Denham v. Wal-Mart

Filing 30

ORDER granting in part and denying in part 19 Motion for Summary Judgment. The Motion is granted with respect to plaintiff's Title VII claim of a racially hostile work environment, and that claim is dismissed with prejudice. The Motion is denied with respect to plaintiff's Title VII claim of retaliation. This matter remains set for a Final Pretrial Conference on April 9, 2013 at 1:30 p.m., with non-jury trial to follow in May 2013. To date, the lawyer who filed a Notice of App earance on plf's behalf has failed to submit the paperwork to be admitted to practice in this Court. The Court continues to regard the plaintiff as pro se. Signed by Chief Judge William H. Steele on 3/26/2013. Copy of order mailed to plf as directed. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ELECTA DENHAM,
Plaintiff,
v.
WAL-MART STORES EAST, LP,
Defendant.

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CIVIL ACTION 12-0195-WS-C

ORDER
This matter comes before the Court on defendant’s Motion for Summary Judgment (doc.
19). The Motion has been briefed and is ripe for disposition.
I.

Nature of the Case.
This is an action for employment discrimination and retaliation brought by a pro se

plaintiff.1 In her bare-bones Complaint, plaintiff, Electa Denham, alleged, “I have been
discriminated and retaliated against in violation of Title VII of the Civil Rights Act of 1964, as
amended.” (Doc. 1, at 2.) The pleading’s sole elaboration on the facts underlying her claims is
as follows: “Hours was reduce to part time causing a loss of benifits after reporting complaint
after 10 yrs of full time status.” (Id.) Plaintiff further explained her claims in the Report of
Parties’ Planning Meeting by stating that her race discrimination claim rests on an incident in
which she “had overheard a racial slur used by a fellow associate,” for which Denham felt
management’s response was inadequate. (Doc. 10, at 1.)
Construing the pleadings liberally in view of Denham’s pro se status, and looking at the
court file in its entirety, the Court agrees with defendant’s assessment that Denham is bringing
1

On February 7, 2013, after summary judgment briefing had closed, an attorney
filed a Notice of Appearance (doc. 26) for plaintiff. Nonetheless, all of plaintiff’s filings
(including pleadings and summary judgment submission) were filed on a pro se basis, and will
therefore be afforded lenience. See, e.g., Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007)
(“we are to give liberal construction to the pleadings of pro se litigants”).

two Title VII claims against Wal-Mart, one for race discrimination and one for retaliation. The
discrimination claim alleges racial harassment, and the retaliation claim is predicated on WalMart’s purported reduction of Denham’s hours following her complaint of race discrimination.
Defendant now seeks summary judgment on both of these causes of action.
II.

Relevant Facts.2
The underlying facts and circumstances of this case are straightforward. Electa Denham,

an African-American female, is a long-time hourly employee at Wal-Mart Store #4333 in
Fairhope, Alabama. (Smith Decl. (doc. 21, Exh. 2), ¶ 2.) At all times relevant to her Complaint,
Denham worked as a grocery stocker, ostensibly on a full-time basis, although she subsequently
transferred to the position of sales associate in the shoe department in 2012. (Denham Dep., at
20-21.) As of her October 2012 deposition, Denham remained employed at Wal-Mart Store
#4333. That store, a Wal-Mart Super Center, is open 24 hours per day, 7 days per week, 364
days per year. (Id. at 44.)
A.

The August 2009 Incident.

On the morning of August 9, 2009, Denham was at work at Wal-Mart when she went
outside to procure a cart to load groceries for stocking purposes. (Denham Dep., at 73-74.) As
she walked outside, Denham encountered a Wal-Mart employee named Sharon Widger (a white
female who worked in a different area of the store whom Denham did not know and with whom
she had never spoken) conversing with a female employee named Johnsie Wilson. (Id. at 72-75.)
As Denham approached, she overheard Widger make a statement to Wilson about “niggers in the
damn neighborhood.” (Id. at 74-75.)
Moments later, Denham reported this offensive comment to department manager
Schvante Johnson. (Denham Dep., at 75-76.) While Johnson was apprising Denham of her
reporting options, the Store Manager, Kevin Smith, walked by. (Id. at 77.) Denham informed
Smith what she had overheard and emphasized that “it was very offensive to me,” in response to
which Smith assured that he would “check into it.” (Id.) Denham also promptly reported the
incident to her zone manager at Wal-Mart. (Id.)
2

The Court is mindful of its obligation under Rule 56 to construe the record,
including all evidence and factual inferences, in the light most favorable to the nonmoving party.
See Skop v. City of Atlanta, GA, 485 F.3d 1130, 1136 (11th Cir. 2007). Thus, plaintiff’s evidence
is taken as true and all justifiable inferences are drawn in her favor.

