’ pleadings. When the court cites to pagination generated by the ECF header, it will,
as here, precede the page number with the letters “ECF.”
12

Doc. no. 66-1 (Plaintiff Deposition), at 73.

13

Doc. no. 66-1 (Plaintiff Deposition), at 74, 77-78, 91, 96.

14

Id. at 31.

15

Doc. no. 66-20 (Recca Declaration), at 2-3, ¶ 8.

16

Doc. no. 66-1 (Plaintiff Deposition), at 94-95; doc. no. 66-7 (Recca Deposition), at 23.

17

Doc. no. 66-1 (Plaintiff Deposition), at 38.
5

from home at all times.18
At the beginning of 2008, plaintiff received an overall performance rating of
“3 - Meeting All Expectations” in her 2007 Performance Review Form, and Mengon
noted that plaintiff had “[g]ood, positive feedback regarding [her] interactions with
others,” and that “[p]ersonal observations, as well as from limited feedback, indicate
[plaintiff] will be a solid addition to our electrical & controls group. While her short
time with us in 2007 was too brief to substantially impact the business, her
preparation has been as expected to contribute significantly through the next year.”19
At some point in 2008, Art Mengon left Benjamin Moore, and Jesse Singh
became plaintiff’s direct manager.20 Thereafter, Benjamin Moore experienced a
significant downturn in business, forcing the company to implement a reduction-inforce (“RIF”).21 Some employees left Benjamin Moore, and the company terminated
others, resulting in the Controls Group being reduced to one Controls Engineer —
plaintiff.22 Plaintiff volunteered to take on additional work “because there was no one
else to do the work.”23 Her role expanded to include project management, system
18

Doc. no. 66-21 (Edwards Declaration), at 3, ¶ 9. Under a FWA, an employee may be
permitted to work offsite during agreed hours, under certain management imposed conditions. Id.
19

Doc. no. 66-12 (Exhibits to Pallozzi Deposition), at ECF 32-36.

20

Doc. no. 66-1 (Plaintiff Deposition), at 95.

21

Doc. no. 66-10 (Edwards Deposition), at 14.

22

Doc. no. 66-10 (Edwards Deposition), at 14.

23

Doc. no. 66-1 (Plaintiff Deposition), at 48.
6

back-ups, contractor and automation file management, and automation support
programming.24 Benjamin Moore also required plaintiff to provide 24/7 on-call,
after-hours support for all of the company’s facilities.25 Essentially, this meant that
in the event that production lines malfunctioned at any of the five manufacturing
facilities, plaintiff was required to be available to resolve problems remotely.26 Most
after-hours emergency calls were resolved quickly by Gideon John, an IT employee,
because they involved first-level IT technical support, but plaintiff was responsible
for more technical malfunctions that could not be resolved by John.27 Plaintiff was
the only engineer to provide on-call support after the RIF because she was the only
controls engineer, and process engineers did not support plant equipment.28
At the beginning of 2009, plaintiff received an overall performance rating of
“3 - Meeting All Expectations” in her 2008 Performance Review Form, and Singh
noted that plaintiff had “cordial rapport and positive demeanor within the Engineering
group and those within Pell City and Mesquite,” that she was “an individual with
initiative and drive,” and that Singh expected Benjamin Moore to recognize plaintiff

24

Doc. no. 66-7 (Growth Form), at ECF 28-36; doc. no. 66-12 (Exhibits to Pallozzi
Deposition), at ECF 32-36.
25

Id. at 73-77, 99.

26

Id. at 83.

27

Doc. no. 66-16 (Yama Deposition), at 31-33.

28

Doc. no. 66-1 (Plaintiff Deposition), at 74-75, 85-86, 112.
7

“as our controls expert and will seek [her] involvement in project work,
troubleshooting plant issues and providing direction for our controls opportunities
looking to our future.”29 Joseph Dotzman, a Caucasian and Benjamin Moore’s
Manufacturing Director, included the following comments in plaintiff’s 2008
Performance Review:
The year end review for [plaintiff] highlights some issues around
communication that are valid in her assessment. However, since Jessie
did not supervise [plaintiff] for the whole year, the review is not as
encompassing as it could be. [Plaintiff] did help with tasks outside of
her original job scope in the last quarter of 2008 when the department
shrank unexpectedly down to a single controls person — herself. Most
Benjamin Moore employees were tasked with doing more during 2008
as reductions in force and cost saving initiatives compelled us to multitask and be more productive as employees. On paper and in limited
practice, [plaintiff] took on more than her role originally called, but she
did show some weaknesses in communication and working with others
that need to be addressed regardless of how many extra duties she
performs. These weaknesses are in areas of basic expectations of
teamwork and project management. That said, discussions I have held
with manufacturing managers, engineers, and other associated Benjamin
Moore personnel have satisfied me that the critiques outlined by Jessie
are accurate and also that the rating of “3 - Meets All Expectations” is
appropriate. Now that [plaintiff] has had more time within the Benjamin
Moore culture, those expectations will certainly be raised for 2009. I
expect [plaintiff] to accept the critiques offered by Jessie and to work on
those areas of improvement so that she continues to meet, and hopefully
exceed, expectations in the year to come.
Doc. no. 66-3 (Exhibits to Plaintiff Deposition), at ECF 38. Plaintiff added the
following comments to her 2008 performance review:
29

Doc. no. 66-3 (Exhibits to Plaintiff Deposition), at ECF 34-39.
8

I feel that engineering leadership strives to cultivate negativity through
its performance management system (without factual examples to
support their opinion). The communication weakness that Joe
mentioned, “must be addressed,” stems from one plant’s version of a
1:00 am automation support phone call. This call (12/08) was not,
subsequently, discussed with me until my review (2/09) and no other
supporting examples were discussed with me during the year. This was
also pointed out by my HR business partner. Also, there were no
specific or defined communication goals given to evaluate me against.
Therefore, true or not, can one incident be fairly used to evaluate an
entire year of performance?
My previous manager, Art Mengon, repeatedly, communicated a vision
and strategy for controls, and evaluated me based on specific goals and
measures. He, effectively, used the performance management system
by, constructively, pointing out things to improve upon but he also
highlighted superior performance. In my 2007 performance review, Art
stated: “Good, positive feedback regarding your interactions with
others.” However, the current management team sought out and
reviewed with me negative information but made no reference to my
performance on projects that were successfully completed by me that
met customer requirements.
Joe stated that he is “not sure” how I am doing in the controls group but
monthly progress reports were submitted by me and he participated in
project review meetings where my projects were discussed. Therefore,
how can he believe that Jessie’s original assessment of me was accurate
when he stated that he was “not sure” how I was doing in controls? His
statement, also, was not substantiated by HR because if their
investigation had not yielded evidence to the contrary, there would not
have been a basis for assigning me to another manager or re-writing my
2008 performance review.
In conclusion, the performance management system is not used,
correctly, by current management; it reflects a defensive approach and
negative overtures. Instead, it should represent an assessment against
specific measurable, actionable, reasonable, time bound goals that are
9

established at the beginning of the year. Otherwise, they can continue
to do, exactly, they have done here, arbitrarily, select things that were
not included in your goals at the beginning of the year and/or evaluate
you against tasks that you did not know you were going to be evaluated
against. I started automation support in August, how was it ever
included in my goals at the beginning of 2008? Thank you.
Id. at ECF 38-39.
In April 2009, the following email correspondence occurred between plaintiff,
Singh, and Dotzman:
From: Singh, Jessie
Sent: Wednesday, April 08, 2009 12:55 PM
To: Sanders, Tracy
Subject: Monthly Catch-up
Hi Tracy,
I included a few talking points for our monthly catch-up. You can
certainly additional [sic] agenda items as well. I need to return a phone
call so I will call you at 2:15.
Thanks,
Jessie
...
From: Sanders, Tracy
Sent: Thursday, April 09, 2009 9:46 AM
To: Singh, Jessie
Cc: Dotzman, Joseph; Eiler, Susan
Subject: RE: Monthly Catch-up - Personnel Issue - CONFIDENTIAL
Importance: High

10

Jessie,
We will have to schedule our meeting after the Dallas start up because
I am covered up right now and my time is very limited. I can not begin
to address the items that you want to discuss until I finish this start up
which requires my full attention. However, I really did not expect you
to call because time and time again, you have shown no respect for my
time by setting up conference calls with me and then you never call. You
said, during my evaluation (2/6/09) that we were going to have weekly
calls but you have never called. In fact, you do not return my phone calls
or e-mails. You told me that you wanted to come to Dallas for the FAT
but when I sent you and Kevin an e-mail asking you both to confirm
your attendance, you did not reply, consequently, Kevin replied and he
came, you did not. Just like you have expectation [sic] of me, I have
expectations of you as my manager.
I gave you a list of controls items that I felt we need to focus on and also
automation support strategic diagrams that you have not responded back
to me on. You, also, were suppose to attend our first automation support
conference call with IT and you did not but you always send an excuse
e-mail to explain. However, I cannot continue to excuse this kind of
behavior anymore because it is very disrespectful and on top of this you
presented me with a negative evaluation. I, sincerely, took it upon
myself to volunteer to help out during this difficult period, although it
has now turned into me taking on the responsibilities of three other
engineers with no admin or drafting support. I have given up my
personal time to be on call 24/7 by the plants; I work weekends doing
backups and project start ups and I feel that none of my efforts are being
appreciated. I have accomplished a significant amount of work for BM,
however, it is disturbing that although I am reaching far beyond my job
duties to keep us afloat, I can not be rated a (4). Something is very
wrong with this picture, I am requesting that someone explain to me
what it takes to be rated a (4) because, clearly, it not [sic] obtained by
performing over and above the capacity of your own job functions or by
saving engineering thousands of dollars by preventing PLC over writing,
which is monumental in itself but your only focus is plant support.

11

As I explained to you, it is appalling that my review consisted, mainly,
about two one-sided conversations: 1) one plant’s feedback (when I
service them all) during a 1:00 am, call where I offered my support but
the operator could not do the things that I was telling him to do and he
constantly put me on hold, I continued to follow up on the situation and
2) [m]y contact with IT over providing me a loaner laptop (my laptop
was being serviced) where I expressed my frustrated (sic) in that IT send
[sic] me a loaner without a CD Rom drive, therefore, I could not load
any of my applications that I use to provide plant support. I feel that
when you found out about this, you should have addressed this issue
with IT to ensure that I have what I need to adequately support the
plants while my laptop is being serviced, this issue still requires
addressing. I expect you to address your concerns with me, not just
present them to me in my evaluation. I was evaluated based on Peter’s
job description, not mine, none of my project work was even mentioned,
although, I have sent you progress reports, updating you about them. I
am assuming that since you have a very limited knowledge of controls
and my job functions, it makes you look better by showing me in a
negative light. Although you agreed to modify my 2008 year end review
on 2/6/09, it has not transpired, you sent an e-mail three weeks ago on
a Friday informing me that it would be updated, the following Monday,
but nothing has been done to date, this is unacceptable.
Joe: I have tried not to say anything and I do not mean any harm but it
is not in the best interest of my professional career, our department or
Benjamin Moore, as a whole, not to address and resolve this. I require
a manager who has knowledge of electrical/controls and a vision and
strategy for its future, someone who can evaluate me based on my
specific job description and is objective and fair. I deserve a manager
who is interested in my career development and not one who looks for
ways to tear it down and I, certainly, expect my phone calls and e-mail
to be returned. I should not have to continue to contend with this kind
of unprofessionalism. I am not sure if it is just me or if she treats her
other direct reports in this manner, but this working relationship is not
working out. I know that the two of you work very closely together and
it may be difficult for you to be objective in this matter but, clearly,
something needs to be done to resolve it. Therefore, I am requesting that
12

my 2008 evaluation be modified to reflect the tasks as described in my
specific job description and that I be managed by you. Jessie’s actions
do not serve to cultivate a successful working relationship between the
two of us. Perhaps you or Sue will get back to me concerning how we
will proceed on this matter.
Regards,
Tracy Jones-Sanders
...
From: Dotzman, Joseph
Sent: Thursday, April 09, 2009 11:22 AM
To: Sanders, Tracy
Cc: Eiler, Susan; Singh, Jessie
Subject: RE: Monthly Catch-up - Personnel Issue - CONFIDENTIAL
Tracy,
There is obviously a major rift here that requires attention. Because I am
going on vacation next week, I would like to have a phone conversation
tomorrow with yourself and Sue on the line to discuss this matter. We
can establish next steps during that call.
Although there is obviously frustration on your part, I would ask that
you refrain from sending messages such as those below, and instead
work with your HR business partner, Sue Eiler, or call your manager
directly. If things are as broken as you say, then you must discuss it with
your manager before sending out an email such as you have below.
Concerns, accusations, and conjecture, particularly those made with a
confrontational approach that cast your manager in a negative light only
serve to hurt your credibility. I am not taking sides nor am I making any
judgments about who is right and who is wrong at this point, I am just
stating that this type of impasse is not well served by emailing a broad
audience.

13

I will send out a meeting invite shortly.
Regards,
Joe
...
From: Sanders, Tracy
Sent: Thursday, April 09, 2009 12:59 PM
To: Dotzman, Joseph
Cc: Eiler, Susan
Subject: RE: Monthly catch-up· Personnel Issue ·CONFIDENTIAL
Importance: High
Joe,
I understand your point about calling her directly but why bother when
you know that she does not answer or return your calls. I am sorry that
you feel that this is a confrontational approach but it is not it is simply
the truth and there is no other way to sugar coat it I felt that I was
addressing this issue with the same persons that she cast a negative light
on me with and that’s you and Sue. I felt that the two of you should be
copied on escalated issues but I apologize if you disagree, however, if
you prefer in the future, I will only contact Sue. Again, I mean no harm
but something has to be done. I look forward to talking with you and
Sue, tomorrow.
Thanks,
Tracy Jones-Sanders
...
From: Dotzman, Joseph
Sent: Thursday, April 09, 2009 12:31 PM
To: Sanders, Tracy
14

Cc: Eller, Susan
Subject: RE: Monthly Catch-up· Personnel Issue - CONFIDENTIAL
I understand. We’ll talk tomorrow.
Thanks,
Joe
Doc. no. 66-12 (Exhibits to Pallozzi Deposition), at ECF 38-41.30 Later that
month, Theresa Pallozzi, a Caucasian Human Resources Business Partner, was
assigned to handle the HR functions of the Controls Group, which, at the time, still
only contained plaintiff.31
In May 2009, plaintiff began reporting to Dennis Recca, Benjamin Moore’s
Lead Engineer.32 Recca, who was based in Flanders, New Jersey, managed the entire
Engineering Department and was responsible for operations at all six of Benjamin
Moore’s manufacturing facilities.33 Recca did not get involved in the day-to-day
operations that plaintiff performed, but he did attend weekly telephonic meetings with

30

These emails were originally part of a chain. They have been rearranged in chronological

order.
31

Doc. no. 66-12 (Pallozi Deposition), at 20-21; doc. no. 66-10 (Edwards Deposition), at 6-7;
doc. no. 66-7 (Recca Deposition), at 13. It appears that Susan Eiler, whom plaintiff included in the
previous email correspondence, was assigned to handle the HR functions of the Controls Group prior
to Pallozzi.
32

Doc. no. 66-1 (Plaintiff Deposition), at 82-83.

33

Doc. no. 66-20 (Recca Declaration), at 1-2, ¶¶ 2, 5; doc. no. 66-7 (Recca Deposition), at

10.
15

plaintiff, and did periodic monthly updates for project progress.34 Recca also required
all engineers he supervised to keep an updated calendar regarding the projects
assigned, except when the employee was in attendance at their regular work location,
and he regularly reviewed employee calendars.35 Recca often reviewed plaintiff’s
calendar entries and found that plaintiff did not include her daily projects on her
calendar for the times she worked from home.36 As a result, Recca emailed plaintiff
multiple times and requested that she update her calendar to include the projects she
was working on from home.37 For example, Recca sent plaintiff the following email
on June 15, 2009:
Tracy,
The point of calendar entries is to reflect as close as possible your WFH
work schedule. You have just duplicated the same itinerary on every
planned WFH day including over your vacation. Your calendar does
reflect the full 8 hour schedule as we have discussed but it should vary
each week depending on your priorities. At the end of your WFH day
you may need to take a few minutes to rebalance time on your calendar
based on actual an [sic] add some details.
For example, on June 10 what files were actually backed up 12:30 to
3:30 Backed up Jtown, C&C, Pell City Cell 1 etc 3:30 to 4pm Trouble
shoot Milford tank level.
34

Doc. no. 66-7 (Recca Deposition), at 28-30.

35

Doc. no. 66-7 (Recca Deposition), at 33, 45; doc. no. 66-4 (Exhibits to Plaintiff
Deposition), at ECF 10.
36

Doc. no. 66-20 (Recca Declaration), ¶ 24.

