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Trice v. Infinity Staffing Solutions, LLC

United States District Court, N.D. Georgia, Atlanta Division

August 16, 2017

TAMIKA TRICE, Plaintiff,
v.
INFINITY STAFFING SOLUTIONS, LLC d/b/a Lyneer Staffing Solutions, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Infinity Staffing Solutions, LLC d/b/a Lyneer Staffing Solutions' (“Defendant” or “ISS”) Objections [128] to Magistrate Judge Janet F. King's Final Report and Recommendation [124] (“R&R”). In her R&R, Magistrate Judge King recommends that Defendant's Motion for Summary Judgment [81] be denied.

         I. BACKGROUND

         A. Facts

         1. Defendant's Takeover at the UPS Warehouse

         Plaintiff Tamika Trice (“Plaintiff”) is an African-American woman. From April 2011 to October 2013, she worked as a mail sorter for Staffmark, a temporary staffing company, at the UPS Mail Innovations Warehouse (“UPS Warehouse”). (Plaintiff's Statement of Disputed Material Facts [95.1] (“PSMF”) ¶ 1; [95.3] at 38).[1] In October 2013, Defendant assumed Staffmark's staffing responsibilities for the Sort Department at the UPS Warehouse. (Defendant's Statement of Material Facts [84] (“DSMF”) ¶ 1; [87.1] at 69-70; [95.3] at 39). Several Staffmark employees, including Plaintiff, transferred to Defendant and continued working at UPS. (DSMF ¶ 2).[2] Plaintiff received the same pay and continued to work as a mail sorter. (DSMF ¶ 12).

         When Defendant replaced Staffmark, African-Americans constituted a majority of the UPS Warehouse staff. ([101] at 11). ISS Supervisor Veronica Burnice (“Burnice”) testified, during her deposition, that ISS Executive Vice President Robert Lake (“Lake”) told her that UPS wanted Defendant to “diversify” the workforce and “to get more Hispanics.” (PSMF ¶ 4). Latisha DeSota (“DeSota”) testified that her supervisor, Senior Recruiter Marisel Zayas (“Zayas”), had been instructed by Anwar Ahmed (“Ahmed”), an ISS Support Services Manager, to “hire a diverse workplace other than blacks” and that “she needed more candidates that were not black.” (PSMF ¶ 5; [101] at 11-12). Zayas referred to black applicants as “thugs” and “ghetto, ” and repeatedly directed DeSota to hire non-blacks. (PSMF ¶ 7). For example, while DeSota was speaking with an Asian applicant, Zayas whispered to her, “He's Asian, hire him.” ([101] at 32-33). Zayas also instructed DeSota to hire two women “because they were white.” ([101] at 89). Zayas hired an equal number of black and non-black applicants to work at the UPS Warehouse, even though approximately 80% of applicants were black. (PSMF ¶ 6). On November 4, 2013, Defendant terminated DeSota's employment, less than a month after she reported concerns about Defendant's discriminatory recruitment and hiring processes. (PSMF ¶ 8).

         Burnice testified that, shortly after Defendant replaced Staffmark, Lake walked through the UPS Warehouse and selected several black employees for termination on sight. (PSMF ¶ 10; [95.3] at 40). Burnice said that Lake did not ask her questions about the employees' performance, and that he “seemed to base his [termination] decisions . . . solely on their appearance.” ([95.3] at 40). Lake also told Burnice “not to call back” three black employees because they were talking as they worked. ([95.3] at 40-41; PSMF ¶ 10). Later that day, Lake praised two Hispanic employees who talked while they worked, and who worked more slowly than the black employees that Lake previously criticized. ([95.3] at 41; PSMF ¶ 10).

         2. Lopez's Pay Raise Comment and Failure to Prevent Racially Offensive Language

         On December 2, 2013, Plaintiff asked ISS Supervisor Carlos Lopez (“Lopez”) when she and her colleagues would get a pay increase. Lopez responded, “If you [were] Mexican, you would already have a raise.” (PMSF ¶ 13). Plaintiff immediately reported Lopez's comment to Burnice and provided a written statement describing the incident. (PSMF ¶¶ 14-15). Plaintiff also complained to Zayas that she “was being discriminated against” and that black employees were having their hours cut. (PSMF ¶ 15; [83.1] at 122). Lopez sent Plaintiff home shortly after she complained to Zayas. (PSMF ¶ 16). Defendant's disciplinary log states that Lopez sent Plaintiff home for “disorderly conduct” after Plaintiff “initiate[d] conversation . . . regarding pay unfairness based on race.” ([95.3] at 49).