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Wal-Mart commenced an investigation into the incident on that very day. (Smith Decl., ¶
4.) For her part, Widger admitted having used “the n-word,” but the surrounding circumstances
revealed that she was not directing it at Denham or anyone else at Wal-Mart, but was instead
referring to a situation in her personal life. (Id.)3 Smith and Wal-Mart took harsh disciplinary
action against Widger, in the form of a “Decision-Making Day” (which is the final progressive
discipline step before termination). (Id.) Wal-Mart specifically coached Widger not to “use any
words that involve stereotyping of other associates,” and cautioned her that “[t]he next level of
action if behavior continues is … Termination.” (Smith Decl., Exh. B.) For her part, Widger
apologized and vowed not to use that word again. (Id.)
This initial resolution of her internal complaint did not mollify Denham, who made it
clear that she felt Widger should be fired for using such a racial slur in the workplace, regardless
of context and circumstances. (Smith Decl., ¶ 5.) So Denham voiced her dissatisfaction with
what she perceived to be an inadequate Wal-Mart response by calling the company’s toll-free
hotline for employee concerns. (Id., ¶ 6.) Denham explained the incident to Wal-Mart’s hotline
agent, and stated that she expected “zero tolerance” for use of the n-word in the workplace.
(Denham Dep., at 113.) Denham’s hotline complaint reiterated her desire that Widger be fired or
transferred to another store. (Id. at 114, 123.) She spent approximately 30 or 35 minutes on the
hotline discussing her complaint with a Wal-Mart corporate representative. (Id. at 117.) In
response, Wal-Mart reopened its investigation, took additional witness statements, and
reconsidered its conclusions. (Id.) Upon reconsideration, however, Wal-Mart upheld its original
decision not to fire Widger, and so notified Denham. (Smith Decl., ¶ 6.)
Despite plaintiff’s dissatisfaction with the disciplinary measures taken by Wal-Mart
against the employee who uttered the racial slur, it is undisputed that Denham has never
experienced any other incidents or comments at Wal-Mart that she considered to be racially
3

In connection with that investigation, Widger submitted a written account of the
incident, as follows: “I was speaking with another associate in the backroom talking about an
experience with my husband in reference to my yard. I used the wrong word to describe how
nasty + dirty my yard was. I am sorry an associate walked by and overheard our conversation. I
will not use that word or any other steryotyping [sic] word again at Wal-mart. I really enjoy my
job and am very sorry. The word used was nigger.” (Smith Decl., Exh. C.) Widger’s account
was corroborated in all material respects both by Johnsie Wilson (the person with whom she was
speaking) and by Denham herself. (Id.)

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hostile or offensive. Indeed, Denham testified that she never spoke with Widger after this
incident, and that when Widger would offer pleasantries like “good morning” to her, Denham
would not respond, but would simply keep on walking. (Denham Dep., at 108-09.) Denham
never, ever had any issue or problem with Widger after August 6, 2009. (Id. at 195-97.) Nor
does the record contain any evidence that – either before or after the singular incident of August
6, 2009 – Denham ever experienced offensive, race-based mistreatment or overheard any
racially-charged comments by anyone at Wal-Mart.
B.

Scheduling Issues.
1.

Staggered Shifts and Employee Availability.

Prior to August 2009, management at the Wal-Mart store in Fairhope had advised
stocking associates of imminent changes to their shifts. (Smith Decl., ¶ 7.) Rather than stocking
only during the overnight and morning shifts (as had been the store’s custom), the new practice
contemplated stocking throughout the day, resulting in a reduced concentration of available
stocking hours during overnight and morning shifts. (Id.) This change to a system of “staggered
shifts” was not unique to the Fairhope store, but was instead adopted throughout the Wal-Mart
market. (Id.) As a consequence of this change, fewer morning shifts would be scheduled for
stockers to work. (Id., ¶ 9.)
Wal-Mart utilizes an automated scheduling system for setting employees’ shifts. (Id., ¶
8.) That system takes into account certain variables, including the store’s demand for particular
classifications of employees in particular departments at particular times of day or times of year,
as well as each employee’s stated availability. (Id.) On the latter point, each Wal-Mart
employee completes an “availability sheet” reflecting the hours and days on which he or she
declares himself or herself available to work. Certain employees declare themselves to be
available 24 hours a day, 7 days per week, while other employees elect to block off particular
days of the week or times of day in which they do not wish to be scheduled to work. (Id.) An
obvious and predictable by-product of this system of matching the store’s staffing needs to the
employees’ availability is that “[t]he more ‘open’ an associate’s availability, the more hours he
or she can expect to be scheduled.” (Id.)