37

Id.
16

During my next visit I’d like to review the back-up process so we can
explore ways to streamline process.
If you have any questions call to discuss.
J. Dennis Recca, P.E.
Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 20.
Plaintiff sent the following email to Edwards and Pallozzi on June 29, 2009:
Liz,
I hope that you are doing well. However, on 6/26/09, Dennis Recca
informed me of management’s decision to deny me the continuance of
my FWA on the bases that Joe Dotzman said, “no one in Supply Chain
will be allowed to work from home.” With this in mind and the fact that
the primary location where I provide after hour support is from my
home, this decision only serves to put our level of production in
jeopardy. With most facilities operating on three shifts, they require
24/7 support, therefore, I am appalled that management would even
consider taking away the tools and the flexibility necessary to provide
this coverage. Week before last, I was told that they will no longer
continue to pay for the internet service that I use to provide after hour
support but after I explained the fact that we have been tasked to reduce
cost and that our only other option is to rely on outside contractors with
overtime rates in excess of $250.00/hour (plus a monthly service
contract charge per facility and travel expenses), they told me (on
Friday) that they will pay for my internet through the end of the year but
as of July 1, 2009, no one in Supply Chain will be allowed to work from
home.
After almost two years of telecommuting, volunteering to take on extra
work responsibilities and actually getting things done, management
response has been to seek out and present negative information through
the misuse of the performance management system and, now, take away
17

the tools that I need to perform my job (internet and FWA). Therefore,
given the above and the negative comments that Joe made in the rewrite
of my 2008 review, I feel that it is more important to him to retaliate
against me for the HR issue that I raised (concerning Jessie) than to
provide the necessary services to sustain BM’s production operations.
What will they seek to do next, take away my office or even get rid of
me? Is this what I can continue to expect while working for BM? Will
BM allow the performance system to be misused and allow retribution
for issues raised? This is not right! I, certainly, hope that we can turn
things around, navigate away from the negatives and the drive to seek
out hurtful actions against me? I hope we can put this behind us and
place the importance of BM’s production goals into focus.
Although I volunteered for this supposedly, temporary, assignment, it
bas been a sacrifice for me to cover (5) plants, allowing support issues
to interfere with my personal time, but I realize the high dependence of
production to controls, if our automation equipment is down, so is our
ability to produce paint, so I respond at 2:00 am or anytime. However,
now that they have said “no one can work from home,” it is unfair to say
that I can work from home after I leave the office but can not work from
home during regular business hours as I have been since coming to work
for BM. To me this policy mean, [sic] no one can work from home,
during regular business hours and non-business hours. Also, it is
unrealistic for me to work regular hours then work at 3:00 am or set up
to assist with a 6:00 am service call and then be required to report back
into the office at 7:00 am. How can I provide the level of “on demand”
24/7 service, get some rest and meet my family obligations?
The IT department allows flexibility for those who provide 24/7 support
due to the nature of their job. How can Joe make a blanket statement
that “no one in Supply Chain can work from home,” without addressing
the nature of responsibilities per an individual’s job requirement? I
work with Gideon Johns of IT and many times we work into the “wee”
hours of the night on problems, however, he can balance out his hours
by working from home going into the office late but now, all of a
sudden, I can’t.

18

I also noticed that the FWA documentation does not say that there must
be a special circumstance to telecommute or that Supply chain is not
eligible. Per the, recent, memo that discussed the closing of the
Edgewater facility, it stated that some will work virtually without
reference to this supply Chain policy that was only discussed with me.
This new policy was not discussed with all of Supply Chain as a group,
it was only told to me, by Dennis, as the bases for denying my FWA.
In my opinion, this level of support service should be formally
incorporated into my duties (with appropriate compensation) and all of
the necessary tools be provided or management should move forward
with establishing service contract agreements with appropriate
contractors and provide the plant(s) instruction and contact information.
At this time, I do not understand what they want or expect of me, but I
do know that management must, immediately and realistically, address
how the plants will receive the support that three shift operations
demand.
I am currently on vacation and will return on 7/6/09, but perhaps you
can begin to address the issue of negativity, now, directed towards me,
the unwarranted denial of my FWA, and as well as, help me to
understand what is, realistically, expected of me. . . .
Kind regards,
Tracy Jones-Sanders, EE
Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 14-16.
On July 22, 2009, plaintiff complained internally with Benjamin Moore’s
Human Resources Department that she was being harassed by her manager, Recca.38
Plaintiff contended that Recca harassed her by isolating her and leaving her out of
important, imperative communications and project meetings, and putting her under
38

Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 11.
19

heightened scrutiny.39 Specifically, Recca did not communicate with plaintiff, and
instead talked to the plant maintenance manager at the Pell City facility about project
statuses as though he were the Controls Engineer, although he did talk to the
Caucasian engineers that were in New Jersey.40 In response to the question, “What
made you believe that [the harassment] was because of your race,” plaintiff answered:
What caused me to believe it was because of my race was when — when
— it got to be back to back. It got to be harassing. It got to be one thing
after the other. He’s complaining about this. Instead of helping me get
the help that I need to do my job, he’s taking up my time on the phone
for hours and hours with me explaining the same thing to him over and
over again. Or he has me in weekly meetings where no one else — none
of the white engineers that I know of are in weekly meetings with their
manager, you know, because of the way that he handled communications
with me.
Doc. no. 66-1 (Plaintiff Deposition), at 117-18. Plaintiff noted that she was never
subjected to any racial epithets or racially derogatory statements.41
Plaintiff also frequently complained about her workload, asking Recca if other
employees could assist her.42 To accommodate those complaints, Human Resources
adjusted plaintiff’s on-call schedule.43 Beginning August 3, 2009, plaintiff was only

39

Doc. no. 66-1 (Plaintiff Deposition), at 114-115.

40

Id. at 129-30.

41

Id. at 114.

42

Doc. no. 66-1 (Plaintiff Deposition), at 102-04.

43

Doc. no. 66-10 (Edwards Deposition), at 35; doc. no. 66-3 (Exhibits to Plaintiff
Deposition), at ECF 4.
20

required to provide on-call, after-hours support from Monday at 6 a.m. until Friday
at 5 p.m., and plaintiff was not required to provide support during prescheduled
vacation or personal days.44 Additionally, plaintiff was granted a new FWA, which
allowed her to work from home on Wednesdays.45 Under the new FWA, however,
plaintiff was required to provide a detailed calendar listing of the projects and tasks
that she worked on daily, and she was advised that the arrangement would be
periodically reviewed to ensure its effectiveness.46
Plaintiff applied for the position of Senior Controls Engineer at Benjamin
Moore on August 10, 2009.47 The position was based in Flanders, New Jersey, and
the Senior Controls Engineer would be responsible for troubleshooting, eliminating
control systems issues, managing controls projects, developing and maintaining
process system databases, developing new control and monitoring systems, and other

44

Doc. no. 66-3 (Exhibits to Plaintiff Deposition), at ECF 4.

45

Id.; doc. no. 66-1 (Plaintiff Deposition), at 105. Recca had requested that employees
submit a form to continue any FWA. Doc. no. 66-1 (Plaintiff Deposition), at 109-110.
46

Doc. no. 66-3 (Exhibits to Plaintiff Deposition), at ECF 4. Plaintiff disputes this fact based
on a letter Recca sent her stating: “When in attendance at your regular work location no entry
required.” Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 10. This letter, however, was
sent months before the new FWA was granted, and the new FWA explicitly required plaintiff “to
get a detailed calendar listing of the projects and tasks being worked on.” Doc. no. 66-3 (Exhibits
to Plaintiff Deposition), at ECF 10.
47

Doc. no. 66-20 (Recca Declaration), ¶ 27. Plaintiff helped prepare the job description for
this position in September of 2008, and provided it to Jessie Singh and Joseph Dotzman. Doc. no.
66-2 (Plaintiff Deposition), at 294. The position was posted on June 4, 2009. Doc. no. 66-20 (Recca
Declaration), ¶ 26.
21

controls functions.48 The job posting listed the following required qualifications for
the position:
-

-

-

-

-

-

BS degree in Electrical Engineering Technology, or equivalent
experience.
Minimum of ten years experience in process Senior Controls
Engineering process support and project management, preferably
from a liquid products industry (paint, food, beverage, household
product, cosmetic, and pharmaceutical).
Will have the ability to collaboratively analyze and evaluate
controls and automation systems, and to work with operating and
corporate personnel to implement changes in systems, equipment,
and procedures that result in operational improvement.
The Senior Controls Engineer must have an understanding of
PLC architecture and have experience writing functional
requirements and specifications. Must have the ability to create
and modify PLC ladder logic. Must be able to integrate
instrumentation, vision systems, bar code scanners, servo motors,
stepper motors, and multi-axis robots into control systems.
The Senior Controls Engineer will have PLC and high level
language programming skills, i.e. Visual Basic, C/C++.
The Senior Controls Engineer must have strong interpersonal,
communication, presentation, writing, project management,
negotiation, influence, teamwork, analytical and decision-making
skills, as well as a strong attention to detail.
Strong computer literacy with significant experience in MS
Office, including Microsoft Project. Must be able to develop
P&ID’s and other support drawings utilizing AutoCAD /
AutoCAD Lite.
Requires frequent travel.
In depth knowledge of the requirements of NEC, IEC, NFPA and
other relevant codes as they apply to controls systems.

Doc. no. 66-7 (Exhibits to Recca Deposition), at ECF 37-38.
48

Doc. no. 66-20 (Recca Declaration), ¶¶ 26, 27.
22

In August of 2009, plaintiff told Edwards that she would no longer
communicate with Recca directly, and would only communicate with him through
voicemail or email.49 According to Recca, communications between him and plaintiff
became strained.50 As a result, Pallozzi began attending weekly telephonic meetings
between plaintiff and Recca to help assess the communication issues.51 On August
24, 2009, the following email correspondence occurred between plaintiff and
Pallozzi:
From: Pallozzi, Terry
Sent: Monday, August 24, 2009 9:45 AM
To: Sanders, Tracy
Subject: Feedback
Hi Tracy,
Do you have a few moments for me this Wednesday so that I can
provide you some of the feedback from our meeting last week. Let me
know.
Thanks
Terry
...
From: Sanders, Tracy
Sent: Monday, August 24, 2009 1:06 PM
To: Pallozzi, Terry
49

Doc. no. 66-1 (Plaintiff Deposition), at 116-17.

50

Doc. no. 66-20 (Recca Declaration), ¶ 22.

51

Doc. no. 66-1 (Plaintiff Deposition), at 136. Edwards telephonically attended one of the
meetings.
23

Subject: RE: Feedback
Terry,
Yes, I will make myself available and thank you for sitting in on the call.
However, you expressed your frustration and discontent with how our
conversation went. As you can see, phone conversations with Dennis
can last for hours going over the same material that has already been
discussed and explained to him before, even in writing. Now, couple
that conversation with him delivering messages of about what they are
going to take away from, (i.e. the internet, FWA, *56 hours of comp
time), pressuring me for dates, adding more tasks instead of offering to
relieve me, along with sarcastic comments about me and after hour
support and telling me that that [sic] Art is not here anymore, etc., then
multiply it by several conversations, during a short time span, and it is
enough to raise anyone's stress level. These kind of engagements only
serve to hinder me from doing my work, create a hostile working
environment and nothing really gets accomplished.
Thursday’s agenda was suppose to cover four points but we never made
it past the first one in a hour and a half. I asked another engineer how he
handles discussions with Dennis and he said “I bang my head against the
wall . . . ,” he said that he tries to avoid them as much as possible
because it is stressful and he told me not to allow it to stress me. Does
BM offer any training to individuals whom they place in management
positions? As a new employee, within the span of about a year and a
half, I lost a good manager and have been subjected, to-date, to three
other individuals and out of the three of them, I see no evidence of
managerial skill or expertise. This is not good for BM, I have gone from
one extreme to the other, one manager who did not communicate at all
to one who propels me into vicious cycles of conversation where I am
forced to repeat myself while no work gets done. At some point,
something has to give, meaning that HR or higher management has to
stop and take a hard look at things and make some decisions and
adjustments that work for the betterment our department which
continues to deteriorate.

24

Please do not take this e-mail as anything more that constructive, with
the aim of seeing that things get better because only if it’s brought to
your attention is there even a remote chance of something being done
about it. At the end of the call, I noted that you said that we were free to
talk outside of this forum, therefore, I must reiterate that I am abiding by
doctor’s directive to minimize stress and handle conversations with him
through a third party. I have put in a call to my doctor so that he can
address his comments, directly, to my supervision. Also, in the event
that you are not available to attend the weekly call, please have Dennis
to reschedule.
Warmest regards,
Tracy Jones-Sanders
...
From: Pallozzi, Terry
Sent: Monday, August 24, 2009 2:58 PM
To: Sanders, Tracy
Subject: RE: Feedback
Let’s plan to talk on Wednesday. I will send you a meeting request
Terry
Doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 7-8.52 Three days later,
plaintiff sent the following email to Pallozzi:
From:
Sent:
To:
Subject:
Importance:
52

Sanders, Tracy
Thursday, August 27, 2009 7:53 AM
Pallozzi, Terry
Follow Up
High

These emails were originally part of a chain. They have been rearranged in chronological

order.
25

Tracking:

Recipient
Pallozzi, Terry

Read
Read: 8/27/2009 8:04 AM

Terry,
I tried to reach this [sic] morning as a follow up to our conversation.
What I am hearing is that you are seeking cast [sic] me as insubordinate.
That was the most dominate [sic] word that you used on yesterday. It is
as if it is being used as a form of entrapment because if I do not say
anything, I am insubordinate and if I say something, I am frustrated,
harsh and insubordinate, and subsequently, you will put this in writing
and in my file. Therefore, if your participation on the calls is to threaten
and document me as insubordinate and disable (telling me that I need to
contact Atena [sic] about getting short term disability if I do not feel that
I can do my job), then this is not what I signed up for.
I was under the impression that we were working through some
difficulties where you knew that was frustration and defensiveness
(because of what my department was trying to take away from me/my
evaluation, etc) involved. However, if I can not work through this
without the threat of being written up as insubordinate, then we need to
approach this different way. It is not my intent to be insubordinate,
again, I sincerely sought to help out my department with a strong drive
to do as much as I could and with a willing attitude, but that is not what
is being documented, here. You are seeking to document anything that
you can term insubordinate which, to me, does little towards
accomplishing positive results; it only further deteriorates the situation.
Thank you for listening.
Regards,
Tracy Jones-Sanders
Doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 9 (emphasis in original).
Plaintiff informed Recca that she had applied for the Senior Controls Engineer
26

position on September 4, 2009.53
On October 21, 2009, the following email correspondence occurred between
plaintiff and Recca (with Pallozzi attached as a recipient):
From: Recca, Dennis
To: Sanders, Tracy
Cc: Pallozzi, Terry
Sent: Wed Oct 21 13:51:24 2009
Subject: Travel Expenses
Tracy
As a follow-up to our discussion on your recent expense submittal I
would refer you to the BM HR - Travel Expense Guidelines which can
be found via the Employee Online Handbook. Please take note under
business meals that you must account for meals with others under
entertainment and document as outlined. The travel guideline also only
authorizes car rentals up to “mid-size’. [sic] Please confirm if the rental
charges on your expense request was for two or three days and what the
car category was. I recommend you take the time to read through the
entire guide at this time.
I’m sorry you felt troubled with my questioning your expense form
because no one else had before. BM has requested that we all be
mindful of managing our expenses and I expect that you would consider
my suggestions when making future travel arrangements and
expenditures. I will return your expense request so you can make the
necessary corrections.
Dennis
...

53

Doc. no. 66-7 (Exhibits to Recca Deposition), at ECF 28.
27

From: Sanders, Tracy
Sent: Wednesday, October 21, 2009 4:03 PM
To: Recca, Dennis
Cc: Pallozzi, Terry
Subject: Re: Travel Expenses
Dennis,
I do not have a problem with you questioning me about my expense
report because I understand the points that you made and will make the
appropriate changes. However, the issue is that you routinely question
me about everything that I do, everything! It is to the point that when
someone e-mails me and copies you, I can’t respond to them for you emailing or calling me about it to explain. You question me all the time
about support issues, about Controls, about other things and now
questions about my expenses. It is questions, questions, questions. I
find myself explaining and explaining and explaining then explaining
things over again. I have never experienced this level of questioning
from any manager and I would like to understand why.
I understand that your knowledge is limited when it comes to Controls
but I do not expect to be barraged with questions all the time until it
affects my work output. The time that I spend e-mailing or explaining
over the phone, I could have accomplished more of my work. Today,
you even questioned if I used the kitchen in the suite that always [sic]
use in Dallas, I find that quite excessive, then you came across like I was
on a witness stand.
Believe me, I do not mind people asking questions but this has become
so routine and excessive that you may not be aware of it, I certainly hope
that you are not doing it on purpose, but what ever the reason, I hope
that you will be mindful and curtail the questioning so that I can perform
my job.
Thank you,
Tracy Jones-Sanders
28

...
From: Recca, Dennis
To: Sanders, Tracy
Cc: Pallozzi, Terry
Sent: Wed Oct 21 17:38:23 2009
Subject: RE: Travel Expenses
Tracy
I believe your characterization of the few times I have asked for
clarifications on technical issues is overly dramatized. I provide you
with the same level of guidance and questions that I do for others that
report to me. It appears that every time we have a discussion about
administrative issues that conflict with the way you want things we have
this kind of response. I would like us to spend time reviewing this with
Terry tomorrow.
Dennis
...
From: Sanders, Tracy
Sent: Wednesday, October 21, 2009 6:42 PM
To: Recca, Dennis
Cc: Pallozzi, Terry
Subject: Re: Travel Expenses
There are questions all the time then more when we talk on Thursdays.
Things do not have to be like I want them but you do not want to accept
my ideas or suggestions in Controls or Admin which is why I am
excluded from Controls related meetings, etc.
You only seem interested in asserting your authority and making sure
that I make no decisions or have any control so you ask contractors and
everybody else about projects to learn enough to base your decision.
29

Like I ask you before, why have Controls staff if you are not going
respect their knowledge?
I have said all that I have to say on this subject because this a sensitive
area that provokes argument, however, if you want to discuss this with
Terry, you can. I will have no further comments on this subject during
our meeting.
Thanks.
Tracy Jones-Sanders
Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 19-21.54 The next day,
plaintiff sent the following email to Edwards (with the prior correspondence between
Recca and plaintiff attached):
Liz,
I hope that you are doing well and I am sorry to bother you, but the
meetings with Dennis and Terry are amounting to Dennis trying to assert
his authority, and therefore, he parades me in front of Terry on issues so
that they can be in agreement and double up on me. Two on one is not
fair to me and I choose not to participate under unfair circumstances.
Please see the e-mails, below, addressing my concerns of how he,
excessively, questions me to the point that it affects my work output. I
have talked to others in the department about this and they say that this
is how Dennis is, but that he does not question them on the level that he
is questioning me and I want to know why? I have never had to explain
everything that I do or experienced this level of questioning from any
manager throughout my entire career.
We continue to not see eye-to-eye. He is frustrated in that he does not
54

