United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Infinity Staffing
Solutions, LLC d/b/a Lyneer Staffing Solutions'
(“Defendant” or “ISS”) Objections
 to Magistrate Judge Janet F. King's Final Report
and Recommendation  (“R&R”). In her
R&R, Magistrate Judge King recommends that
Defendant's Motion for Summary Judgment  be denied.
Defendant's Takeover at the UPS Warehouse
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). In October 2013,
Defendant assumed Staffmark's staffing responsibilities
for the Sort Department at the UPS Warehouse.
(Defendant's Statement of Material Facts 
(“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). Plaintiff received the same pay and
continued to work as a mail sorter. (DSMF ¶ 12).
Defendant replaced Staffmark, African-Americans constituted a
majority of the UPS Warehouse staff. ( 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; 
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.” ( at 32-33). Zayas also instructed DeSota to
hire two women “because they were white.” (
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).
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).
Lopez's Pay Raise Comment and Failure to Prevent
Racially Offensive Language
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).
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).
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).
Plaintiff's Reduced Work Hours
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”)).
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).
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).
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)).
Plaintiff's Final Warning
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). 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.”
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).
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).
Plaintiff's Separation from Defendant
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).
September 28, 2015, Plaintiff filed her Complaint ,
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.
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.
24, 2017, Defendant filed its Objections to the R&R and,
on July 31, 2017, Plaintiff filed her response  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.” ( 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. ( at 21-22). Defendant also objects to the
Magistrate Judge's rejection of Defendant's
after-acquired evidence defense. ( at 24).