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As a matter of personal choice and for reasons not germane to this litigation,4 Denham
limited her work availability at Wal-Mart to day shifts on Wednesdays through Sundays, with no
evening or overnight shifts and no Monday or Tuesday shifts. (Smith Decl., ¶ 9.) In so doing,
Denham exercised her right as a Wal-Mart employee to make herself available to work only on
specific designated days and times, and to “block off” certain times of day or days of the week
that she did not wish to be scheduled to work. (Denham Dep., at 45.) These selections were not
irrevocable; rather, Denham remained free to revise her availability designations whenever she
wished. (Id. at 68.) In accordance with this scheduling system, Denham completed “availability
sheets” at various times, showing which hours she was willing to work and which she was not.
(Id. at 40.) In her most recent availability sheet, dated November 7, 2009, Denham listed her
availability as being from 4:00 a.m. to 4 p.m. on Wednesday through Sunday, with no
availability on Monday or Tuesday. (Id. at 40-41, 70 & Exh. 2.) From the time she began
working at the Fairhope store through August 2009, Denham had consistently blocked off
Monday and Tuesdays as days on which she was unavailable to work, and all nights as times of
day when she was unavailable to work. (Id. at 42-43.)
As of approximately August 2009, Smith met with the store’s grocery stockers (including
Denham) and asked all stockers in the entire department to open up their availability for one
night per week because of shifts in stocking schedules. (Denham Dep., at 131-33, 137-39.)
Most of the stockers agreed to do so; however, Denham informed Smith that she could not. (Id.
at 134.) Within a short time, much (but certainly not all) of the stocking was being done during
overnight shifts. (Id. at 135-36.)
2.

Reduction in Plaintiff’s Work Hours in September 2009.

Denham’s work hours declined almost immediately after she complained about the “nword” incident. Prior to that time, she had regularly been receiving 38-40 work hours per week.
(Denham Dep., at 142.) As of September 2009, however, her work hours dropped precipitously
4

In her deposition, Denham explained that she did not want to be scheduled for
work on Mondays and Tuesdays because she wanted to keep those days clear for doctor’s
appointments for herself and her mother, and because she wanted her days off to be back-toback. (Denham Dep., at 43.) Denham also indicated that she needed to keep her nights free
because she performs paid babysitting services for family members in the evenings on a regular
basis. (Id. at 69-70, 160-61.)

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to barely one shift per week. (Id. at 142-43.) For each two-week pay period, Denham was
getting paid for just 18 hours. (Id. at 158.) Such meager scheduled hours stood in stark contrast
to the full-time schedule she had consistently worked throughout her years of employment at
Wal-Mart before she complained of race discrimination.
When Denham expressed concern to manager Bobbie Smith about this sudden decline,
Smith recommended that Denham open her availability to 7 p.m. to get more hours. (Id. at 13839.) Denham initially acquiesced to management’s suggestion, by completing a new availability
sheet in September 2009 that showed availability from 3:00 a.m. to 7:00 p.m. on Wednesday
through Sunday. Opening up her availability was for naught, however, as Denham’s work hours
did not improve, and she was not assigned any more hours. (Id. at 139-40.) She was still getting
just one or two shifts per week, even after expanding her availability as Smith had advised her to
do. (Id. at 140, 158.) Because opening up her availability had translated into no more working
hours, but had instead resulted in her receiving the same meager weekly hours on a less desirable
shift, Denham changed her availability back to 4:00 a.m. to 4:00 p.m. in November 2009. (Id. at
140-41.)5 Denham’s hours remained low until Kevin Smith left the Fairhope store, at which time
her hours immediately shot upwards to 24, 28, or even 32 to 36 hours per week, all with Denham
maintaining the same 4:00 a.m. to 4:00 p.m. availability on Wednesdays through Sundays. (Id.
at 141-42, 168.)
According to Denham, her shift assignments differed substantially from those of other
stockers after the n-word incident. For example, Denham identifies another stocker, Marion
Gravely, who continued receiving regular 7:00 a.m. to 4:00 p.m. shifts in the grocery department
after the change to staggered shifts. (Denham Dep., at 156-58.) This was so, despite the fact that
Gravely’s availability sheet effective as of December 2009 listed her availability as 4:00 a.m. to
6:00 p.m. (i.e., similar to the 3:00 a.m. to 7:00 p.m. availability that Denham had specified in the
September 2009 – November 2009 period). (Denham Dep., at Exh. 11.) Moreover, on Black
5