These emails were originally part of a chain. They have been rearranged in chronological

order.
30

understand Controls, i.e., what it consist of, the process and nature of
Controls. I have explained my work in lay-terms (over & over again)
but he comes back around to the same comments, “I can’t get my head
around it..” [sic] and there I go, explaining it again. I was told that he
said, “she confuses the hell out of me” to one of my counterparts. Due
to his lack of understanding about what I say and do, I can see the same
thing happening again with my performance review. Typical to last
year, a lack of understanding generates negative reviews about minor
things, i.e., what the plant said or knit picky things (calendar, etc.) and
do not penetrate the core of my responsibilities.
It amazes me to see him portray himself in a better light during our
weekly calls but it’s a different story, offline:
He routinely questions me about everything that I do, everything!
It is to the point that when someone emails me and copies you, I can’t
respond to them for you e-mailing or calling me about it to explain. He
questions me all the time about support issues, about Controls, about
other things and now questions about my expenses. It is questions,
questions, questions. I find myself explaining and explaining and
explaining then explaining things over again. I understand that he has
limited knowledge when it comes to Controls but I do not expect to be
barraged with questions about everything that I do all the time to the
point that it affects my work output and creates a stressful environment.
The time that I spend emailing or explaining over the phone, I could
have accomplished more of my work. He even questioned if I used the
kitchen in the suite that [I] always use in Dallas, I find that quite
excessive, then he came across like I was on a witness stand.
Although the installation phase of the Dallas project is complete,
he does not understand that my work at the support level is just
beginning. I must familiarize myself with the new system in order to be
able to provide the same level of support (1st line defense) that I provide
on our other systems. It is as if he does not want to allow me the time to
become familiar with the system because he mentioned that it is his
decision to have me focus on the GE side since we have more GE than
AB but when I asked him, if I get a call about AB at 3:00 am, what
31

should I tell them, “I can't help you because I only work on GE,” he
could not respond to that. My role is to be able to provide a certain level
of support on all automation systems/equipment/programs, he should
understand that. He does not understand that I have to follow through
with the contractors on the new system to ensure that we have all the
program flies, software to open these flies, documentation, etc. We
hardly have documentation because they do not follow through.
Controls is not like his construction projects where after the construction
phase is done, the project is finished and you move on to the next one.
My work begins after the installation/construction phase.
I continue to be left out of Controls related meetings, calls, emails, interview process, etc. On one project, I was left out to the point
that the outside contractor asked me why, the contractor then began to
copy me on the e-mails, I thanked him and he responded, “It’s the right
thing to do.” I hear things about the Controls portion of the project from
the maintenance personnel here in Pell City and others but not from
Dennis.
He continues to say that he can not get his head around what I do
and does not read and respond to me [sic] monthly status reports.
Although, I explain things over & over again, he has watched me do
certain things by remotely viewing my computer, I sent him a week’s
calendar of what its like in Controls” [sic] but he still alludes to the fact
that he can not get a handle on it and I confuse the hell out of him.
I am hearing from more than one individual about negative
comments that he makes about me; Asking others about me; Asking
(contractors, etc.) about Controls instead of relying on our internal staff.
Contractors do not know our system as a whole, our philosophy or the
direction that we are headed. On projects, everybody goes out and get
them a contractor with consulting the internal controls group and we end
up with things programmed so many different ways, no standards, no
documentation, drawings, etc. but then they look to me to support it
when something goes wrong at 3 am.
Inconsiderate — On one occasion, he changed our meeting to
32

2:30 pm, but just before that time, a out-of-town vendor had stopped by
to talk to me, when I explained, he [said] you need to tell them to leave
(the tone of it is what disturbed me)!! This put be in an uncomfortable
position and I felt bad about just telling them to leave so I asked them
to wait for me. I stayed late to talk with them.
On another occasion, he was in Pell City and when it came to be
9:00 am for our meeting, his door was closed so I sent him an e-mail and
asked that he be considerate of my schedule because I had planned my
day around the 9:00 time slot. Also, if I ask him to change the meeting
or to attend training or anything, the answer is always, NO! I ask him
questions in my monthly status report but he never responds.
Last month, when I reported off sick, he sent me an e-mail telling
me to call a plant or contact Gideon or get a contractor, I did not read the
e-mail until I returned to work because I was out sick. This is why he is
there to manage and get backup for when I am out. Most times if I do
not feel well, I will work from home but this was not the case and he
should have respected that.
He does things related to controls on his own without discussing
them with me and produces the wrong results. He secured funding for
a contractor to do some work and gave him a PO without talking to me,
first. Had he talked to me, first, he would have found out that the
situation was resolved and there was no need to issue the PO. On
another occasion, he wanted our secretary to help me work on
something, so he took it upon himself to send her a manual without any
explanation along with it and told her to work on it. If he had discussed
this with me, he would have found out that the manual was irrelevant to
the project at hand. I know that he meant well but by discussing things
with everyone else and not me is not the way to get desired results.
On many occasions, I receive notes of thanks from the plants, but
I never hear comments like, good job or thanks from management. I
change my vacation time to accommodate the workload but I never hear
a “thank you” for sticking around to take care of this. A good manager
knows the importance of expressing goodness to his/her employees.
33

I am still just one individual trying to do the things that are
already on my plate plus items that he keeps adding.
I do not know what it will take for him to understand me but I feel like
I am spinning my wheels and being questioned very excessively. I see
it as further harassment. It is difficult to follow the lead of someone who
does not understand Controls, its workload and responsibilities and who,
intentionally, leave me out on matters related to my area. It is as if he
wants to call all the shots and micro-manage everything that I do
without knowledge and understanding of what I do. Controls is the focal
point of our paint making process but it continues to suffer under
managers who do not understand or simply think that they know because
they ask others. Therefore. I am looking to you as a resource for
guidance.
Thank you,
Tracy Jones-Sanders
Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 17-19. The weekly
meetings between Pallozzi, Recca, and plaintiff ended after this email.55
By November of 2009, Benjamin Moore had received a total of 109 applicants
for the Senior Controls Engineer position.56 Dotzman and Ken Marino, a Caucasian
and Benjamin Moore’s Vice President of Manufacturing, discussed what they wanted
from the Senior Controls Engineer, and decided they needed somebody who was a

55

Doc. no. 66-1 (Plaintiff Deposition), at 166. Plaintiff believes the meetings ended because
she reported to Edwards that they were “two against one.” Id.
56

Doc. no. 66-20 (Recca Declaration), ¶ 29.
34

mentor, had supervisory experience, and controls experience.57 Leadership and
supervisory experience was important because Dotzman and Marino discussed the
possibility of adding more controls engineers.58
Pallozzi screened the initial applicants.59 Five candidates were selected for
interview based upon review of the candidate applications, including Frederick Yama,
a Caucasian.60 Pallozzi also forwarded plaintiff’s resume for review for the Senior
Controls Engineer position,61 and Dotzman talked with plaintiff about the position
and entertained her thoughts on how she could fulfill the role.62 Dotzman was
familiar with plaintiff’s skill set, and felt there was no need to interview her for the
Senior Controls Engineer position.63
Pallozzi conducted the initial interview with Yama.64 Thereafter, Yama
interviewed with Recca, Dotzman, Jonathan Shema, Gideon John, and Chris
Reynaud.65 Dotzman and Recca then recommended Yama proceed to interview with

57

Doc. no. 66-9 (Dotzman Deposition), at 10.

58

Id.

59

Doc. no. 66-12 (Pallozzi Deposition), at 37-38.

60

Doc. no. 66-20 (Recca Declaration), ¶ 30.

61

Doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 5.

62

Doc. no. 66-9 (Dotzman Deposition), at 16.

63

Id.

64

Doc. no. 66-12 (Pallozzi Deposition), at 39.

65

Doc. no. 66-8 (Marino Deposition), at 8; doc. no. 66-9 (Dotzman Deposition), at 9, 19; doc.
no. 66-7 (Recca Deposition), at 15-17; doc. no. 66-16 (Yama Deposition), at 11-14.
35

Ken Marino.66 Marino conducted the final interview with Yama.67 Marino didn’t
interview plaintiff, however, because he did not believe she was qualified for the
position.68
Ultimately, Marino decided to hire Yama for the Senior Controls Engineer
position.69 Marino contends that he selected Yama over plaintiff because, in addition
to plaintiff’s lack of leadership, Yama had experience in chemical engineering as well
as controls, while plaintiff’s experience was limited to electrical controls, and Yama
had thirty-four years of management experience, while plaintiff only had twenty-four
years of management experience, and had not been a manager in nearly five years.70
Yama was offered the Senior Controls Engineer position on November 2, 2009.71
On November 12, 2009, plaintiff called Benjamin Moore’s employee hotline
— The Berkshire Hathaway Workplace Alert Program powered by Global
Compliance — and reported that she was being discriminated and retaliated against,

66

Doc. no. 66-8 (Marino Deposition), at 7-9.

67

Id. at 8-9.

68

Id. at 21.

69

Id. at 7.

70

Doc. no. 66-8 (Marino Deposition), at 25-26. Plaintiff disputes these facts, but only cites
to an email between her and Edwards regarding alleged harassment, and Recca’s reasons for firing
Yama. See doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 11; doc. no. 66-7 (Recca
Deposition), at 26-27, 40. Plaintiff’s complaints of harassment, alone, are not sufficient to dispute
her lack of qualifications, and Recca’s reasons for terminating Yama are not sufficient to dispute
his qualifications prior to being selected for the Senior Controls Engineer position.
71

Doc. no. 66-20 (Recca Declaration), ¶ 31.
36

and subjected to a hostile working environment, because Recca was not including her
in communications on a project and that she was denied a promotion.72 On November
23, 2009, plaintiff completed a follow-up call and requested that someone contact her
as soon as possible because she was working in a “hostile work environment.”73
On November 25, 2009, Recca announced that Yama would be the new Senior
Controls Engineer.74 Rick Yama assumed the position on November 30, 2009.75
Thereafter, Yama was plaintiff’s direct manager, and he reported to Recca, plaintiff’s
former direct manager.76 Yama was told there were communication issues with
plaintiff before he joined Benjamin Moore.77
On December 1, 2009, plaintiff filed a Charge of Discrimination with the
EEOC based upon her race and sex, alleging that she had been denied assistance to
perform her duties and that she was denied a promotion to Senior Controls
Engineer.78 The notice of the charge of discrimination was dated December 2, 2009,
and was addressed to Edwards.79 On December 14, 2009, Global Compliance
72

Doc. no. 66-1 (Plaintiff Deposition), at 162-64; doc. no. 66-11 (Exhibits to Edwards
Deposition), at ECF 2.
73

Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 3-4.

74

Doc. no. 66-7 (Exhibits to Recca Deposition), at ECF 39.

75

Doc. no. 66-20 (Recca Declaration), ¶ 32.

76

Id.

77

Doc. no. 66-16 (Yama Deposition), at 43.

78

Doc. no. 66-3 (Exhibits to Plaintiff Deposition), at ECF 23.

79

Doc. no. 66-10 (Exhibits to Edwards Deposition), at ECF 38.
37

concluded its investigation of plaintiff’s internal, hotline complaint, noting:
We have investigated the complaint made by Tracy Sanders and have
found the following:
With respect to her claim that she was discriminated against by being
denied a promotion to the position of Senior Controls Engineer because
she is an African-American female, our investigation found this
allegation to be unsubstantiated. Mr. Yama, the selected candidate, has
34 years of considerable experience in the field, as well as extensive
management experience. Additionally, the job profile required electrical
engineering or equivalent experience and Mr. Yama clearly has the
requisite experience.
Regarding her claim of a hostile work environment, Terry Pallozzi, the
human Resources Business Partner, participated in weekly phone
conversations with Tracy Sanders and Dennis Recca, Tracy’s manager,
and found no evidence of harassment. Also, based upon my interviews
with Mr. Recca and Ms. Pallozzi, there were no findings of any evidence
of mistreatment of Ms. Sanders by Mr. Recca.
Subsequent to this complaint, Benjamin Moore & Co. Received a Notice
of Charge of Discrimination filed by Ms. Sanders with the EEOC and
Benjamin Moore will respond accordingly.
Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 4. On December 18, 2009,
plaintiff wrote a letter to Warren Buffett, the Chairman, President, and CEO of
Berkshire Hathaway, the parent company of Benjamin Moore, complaining generally
of discrimination.80

Subsequently, Benjamin Moore investigated plaintiff’s

complaints from her EEOC Charge of Discrimination, but found no evidence of

80

Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 6.
38

discrimination or harassment.81
On December 24, 2009, Recca emailed Pallozzi, Edwards, and Marc Zoldessy,
Benjamin Moore’s General Counsel, an early draft of plaintiff’s 2009 Performance
Review Form, noting that: “This review and the events that led up to it have not been
a pleasant experience for me. My only consolation is that I feel confident that I
provided every opportunity I could to Tracy for it not to have turned out this way.”82
On January 4, 2010, plaintiff sent the following email to Pallozzi:
Terry,
I hope that you are well and that your enjoyed the holidays. I have
approached HR about the fact that my vacation, bereavement leave, sick
leave, etc., has been interrupted for over a year and a half due to my
supporting role (365/24/7) and I see no urgency that would have
prevented you from waiting until my return to send this e-mail. I respect
your time off and I would request that the respect be mutual.
The intentions for hiring Rick was never communicated to me by
management, I was left out of the process altogether. I have been
requesting assistance with the workload for over a year and a half, not
a new boss. It has always been my understanding that a senior level
individual is a “lead,” not a manager (manager is not in the title),
however, if the structure of the engineering department has changed
81

Doc. no. 66-10 (Edwards Deposition), at 24-25. Plaintiff disputes this fact because Global
Compliance, a third party company, received a report from the hotline. However, Edwards clearly
states that the report was sent to Benjamin Moore’s Human Resources Department, who would then
investigate. Additionally, Edwards only stated that Global Compliance received a complaint when
the hotline is used. It is clear that Benjamin Moore’s Human Resources Department received the
complaint when plaintiff complained directly to the Human Resources Department — as she did
numerous times.
82

Doc. no. 66-7 (Exhibits to Recca Deposition), at ECF 50.
39

from department manger, lead, staff, etc., then I should have been
informed (org chart, etc.) before Rick was ever bought on board. It is my
right to understand both of our roles and responsibilities and to expect
to see the skill set in a new hire that will allow him to be able to,
immediately, shoulder the workload.
However, while consulting with EEOC officials, I was told that I have
a right to protest discrimination, and therefore, I am protesting the fact
that I have been assigned to six different individuals (with different
personalities and expectations) in just over two years, subjected to
mistreatment, unrealistic workload, the discriminatory manner in which
Rick was hired and the fact that I am expected to divulge information
that it has taken me two years to determine so that he can take it and
manage over me. As well, it is inappropriate that within BM, the number
of whites far out pace that of blacks, blacks have been working in the
plant for over twenty years and have not moved up, there are very few
blacks in management positions and none in the upper ranks. Minorities
have been affected by work force reductions, mistreated, fired, demoted
and, systematically, driven out. My position has been undermined and
I have been ostracized from projects meetings, e-mails and the
engineering group. Dennis and Joe had already created a hostile working
environment and with me being completely left out of the process only
add insult to injury which is not fair to me or Rick. I have tried not to
attribute the mistreatment that I have received while at BM to
discrimination but in retrospect, I attribute it all too entrenched racism,
and with all due respect, I am calling for something to be done about it.
Happy New Year!
Tracy Jones-Sanders, EE
Doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 13 (emphasis in
original).
On January 7, 2010, Edwards sent the following email to plaintiff:

40

Hi Tracy,
Per our conversation today, this is to confirm that Dennis Recca has
forwarded to me the concerns that you’ve highlighted in your year-end
‘09 Self Assessment. Regarding the Senior Controls Engineering
position, given that you have already filed a complaint with the EEOC
regarding this matter, we believe that it is best served to have this issue
addressed through the formal EEOC process. As indicated, our attorney
has already been in contact with the Commission.
Regarding your concerns about workplace harassment by your manager,
based on our involvement during meetings and investigations of your
prior complaints, again, we have not found any evidence that supports
a claim of harassment or hostile workplace. However, given the
relationship between you and your manager and the allegations that you
have made, Dennis has requested that I sit-in on the year-end
performance discussion with you that is scheduled for Friday, January
8th. Based on your feedback, this is also welcomed. Therefore, I will be
on the call tomorrow.
Sincerely, Liz
Id. at ECF 14.
Thereafter, Plaintiff received her 2009 Performance Evaluation.83 Plaintiff was
given a rating of “3-Meets All Expectations,” just as in her 2007 and 2008
evaluation.84 However, in addition to noting several of plaintiff’s successes, Recca
noted several weaknesses, including, for example, the following comments:
Tracy has shown an ability to work well with some individuals and on
different type projects but not with any consistency. Instead of
83

Doc. no. 66-1 (Plaintiff Deposition), at 172-73.