         Zayas reported Plaintiff's complaint to Lake and Ahmed, who conducted an investigation into the matter. (PSMF ¶ 17; DSMF ¶ 18). Plaintiff told Lake about Lopez's comment, stated that she was being discriminated against, and complained that her hours were being cut because she was black. (PSMF ¶ 17). Lake spoke with Keyonna Davis, an ISS employee, who provided a written statement and corroborated Plaintiff's account of Lopez's comment. (PSMF ¶ 18). Lake and Ahmed concluded, based on their investigation, that Plaintiff and Lopez both acted inappropriately and that there was no evidence that African-Americans were denied a pay increase based on race. (DSMF ¶ 20). Lake explained his findings to Plaintiff, stating that Lopez was “not a bad person” and that Plaintiff had “misunderstood” Lopez's comment. (PSMF ¶ 19; DSMF ¶ 21).

         Plaintiff and ISS employee Takita Edwards (“Edwards”) testified that a Hispanic employee, named Will, often used the word “nigger” around black employees and said it to them directly. ([95.4] ¶¶ 23-26; PSMF ¶ 11; [83.1] at 93-94]. Will, on one occasion, said “I kill all them niggers.” (PSMF ¶ 11). Will continued to use the word after Plaintiff and Edwards reported his language to Lopez. (PSMF ¶ 12).

         3. Plaintiff's Reduced Work Hours

         In December 2013, Lopez assumed control over the work schedule at the UPS Warehouse. ([95.3] at 23; [87.4] at 269; [83.2] at 58). ISS Supervisor Antonio Edler (“Edler”) testified that the number of Hispanic employees grew substantially-by a factor of four or five-and that “the African-American ratio dropped tremendously.” ([83.7] at 40). Plaintiff was not assigned work from December 29, 2013, through January 7, 2014, which she claimed was unusual. (PSMF ¶ 20; [85.3] at 157-158, 179; [87.4] at 56; see ([95.3] at 23 (Plaintiff stating she “never missed a whole week”)).

         On January 6, 2014, Plaintiff submitted a written complaint alleging that Lopez removed her from the work schedule because of their “disagreement” on December 2, 2013. (PSMF ¶¶ 21-22; [95.3] at 23). When Lake and Ahmed investigated the complaint, Plaintiff told them that Lopez reduced her hours to retaliate for her complaint about Lopez's comment. ([85.4] at 162, 165; PSMF ¶ 23). Lopez told Lake that he tried to schedule Plaintiff for work but that Plaintiff said she was unavailable to work or she did not answer her telephone. (DSMF ¶ 24). Lopez said he focused on scheduling employees who were more reliable. (DSMF ¶ 24). Lopez also told Lake that there was less work available after the holiday season. (DSMF ¶ 25). Although Lopez and his team were trained to log “every employee concern, ” Plaintiff's disciplinary log, as of January 6, 2014, did not reflect any attendance or scheduling issues, other than a single day on which she reported car trouble and was unable to come to work. ([95.3] at 49; [87.3] at 177-178; PSMF ¶ 3). Lake instructed Lopez to confirm Plaintiff's availability by telephone and text message, to avoid conduct that could be perceived as retaliation, to schedule Plaintiff to work as much as possible, and to escalate any further problems to Lake and Ahmed. (DSMF ¶ 27; [85.4] at 51-52).[3]

         Plaintiff repeatedly complained to Zayas and Burnice that Lopez cut her work hours because she was black, and in retaliation for her discrimination complaint on December 2, 2013. ([83.2] at 43, 57, 134-135; PSMF ¶ 30). Burnice received similar complaints from other black employees. ([83.2] at 44). Burnice reported these complaints to Lopez, and told him that the black employees “who were displaced to make spots for the Hispanics [were] better at their jobs than the Hispanic people who were replacing them.” ([83.2] at 46, 133-134; PSMF ¶ 29). Burnice told Lopez that the staff changes “slowed down the mail processing” at the warehouse. (PSMF ¶ 29).

         Burnice testified that Plaintiff's hours “went down tremendously” in the months after ISS replaced Staffmark. ([83.2] at 27-28). Plaintiff worked 43.5 hours in November 2013, 89.75 hours in December 2013, 54.5 hours in January 2014, 43.25 hours in February 2014, and 37.75 hours in March 2014. (DSMF ¶¶ 16, 28, 35; PSMF ¶ 28). Defendant's “peak season” was from late November through approximately December 22, 2013. ([87.4] at 160, 237). Although Defendant initially experienced a decline in business after December 22, 2013, the volume of work went “back up” in the period that followed. ([87.4] at 167; PSMF ¶ 28; see also [83.7] at 50 (Edler testifying that “the mail volume picked up” after Lopez took control of the work schedule)).