Denham’s testimony is that when she changed her availability from the 3:00 a.m.
to 7:00 p.m. range (16 hours per day) back to the 4:00 a.m. to 4:00 p.m. range (12 hours per day),
she suffered no reduction in her hours. (Id. at 141.) Thus, Denham’s experience during late
2009 was that neither opening up her availability nor constricting her availability had a
meaningful, or even measurable, impact on the number of hours Wal-Mart scheduled her to work
each week.

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Friday in November 2009, Wal-Mart asked Denham to work extra hours only after all other
stockers were already scheduled or had been asked to take those hours. (Denham Aff. (doc. 231), at 2.) During the Thanksgiving and Christmas holidays, Wal-Mart hired temporary workers
to work the very 7:00 a.m. – 4:00 p.m. shift that Denham sought and was available to work, and
gave her fellow stockers overtime hours to work those shifts, all the while giving just 8-10 hours
per week to Denham herself. (Id. at 3.) More generally, plaintiff’s evidence is that within a
month after the staggered stocking shifts went into effect at the Fairhope store, all stockers were
continuing to work full time, with the sole exception of Denham, who had been reduced to
approximately one shift per week. (Id.) Plaintiff’s evidence shows that Wal-Mart
accommodated every other stocker’s preferences for availability and shifts, but not hers. (Id.)
Denham was not silent about the scheduling problem when it occurred. To the contrary,
Denham made her desire for more work hours known to store management immediately and
repeatedly after the September 2009 staggered shifts went into effect; however, managers
responded by telling her, “You know we’re not going to give you no hours.” (Denham Dep., at
127, 165-66.) When she asked about getting hours in another department, Wal-Mart
management flatly told her “[t]here’s no other hours in no other department.” (Id. at 128.) Yet
when a position came open in the back (which Denham described as a “backroom bending”
position) for which Denham was trained and qualified, and which called for full-time hours from
7:00 a.m. to 4:00 p.m. (i.e., within Denham’s availability), Wal-Mart offered the position to at
least three other stockers, but not to her. (Denham Aff., at 2.) This is so even though Wal-Mart
also moved another stocker to a 7:00 a.m. – 4:00 p.m. soft lines staffer job to accommodate her
preferences not to work nights. (Id.) Again, plaintiff’s evidence is that no such courtesy was
extended to Denham.
III.

Summary Judgment Standard.
Summary judgment should be granted only “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.” Rule
56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to
show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make

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'a sufficient showing on an essential element of her case with respect to which she has the burden
of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter. Instead, the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted).
“Summary judgment is justified only for those cases devoid of any need for factual
determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)
(citation omitted).
The Eleventh Circuit has expressly rejected the notion that summary judgment should
seldom be used in employment discrimination cases because they involve issues of motivation
and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir. 2004). Rather, “the
summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to
be placed on either side of the scale.” Id. at 1086 (citation omitted).
IV.

Analysis.
As noted, Denham has asserted Title VII claims against Wal-Mart for racially hostile

work environment and for retaliation. Defendant now moves for summary judgment on both
causes of action.
A.

Racially Hostile Work Environment.

Hostile work environment claims are analyzed under the same standards of proof and the
same framework as other Title VII cases. See Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th
Cir. 2009). To establish a claim of hostile work environment, Denham must show “(1) that she
belongs to a protected group; (2) that she has been subject to unwelcome harassment; (3) that the
harassment must have been based on a protected characteristic of the employee …; (4) that the
harassment was sufficiently severe or pervasive to alter the terms and conditions of employment
and create a discriminatorily abusive working environment; and (5) that the employer is
responsible for such environment under either a theory of vicarious or of direct liability.”
McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008) (citation omitted); see also Jones v.
UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012) (similar). As Wal-Mart correctly
points out in its summary judgment briefing, the fourth element is of dispositive importance here.