84

Doc. no. 66-3 (Exhibits to Plaintiff Deposition), at ECF 24-33.
41

responding to a call for help from a plant with the positives she can
provide she will sometimes focus her discussion on all the limitations
she perceives to have that prevent her from helping properly or at all.
An example was when internet access reimbursement was first curtailed,
but then reinstated, Tracy still advised the plant that her ability to
support them was questionable because of this. Some plants have
complained on numerous occasions that Tracy is just not returning their
calls. This lack of cooperation, sense of not being a team player has
created a level of frustration from the plants to the extent that many seek
assistance elsewhere.
Doc. no. 66-7 (Exhibits to Recca Deposition), at ECF 58-59. Plaintiff made the
following additional comments in her 2009 evaluation:
I assisted management in writing the technical sections of the job
posting (software used, functions, technical ability sought, etc.) for the
Senior Controls Engineer position. However, with all the above being
said, I applied for the position and was not given the opportunity to, at
least, interview (by phone or in person)!!! Blatant disrespect and
discriminatory!!!!!
For over two years, I have successfully performed every aspect of the
Senior Engineer position, working independently, supporting (5) plants,
completing 4 startups in 8 months without any support, yet I have been
overlooked for the position. I continue to be left out of e-mails,
meetings, etc. that are relative to Controls, to the point that a contractor
asked me why I was being left out, so he began to include me on emails, I thanked him for doing this and he replied, “It’s the right thing
to do.” In the two years that I have been here, I have been placed under
(5) managers. However, since the departure of Art Mengon, I have been
placed under managers who do not understand the work that I do so they
give me negative reviews about trivial things with untruths.
My current lead, gives me negative attitude (gets smart with me,
harassment, etc.), do (sic) not respect my technical abilities, targets my
work from home days (sic) with lengthy phone calls of excessively
42

questions/explanations, harassment, adds to an overbarring work load,
ignores my ideas/ recommendations and have overlooked me for the
senior position. I have sacrificed my time off to assist the plants but I
never hear “thank you” from management. He does not know enough
about my job to recognize successes in my area. This is not beneficial
to my performance, the engineering department or Benjamin Moore. I
continue to work in a hostile working environment due to retaliation and
discrimination.
...
When I, recently, spoke with the VP of Manufacturing about being left
out on Controls related issues, his only response was that BM is so fast
pace, he did not say that it was unacceptable or offer to correct the
situation. When we discussed how I was being treated and the fact that
I have been placed under several managers who do not know what I do
and explained that their lack of such knowledge is detrimental to the
company and staffers’ progress of Controls, he placed my job in
jeopardy by telling me, first there was a problem with Jessie, now
Dennis, if you do not get along with the new Senior Controls Engineer,
there will be no other options.
Doc. no. 66-7 (Exhibits to Recca Deposition), at ECF 53-59.
On January 13, 2010, plaintiff filed a second Charge of Discrimination.85 In
addition to her previous allegations, plaintiff alleged: “Since filing this charge of
discrimination I was given negative commentary by my supervisor on my annual
evaluation even though the overall rating was a meet expectation. This type of
evaluation is used by the employer to terminate employees when there is a reduction

85

Id. at ECF 40. Plaintiff also checked the box for “retaliation” in her second Charge of
Discrimination.
43

in force or downturn.”86
In March of 2010, the following email correspondence occurred between Yama
and plaintiff, with Edwards eventually copied onto the email chain:
From: Yama, Rick
Sent: Monday, March 08, 2010 3:48 PM
To: sanders, Tracy
Subject: 5K Reactor
Tracy . . .
I see you have a meeting scheduled for the 5K reactor. The one thing I
need soon is the data plate info on the mass flow meters. These are the
primary and most expensive instruments that can probably be reused.
How is the Cell Touch button updates coming?
Rick
...
From: Sanders, Tracy
Sent: Monday, March 08, 2010 3:53 PM
To: Varna, Rick
Subject: RE: SK Reactor
Fine.
Tracy Jones-Sanders, EE
...
From: Yama, Rick
86

Id.
44

Sent: Tuesday, March 09, 2010 9:26 AM
To: Sanders, Tracy
Subject: RE: SK Reactor
Tracy . . .
What does fine mean? Can you give me your target completion dates for
the first cell? As you are only adding text to buttons, I don’t think it
should take that long. Second, please walk out and record and send the
info for the 3-4 mass flow meters in the 5K reactor.
Rick
...
From: Sanders, Tracy
Sent: Tuesday, March 09, 2010 10:33 AM
To: Yama, Rick
Cc: Edwards, Liz
Subject: RE: SK Reactor
Importance: High
Rick,
Please do not take this tone with me. I am working on more that just the
Pell City HMI changes and I ran into some things that had to be clarified
and addressed on cell 1, otherwise, things are going fine. I plan to finish
cell 1 by the end of the week, you have the intranet link to monitor
progress. Also, I asked you for assistance with some of the other plant
requests that I have put on hold in order to work on Pell City, but you
did not respond.
I was out in Resin on yesterday [sic] getting information to prepare for
the meeting, today. According to Dan and Edward, mass flow meters
and the SCADA system (equipment and instrumentation) will not be
used in the Spiral Heat Exchanger project, so do you need this
information for another project? I thought we were working on the
45

Spiral Heat Exchanger; I have meetings, today and tomorrow on this
project, that I am preparing for.
However, this is not the first time that you have taken this tone with me
and I will not tolerate this treatment, therefore, I am requesting that you
please refrain from addressing me in this manner.
Regards,
Tracy Jones-Sanders, EE
...
From: Yama, Rick
Sent: Tuesday, March 09, 2010 5:22 PM
To: Sanders, Tracy
Cc: Edwards, Liz
Subject: RE: SK Reactor
Tracy . . .
I would like to provide some clarity regarding my e-mail below to you.
As your manager, I have a responsibility to know the specific details on
your project and prioritize them accordingly. Your response to my
question was vague. In order for me to appropriately manage the work
load, it’s a reasonable expectation for me to ask you to provide the
specific project details, completion dates, roadblocks and
accomplishments. There was no intended malice or tones in my e-mail
to you so please do not interpret it as such. Again, the e-mail merely
requested more details to my original question: “How is the cell Touch
buttons update coming?”
In regard to the 5K reactor, it was Dan’s and my intent to use the project
as a basis to set up the process for further automation. If we have
instrumentation we can use or reuse I need to know about it so it might
be incorporated in the initial project.

46

Going forward, I will be asking for regularly updates regarding the
progress of your work.
Rick
...
From: Edwards, Liz
Sent: Tue 3/9/2010 10:41 PM
To: Sanders, Tracy
Subject: FW: SK Reactor
Hi Tracy,
I reviewed the below string of e-mails. Rick’s request for a status update
is reasonable as your manager. It’s important to maintain
communications with him about any of the projects that you’re working
on.
Regards, Liz
...
From: Sanders, Tracy
Sent: Wednesday, March 10, 2010 8:40 AM
To: Edwards, Liz
Subject: RE: SK Reactor
Liz,
Please be advised that it was not my intention for you to validate the email that I copied you on, it matters only how I felt and I want it
documented. The following statement could have been said a different
way “As you are only adding text to buttons, I don’t think it should take
that long.” This statement set a negative tone and this is not just my
opinion, but others as well. He asked me how it was going, I said fine,
if he had more specific questions, then he should ask them.
47

I understand that you work to protect management and I do not expect
you to come to my defense, I only want it documented that I found it
offensive, if not, disrespectful. It is his approach that is the issue, not the
fact of him asking questions about my work. It is a way to handle
everything and his approach is not the way to cultivate team work, given
the hostile work environment and the fact that he is new.
Thank you,
Tracy Jones-Sanders, EE
Doc. no. 66-3 (Exhibits to Plaintiff Deposition), at ECF 9-11.87
On April 29, 2010, plaintiff sent the following email to Pallozzi and Edwards:
Terry,
Per our conversation regarding Rick’s comments, as I explained, I had
previously e-mailed Liz about it, therefore, I will refer you to her.
However, on Friday (4/9), there were additional derogatory remarks
about the work, as the e-mail in question, stated. Rick has also made
other unappealing statements to me, one example, during his last visit
to Pell City (2/09), he said that he had been in this situation before
where he got the job (Sr. Control Engineer) and I didn’t. It took all that
I had to keep my mouth shut! I couldn’t believe he said that!! I didn’t
say anything but I didn’t appreciate it, at all, and several of my
counterparts and family members could not believe that he said it to my
face like that. He also said that he has an advantage over me in that he
is located in Flanders.
I do not know what Dennis has told him about me and past issues but his
attitude reflects a negative tone that does not cultivate a “team work”
working environment. Given the fact that he is new and does not have
any prior experience with our hardware/software, has not completed a
87

These emails were originally part of a chain. They have been rearranged in chronological

order.
48

tasked/project the entire five months on the job and does not exhibit the
instinct and leadership that it takes to do the job, people are taking
notice. I continue to ask for assistance on plant request issues and raise
controls questions/issues in my monthly project summary but receive no
response. BM deserves a better controls group than this!
I still say that since Rick is not pleased with my work on the Pell City
Manifolds, he should finish it, maybe then we can get some work out of
him. Every time he is asked to do work, he calls Chris Raynald, the
contractor who also did not get the job, asking how to do things. Chris
contacted Dennis about it, asking that Rick not call him, he wants to stay
out of it. Now, Rick calls Edward Haller. There was a blow up, the
other week, between Rick and someone in IT because Rick called
Edward and could not do the work, himself. I hear that the term
“discrimination” was used referring to how they (Dennis & Rick) call
Edward, as if he is the Controls Engineer, instead of calling me.
Also, is the fact that we do not, equally, share the on-call workload
going to be re-addressed (I understand that he is being paid extra for
this, yet I still receive nothing)? Liz said that it is up to the manager to
assign the hours so Dennis sent something saying that Rick would be
“backup” which continues to leave me doing all of the PLC/HMI on-call
work (7/24/7) because the plants have my phone number, not his. Why
is he being paid more and is not doing the work, will I receive extra pay
since Rick does? Let’s be fair about the work load and salary.
Regards,
Tracy Jones-Sanders, EE
Doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 21. On May 3, 2010,
Sanders again reported to Edwards that she was being left out of projects for which
she would be providing system support.88
88

See doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 22.
49

At some point during plaintiff’s employment, Benjamin Moore revised
plaintiff’s job description to include on-call activity.89 Thereafter, in April of 2010,
plaintiff requested and was granted FMLA leave.90 She began her leave on May 11,
2010.91 On May 19, 2010, Benjamin Moore received notice that plaintiff filed an
OSHA complaint against the company.92 On June 7, 2010, Benjamin Moore learned
that plaintiff had filed a second OSHA complaint alleging that the company retaliated
against her by terminating her pay while she was on sick leave.93 On August 2, 2010,
Pam Sori, plaintiff’s medical provider, wrote a letter stating that plaintiff could return
to work on August 3, 2010, with the following limitations:
1) that she be permitted to work on her usual duties independently; and
2) that she not have sole responsibility of plant support seven days a
week, twenty-four hours a day, in that such duties are divided equally
(three and one-half days) between Tracy Sanders and other designated
staff.
Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 31 (emphasis in original).
The next day, plaintiff faxed Sori’s letter to Benjamin Moore and returned to
work.94 Thereafter, Recca sent the following email to Pallozzi, Edwards, Yama, and
89

Doc. no. 66-10 (Edwards Deposition), at 87-88.

90

Doc. no. 66-1 (Plaintiff Deposition), at 66, 179-80.

91

Doc. no. 66-1 (Plaintiff Deposition), at 66.

92

Doc. no. 66-21 (Edwards Declaration), ¶ 11.

93

Id. ¶ 13.

94

Doc. no. 66-1 (Plaintiff Deposition), at 66; doc. no. 66-13 (Exhibits to Pallozzi
Deposition), at ECF 29.
50

Zoldessy:
Terry
We received this fax from Tracy today. Apparently she is back to work.
Please advise us on an appropriate response, if any to the fax. In light
of the requested limitations I would also like to have some guidance for
Rick and I on the best way to conduct communications and introduce
work to Tracy.
J. Dennis Recca, P.E.
Doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 31. Pallozzi forwarded
Recca’s email to Diane Delikat, a Benjamin Moore Nurse and Short-term Disability
specialist.95
On August 4, 2010, Delikat faxed a letter to Sori stating: “Enclosed is a job
description for Tracy Jones-Sanders, can she perform this job as described?”96 Sori
faxed a written response, stating: “Yes.”97 On August 5, 2010, Delikat sent the
following letter to Sori:
Dear Ms. Sori,
This letter will confirm that we have received your release of Ms. Tracy
Jones-Sanders return to work effective August 3, 2010. You
subsequently confirmed via voicemail that Ms. Sanders is able to fulfill
all the essential duties of her current role as Controls Engineer based
95

Doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 29.

96

Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 32.

97

Id.
51

upon the role profile that I provided for your review. You should be
advised that Ms. Jones-Sanders will continue to report to her current
manager. She will be expected to take direction and work on projects
as assigned to her.
In regards to Ms. Jones-Sanders responsibilities of providing 24/7 plant
support, we have made arrangements that Ms. Jones-Sanders will only
be required to support plants during the course of her normal work day.
If you have any questions regarding this letter please contact us by the
close of business today as Ms. Jones-Sanders manager will be reviewing
with her the current responsibilities of her position in accordance with
the release you have provided us. In the absence of hearing from you,
we will move forward with assigning Ms. Jones-Sanders current projects
that require her attention.
Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 22. Plaintiff’s work
schedule was then modified to 7:30 a.m. to 3:30 p.m., with no on-call
responsibilities.98 Following plaintiff’s return to work, Benjamin Moore terminated
her FWA.99 According to Edwards, plaintiff’s FWA was terminated because Recca
was not happy with the way she had been keeping her calendar.100 Yama sent the
following email to plaintiff regarding those decisions:
Tracy . . .
Again — welcome back.
The following is a recap of our conversation:
98

Doc. no. 66-10 (Edwards Deposition), at 109-10.

99

Doc. no. 66-1 (Plaintiff Deposition), at 184-85.

100

Id. at 192-93.
52

-

Your working hours will be 7:30AM to 3:30PM Monday through
Friday.

-

All Scheduled work will be on site at the Pell City facility. (HR
— please note that Tracy said she had an agreement with HR
about working from home). Per consultation with Dennis Recca
I have rescinded the WFH on Wednesday.

-

You will follow the callout/vacation protocols set forth by Dennis
Recca earlier this year.

-

You will handle any and all 2700 Automation emergency issues
from Tuesday (0:00AM) thru Friday evening (until 12:00PM)
unless you are on schedule time off. I will handle Saturday
through Monday. If I am on vacation during a weekend I will
expect you to fill in for me. Of course I am always willing to help
out if the need arises.

-

We will work out your project schedule in the next week. You
will provide an update every other Friday by workday end.

-

We will set aside time two days a week to talk directly about your
projects.

-

Your initial assignment is to document the entire Tank level
system starting with schematics. I will give you scope and further
detail on Monday the 9th.

Let’s work together to further your success at Benjamin-Moore this day
forward.
Regards,
Rick

53

Doc. no. 72-1 (Exhibit 1 to Plaintiff’s Response), at ECF 2.101 Plaintiff then sent the
following email to Edwards on August 5, 2010:
Liz,
I hope that you are well. However, Rick Yama told me that he spoke
with you all about discontinuing my work from home benefits (here we
go again). However, since I am not being paid extra for after hour
support like Rick nor Will I have the benefit of adjusting my schedule
to accommodate this responsibility, how am I to provide 3:00 am
coverage? I would like to know how we can be fair about the around the
clock coverage where I receive no pay and I am expected to answer a
calls, for instance, at 3:00 am and report to work at 7:00 am? I see this
as a means to continue to retaliate against me by taking away a benefit
that was afforded to me upon coming to work for BM. I was given
approval by you to work from home and I am still operating under that
agreement. I still have the same responsibilities that I had when we went
through this before, why do they continue to try to take things away
from me? Why am I being targeted? No one else is going through all of
this, is it because of my FMLA leave or complaint filings with HR,
OSHA and the EEOC? Therefore, I am requesting that you please
look into this as retaliation, per the employee handbook, BM states
that retaliation will not be tolerated. Also, it is against federal law
to retaliate (deny benefits, deny promotion, intimidate, etc.) against
any individual who has exercised their civil rights. I am also
requesting to be moved from under current management and that
something is done about the retaliation.
Please see the attached agreement that you sent to me and that I continue
to work under and the work from home form that I submitted when they
tried to take this benefit from me before, my work requirements still
101

Yama’s statement that plaintiff would be handling some on-call responsibilities conflicts
with Edwards’s deposition testimony that plaintiff’s work schedule was modified to include no oncall responsibilities. Future emails suggest that plaintiff had no on-call responsibilities following
her FMLA leave, but that Benjamin Moore expected her to assume those responsibilities eventually.
See doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 24-26.
54

remain the same. However, if you can not resolve this issue. I would like
to, personally, meet with Ken or Dennis Abrams relative to this matter.
Also, upon my return to work, on Tuesday, I noticed that a GE PLC and
Woodhead Gateway device is missing from my office, also my project
manuals were ruffled through, I have asked several individuals about the
missing equipment and was told by Edward and Gideon that Rick was
in my office two weeks ago and that he may have taken it. I am a
peaceful/God fearing person who do not wish to cause confrontation but
I feel that, it is disrespectful that he took it without so much as sending
me an e-mail or leaving a note about it, this is equivalent to theft. Please
have Rick to return it and ensure that a lock is installed on my door. I am
hopeful that your response will not be the usual: he is your manager and
he has the right to take things . . . , because he does not!! I would not go
to Flanders and just take things from his office or go through his things.
I, subsequently, saw an email from Rick to Edward indicating that he
has the equipment and that had sent it back but Edward has not seen it
and it is still missing from my office.
It is unfortunate that I have to continue to report
mistreatment/retaliation/discrimination and it is even more unfortunate
that management allows it to persist and then expect me to work with
these mean-spirited individuals as if continuous mistreatment is not
happening. However, I find it ironic that the employee handbook says
that BM does not tolerate such things yet the same people remain in
their same positions without any reprisal, however, it appears that BM
would rather see me as a trouble maker and strive to make things hard
for me or even get rid of me instead of ensuring that its management live
up to its words in the employee handbook (equal opportunity for all, no
tolerance of retaliation, invest in employee development, safety first,
etc.). Again, I have done nothing to warrant this kind of treatment,
nothing!
The last time management made this decision, it forced me to have to
tell the plants that I am not allowed to work from home any more and
management became upset and the incident was, adversely, put in my
2009 performance review. We have so many other things to be
55

concerned about rather than me working from home. We should be
concentrating on safety (all plants), especially, since the recent
explosion, a little over a week and a half ago.
“All a man’s ways seem right to him, but the Lord weighs the heart”
(Proverbs 21:8 NIV)
Kind regards,
Tracy Jones-Sanders, EE
Doc. no. 66-14 (Exhibits to Pallozzi Deposition), at ECF 2-3 (emphasis in original).
On August 10, 2010, Edwards sent plaintiff the following email:
Hi Tracy,
As promised, I’ve looked into your concerns that you’ve called out in
your e-mail to me dated August 5, 2010. I also reviewed a copy of your
e-mail to your manager, Rick Yama.
As always, we take your complaints very seriously and thoroughly
investigate each one. Based on the findings from our investigations and
your letter to us, it has become quite evident that you either do not
understand or agree with the company’s standard policies or practices.
As a result, it appears that you continually interpret standard operating
procedures that apply to all employees and to you as well, as harassment
or retaliation. We understand you may not agree with all the standard
policies and practices, but you do need to abide by them. After each
investigation, your claims continue to be unfounded. Based on our
findings from this investigation, we have seen no evidence of retaliation,
harassment or discrimination.
For example, it’s standard practice after an employee returns to work
from a Leave of Absence for the direct manager to re-orient the
employee by reviewing the expectations, work procedures, assignments,
etc. — many of which may change in light of the current business
factors at hand. Last week, this is exactly what Rick Yama did with you.
56

Below summarizes our findings based on the points in your e-mail:
-

Although your core working hours have been deemed as 7:30 AM
to 3:30 PM, Monday through Friday. Your job is classified as
“Exempt” which means additional work hours performed by you
are not eligible for overtime. This has been consistent since the
beginning of your employment and explained to you on several
occasions. We ask that you do not bring this up again unless you
have new information supporting otherwise.