         4. Plaintiff's Final Warning

         On March 5, 2014, Lopez, at Lake's direction, issued a written “Final Warning” to Plaintiff, alleging that she was “not reliab[le] on attendance or availability” and that it was “hard to communicate with her” about the work schedule. (PSMF ¶ 32; DSMF ¶ 32; [81.11]). A list of Plaintiff's alleged infractions, beginning December 23, 2013, was attached to the warning. (PSMF ¶ 37; [95.3] at 36-38).[4] Although Plaintiff sometimes was late or failed to report for work, she had not previously received a written warning. (PSMF ¶ 40; DSMF ¶ 14). The Final Warning stated: “Improvement on all areas is expected. Failure to comply with policies could be use [sic] for grounds of termination.” ([81.11]). Plaintiff wrote at the bottom of the Final Warning: “This is just a reason to get me terminated. When I want to be on call they don't call. When I call out I do it on time.” ([81.11]).

         Plaintiff immediately told Zayas that the Final Warning was retaliatory and that its allegations were false. (PSMF ¶ 38). Plaintiff showed Zayas her cell phone, explaining that she had not missed any calls from Defendant's onsite staff. (PSMF ¶ 39). Plaintiff also told Lake that she was being discriminated and retaliated against, that the attendance allegations were false, that she believed Defendant was trying to terminate her, and that she had not previously received a written warning. (PSMF ¶ 40).

         Defendant did not consistently enforce its disciplinary policies regarding attendance because “there was a substantial number of employees that were . . . non-compliant with the attendance guidelines.” ([87.4] at 209). During the first six months of Defendant's involvement at the UPS Warehouse, 90% of employees failed to report, or reported late, to work at least once, and up to 50% of employees incurred three or more unexcused absences. (PSMF ¶ 36; [86.3] at 62-64, 89-91, 95-100). Edler testified that at least 40% of employees were late more frequently or egregiously than Plaintiff, and that Hispanic employees who were late were treated more leniently than others. ([83.7] at 177-178). Burnice testified that Plaintiff's attendance was the same as the average employee at the UPS Warehouse. ([83.2] at 129).

         5. Plaintiff's Separation from Defendant

         Plaintiff did not work at the UPS Warehouse after March 14, 2014. (PSMF ¶ 41). On-Site Coordinator Indiana Palacios (“Palacios”) testified that, on March 21, 2014, Plaintiff picked up her paycheck from Defendant's office and told Palacios she was no longer “available to work due to issues going on at home.” ([88.3] at 111-112). Defendant then removed Plaintiff from the work schedule because “obviously [Defendant] couldn't confirm her for work.” ([88.3] at 113). Plaintiff testified that she did not ask to be removed from the schedule, did not state that she was unavailable to work, and did not ask to move to a different location. (PSMF ¶ 42). Plaintiff further testified that, from mid-March through mid-April 2014, she continued to visit Defendant's office, seeking work hours and asking Zayas why she had been removed from the work schedule. (PSMF ¶ 45). In April 2014, Plaintiff provided Defendant with a document certifying that she was medically cleared for work. (DSMF ¶ 38).

         B. Procedural History

         On September 28, 2015, Plaintiff filed her Complaint [1], asserting discrimination and retaliation claims under 42 U.S.C. § 1981. Count 1 asserts that Defendant “discriminated against [Plaintiff] in the terms and conditions of her contract because of her race by, among other things, reducing her hours, denying her a raise, and terminating her.” (Compl. ¶ 78). Count 2 asserts that Defendant “retaliated against [Plaintiff] in the terms and conditions of her contract because she opposed the company's race discrimination by, among other things, threatening her job, reducing her hours, denying her a raise, and terminating her.” (Compl. ¶ 87). The Complaint seeks declaratory relief, injunctive relief, back pay, reinstatement or front pay, and attorney's fees. (Compl. at 16).

         On October 17, 2016, Defendant filed its Motion for Summary Judgment. On July 5, 2017, the Magistrate Judge issued her R&R, recommending that Defendant's Motion for Summary Judgment be denied. The Magistrate Judge found that there is sufficient evidence to support that Plaintiff's conditions of employment were altered as a result of racial animus, and that there is sufficient evidence that Defendant's claimed reasons for the change in Plaintiff's work conditions were pretextual. The Magistrate Judge further found that a reasonable jury could find that there was a “but for” causal link between Plaintiff's protected activity and her reduction in hours and termination, and that Defendant's claimed reasons for its actions were pretextual. Finally, the Magistrate Judge found that Defendant failed to show its after-acquired evidence of Plaintiff's wrongdoing was so serious that immediate termination would have occurred. The Magistrate Judge recommended that Defendant's Motion for Summary Judgment be denied.

         On July 24, 2017, Defendant filed its Objections to the R&R and, on July 31, 2017, Plaintiff filed her response [129] to the Objections. Defendant argues that “[Plaintiff's] story that [Defendant] subjected her to race discrimination by denying her a raise, reducing her work hours, and terminating her employment [is] blatantly contradicted by the record.” ([128] at 12). Defendant argues further that a reasonable jury could not find that Defendant retaliated against Plaintiff by reducing her hours and terminating her employment. ([128] at 21-22). Defendant also objects to the Magistrate Judge's rejection of Defendant's after-acquired evidence defense. ([128] at 24).

         II. ...


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