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In evaluating whether a hostile work environment is sufficiently pervasive or severe to be
actionable, courts look to “all the circumstances, including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.”
McCann, 526 F.3d at 1378 (citations omitted); see also Jones, 683 F.3d at 1302 (in considering
totality of circumstances for hostile work environment, courts must keep in mind that the “real
social impact of workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships which are not fully captured by a simple recitation
of the words used or the physical acts performed”) (citation omitted).
Here, Denham’s filings are clear that she predicates her Title VII claim for a racially
hostile work environment on a single incident in August 2009, in which she overheard a coworker use the term “nigger” in referring to a personal matter.6 Use of the n-word by any
employee in a modern American workplace is as deplorable and despicable as it is patently
offensive. However, such an isolated utterance on a single occasion by a co-worker, not directed
at plaintiff or anyone else in the workplace, simply does not meet the legal threshold for a
cognizable Title VII hostile work environment claim. See, e.g., Brooks v. Hyundai Motor Mfg.
Ala., LLC, 2011 WL 4991612, *1 (11th Cir. Oct. 20, 2011) (summarily rejecting hostile work
environment claim where plaintiff’s team leader on several occasions used terms “you black
folks” or “nigger,” but such “racial slurs were very few in number, and plaintiff testified that
they did not adversely affect her job performance”).7
6

Denham’s Affidavit leaves no doubt that this is the sole factual basis of her race
discrimination claim. In that document, she averred, “I believe that I was subjected to a racially
hostile environment at Wal-Mart when I overheard a fellow Wal-Mart employee say the N word
in my presence … while I was walking by.” (Denham Aff., at 1.)
7

See also Barrow v. Georgia Pacific Corp., 2005 WL 1926420, *3 (11th Cir. Aug.
12, 2005) (evidence that supervisors and co-workers occasionally used terms like “nigger,”
“boy,” and “black ass” towards plaintiff is not sufficiently severe or pervasive to alter conditions
of employment); Frazier v. Sabine River Authority Louisiana, 2013 WL 363121, *4 (5th Cir. Jan.
30, 2013) (co-worker’s use of word “nigger” in plaintiff’s presence was “isolated and not severe
or pervasive enough to support a hostile work environment claim”); Peters v. Renaissance Hotel
Operating Co., 307 F.3d 535, 552 (7th Cir. 2002) (finding evidence did not support objectively
hostile work environment claim where there was a single incident in which a co-worker used the
term “nigger” in plaintiff’s presence); Woods v. Austal, U.S.A., LLC, 2011 WL 1380054, *19-20
(S.D. Ala. Apr. 11, 2011) (bathroom graffiti, which included use of the term “nigger,”
(Continued)
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The August 6, 2009 offensive utterance by a co-worker on Wal-Mart’s premises, and
overheard by Denham, was a stray remark that was not sufficiently severe or pervasive to alter
the terms and conditions of Denham’s employment or to create a discriminatorily abusive work
environment. This evidence is inadequate to support a claim for hostile work environment, as a
matter of law. Because plaintiff has not shown that her workplace was permeated with
discriminatory intimidation, ridicule, and insult, that was sufficiently severe or pervasive to alter
the conditions of her employment and create an abusive working environment, Wal-Mart’s
Motion for Summary Judgment will be granted insofar as it relates to plaintiff’s Title VII claim
for a racially hostile work environment.
B.

Retaliation.

Plaintiff also asserts a claim of retaliation under Title VII, alleging that Wal-Mart
retaliated against her by reducing her work hours from 38-40 per week to 8-10 per week shortly
after she reported the n-word incident to store management and complained via the company
hotline. In Denham’s words, her claim is that “Wal-Mart intentionally reduced [her] hours to get
rid of [her] or try and force [her] to quit as retaliation for [her] filing a racial discrimination
complaint.” (Denham Aff., at 3.)
To establish a prima facie case of retaliation under Title VII, Denham must show that
“(1) she engaged in statutorily protected activity; (2) she suffered a materially adverse
employment action; and (3) there was a causal link between the two.” Gowski v. Peake, 682
F.3d 1299, 1311 (11th Cir. 2012) (citation omitted); see also Butler v. Alabama Dep’t of Transp.,
536 F.3d 1209, 1212-13 (11th Cir. 2008) (“To establish a claim of retaliation under Title VII or
section 1981, a plaintiff must prove that he engaged in statutorily protected activity, he suffered a
materially adverse action, and there was some causal relation between the two events.”) (citation
omitted). If the employer articulates a legitimate reason for the challenged action, then the
“amounted to mere offensive utterances, not severe or threatening comments directed at
[plaintiff] personally,” and therefore did not give rise to a racially hostile work environment);
McCarty v. Marple Tp. Ambulance Corps, 869 F. Supp.2d 638, 653 (E.D. Pa. 2012) (isolated
incident in which co-worker used term “nigger” in conversation with plaintiff was not
sufficiently severe or pervasive to support Title VII hostile work environment claim); Davis v.
Joseph J. Magnolia, Inc., 815 F. Supp.2d 270, 280-81 (D.D.C. 2011) (granting defendant’s
motion or summary judgment on hostile work environment claim where plaintiff alleged that
supervisor referred to him as a “nigger” on a single occasion).