-

As a point of clarification, your “On Call” hours are now shared
about equally between you and your manager. You are “On Call”
from Tuesday 12:00AM (Midnight) thru Friday 11:59 AM which
is 64 hours not including your core hours at work. Rick is “On
Call” from Saturday 12:00 AM (Midnight) thru Monday 11:59
AM, which is about the same number of non-core hours. Over the
last 3 months, the “On-Call” emergencies have averaged about
once per month. This is consistent with the activity level that you
experienced too. If you should receive an emergency call which
requires an excess number of work hours during your non-core
schedule (e.g., 3 AM in the morning), you need to contact Rick
directly, discuss the emergency, what was performed, and request
the need to report to work at a different time on the following day.

-

Per our Flexible Work Arrangement policy, granting an
alternative work arrangement is based on several factors
including the demonstrated behaviors by the employee (e.g.,
knowing and following company policies and practices as well as
the ability to effectively communicate with one’s manager.) It’s
been quite clear that you have not followed the direction around
reporting out to your manager on projects/workload, nor the basic
report-out procedures established by Dennis Recca. Therefore, it
is justified that you report to the company’s facility on a daily
basis, and you are expected to do so going forward.

-

Furthermore, you mentioned in your e-mail to Rick that since you
are not allowed to work from home on Wednesday, you will not
57

be able to handle “On Call” emergencies although you have all
the necessary equipment to do so and being reimbursed for high
speed access. Being “On Call” is a requirement of this job.
Therefore, you are expected to do so since you have the ability
and necessary tools to perform your responsibilities from a remote
location. Should you continue to refuse to perform your “On
Call” responsibilities, the company will have not [sic] alternative
but to deem this as insubordination.
-

Regarding the removal of items in the office located in the Pell
City Plant, you should be aware, they are all company property
(e.g., Rack of GE, Woodhead, etc.) which was needed at another
location. If you need to utilize them, please request the use of
them from your manager. A lock will not be placed on the office
door. You have the ability to put any personal items in a secured
draw [sic] or cabinet.

I hope that I’ve addressed the issues at hand. If not, we can discuss if
you wish. I want to ensure that you fully understand your
responsibilities and authority. Your refusal to adhere to these
expectations could lead to corrective action up to and including
termination.
Also, prior to your Leave of Absence back in the April/May 2010
timeframe, you sent Terry and me a couple of e-mails that warranted our
review. Attached are our findings, Terry summarized them but did not
send this to you because she didn’t want to interfere with your FMLA
leave. After you have read our-responses, again please feel free to
contact Terry or me if you would like to discuss.
Lastly, please remove the closing footer to your e-mail immediately.
Religious proverbs can be interpreted as inappropriate in the workplace
and I have personally received complaints from other employees.
Thank you, Liz
Doc. no. 66-11 (Exhibits to Edwards Deposition), at ECF 30-31.
58

On August 11, 2010, Pallozzi sent the following email to plaintiff:
To: Tracy Jones-Sanders
From: Terry Pallozzi,
Re: E-mail Follow-up
In the April/May 2010 timeframe, you sent me a couple of e-mails. I’m
sending the responses to you now because we didn’t want to interfere
with your FMLA leave and waited for your return. It’s important to us
that we fully address your concerns, so after reading the below, please
feel free to contact me to if you would like to discuss.
On May 6, you wrote an e-mail to us in response to the findings re: Pell
City Manifold Incident. We investigated the matters outlined and
summarized them below.
Regarding the role of HR:
As indicated to you in the past, it is the role of HR to be objective and
obtain the facts from both management and the employee. We have
always strived to do this when you have contacted us by promptly
investigating your concerns and gathering the facts in order to arrive at
an independent conclusion and make recommendations accordingly. As
you are well aware, I attended your weekly meetings with Dennis Recca,
based upon your request to Liz, because you did not want to have ongoing 1:1 conversations with Dennis, who was your direct level manager
at that time. This request is quite a difficult demand to accommodate yet,
we were able to do so for over 2 months, at which time you then
requested that I no longer be present. It should be noted that Benjamin
Moore & Co has made a significant investment of time, patience and
understanding to help you address the matters that you brought to our
attention.
Allegations of Discrimination:
In Rick’s memo to you dated May 5, 2010, Rick pointed out a lack of
control procedures associated with your change management process to
add text to the buttons at Pell City. He also highlighted the need for you
to better demonstrate the ability to take feedback and objectively
59

manage conflict. Rick’s memo summarized his findings as to what
transpired and his performance expectations of you. Given the lack of
open communications between both of you, Rick summarized his
findings in writing to you. His letter is neither threatening nor
discriminatory.
Regarding Cimplicity System Coordination
It was verified that Chris Raynaud was engaged to work on the
CCC Project involving the addition of new tanks, raw materials
and a pigging system during the same time you were working on
adding text to the buttons at Pell City.
Chris also confirmed that you did in fact let him know when you
were done working on the system so he could then access it. This
was confirmed in the email you provided which reads as follows.
“Tracy, please let me know when you are done for the day so I
can spend some time and have cell 1 back for a few hours in the
evening, I work late these days. Cell l will be back to you at
midnight, every time we do so. Best regards, Chris”.
Upon further investigation Chris acknowledged your e-mail quote
that you provided to me: “Tracy, My next phase is to work on the
following ingredient/manifolds RM2020, J7 PLIOTEC, Fl PROP
GLYCOL, D TEXANOL, D TAMOL 731, A. If you could start
with these, it would help. Chris”. Chris confirmed that as he
added new buttons to his part of the project, he would then notify
you that his buttons were available for you to access and add the
appropriate text as per your assignment. Your tasks were
significantly different from those of Chris. Chris was engaged and
assigned a project for new additions to the system for CCC. You
were assigned the task of adding text to both existing buttons on
the manifold and the additions that Chris made for the CCC
Project. However, as originally indicated to you, mistakes were
found in the system with the text additions you had been assigned
and responsible for.
Regarding the disruption of your work
As far as you having to abruptly turn over the system to Chris during the
60

week of March 22, which you indicate caused interruption to your work,
we have an e-mail that was sent by you to Phillip Boyd with a copy to
Dennis Swanson, Dennis Recca, Rick Yama, Paul Tomaszewski, Jim
Baker and Bernard Hilton stating on Thursday March 18th that, “Cell’s
2 and 3 are now complete . . .” Based upon your e-mail you indicated
that your assignment was complete. Your claims that your work was
interrupted and there was a lack of coordination appear to be unfounded.
Regarding Workplace Safety and Operations
-

-

Please be advised that Benjamin Moore & Co takes workplace
health and safety seriously. The health and safety of our
employees is paramount. At no time were you forced to work
under unsafe conditions nor were your [sic] pressured to make
changes or updates with out ample time to do so. As a Benjamin
Moore employee you will be required to meet deadlines but never
at the expense of accurately and safely completing your work.
Rick pointed out to you that there were not appropriate controls
put in place to verify and audit the results of your work.
Whenever embarking on a project, a controls process should be
outlined and updates to the system must be verified prior into live
production. In your e-mail to me you stated, “. . . to insist that I
work in the system while someone else is in the same system to
rush me through this and not validate the changes made . . .”. At
no time, did anyone instruct you to not validate your work;
moreover, this statement contradicts your earlier e-mail to Dennis
Swanson and team that stated the work was completed.

Tracy, you have been directed and encouraged over the last year to
foster communications with your supervisors and inform them of issues
or delays in your work. At no time did you proactively reach out to
management to express the concerns you are now calling out. Rick and
the rest of the management team have, and will continue to, ask for
status updates and delivery of projects according to deadlines which is
well within their scope and responsibilities. However, you also have an
obligation to notify them when there are roadblocks or difficulties in
achieving the task so they can help you.
61

In your e-mail to us dated April 29, 2010, you had concerns about
the workload and your managers’ qualifications which we also want
to address:
Regarding Engineering Workload:
Once again, you continue to question the issue of the on-call
workload and remuneration. The on-call schedule is set by your
management team. Whether you agree with it or not, it is
incumbent upon you to follow Rick’s direction. Again we’ve
looked into this matter and have determined that there have been
no unreasonable demands placed upon you for on-call work
responses. As a Controls Engineer, handling on-call requests is
part of your job responsibilities. In fact, this issue was addressed
by both Liz Edwards and me in an email to you dated August 3,
2009. Also contrary to your statement.
Statement regarding Managers Qualifications and Treatment:
-

Tracy you continue to question your managers’ qualifications and
demean their expertise. For instance, Rick Yama has over 30
years of experience and you consistently write to me about your
perception of him. While we understand that you were upset over
the decision to hire Rick instead of you, the decision has been
made and we ask that you not slander Rick’s skills, qualifications
or experiences. While you continue to allege that Rick belittles
your work and is condescending to you, there have been
occasions where your communications to Rick, your current
manager, and to Dennis Recca, your prior direct manager were
inappropriate and insubordinate.

Throughout all of our investigations, we have been quite objective to
share our findings and conclusions with you including the need for you
to focus on your communications style — we have consistently found
it to be ineffective in building strong working relationships and we have
numerous examples of this. Again, we ask that you too strive to foster
open communications and dialogue with your management team. This
62

is one of the foundational areas that is needed in order to be successful
at Benjamin Moore & Co.
There is quite a bit of information contained in this letter. Please let me
know if you would like to discuss.
Doc. no. 66-14 (Exhibits to Pallozzi Deposition), at ECF 4-6.
Following the termination of plaintiff’s FWA, she requested, and was
permitted, to leave work early on Wednesday afternoons to attend a doctor’s
appointment.102 On Wednesday, August 11, 2010, Benjamin Moore requested a note
from Sori to substantiate plaintiff’s doctor’s visit for that day.103 Plaintiff responded
the next day:
Per your request is an excuse for my doctor’s visit on, yesterday.
However, it is my understanding (as I have asked many individuals,
here) about the doctor’s excuse policy and I am told that you need an
excuse when you are out sick for three days or more. Although, the
employee handbook states that BM has the right to request an excuse
with any absence, I have never abused the system and there is no other
reason for your request other than retaliation. You and Dennis are
targeting me and treating me differently from other employees in the
company.
Also, I will continue my appointments, weekly which will be reflected
on my calendar.
Thank you,
Tracy Jones-Sanders

102

Doc. no. 66-10 (Edwards Deposition), at 120.

103

Doc. no. 66-2 (Plaintiff Deposition), at 202-03.
63

Doc. no. 66-14 (Exhibits to Pallozzi Deposition), at ECF 7. Plaintiff attached a note
to her email, signed by Sori, indicating that plaintiff was at a doctor’s appointment
on August 11, 2010, and that Sori’s office would not fax an excuse or any patient
information.104 Edwards responded:
Hi Tracy,
You are correct that Doctor’s notes are generally requested when a [sic]
employee is out sick for 3 or more days. However, as you also [sic]
aware, BM has the right to request a note for any number of days sick.
Given that you were just asked to report to work on Wednesdays (rather
than working remotely), a doctor’s note to confirm you [sic] visit on that
day is being requested. It does not need to be faxed: you should just
request a note at the time of your visit and bring it back to work with
you.
Also, you mentioned that you have weekly doctor’s appointments.
You’ll need to make every effort to make those appointments during
your non-Core working hours. Again, you are requested to report to
work every Wednesday during your regularly scheduled hours.
Thanks, Liz
Id.
On August 18, 2010, Edwards sent plaintiff the following email:
From: Edwards, Liz
Sent: Wednesday, August 18, 2010 4:39 PM
To: Sanders, Tracy
Cc: Pallozzi, Terry
Subject: RE: Report of Retaliation - Working from Home Ability
104

See doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 35.
64

Terminated Jeopardizing After Hour Support/Automation Equipment
Missing from my Office
Hi Tracy,
I would like to clarify some of the items in both of your e-mail notes to
me - one below and a subsequent e-mail dated August 13, 2010 at 12:49
pm.
With regard to your claim that you are entitled to overtime, once again,
we examined the role of Controls Engineer and confirm to you that this
role is Exempt as defined by the Fair Labor Standards Act. Therefore,
any incumbent in this role is not entitled to overtime.
Secondly, On-Call is part of the responsibilities of your role; although
it is not specifically highlighted in the Job Description, it’s a
responsibility that was communicated to you in the past and we foresee
On-Call coverage continuing to be a part of this job responsibility in the
future.
You are correct that arrangements have been made so that you will only
be required to support the plants during your normal work day, which
is now 7:30AM-3:30PM. We have granted a reasonable accommodation
in light of your doctor’s request dated August 3, 2010; however, this
accommodation is temporary in nature given the requirements of the job.
We will need to further explore the anticipated length needed for this
accommodation with your medical provider. Please be aware that once
the accommodation is lifted, we foresee splitting the On-Call hours
between Rick and you as outlined in my note to you below.
In your second e-mail to me, you’ve requested another accommodation
which is to be excused from work every Wednesday afternoon around
12:30-1:00 PM to attend your doctor appointments. Given the nature of
your role, as well as your rebuttal to report to work at the Pell City site
on Wednesdays, prior to granting this accommodation to you, we would
like Diane Delikat, the company’s nurse, to speak directly with your two
medical providers as part of our due diligence process. This will help us
65

to better ascertain the accommodation that we will need to make for you.
In order for Diane Delikat to speak with your medical providers, you
will need to grant her permission by e-mailing her with the following
information:
-

Name of the two Medical Providers
Address
Telephone #’s

Until you provide Diane with your permission and the providers’
information, we are not in a position to contact your providers to discuss
the specific needs of your requests to make a reasonable
accommodation. Tracy, we truly need your cooperation in order to allow
us to properly consider your request for any accommodation by the
company.
Regarding some of the other subjects that you’ve noted in your e-mail,
it would be highly inappropriate for me to share any information with
you pertaining to Gerald or any other employee. Regarding
communications with OSHA, any pending OSHA complaints will be
responded to accordingly by the company.
Regards, Liz
Doc. no. 66-5 (Exhibits to Plaintiff Deposition), at ECF 34-35. The next day, plaintiff
sent an email to Edwards, Pallozzi, and others stating that she was taking prescribed
medication for insomnia that impaired her ability to function outside of her normal
hours of work.105 Attached to plaintiff’s email was the following letter from Sori:
Dear Ms. Edwards:
I am writing this letter as a follow-up to my return-to-work letter dated
105

Doc. no. 66-1 (Plaintiff Deposition), at 183-84
66

August 2, 2010 so that Ms. Jones-Sanders will improve and not
decompensate. I would like to refer to the letter received from
Corporate Nurse, Diane Delikat, dated August 5, 2010, in which she
stated that “Ms. Jones-Sanders will only be required to support plants
during the course of her normal work day,” which I understand is 7:00
am to 3:30 pm. My recommendations are that she continue with this
work routine, and that she have no overtime work added to her schedule.
Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 36.
Delikat purportedly faxed Sori a standard Reasonable Accommodation
questionnaire to complete on behalf of plaintiff on August 24, 2010, and again on
September 1, 2010.106 Sori never responded, even though Delikat left messages on
Sori’s phone.107
On August 31, 2010, plaintiff sent the following email to Pallozzi, Edwards,
Yama, and Zafor Ullah, an investigator with OSHA:
Terry,
Under the circumstances of a hostile work environment and continued
threats, I have a right to protect myself from the kind of behavior that
Rick has exhibited towards me. He and Dennis Recca’s behavior is what
has been inappropriate and insubordinate but everything they do to me
is alright with you because your goal is to fire me or force me to quit. It
is not unreasonable for a neutral third party to be in attendance (HR is
not natural), [sic] it is fair under the circumstances. However, since you
will not make any attempts to correct engineering management’s
behavior or remove me from the blatant acts of retaliation as recognized
106

See sealed Exhibit 11 attached to Sori’s deposition, on file with this court. It is disputed
that Delikat faxed Sori the questionnaire on August 24 and September 1, 2010 because Sori does not
recall the document. See doc. no. 71-1 (Brief in Opposition to Summary Judgment), at 4.
107

Doc. no. 66-15 (Delikat Deposition), at 22.
67

by OSHA’s investigator Ullah who stated that there is retaliation by BM
towards me, a neutral third party should be an option. Please know that
your continued denial of the existence of discrimination/retaliation does
not mean that it is not happening. If I perceive that I am threatened by
their behavior and I have let HR know that I feel this way, you are
obligated to correct it without threats to terminate me. I have a right to
protect myself and I do not think you will find anyone who would
disagree.
Therefore, since you are threatening and forcing me to attend, alone and
without representation, I will meet with Rick and listen to what he has
say with the door open. Since you are not willing to correct
managements [sic] behavior or remove me from the mistreatment as
requested by my medical provider, I am not willing to be provoked by
Rick’s demeanor so please know that before I allow him to talk to me
inappropriately, as he has done in the past or should the conversation
escalate, I will excuse myself.
Thank you,
Tracy Jones-Sanders, EE
Doc. no. 72-5 (Exhibit 5 to Plaintiff’s Response), at ECF 4. Palozzi emailed the
following response:
Tracy,
Liz is currently on vacation. She will respond to your e-mail in detail
once she returns next week. However, as you know, the company has
thoroughly investigated all of your prior claims of discrimination,
hostile work environment and retaliation and in each and every instance
has found them to be without merit. Futhmore, [sic] we have never
found either Rick Yama or Dennis Recca’s behavior to you to be either
inappropriate or insubordinate. To the contrary, we have consulted you
on multiple occasions and advised you that the conduct you have
displayed to your managers was inappropriate and insubordinate.