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plaintiff must “show that the employer’s proffered reasons for taking the adverse action were
actually a pretext for prohibited retaliatory conduct.” McCann, 526 F.3d at 1375 (citation
omitted); see also Hill v. Wal-Mart Stores, Inc., 2013 WL 646376, *2 (11th Cir. Feb. 22, 2013)
(“If a plaintiff-employee makes out a prima facie case of retaliation, and the employer articulates
a legitimate, non-discriminatory reason for the action, the plaintiff must show, by a
preponderance of the evidence, that the employer’s reason is pretextual.”).
With regard to a prima facie case, Wal-Mart correctly concedes that Denham engaged in
protected conduct under Title VII when she complained to store management about a coworker’s racial slur and made a follow-up complaint on the Wal-Mart hotline. Defendant also
admits “[f]or purposes of argument only” that the ensuing reduction in Denham’s hours qualifies
as a materially adverse action under the applicable standard for Title VII retaliation claims.
(Doc. 20, at 8.)8 Nonetheless, Wal-Mart insists that Denham cannot meet the third prong of her
prima facie burden because “she cannot demonstrate … a causal relationship between her
protected conduct and any adverse action.” (Id.) The Court disagrees. Plaintiff’s evidence is
that the materially adverse action (i.e., the reduction in work hours) began almost immediately
8

Defendant’s caveat that it is so stipulating solely for purposes of argument is
misplaced. Applicable law leaves no doubt that a sudden reduction in assigned work hours from
38-40 per week to 8-10 per week qualifies as a materially adverse action in the retaliation
context. For purposes of a Title VII retaliation claim, “[a]n action is materially adverse if it
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1259 (11th Cir. 2012)
(citation and internal quotation marks omitted). By any coherent reckoning, the prospect of
having one’s work hours slashed by more than two-thirds (with resulting diminution in pay and
benefits) might be expected to dissuade a reasonable worker from complaining of discrimination.
Federal courts have routinely deemed similar harms to satisfy this modest threshold. See, e.g.,
Equal Employment Opportunity Com’n v. Swissport Fueling, Inc., --- F. Supp.2d ----, 2013 WL
68620, *17 (D. Ariz. Jan. 7, 2013) (“A reduction in hours constitutes an adverse employment
action.”); Sharpe v. Global Security Int’l, 766 F. Supp.2d 1272, 1293 (S.D. Ala. 2011)
(employee’s transfer to a different department, accompanied by substantial loss of prestige and
responsibility, and substantial increase in physical demands, satisfies prima facie element of
materially adverse action); Woods, 2011 WL 1380054, at *26 (“Plainly, a reasonable fact finder
could determine that the prospect of being assigned ‘crap work’ that was demeaning, filthy and
physically unpleasant well might have dissuaded a reasonable worker from engaging in
statutorily protected activity.”). On this record, the Court concludes that Denham has shown a
materially adverse action sufficient to establish that prong of a prima facie case of retaliation
under Title VII.