68

It is our understanding that Rick’s scheduled meeting with you this
afternoon is simply to receive updates on ongoing projects which is
within his discretion as your manager. Although you previously
indicated that you did not want HR to be a party to this discussion, I will
now be attending via telephone. Please feel free to contact me within the
next hour if you have any other concerns or questions.
Terry Pallozzi
Id. at ECF 3.
On September 13, 2010, Edwards mailed a letter to Sori requesting that she
complete the Reasonable Accommodation questionnaire.108 Edwards also asked
plaintiff to have another medical provider complete the questionnaire if plaintiff was
unable to have Sori complete it.109 Finally, Benjamin Moore received a note from
Toni Roberson, a provider in the same facility as Sori, stating that he “completes
FML forms only in relation to work status.”110
On October 4, 2010, plaintiff sent an email to Edwards and the EEOC stating
that she believed she was being discriminated and retaliated against based upon her
race and her FMLA leave because Benjamin Moore changed her job duties,
prohibited her from the Resin area, and circumvented her communications.111 On
October 6, 2010, Edwards sent the following email to plaintiff:
108

See sealed Exhibit 11 attached to Sori’s deposition, on file with this court.

109

Doc. no. 66-10 (Edwards Deposition), at 81-82.

110

See doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 40.

111

Doc. no. 72-5 (Exhibit 5 to Plaintiff’s Response), at ECF 2.
69

Dear Tracy,
This is in response to your latest e-mails to me dated September 28 2010
and October 4, 2010. As you’re well aware, we have made several
attempts to obtain medical documentation in order to assess if there is
a need to continue the accommodations already granted to you, as well
as to determine whether a different accommodation would be best for
you and the company.
You are also aware that we have made several attempts to obtain
medical documentation from your medical providers that you have
selected. To date, we have not received sufficient information from your
providers to confirm your disability and to assess the type of reasonable
accommodation you require in order to fulfill the essential functions of
your job. To date, the information provided by your medical providers
has been as follows:
-

On August 2, 2010 from Pam Sori, your medical
provider - “Tracy is permitted to work her usual duties
independently; she should not have sole responsibility for
plant support 7 days a weak: such duties should be divided
equally.”
Based on this letter, we needed to confirm your ability to
fulfill all the essential functions of a Controls Engineer
including, but limited to, working with ether employees.
We also advised your medical provider that you would not
be working independently and would continue to report to
your current manager, as well as take direction and work
on projects as assigned by your manager.

-

On August 4, 2010 from Pam Sori, we received a letter
stating “Yes” which confirmed our understanding of the
August 2nd letter. However, although your doctor
confirmed your ability to return to work with full duties,
you began to leave regularly for doctor’s visits during
normal business hours. As a result, your manager rightfully
70

requested that you provide a doctor’s note to confirm your
absences.
-

-

On August 11, 2010 from Pam Sori - After requesting a
doctor’s note to substantiate your weekly doctor’s visits,
your doctor indicated “we don’t fax excuses or any patient
information over fax”. Given this response, you and I
exchanged e-mails regarding other ways to provide
medica1 documentation (i.e., bring the note with you upon
your return to work.)
On August 18, 2010 from Pam Sori - A second return-towork letter was sent to us. Your doctor recommended that
you should continue with the routine of working during the
hours from 7:30 AM - 3:30 PM with no on-call
responsibilities.
Since that time this accommodation of having no on-call
responsibilities was granted to you. However, as always
expressed to you, this accommodation and the right to
leave early, every week, were temporary and would be
continually re-assessed.
Beginning August 24, 2010, we asked your doctor to
complete the medical questionnaire which will help us
assess the continued 1ength of the accommodations
afforded to you. After numerous requests, on September
17, 2010, we received a note from Toni Robinson
indicating that he “. . . completes FML forms only in
relations to work status.”

The latest responses from your medical providers are not adequate for
us to properly assess the need to continue to grant these
accommodations. Furthermore, it is ultimately your responsibility to
ensure that the medical providers, selected by you, provide us with the
requested information.
In you most recent e-mails to me dated September 24 and September 28,
71

you have indicated that your disability prevents you from doing your job
safely, particularly given your plant support duties. You claim that you
need to “remotely control heavy industrial equipment and the dispensing
of harmful raw materials at (5) plants.” Based on your own assertions,
we are very concerned about your ability to perform your job safely.
Therefore, effective immediately, we will no longer have you operate the
equipment remotely until we fully understand the limitations
of your disability from your medical provider.
Furthermore, since your current medical provider has not supplied us
with adequate documentation as to when you are under the influence of
medication and its possible affects on your abilities to perform the
essential job functions, we have removed all automation systems
including, but not limited to, PLC/Cimplicity/HMI networks and
servers. This will help ensure that we maintain the company’s standards
for operational excellence and safe working conditions for all employees
at the site.
Tracy, at this juncture, it is unclear to Benjamin Moore as to what type
and length of accommodation can reasonably address both your needs
and those of the company. From the information that we have received
directly from you, it appears that there is a continued need for an
abbreviated work schedule of approximately 36 hours per week to allow
for your weekly doctor visits; a continued need to work within the core
set hours of 7:30 AM - 3:30 PM with no on-call responsibilities; and as
of the most recent e-mail from you, the need to be excused from
performing the essential duties of a Controls Engineer.
Given this current situation, we must receive the completed medical
questionnaire from your medical provider by the close of business on
Tuesday, October 12, 2010.
As I suggested to you in my e-mail dated September 27, 2010, if you are
unable to perform the core and essential functions of your role, you are
eligible to apply for benefits under the Short-term Disability program
administered by Aetna. However, Aetna will also require the necessary
certification from your medical provider to determine your disability
72

status and continued eligibility for Short-term Disability benefits.
In response to your e-mall dated October 4, 2010 regarding your
personal request for accommodation, once again, I will summarize the
company’s position regarding granting you a Flexible Work
Arrangement (FWA). You have stated several times that one of your
requested accommodations is to have the ability to work from home on
a weekly basis. At this time, we are unwilling to grant this request to
you for several reasons. First, as we all are aware you were previously
under a FWA which allowed you to work from home every Wednesday.
As a condition of this arrangement, your manager, Dennis Recca,
requested that you maintain an updated calendar showing the projects
that were being worked on that day. In spite of your manager’s repeated
requests, you neglected to adhere to this requirement. Secondly, given
what you have now stated regarding your medical condition, we are
uncertain whether granting a FWA would ensure that you can
adequately and safely perform the core, essential functions of your role.
Lastly, in your most recent e-mails, you suggested that other employees
have been granted FWA which has been denied to you and alleged that
there is discriminatory and retaliatory practices. Although it would be
improper for us to discuss matters regarding other employees with you,
we have thoroughly investigated your claim and will share that there is
no other employee in the Engineering Department, managed by Dennis
Recca, that has been granted the ability to work from home on a weekly
basis. As in the past, we take your claims of discrimination quite
seriously and have promptly investigated each of them. However,
similar to the results of our previous investigations, we have found no
evidence that supports your claims of discrimination.
Tracy, as we continually try to support and advise you, it is imperative
that we receive the completed medical questionnaire from your medical
provider.
Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 24-26 (emphasis in original).
Plaintiff failed to submit the requested documentation by October 12, 2010; as
73

a result, Edwards recommended, and Marino approved, plaintiff’s termination,
effective October 14, 2010.112
Following her termination, plaintiff sought and received Short-Term Disability
benefits through January of 2013.113 During the application process, plaintiff
completed an Aetna Resources Questionnaire in which she stated that she did not
anticipate returning to her previous occupation or any other occupation in the near
future because she was physically and mentally not able to do so.114 On November
2, 2010, Delikat emailed Pallozzi, Edwards, and Zoldessy to inform them: “Aetna has
received medical documentation on [plaintiff’s Short-term Disability] claim that she
filed. Aetna is obligated to review the medical info that was submitted. When a
decision has been made I will notify you.”115
On November 4, 2010, OSHA issued a citation to Benjamin Moore for failing
to ensure that contractor employees followed safe work practices while changing
stainless steel pipes and flanges.116
On November 16, 2010, Paul Smith, Benjamin Moore’s Payroll Manager, sent
an email to John Toman, Benjamin Moore’s Payroll Analyst, stating:
112

Doc. no. 66-8 (Marino Deposition), at 16-17.

113

Doc. no. 66-1 (Plaintiff Deposition), at 17.

114

Doc. no. 66-2 (Exhibits to Plaintiff Deposition), at ECF 31.

115

Doc. no. 66-14 (Exhibits to Pallozzi Deposition), at ECF 14.

116

Doc. no. 72-6 (Exhibit 6 to Plaintiff’s Response).
74

According to our records [plaintiff] was termed due to “policy violation”
— she’s currently attempting to collect unemployment benefits;
depending on the violation she may not be eligible. Please forward me
all documentation pertaining to her termination by Friday, Nov 19th. A
hearing has been scheduled with the state for Monday, Nov 22nd.
Doc. no. 66-17 (Exhibits to Smith Deposition), at ECF 34.
From March 31, 2011 through July 15, 2011, Benjamin Moore directly
deposited money in plaintiff’s bank account.117 Benjamin Moore later learned that
plaintiff received long term disability benefits for the same period, from January 19,
2011 through August 31, 2012, and was not entitled to any additional payment.118
Generally, the company would ask the employee to repay any overpayment.119 When
Toman called plaintiff to ask for repayment, however, plaintiff refused, stated that she
deserved the amount because of her disability claim and that Toman should contact
her lawyer, and hung up on him.120 On August 23, 2011, Mike Farrell sent an email
to Kristina Cisneros, stating: “The bulk of the overpayment by us came from April
1 - June 30th we overpaid $18,396 but you can only offset for the $10,740.”121 The

117

Doc. no. 66-2 (Plaintiff Deposition), at 258-60; doc. no. 66-10 (Edwards Deposition), at
121-25; doc. no. 66-15 (Delikat Deposition), at 25. Benjamin Moore contends that the deposit was
a salary continuation.
118

Doc. no. 66-2 (Plaintiff Deposition), at 255-60.

119

Doc. no. 66-10 (Edwards Deposition), at 124. The parties do not elaborate on who Farrell
and Cisneros are, but it appears that Farrell was associated with Benjamin Moore, and Cisneros was
associated with Aetna.
120

Doc. no. 66-18 (Toman Deposition), at 22.

121

Doc. no. 72-7 (Exhibit 7 to Plaintiff’s Response), at ECF 4.
75

next day, Amaya B. Christian, Aetna’s Senior OA Analyst, sent the following letter
to plaintiff:
Dear MS. TRACY JONES SANDERS:
We have recently conducted a review of your LTD claim. Based on our
review, we have determined that an overpayment of $16,873.34 gross /
net exists.
You have been paid LTD from January 19, 2011 through August 31,
2012. However, we were recently notified that you were also receiving
salary continuation from your employer from pay period ending March
31, 2011 through pay period ending July 15, 2011 in the amount of
$3,066.67 semi-monthly. Therefore, an overpayment occurred on your
claim.
While Aetna recognizes that employees may accidentally or
unknowingly be overpaid from these benefit plans, repayment is still
required. As such, we are requesting immediate reimbursement.
Please forward a check payable to Aetna in the gross / net amount of
$16,873.34, to be received no later than September 08, 2011 to:
Aetna Life Insurance Company
PO Box 14560
Lexington, NY 40512-4560
You must respond to this request within 15 days from the date of this
letter. Aetna reserves the right to suspend or adjust future benefits until
the overpayment is paid in full including possible referral of this matter
to a collection agency for handling.
If no payment is received, please be aware, commencing with your
September 2011 LTD payment, $3,424.00 will be offset and applied
toward the Gross overpayment. This will reduce your monthly benefit
amount to $0.00. We will continue to offset your benefits until the
overpayment is recovered in full.
76

Doc. no. 72-7 (Exhibit 7 to Plaintiff’s Response), at ECF 5.122
The following email correspondence occurred between Farrell and Cisneros in
September of 2011:
From: Cisneros, Kristina M . . .
Sent: Wednesday, September 21, 2011 1:36 PM
To: Farrell, Mike
Subject: RE: Disability claim - T. Jones Sanders
Good morning Mike,
I have been asked to confirm if Benjamin Moore will be pursuing
repayment of salary continuation from Tracy Jones Sanders.
Thanks,
Kristina
...
From: Farrell, Mike . . .
Sent: Wednesday, September 21, 2011 10:47 AM
To: Cisneros, Kristina M
Subject: RE: Disability claim - T. Jones Sanders
Hi Kristina,
We will not be pursuing the portion that you will be requesting as part
of the overpayment. Currently, we have no plans to pursue the balance
122

Plaintiff contends that she “objected to this interference in her disability benefits and it
was only after retaining legal counsel that Aetna’s legal determined that salary continuation is not
a valid offset and [she] should be reimbursed.” Doc. no. 77-1 (Opposition to Summary Judgment),
at 29. However, she only cites to a facsimile cover sheet, which does not support her assertion. See
doc. no. 72-9 (Exhibit 9 to Plaintiff’s Response).
77

above what you are recovering but anything could change on the
balance. Mike
...

From: Cisneros, Kristina M . . .
Sent: Thursday, September 22, 2011 1:41 PM
To: Farrell, Mike
Subject: RE: Disability claim - T. Jones Sanders
would you be able to have a letter sent to the employee advising her as
such?
Kristina
...
From: Farrell, Mike . . .
Sent: Thursday, September 22, 2011 2:00 PM
To: Cisneros, Kristina M
Subject: RE: Disability claim - T. Jones Sanders
I am sorry but we will not be doing that at all. What I indicated to you
is just for Aetna to pursue the overpayment as per the Plan. Mike
Doc. no. 72-7 (Exhibit 7 to Plaintiff’s Response), at ECF 4.
In November of 2012, Laura L. Seeman, Division Chief for the Field
Operations Office of the Whistleblower Protection Program at the U.S. Department
of Labor sent the following letter to plaintiff:
RE:

Benjamin Moore Paints/Jones-Sanders/4-0350-11-004

Dear Ms. Jones-Sanders:
78

This is in response to your appeal of the decision to dismiss your
complaint against Benjamin Moore Paints filed on December 2, 2011.
We have completed a comprehensive review of the entire investigative
case file and have determined that Benjamin Moore Paints did not
violate Section 11(c) of the Occupational Safety and Health Act of 1970.
The preponderance of the evidence failed to support that your
employment was terminated because of your engagement in protected
activity.
Please note that this is the final determination of the Secretary of Labor;
your case is now closed.
Sincerely,
Laura L. Seeman
Doc. no. 66-2 (Exhibits to Plaintiff Deposition), at ECF 33.
III. MOTION TO STRIKE
Benjamin Moore contends that portions of plaintiff’s evidentiary submission
in opposition to summary judgment, including exhibits 2, 3, 4, and 6, should be struck
because plaintiff failed to authenticate them, and they contain irrelevant information,
opinion testimony, and inadmissible hearsay.123 Plaintiff argues that a motion to
strike is only appropriate as to pleadings, and not to evidentiary submissions outside
the pleadings.124 See Fed. R. Civ. P. 12(f) (“The court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.”). The law is not entirely clear on whether a court has broad powers to strike
123

Doc. no. 76 (Motion to Strike), at 1.

124

Doc. no. 79 (Opposition to Motion to Strike), at 3.
79

evidence or other non-pleadings, or if a court’s power to strike is limited by Rule
12(f) to the pleadings. Compare Reese v. Herbert, 527 F.3d 1253, 1265, 1274 (11th
Cir. 2008) (affirming district court’s grant of a motion to strike an affidavit), with
Polite v. Dougherty Cnty. Sch. Sys., 314 F. App’x 180, 184 n.7 (11th Cir. 2008)
(“motions to strike are only appropriately addressed towards matters contained in the
pleadings”). In any event, Federal Rule of Civil Procedure 56 provides: “A party may
object that the material cited to support or dispute a fact cannot be presented in a form
that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Thus, “[a]lthough
the form of the [motion to strike] is not grounded in a federal procedural rule, the
substance of the motion[] will be considered.” Stuckey v. Alabama Bd. of Pardons
and Paroles, 2:11-cv-112-WKW, 2012 WL 3670644, *1 n.2 (M.D. Ala. Aug. 27,
2012). Accordingly, Benjamin Moore’s Motion to Strike is due to be denied;
however, the court will consider the substance of the motion in deciding the Motion
for Summary Judgment.
With respect to the issue of authenticity, Benjamin Moore argues that a
document must be authenticated by, and attached to, an affidavit that meets the
requirements of Rule 56(e) before the court can consider it at summary judgment.125
In support of its argument, Benjamin Moore cites Saunders v. Emory Healthcare,

125

Doc. no. 76 (Motion to Strike), at 2.
80

Inc., 360 F. App’x. 110, 113 (11th Cir. Jan. 11, 2010). However, “[t]he Saunders
opinion does not govern this issue because Rule 56 was amended in 2010. Under the
2010 amendment, which became effective on December 1, 2010, authentication of
documents no longer is required at the summary judgment stage.” Agee v. Chugach
World Services, Inc., 5:12-cv-2119-MHH, 2014 WL 5795555, *5 (N.D. Ala. Sept. 30,
2014) (citing Abbott v. Elwood Staffing Servs., Inc., 1:12-cv-2244-VEH, 2014 WL
3809808 (N.D. Ala. July 31, 2014) (“The majority of the opinions this Court has read
from courts construing current Rule 56, however, state the amendments eliminated
the authentication requirement and replaced it with a requirement that evidence be
presentable in admissible form at trial.”)).
Under current Rule 56(c), “the inquiry is whether the exhibit can be submitted
in a form that will be admissible in evidence.” Agee, 2014 WL 5795555, at *5.
Federal Rule of Evidence 901 provides:
(a) In General. To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims
it is.
(b) Examples. The following are examples only — not a complete list
— of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an
item is what it is claimed to be. . . .
(7) Evidence About Public Records. Evidence that:
81

(A) a document was recorded or filed in a public office as
authorized by law; or
(B) a purported public record or statement is from the office
where items of this kind are kept.
Fed. R. Evid. 901. Plaintiff has submitted a declaration in an attempt to authenticate
her summary judgment exhibits.126 Plaintiff asserts that exhibit 2 is Benjamin
Moore’s organization charts, and that the handwriting is her own.127 She asserts that
exhibit 3 is a composite exhibit containing print-previews from Benjamin Moore’s
Performance Manager System, which she had access to, and that the handwriting was
her own.128 She asserts that exhibit 4 is a business directive she received on August
24, 2010 during her employment.129 Finally, she asserts that exhibit 6 is a copy of
documents from the United States Department of Labor.130

Benjamin Moore

contends, for a variety of reasons, that plaintiff’s declaration is insufficient.131 Based
upon the declaration, however, the court is satisfied that plaintiff could authenticate
the exhibits at trial.
126

See doc. no. 79-1 (Plaintiff Declaration).