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after her protected activity (i.e., the internal complaints of race discrimination), both of which
events occurred in August 2009. Such close temporal proximity is, by itself, sufficient to
discharge Denham’s burden at the prima facie stage. See, e.g., Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1364 (11th Cir. 2007) (“The burden of causation can be met by showing close
temporal proximity between the statutorily protected activity and the adverse employment
action.”); Gross-Jones v. Mercy Medical, 874 F. Supp.2d 1319, 1340 (S.D. Ala. 2012) (“the
Eleventh Circuit has considered 52 days to be sufficient temporal proximity to satisfy the
causation element of the prima facie case”). Accordingly, the Court finds that Denham has made
a prima facie showing of retaliation, such that the burden of production shifts to Wal-Mart to
articulate a legitimate, non-retaliatory reason for the reduction in plaintiff’s work hours, so soon
on the heels of her internal complaints of race discrimination.
Without question, defendant has satisfied its light burden of coming forward with a nonretaliatory reason for the challenged personnel action. Wal-Mart explains the reduction in
Denham’s hours beginning in August 2009 via the following sequence of circumstances: (i) a
previously announced change in scheduling occurred, such that stocking work was performed on
a staggered basis around the clock rather than solely in the mornings and overnights; (ii) a
consequence of that modification was that fewer morning stocking shifts existed; (iii) Denham
confined her availability to the mornings and afternoons; and (iv) the automated Wal-Mart
scheduling system therefore assigned her fewer hours. (Smith Decl., ¶¶ 7-9.) Given such a
showing by defendant, Denham can withstand the Motion for Summary Judgment only by
demonstrating that this stated reason is pretextual. See Chapman v. AI Transport, 229 F.3d 1012,
1037 (11th Cir. 2000) (“In order to avoid summary judgment, a plaintiff must produce sufficient
evidence for a reasonable factfinder to conclude that each of the employer’s proffered
nondiscriminatory reasons is pretextual.”).
To show that an employer’s stated reason is pretext for unlawful retaliation, the plaintiff
“must reveal such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions
in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could
find them unworthy of credence.” Vessels v. Atlanta Independent School System, 408 F.3d 763,
771 (11th Cir. 2005) (quotation omitted); see also Rioux v. City of Atlanta, Ga., 520 F.3d 1269,
1278 (11th Cir. 2008) (“The plaintiff must demonstrate weaknesses or implausibilities in the
employer’s proffered legitimate reasons for its action sufficient for a reasonable factfinder to

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disbelieve the reasons.”). “If the proffered reason is one that might motivate a reasonable
employer, a plaintiff cannot recast the reason but must meet it head on and rebut it. …
Quarreling with that reason is not sufficient.” Wilson, 376 F.3d at 1088; see also Alvarez v.
Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010) (plaintiff may satisfy
burden of showing pretext “by showing that [defendant’s] proffered reasons are not credible”).
Upon careful review of the record and the parties’ respective arguments, the Court finds
that Denham has cast sufficient doubt on Wal-Mart’s stated explanation for reducing her work
hours that a reasonable factfinder could deem it unworthy of credence. A host of considerations
inform this determination. First, although defendant says the staggered scheduling change
occurred across the board, plaintiff’s evidence is that all other full-time stockers at the Fairhope
store continued to receive full-time hours after the change, while her hours were slashed to one
shift per week. Second, defendant’s explanation that Denham’s limited availability accounted
for her differential scheduling treatment is suspect because even when Denham increased her
availability to a window of 3:00 a.m. to 7:00 p.m. (at management’s behest), she was assigned no
additional hours. Rather, Denham testified that regardless of whether she expanded or
contracted her availability, she continued to receive the same meager number of scheduled hours
each week. Third, plaintiff’s evidence is that at least one other stocking employee (Marion
Gravely) continued to receive regular 7:00 a.m. to 4:00 p.m. shift assignments after the
scheduling change, even though Gravely’s availability was similar to (and, on many days, less
than) plaintiff’s. Fourth, plaintiff shows that when 7:00 a.m. – 4:00 p.m. stocking shifts were
available during peak times, Wal-Mart would fill those slots with temporary workers and assign
other full-time stockers to those shifts (paying them overtime compensation) rather than give
them to Denham, who was available to work. Fifth, plaintiff’s evidence is that Wal-Mart
selectively offered transfers and other accommodations to every stocker except Denham to work
with his or her stated availability and shift preferences. Sixth, plaintiff shows that Wal-Mart
offered a transfer to all other stockers to a backroom bending department with regular shifts of
7:00 a.m. to 4:00 p.m., but refused to offer the position to Denham, even though defendant knew
she was qualified and trained for the job and also knew how desperately she desired more
working hours. Seventh, plaintiff casts further doubt on defendant’s scheduling / availability
explanation by showing that her weekly hours increased to 30+ as soon as the alleged retaliator

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(Kevin Smith) left the Fairhope store, even though neither the scheduling parameters nor
Denham’s availability had changed.
Viewing the summary judgment record in the light most favorable to Denham, a
reasonable factfinder could determine that Wal-Mart’s stated explanation for the reduction in
plaintiff’s hours is plagued by inconsistencies and weaknesses that render it unworthy of
credence. The staggered shifts detrimentally affected Denham alone, while other full-time
stockers continued working full time. Plaintiff’s availability limitations for scheduling purposes
did not seem to matter, because (a) her hours did not increase even when she substantially
opened up her availability at management’s suggestion, and (b) at least one other stocker with
comparable availability constraints continued to receive full-time assignments, while Denham
did not. Wal-Mart accommodated other stockers’ preferences to allow them to keep working
full-time, but not Denham’s, even to the point of offering a backroom bending position to every
stocker other than Denham. Part-time workers and full-time stockers on overtime were assigned
shifts that Denham was available to work. And, perhaps most tellingly, Denham’s scheduled
hours rebounded sharply once the alleged retaliator left the Fairhope store, without any
modification in either Denham’s availability or the staggered shift system. This evidence readily
supports an inference of pretext and (when combined with the timing of the reduction in
plaintiff’s work hours) an inference that the real reason for the adverse action was unlawful
retaliation for Denham’s protected activity.9
9

In its reply brief, Wal-Mart does not confront the vast majority of these concerns,
but instead urges the Court to reject Denham’s Affidavit as speculative. To be sure, there are
spots in the Affidavit in which plaintiff couches her allegations in terms of what she “believes”
or “feels.” It is also true that a plaintiff’s mere opinion that she felt the employer discriminated
against her does not suffice on summary judgment. See Holifield v. Reno, 115 F.3d 1555, 1564
(11th Cir. 1997) (“While Holifield has testified that he felt discriminated against, his opinion,
without more, is not enough to establish a prima facie case of race discrimination.”). But the
factual averments recited above are couched as facts, not as statements of speculation, belief or
opinion; therefore, they must and shall be credited on summary judgment. With respect to the
“backroom bending” position, Wal-Mart counters that this job was not listed in Denham’s
“career preferences” and that “she never told management she wanted to be considered.” (Doc.
25, at 3.) Recall, however, that plaintiff’s evidence is that she had been trained and qualified for
that job, and that Wal-Mart offered the job to at least three different stockers. Defendant does
not explain why it passed over Denham. There is no evidence, for example, that the stockers to
whom Wal-Mart offered the job listed the backroom position in their “career preferences.” Nor
could those stockers logically have told Wal-Mart they wanted to be considered for the position,
(Continued)
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Because plaintiff has successfully rebutted Wal-Mart’s asserted legitimate non-retaliatory
reason for the reduction in her hours, the Court finds that genuine issues of material fact remain
as to whether Wal-Mart violated the anti-retaliation provisions of Title VII by cutting Denham’s
work hours drastically within weeks after she complained of race discrimination. Defendant will
not be granted summary judgment on this cause of action.
V.

Conclusion.
For all of the foregoing reasons, it is ordered as follows:
1.

Defendant’s Motion for Summary Judgment (doc. 19) is granted in part, and
denied in part. The Motion is granted with respect to plaintiff’s Title VII claim
of a racially hostile work environment, and that claim is dismissed with
prejudice. The Motion is denied with respect to plaintiff’s Title VII claim of
retaliation;

2.

This matter remains set for a Final Pretrial Conference before the undersigned on
April 9, 2013 at 1:30 p.m., with non-jury trial to follow in May 2013. If plaintiff
is not represented by counsel, she is reminded that she must personally attend the
Final Pretrial Conference, and must work with defendant’s counsel to prepare and
submit a joint pretrial document in accordance with this Court’s Standing Order
Governing Final Pretrial Conference (doc. 15-1); and

3.

The court file reflects that, to date, the lawyer who filed a Notice of Appearance
on plaintiff’s behalf has failed to follow the Clerk’s instructions to submit the
necessary paperwork to be admitted to practice in this Court. (See doc. 29.)
Until/unless this deficiency is corrected, the Court will not accept filings from this
attorney, and this attorney cannot represent plaintiff in these proceedings.

given plaintiff’s evidence that all of them declined the job when it was offered. So defendant’s
explanation on the “backroom bending” job offer is wanting in multiple respects. As for the
other aspects of plaintiff’s pretext argument (i.e., the lack of any tangible change in hours when
plaintiff opened up her availability, the differential treatment of employees like Gravely, the
assignment of shifts to temporary workers and regular workers on overtime even when Denham
was available for those shifts, the accommodation of every stocker’s preferences but Denham’s,
and the miraculous increase in plaintiff’s work hours as soon as Smith left the store), defendant
does not even attempt to address or explain them.

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Accordingly, the Court continues to regard the plaintiff as pro se, and directs the
Clerk of Court to mail a copy of this Order to plaintiff directly at her mailing
address of record.
DONE and ORDERED this 26th day of March, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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