127

Doc. no. 79-1 (Plaintiff Declaration), ¶ 2.

128

Id. ¶¶ 5-7.

129

Id. ¶ 11.

130

Id. ¶ 12.

131

Doc. no. 80 (Reply in Support of Motion to Strike), at 5. Benjamin Moore also contends
that plaintiff’s declaration is untimely and prejudicial because it was filed after the parties submitted
their summary judgment briefs. Because there is no requirement that the exhibits be authenticated
at summary judgment, and because plaintiff’s declaration is timely for purposes of the motion to
strike, the court will not consider those contentions.
82

Benjamin Moore next contends that plaintiff’s exhibits are irrelevant in
violation of Federal Rule of Evidence 402 and that they contain improper opinion
testimony in violation of Federal Rule of Evidence 701 because there is no evidence
presented as to who wrote the notations on the exhibits, whether the author is
plaintiff, what specific issues the notations pertain to, or to whom the notations were
written.132 Regarding the relevance of the exhibits, Benjamin Moore’s contention is
trivial. If the exhibits are irrelevant, the court will simply not consider them on
summary judgment. Regarding the issue of improper opinion testimony, plaintiff
clarifies that she wrote the handwritten notations in the exhibits.133 Upon review of
plaintiff’s various submissions in opposition to summary judgment, it appears that
plaintiff is not relying on her handwritten notations to oppose summary judgment.
Thus, the court will not consider plaintiff’s handwritten notations.
Benjamin Moore finally contends that plaintiff’s exhibits constitute
inadmissible hearsay because they contain written assertions of a person made in a
non-testimonial environment.134 However, Benjamin Moore does not cite to any
specific written assertion that it contends is inadmissible hearsay. Without such
guidance, the court cannot make a determination regarding whether any specific

132

Doc. no. 76 (Motion to Strike), at 6.

133

See doc. no. 79-1 (Plaintiff Declaration), ¶¶ 2, 7.

134

Doc. no. 76 (Motion to Strike), at 7.
83

statement is being offered to prove the truth of the matters asserted.
IV. DISCUSSION OF MOTION FOR SUMMARY JUDGMENT
A.

Claims Subject to the McDonnell Douglas Framework
Plaintiff’s discrimination claims are asserted under Title VII and 42 U.S.C. §

1981.135 “Both of these statutes have the same requirements of proof and use the
same analytical framework . . . .” Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318,
1330 (11th Cir. 1998). The essential element under each statute is proof that the
employer intentionally inflicted the adverse employment action complained of
because of the plaintiff’s race. See, e.g., Vessels v. Atlanta Independent School
System, 408 F.3d 763, 767 (11th Cir. 2005) (observing that disparate treatment claims
based upon a plaintiff’s race and “brought under Title VII, § 1981, and § 1983, all
require proof of discriminatory intent”). Thus, the court will consider plaintiff’s Title
VII and § 1981 racial discrimination claims together. Additionally, retaliation claims
asserted under Title VII, § 1981, and the FMLA have the same burden of proof.
Penaloza v. Target Corp., 549 F. App’x 844, 847-48 (11th Cir. 2013). Thus, the
court will likewise consider plaintiff’s Title VII, § 1981, and FMLA retaliation claims
together.
Plaintiff attempts to establish Benjamin Moore’s discriminatory and retaliatory

135

Doc. no. 37 (Third Amended Complaint), ¶ 1.
84

intent through the use of circumstantial evidence.136 Federal courts evaluate the
sufficiency of such evidence using some variant of the analytical framework
announced by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), and elaborated in Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981). See also, e.g., St. Mary’s Honor Center v. Hicks, 509 U.S. 502
(1993); Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2004) (en banc);
Berman v. Orkin Exterminating Co., Inc., 160 F.3d 697, 701 (11th Cir. 1998); Bigge
v. Albertsons, Inc., 894 F.2d 1497, 1501 (11th Cir. 1990). Under that familiar
framework, a plaintiff must first establish a prima facie case of disparate treatment
or retaliation, which creates a presumption of discrimination or retaliation. To rebut
that presumption, the employer must articulate a legitimate, nondiscriminatory and
nonretaliatory reason for the contested employment action. If the employer does so,
the presumption of discrimination or retaliation drops from the case, and the burden
shifts back to the plaintiff to show that the employer’s proffered reason is merely a
pretext for unlawful discrimination or retaliation. See, e.g., McDonnell Douglas, 411
U.S. at 802–05; Burdine, 450 U.S. at 252–56.
1.

Prima Facie Case of Discrimination

Plaintiff bases her discrimination claims upon the following employment

136

See doc. no. 15 (Response to Summary Judgment Motion), at 11.
85

actions: her increased workload (including the denial of her request for help with her
workload); the removal of her FWA privileges; the requirement that she attend
weekly meetings with Recca; Recca’s criticism of plaintiff’s calendar entries;
plaintiff’s exclusion from engineering communications (and her subsequent
humiliation); Pallozzi’s comments that plaintiff was “insubordinate;” her negative
performance evaluation; Benjamin Moore’s failure to promote plaintiff to the Senior
Controls Engineer position; and plaintiff’s termination.137
To establish a prima facie case of race-based discrimination, plaintiff must
show that: (1) she is a member of a protected class, (2) she suffered an adverse
employment action, (3) the employer replaced her with someone outside his protected
class or otherwise treated similarly situated employees outside his protected class
more favorably, and (4) she was qualified to perform the duties of his job. See, e.g.,
Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002); Crapp
v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001); Nix v. WLCY
Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir.1984).
Benjamin Moore contends that many of the acts plaintiff complains of were not
137

Doc. no. 71-1 (Brief in Opposition to Summary Judgment), at 32-34. Plaintiff also
contends that these acts should be considered collectively in determining whether they were adverse
employment actions. Id. at 31. However, aggregate consideration to determine adversity appears to
only apply to retaliation claims, and discrimination claims based upon a hostile working
environment. The court will consider each act discretely in discussing plaintiff’s discrimination
claims based upon her race.
86

“adverse employment actions” under the discrimination statutes.138
Not all employer actions that negatively impact an employee
qualify as “adverse employment actions.” Davis v. Town of Lake Park,
245 F.3d 1232, 1238 (11th Cir. 2001). Rather, only those employment
actions that result in “a serious and material change in the terms,
conditions, or privileges of employment” will suffice. Id. at 1239
(emphasis in original). “Moreover, the employee’s subjective view of
the significance and adversity of the employer’s action is not
controlling; the employment action must be materially adverse as
viewed by a reasonable person in the circumstances.” Id.
Howard v. Walgreen Co., 605 F.3d 1239, 1245 (11th Cir. 2010). Thus, plaintiff must
“establish an ‘ultimate employment decision’ or make some other showing of
substantiality in the employment context in order to establish an adverse employment
action.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing, inter alia,
Davis, 245 F.3d at 1239).
An “ultimate employment decision” is one “such as termination, failure to hire,
or demotion.” Id. For a decision “falling short of an ultimate employment decision”
to rise to the level of an actionable adverse employment action, that decision “must,
in some substantial way, alter the employee’s compensation, terms, conditions, or
privileges of employment, deprive him or her of employment opportunities, or
adversely affect his or her status as an employee.” Id. (internal quotations and
citation omitted). Among the facts and circumstances affecting whether a decision

138

Doc. no. 65 (Brief in Support of Summary Judgment), at 24-28.
87

is considered “adverse” are whether the decision results in “lesser pay,
responsibilities or prestige,” and whether the decision would “impede an employee’s
professional growth or advancement.” Doe v. DeKalb County School District, 145
F.3d 1441, 1452 (11th Cir. 1998). “Although proof of direct economic consequences
is not required in all cases, the asserted impact ‘cannot be speculative and must at
least have a tangible adverse effect on the plaintiff’s employment.’” Soloski v.
Adams, 600 F. Supp. 2d 1276, 1356 (N.D. Ga. 2009) (quoting Filius v. Potter, 176
F. App’x 8, 10 (11th Cir. 2006)). “While adverse employment actions extend beyond
readily quantifiable losses, not everything that makes an employee unhappy is an
actionable adverse action. Otherwise, minor and even trivial employment actions that
an irritable, chip-on-the-shoulder employee did not like would form the basis of a
discrimination suit. ” Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996)
(internal quotations and citations omitted).
Benjamin Moore specifically argues that plaintiff’s increased workload, the
purported “nitpicking” she endured, plaintiff’s exclusion from engineering
communications, and her negative performance evaluation does not constitute adverse
employment actions.139 The court agrees, in part.140 There is no evidence that the
139

Id. at 25-28.

140

The court is skeptical that plaintiff’s increased workload — including the addition of oncall responsibility — amounted to the “unusual instance” where the increase was “so substantial and
material that it [did] indeed alter the ‘terms, conditions, or privileges’ of employment.” See Davis,
88

purported “nitpicking” plaintiff endured (such as the requirement that plaintiff attend
weekly meetings with Recca, Recca’s criticism of plaintiff’s calendar entries, and
Pallozzi’s comments that plaintiff was “insubordinate”), or the purportedly negative
performance review affected the terms, conditions, or privileges of plaintiff’s
employment. See, e.g., Austin v. City of Montgomery, 196 F. App’x 747, 753 (11th
Cir. 2006) (counseling memos not adverse employment actions because plaintiff
failed to show that memos were “a formal reprimand or triggered any tangible form
of adverse action such as loss in benefits, ineligibility for promotional opportunities,
or more formal discipline”); Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1261
(“Negative performance evaluations, standing alone, do not constitute adverse
employment action.”).141 Although plaintiff may have been unhappy with this
conduct, it does not constitute an adverse employment action. See Smart, 89 F.3d at

245 F.3d at 1244. Further, while the court recognizes that plaintiff’s exclusion from meetings may
be an adverse employment action where she suffered the denial of a promotion, see Rogers-Libert
v. Miami–Dade Cnty., 184 F. Supp. 2d 1273, 1285-86 (S.D. Fla. 2001) (finding that plaintiff’s
exclusion from meetings was not an adverse employment action because she suffered no “loss in
salary or benefits, subsequent denial of promotions, workplace reassignment, transfer or change in
her permanent job title”), the court is likewise skeptical that plaintiff’s exclusion from engineering
communications resulted in the specific communication issues that caused her promotion denial.
Still, the court will not reach these issues at this time, because it can dispose of them when
determining whether Benjamin Moore’s articulated reasons for plaintiff’s increased workload and
exclusion from engineering communications was pretextual.
141

Although the parties dispute whether the 2009 performance evaluation was “negative,”
it occurred after plaintiff was not selected for the Senior Controls Engineer position, and it did not
contribute to her termination. Thus, there is no evidence that it resulted in any changes to the terms,
conditions, or privileges of plaintiff’s employment.
89

441.
Thus, the only conduct for which plaintiff may be able to establish a prima
facie case of discrimination are: her increased workload; her exclusion from
engineering communications; the removal of her FWA privileges; Benjamin Moore’s
failure to promote plaintiff to the Senior Controls Engineer position; and plaintiff’s
termination.
2.

Prima Facie Case of Retaliation

Plaintiff bases her retaliation claims upon the same employment actions as her
discrimination claims.142 A plaintiff generally must prove three elements to establish
a prima facie case of retaliation: (1) she engaged in statutorily protected expression;
(2) she suffered an adverse employment action; and (3) there was a causal linkage
between the protected conduct and the adverse employment action. See, e.g., Shannon
v. BellSouth Telecommunications, Inc., 292 F.3d 712, 715 (11th Cir. 2002).
Benjamin Moore first argues the alleged “nitpicking” plaintiff endured, and her
2009 performance evaluation, do not constitute materially adverse actions.143 The
court agrees. To satisfy the adverse action prong, plaintiff “must show that a
142

See doc. no. 71-1 (Brief in Opposition to Summary Judgment), at 30-33. Additionally,
plaintiff contends that the complained-of conduct should be considered individually and collectively.
See id. at 31. However, a retaliation claim based upon the aggregate conduct is, actually, a
retaliatory hostile work environment claim. See, e.g., Gowski v. Peake, 682 F.3d 1299, 1311-12
(11th Cir. 2012). The court addresses plaintiff’s retaliatory hostile work environment claims later.
143

Doc. no. 65 (Brief in Support of Summary Judgment), at 36.
90

reasonable employee would have found the challenged action materially adverse,
which in this context means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Burlington Northern & Santa Fe
Railway Co. v. White, 548 U.S. 53, 68 (2006). However, in speaking of material
adversity, the Court felt it “important to separate significant from trivial harms.” Id.
Based upon this guidance, it is clear that the “nitpicking” (i.e., the requirement that
plaintiff attend weekly meetings with Recca, Recca’s criticism of plaintiff’s calendar
entries, and Pallozzi’s comments that plaintiff was “insubordinate”) amounts to trivial
harms. Further, although a negative performance evaluation may be materially
adverse in some circumstances, it is not in this case. In light of plaintiff’s positive
overall score in her performance evaluation (which was consistent with her 2007 and
2008 performance reviews), and the constructive nature of the purportedly negative
comments which were accompanied by positive comments, plaintiff’s 2009
performance evaluation falls squarely in the trivial versus significant harm category
the Supreme Court cautioned courts to refrain from finding materially adverse. Id.
at 68; see, e.g., Forbes v. City of North Miami, No. 11-21200-CIV, 2012 WL
1135820, *12 (S.D. Fla. Apr. 4, 2012) (“A critical review of an employee’s work
product in and of itself would not deter a reasonable employee from making or
supporting a charge of discrimination. On the contrary, a reasonable employee who
91

received numerous warnings about his work product may be more inclined to expect
such a review.”). Accordingly, plaintiff’s prima facie of retaliation based upon the
“nitpicking” and her 2009 performance evaluation fails.
Next, Benjamin Moore contends that there is no causal connection between
plaintiff’s protected activity and the removal of her FWA and her termination.144
Specifically, defendant notes that plaintiff’s FWA was removed seven months after
she amended her charge of discrimination, and her employment was terminated nine
months after she amended her charge of discrimination.145 Generally, a plaintiff can
satisfy the causation prong by “prov[ing] that the protected activity and the negative
employment action are not completely unrelated.” Meeks v. Computer Assocs., 15
F.3d 1013, 1021 (11th Cir. 1994) (internal citation and quotation mark omitted). This
is satisfied when the plaintiff “provides sufficient evidence that the decision-maker
became aware of the protected conduct, and that there was close temporal proximity
between this awareness and the adverse employment action.” Farley v. Nationwide
Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999).
In this case, the delay between plaintiff’s amended charge of discrimination
and the removal of her FWA and termination is too remote to establish a causal
connection by itself. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)
144

Doc. no. 65 (Brief in Support of Summary Judgment), at 37.

145

Id.
92

(four month delay between protected activity and adverse action insufficient to
establish a causal connection without other evidence). However, plaintiff has
presented sufficient evidence that she engaged in a Title VII protected activity
immediately prior to her FMLA leave. Specifically, plaintiff’s April 29, 2010 letter
to Pallozzi complained about unlawful discrimination, and was protected by the
“opposition clause” of Title VII. See E.E.O.C. v. Total System Services, Inc., 221
F.3d 1171, 1174 (11th Cir. 2000) (“Under the opposition clause, an employer may not
retaliate against an employee because the employee ‘has opposed any practice made
an unlawful employment practice by this subchapter.’”) (quoting 42 U.S.C. §
2000e–3(a)); Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1312 (11th Cir. 2002)
(“To establish that a plaintiff engaged in statutorily protected expression, we have
held that a plaintiff must show that she ‘had a good faith, reasonable belief that the
employer was engaged in unlawful employment practices.’”) (quoting Little v. United
Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)).146 Accordingly,
plaintiff can establish a prima facie case of retaliation under Title VII based upon the
removal of her FWA and termination.147
Thus, the only conduct for which plaintiff may be able to establish a prima
146

See doc. no. 66-13 (Exhibits to Pallozzi Deposition), at ECF 21.

147

Additionally, there is a sufficient causal connection between her protected FMLA activity
and the termination of her FWA and employment to establish a prima facie case of FMLA
retaliation.
93

facie case of retaliation are her increased workload, her exclusion from engineering
communications, Benjamin Moore’s failure to promote plaintiff, the removal of her
FWA, and her termination.
3.

Pretext

In light of plaintiff’s prima facie case of racial discrimination and retaliation
based upon plaintiff’s increased workload, her exclusion from engineering
communications, Benjamin Moore’s failure to promote her to the Senior Controls
Engineer position, the removal of plaintiff’s FWA, and the termination of plaintiff’s
employment, the burden shifts to Benjamin Moore to articulate a non-discriminatory
and non-retaliatory reason for its actions. Benjamin Moore asserts several reasons
for its various employment decisions. First, the company contends that plaintiff’s
workload increased as a result of the 2008 RIF and subsequent staff shortages.
Second, the company contends that plaintiff’s exclusion from engineering
communications was because many of the engineers Recca communicated with
outside of plaintiff’s presence were located with Recca in Flanders, New Jersey, and
Recca encountered them more often than he encountered plaintiff. Third, the
company asserts that plaintiff’s FWA was removed due to her failure to abide by her
manager’s instructions to properly update her calendar entries. Fourth, the company
asserts that plaintiff was not promoted to the Senior Controls Engineer positions
94

because: “(1) she had shown a lack of leadership skills resulting from her inability to
communicate appropriately with her managers; (2) Yama had significantly more
management experience and more recent experience; and (3) Yama had a more
extensive background in both chemical engineering and controls.”148

Finally,

Benjamin Moore asserts that Marino terminated plaintiff because she failed to
provide a completed questionnaire from her medical provider after repeated requests.
According to the company, the essential functions of plaintiff’s position required oncall responsibilities, and, after multiple attempts to obtain information regarding the
expected length of accommodations from Sori, Benjamin Moore instructed plaintiff
to obtain the information.
These reasons initially satisfy Benjamin Moore’s burden under the McDonnell
Douglas framework because Benjamin Moore “need only produce evidence that
could allow a rational fact finder to conclude that [the adverse actions were] not made
for a discriminatory [or retaliatory] reason.” Standard, 161 F.3d at 1331. “In light
of this, [plaintiff] must now create a genuine issue of material fact as to whether the
reasons advanced are pretextual. In other words, [plaintiff] must provide sufficient
evidence to allow a reasonable fact finder to conclude that the proffered reasons were
not actually the motivation for” the various adverse employment actions. Id. at 1332;

148

Doc. no. 65 (Brief in Support of Summary Judgment), at 30.
95

see Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (internal
quotation marks and citations omitted) (“The district court must evaluate whether
[plaintiff] has demonstrated such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in [Benjamin Moore’s] proffered legitimate reasons
for its action that a reasonable factfinder could find them unworthy of credence.”).
Plaintiff offers no evidence or argument to rebut Benjamin Moore’s articulated
reasons for her increased workload and exclusion from engineering communications.
Indeed, plaintiff was the only controls engineer after the RIF, and the only engineer
located at Benjamin Moore’s Pell City facility. In fact, plaintiff does not dispute that
“[t]he RIF required employees across the company to take on additional
responsibilities of those employees who had been terminated in the reduction or who
chose to leave the company in the face of the reduction,”149 or that she “was not
present at the same facility during the alleged communications that Recca had with
other engineers.”150 For these reasons, summary judgment is due to be granted as to
plaintiff’s claims of discrimination and retaliation based upon her increased workload
and exclusion from engineering communications.
Plaintiff does, however, attempt to establish pretext regarding Benjamin
149

Doc. no. 65 (Brief in Support of Summary Judgment), at 4, ¶ 21; doc. no. 71-1 (Brief in
Opposition to Summary Judgment), at 0.
150

Doc. no. 65 (Brief in Support of Summary Judgment), at 9-10, ¶ 54; doc. no. 71-1 (Brief
in Opposition to Summary Judgment), at 2.
96

Moore’s articulated reasons for removing her FWA, failing to promote her to the
Senior Controls Engineer position, and terminating her.151 The court addresses these
employment actions in turn below.
i.

Removal of Plaintiff’s FWA

Plaintiff contends that Benjamin Moore’s articulated reason for removing her
FWA was pretextual because her calendar issues were from the previous year, and
Benjamin Moore waited until after she returned from FMLA leave to terminate her
FWA.152 Initially, the court notes that plaintiff disputed her calendar issues (the
asserted reason her FWA was terminated) based upon Recca’s letter stating: “When
in attendance at your regular work location no [calendar] entry required.”153
However, Recca still required plaintiff to keep an updated calendar regarding the
projects assigned while she worked from home (i.e., not her regular work location),
and Recca’s letter was sent months before a new FWA was granted requiring plaintiff
“to get a detailed calendar listing of the projects and tasks being worked on.”154
Plaintiff also disputes her calendar issues because, in response to an email from
Recca telling plaintiff there were gaps for 8 hours of planned or actual activity in her

151

See doc. no. 71-1 (Brief in Opposition to Summary Judgment), at 34-37, 40-43.

152

Id. at 41-42.

153

Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 10; doc. no. 71-1 (Brief in
Opposition to Summary Judgment), at 2.
154

Doc. no. 66-3 (Exhibits to Plaintiff Deposition), at ECF 10.
97

calendar, she stated: “You have to open the WFH to see the day’s agenda/activity, I
save the actual time slots for actual appointments.”155 However, Recca sent another
email later stating:
The point of calendar entries is to reflect as close as possible your WFH
work schedule. You have just duplicated the same itinerary on every
planned WFH day including over your vacation. Your calendar does
reflect the full 8 hour schedule as we have discussed but it should vary
each week depending on your priorities.
Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 20. Although plaintiff’s
email does support the fact that she updated her calendar, it does not address the
specific issues plaintiff was having with updating her calendar (i.e., that plaintiff was
simply copying the same schedule, and was not updating her calendar based on what
she was actually prioritizing for that day). Thus, it is undisputed that plaintiff was
having calendar issues in 2009.
It is peculiar, however, that Benjamin Moore terminated plaintiff’s FWA only
after her return from FMLA leave, as opposed to at any point in the previous year.
Based on the significant temporal gap between Benjamin Moore’s decision to
terminate plaintiff’s FWA and plaintiff’s initial calendar issues (over a year), and the
close temporal proximity between said decision and plaintiff’s return from FMLA
leave (only a few days), a jury could conclude that the calendar issues were a pretext

155

Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 18.
98

for retaliating against plaintiff for taking FMLA leave.
ii.

Failure to Promote Plaintiff

Plaintiff contends that Benjamin Moore’s articulated reasons for failing to
promote her to the Senior Controls Engineer position were pretextual because Yama
was not qualified for the position, and Benjamin Moore cannot produce a single
discipline showing that plaintiff was insubordinate.156 The court disagrees. Plaintiff’s
primary reason for contending that Yama was not qualified for the position is because
“[t]he job requirements include ‘BS degree in Electrical Engineering or Electronic
Engineering Technology’ which Yama does not have.”157 However, plaintiff omits
a material portion of the required qualifications for the Senior Controls Engineer
position: that the applicant have experience equivalent to a BS degree in Electrical
Engineering or Electronic Engineering Technology.158 Yama had experience in
controls engineering, as well as thirty-four years of management experience —
certainly meeting the “equivalent experience” requirement in lieu of a degree in
Electrical Engineering or Electronic Engineering Technology.
Plaintiff also directs the court’s attention to Recca’s testimony regarding

156

Doc. no. 77-1 (Brief in Opposition to Summary Judgment), at 35-36.

157

Id. at 35 (quoting doc. no. 66-7 (Exhibits to Recca Deposition), at ECF 37).

158

Doc. no. 66-7 (Exhibits to Recca Deposition), at ECF 37.
99

Yama’s qualifications.159 However, it was Marino, not Recca, who was the ultimate
decision-maker in this case. The fact that Recca did not know what qualifications
Yama possessed is irrelevant in light of Marino’s testimony.160
Finally, plaintiff’s contention that she was never disciplined for
insubordination is also irrelevant, considering the voluminous amounts of evidence
demonstrating her inability to communicate effectively with her superiors (i.e., one
of the articulated reasons Benjamin Moore gave for choosing Yama over plaintiff).161
In short, there is no evidence that Marino’s reasons for selecting Yama over plaintiff
for the Senior Controls Engineer position were pretextual.
iii.

Termination

Plaintiff initially contends that Benjamin Moore’s articulated reason for
terminating her was pretextual because she was not sent the reasonable
accommodation questionnaire until after September 13, 2010.162 However, regardless
of whether plaintiff was sent the questionnaire at the time Benjamin Moore initially
attempted to contact Sori, plaintiff testified that she received it around the time it was

159

Doc. no. 77-1 (Brief in Opposition to Summary Judgment), at 35.

160

Doc. no. 66-8 (Marino Deposition), at 25-26.

161

See, e.g., doc. no. 66-3 (Exhibits to Plaintiff Deposition), at ECF 38; doc. no. 66-12
(Exhibits to Pallozzi Deposition), at ECF 38-41; doc. no. 66-1 (Plaintiff Deposition), at 116-17; doc.
no. 66-11 (Exhibits to Edwards Deposition), at ECF 17-21.
162

Doc. no. 71-1 (Brief in Opposition to Summary Judgment), at 43.
100

sent to her on September 13, 2010.163 That means that plaintiff had possession of the
questionnaire when Edwards sent the October 6, 2010 letter instructing plaintiff to
have her medical provider complete the questionnaire and return it before October 12,
2010, or risk termination.164 Plaintiff’s failure to receive the questionnaire prior to the
Edwards’s letter does not evidence pretext because it is consistent with the company’s
efforts to have the questionnaire completed by plaintiff’s medical providers. In other
words, the company attempted to have Sori complete the questionnaire on its on, and
when she would not, they instructed plaintiff to have Sori complete it. Thus, plaintiff
was given ample opportunity to have Sori compete the questionnaire and return it to
Benjamin Moore, and the company’s reasons for terminating plaintiff were not
pretextual based upon the timing of Edwards’s letter and plaintiff’s receipt of the
questionnaire.
Next, plaintiff contends that there is pretext because there is a genuine dispute
regarding whether plaintiff’s on-call responsibilities were “essential.”165 Under the
FMLA, “an eligible employee shall be entitled to a total of 12 workweeks of leave
during any 12–month period” for “a serious health condition that makes the employee
unable to perform the functions of the position of such employee.” 29 U.S.C. §
163

See doc. no. 66-2 (Plaintiff Deposition), at 216.

164

Doc. no. 66-4 (Exhibits to Plaintiff Deposition), at ECF 24-26

165

Doc. no. 71-1 (Brief in Opposition to Summary Judgment), at 43.
101

2612(a)(1)(D). An employee is unable to perform the functions of her position if she
is “unable to work at all or . . . unable to perform any one of the essential functions
of the employee’s position.” 29 C.F.R. § 825.123.
Following such leave, an employee is entitled to return to her
position or its equivalent unless she “is unable to perform an essential
function of the position because of a physical or mental condition,
including the continuation of a serious health condition.” 29 C.F.R. §§
825.214, 825.216(c). An essential function is a “fundamental job dut[y]
of the [plaintiff’s] employment position,” as evidenced by the
employer’s judgment, written job descriptions, the amount of time spent
performing the function, and the consequences of allowing the plaintiff
not to perform the function. See 29 C.F.R. § 1630.2(n)(1), (3).
Grace v. Adtran, Inc., 470 F. App’x 812, 815-16 (11th Cir. 2012).
The court is satisfied that there is no genuine dispute regarding whether on-call
responsibilities were an “essential function” of plaintiff’s position. Although her
written job description did not originally include on-call responsibilities, plaintiff
assumed those responsibilities following the RIF, and maintained them for almost two
years up until her return from FMLA leave, when Benjamin Moore temporarily reassigned them in an effort to temporarily accommodate plaintiff. In fact, Benjamin
Moore made it clear that the accommodation would be temporary, and that plaintiff
was expected to resume on-call responsibilities eventually. Edwards noted that
“although [on-call responsibilities are] not specifically highlighted in the Job
Description, it’s a responsibility that was communicated to you in the past and we
102

foresee On-Call coverage continuing to be a part of this job responsibility in the
future.”166 It is disingenuous for plaintiff to claim that on-call responsibilities were
not essential when, for two years, she attempted to have Benjamin Moore reassign the
duties, but the company never did (i.e., it was necessary that plaintiff, the only
Controls Engineer for almost two years, perform these duties). Based upon these
facts, plaintiff cannot establish that Benjamin Moore’s articulated reason for
terminating her was pretextual because her job duties were not actually “essential.”
For the aforementioned reasons, summary judgment is due to be granted as to
plaintiff’s discrimination and retaliation claims based upon the purported
“nitpicking,” plaintiff’s 2009 performance evaluation, her increased workload, her
exclusion from engineering communications, Benjamin Moore’s failure to promote
plaintiff, and plaintiff’s termination. Summary judgment is due to be denied as to
plaintiff’s discrimination and retaliation claims based upon the removal of her FWA.
B.

FMLA Interference
To establish an interference claim under the FMLA, “an employee must

demonstrate that he was denied a benefit to which he was entitled under the FMLA.”
Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1266-67 (11th Cir. 2008).
Plaintiff contends that Benjamin Moore interfered with her right to reinstatement

166

Doc. no. 66-5 (Exhibits to Plaintiff Deposition), at ECF 34-35.
103

under the FMLA by changing her core hours, removing her FWA, re-imposing her
on-call responsibilities, and instituting bi-weekly meetings with Yama.167 After an
employee’s qualifying FMLA absence, a covered employer must reinstate the
employee to his or her former position or an alternate one with equivalent pay,
benefits, and working conditions. 29 U.S.C. § 2614(a)(1); 29 C.F.R. § 825.214. The
Eleventh Circuit has concluded, however, that an employee who is unable to perform
an essential job function is not entitled to reinstatement upon returning from FMLA
leave. See Grace, 470 F. App’x at 816 (“Because Grace was still restricted from
lifting more than 10-pounds at the end of her FMLA leave, she remained unable to
perform an essential function of her position and, thus, was unentitled to return to her
position.”). As previously determined, on-call responsibilities were an essential
function of plaintiff’s employment position.168 Plaintiff has admitted that she was
unable to perform on-call responsibilities following her 12 weeks of FMLA leave.
Accordingly, she was not entitled to reinstatement, and Benjamin Moore did not
interfere with her FMLA rights by removing her FWA following her return.
C.

Retaliatory Hostile Work Environment
Benjamin Moore barely addresses plaintiff’s retaliatory hostile work

environment claim. The company argues that the underlying acts were discrete and
167

Doc. no. 71-1 (Brief in Opposition to Summary Judgment), at 41.

168

See supra Part IV.A.
104

cannot form the basis of a hostile work environment claim, and that the underlying
acts were not objectively and subjectively severe and pervasive.169 Benjamin Moore
presents no discussion or analysis regarding its contentions; it only states, in
conclusory fashion, that the underlying acts were discrete, and were not objectively
and subjectively severe and pervasive such that plaintiff could establish a prima facie
case. The court will not entertain those contentions without any substantive
argument.
D.

State-Law Claims
Benjamin Moore contends that plaintiff’s claims of negligent or wanton

supervision must be dismissed because plaintiff cannot prove that the company
committed an underlying Alabama common-law tort.170 The court agrees. See
Thrasher v. Ivan Leonard Chevrolet, Inc., 195 F. Supp. 2d 1314, 1320 (N.D. Ala.
2002) (“In order to establish a claim against an employer for negligent supervision,
training, and/or retention, the plaintiff must establish that the allegedly incompetent
employee committed a common-law, Alabama tort.”) (citing Stevenson v. Precision
Standard, Inc., 762 So. 2d 820, 824 (Ala. 1999)). Plaintiff does not offer any
argument to dispute this contention. Accordingly, plaintiff’s state law claims of
negligent or wanton supervision are due to be dismissed.
169

Doc. no. 65 (Brief in Support of Summary Judgment), at 38 n.12.

170

Doc. no. 65 (Brief in Support of Summary Judgment), at 44 n.14.
105

E.

Unjust Enrichment
Benjamin Moore contends that it is entitled to summary judgment on its unjust

enrichment counterclaims.171 “[T]o prevail on a claim of unjust enrichment, the
plaintiff must show that the defendant holds money which, in equity and good
conscience, belongs to the plaintiff.” Mantiply v. Mantiply, 951 So. 2d 638, 654 (Ala.
2006); see also Matador Holdings, Inc. v. HoPo Realty Investments, L.L.C., 77 So.
3d 139, 145 (Ala. 2011) (“To prevail on a claim of unjust enrichment under Alabama
law, a plaintiff must show that: (1) the defendant knowingly accepted and retained a
benefit, (2) provided by another, (3) who has a reasonable expectation of
compensation.”) (citations omitted). Enrichment may be “unjust” for purposes of this
doctrine if “the donor of the benefit . . . acted under a mistake of fact or in misreliance
on a right or duty.” Mantiply, 951 So. 2d at 654-55.172 According to Benjamin
Moore, plaintiff received a salary continuation and long term disability benefits for
the same time period, resulting in an overpayment of $24,533.36.173 Plaintiff
171

Doc. no. 65 (Brief in Support of Summary Judgment), at 44.

172

The court analyzes Benjamin Moore’s claim of unjust enrichment under Alabama law
because Benjamin Moore argued that it was entitled to a judgment as a matter of law based on
Alabama law. See doc. no. 65 (Brief in Support of Summary Judgment), at 44 (citing Bell
Aerospace Servs. v. U.S. Aero Servs., Inc., 690 F. Supp. 2d 1267, 1265 (M.D. Ala. 2010) (analyzing
unjust enrichment claim under Alabama law). However, Benjamin Moore’s counterclaim asserts
that its unjust enrichment claim is brought pursuant to federal common law. Since the court is not
granting summary judgment in favor of Benjamin Moore on its unjust enrichment claim, the court
will address this discrepancy later.
173

Doc. no. 65 (Brief in Support of Summary Judgment), at 45.
106

contends that the salary continuation was not a mistake, but was retaliatory in order
to cause Aetna to suspend plaintiff’s long term disability benefits.174 Plaintiff’s
contention is based on speculation. She has not cited any evidence that the
overpayment was anything more than a mistake. Even so, the court cannot discern
exactly how much plaintiff owes Benjamin Moore for the deposits, and it is unsure
of how Benjamin Moore arrived at the value of $24,533.36. Accordingly, the court
will deny Benjamin Moore’s motion for summary judgment on its unjust enrichment
claims.
IV. CONCLUSION
For the aforementioned reasons, Benjamin Moore’s motion for summary
judgment is due to be DENIED as it relates to the company’s counterclaims,
plaintiff’s retaliatory hostile work environment claim, and her discrimination and
retaliation claims pursuant to Title VII, § 1981, and the FMLA, based upon the
company’s removal of plaintiff’s FWA. The motion is due to be GRANTED in all
other respects. The defendant’s motion to strike plaintiff’s evidentiary submission
in opposition to summary judgment is due to be GRANTED IN PART and DENIED
IN PART. A separate order, consistent with this memorandum opinion, will be
entered contemporaneously herewith.

174

Doc. no. 71-1 (Brief in Opposition to Summary Judgment), at 44-45.
107

DONE, this the 31st day of March, 2015.

___________________________
JOHN E. OTT
Chief United States Magistrate Judge

108