United States District Court, E.D. Arkansas, Pine Bluff Division
OPINION AND ORDER
Kristine G. Baker United States District Judge
the Court is defendant Verizon Wireless’
(“Verizon”) motion for summary judgment (Dkt. No.
34). Verizon moves for summary judgment on each of Ms.
Bumpass’ claims (Dkt. No. 34). Pending is a motion
filed by Ms. Bumpass requesting additional time to respond
(Dkt. No. 42). The Court grants that motion and considers Ms.
Bumpass’ response timely filed (Dkt. No. 42). Ms.
Bumpass responded in opposition to Verizon’s motion for
summary judgment, and Verizon replied (Dkt. Nos. 43, 46). Ms.
Bumpass then filed a “rebuttal to defendant’s
reply” and an “amendment to her memorandum and
rebuttal to defendants’ reply, ” which Verizon
moves to strike (Dkt. Nos. 49, 50, 52).
complaint, Ms. Bumpass brings the following claims against
Verizon: (1) discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, codified at 42 U.S.C.
§ 2000e et seq.; (2) discrimination in
violation of 42 U.S.C. § 1981; (3) discrimination in
violation of § 3 of the Equal Pay Act of 1963, 77 Stat.
56, codified at 29 U.S.C. § 201, et seq.; (4)
pursuant to 42 U.S.C. § 1983, alleged violations of the
equal protection clause of the Fourteenth Amendment of the
United States Constitution; (5) discrimination in violation
of Arkansas Civil Rights Act (“ACRA”), Arkansas
Code Annotated § 16-123-101 et seq.; and (6)
violations of Arkansas state law, including battery, breach
of contract, and the tort of outrage (Dkt. No. 1, at 1).
Bumpass claims that she worked for Verizon from 2006 to 2010
in Waco, Texas; that she was transferred to a store in Little
Rock, Arkansas, in 2010 and worked there for eight months;
and then that she was transferred to a store in Pine Bluff,
Arkansas, in October 2010 (Id., at 3-4).
Specifically, she complains of acts she alleges were taken by
agents of Verizon with responsibility for the store where Ms.
Bumpass worked, including Grant Leisure who was the District
Manager; Katy Holmes, the Human Resource Representative; and
Darrel Adams, the Assistant Manager (Id., at 3). In
part, she alleges that “[p]ursuant to companywide,
statewide and individual store patterns and practices [she]
was not afforded promotions and/or pay increases, commiserate
with black or male counter parts. . . .” (Id.,
at 4). She also contends that, in 2015, she was discharged
allegedly in retaliation for complaining about harassment,
retaliation, and hostile work environment directed toward her
on the basis of age, race, and gender (Id.).
Findings Of Fact
filed a statement of undisputed material facts in support of
its motion for summary judgment (Dkt. No. 36). Ms. Bumpass
filed a response to Verizon’s statement and filed her
own statement of facts along with her response to
Verizon’s motion for summary judgment (Dkt. Nos. 44,
45). Verizon moved to strike Ms. Bumpass’
“unsupported responses” within her statement of
facts (Dkt. No. 47). Ms. Bumpass also responded to
Verizon’s motion to strike (Dkt. No. 51). Verizon then
moved to strike Ms. Bumpass’ rebuttal to
Verizon’s reply, the amendment to Ms. Bumpass’
rebuttal, and Ms. Bumpass’ response to Verizon’s
original motion to strike (Dkt. No. 52).
following reasons, the Court grants, in part, and denies, in
part, Verizon’s motion to strike plaintiff’s
unsupported allegations and unsupported responses to
defendant’s statement of undisputed material facts
(Dkt. No. 47). The Court grants, in part, and denies, in
part, Verizon’s motion to strike Ms. Bumpass’
rebuttal and amendment to her rebuttal to Verizon’s
reply and to strike Ms. Bumpass’ response to
Verizon’s original motion to strike (Dkt. No. 52).
Bumpass and Verizon both filed statements of undisputed
material facts (Dkt. Nos. 36, 44). Each side responded to the
other’s statement of undisputed material facts (Dkt.
Nos. 45, 47). The following facts are taken from both
statements of undisputed material facts to the extent that
the parties agree on the facts, except where specified by
citation. To the extent the parties disagreed on purported
statements of undisputed material fact, the Court has not
deemed those facts undisputed. In reaching a determination on
the pending motion for summary judgment, the Court has
reviewed the record evidence in this case in the light most
favorable to Ms. Bumpass, as the Court is required to do at
Bumpass was formerly an employee of Verizon, and she was most
recently employed at the Pine Bluff, Arkansas, location as a
sales consultant (Dkt. No. 36, ¶ 1). She was an at-will
employee (Id., ¶ 2). She worked at the Pine
Bluff location from 2010 to 2015 (Id., ¶ 3).
She transferred to the Pine Bluff location during the last
part of September or the first part of October 2010 (Dkt. No.
44-1, at 13). She was consistently one of the top sales
people at the Pine Bluff location (Id., ¶ 4).
She made more money than Shannon Wilson, a male co-worker at
the Pine Bluff location (Dkt. No. 36, ¶ 5).
2014, Ms. Bumpass activated a new customer account, which
included running a credit check for the new customer, over
the phone without having the new customer present in the
store (Id., ¶ 6). Ms. Bumpass, in her
deposition, did not contest that this event occurred,
although she clarified that the customer paid Ms. Bumpass
cash that Ms. Bumpass then deposited into “the
drawer.” (Dkt. No. 44-1, at 14).
Bumpass contends that “[n]otwithstanding written policy
prohibiting such actions, ” this action did not violate
Verizon’s “defacto” policy (Dkt. No. 45,
¶ 7). The record evidence includes Verizon’s
“ID Requirements” policy, which states that
“[a]ll employees must authenticate the identities of
partners and customers when performing sales transactions,
” including “new activations, ”
“equipment upgrades, ” and “contract
renewals.” (Dkt. No. 36-1, at 6). The ID Requirements
policy also states that “an acceptable form of ID must
be presented and verified for all transactions requiring
authentication.” (Id.). Katie Mosley, a Senior
Manager with Verizon, avers that “[a]ctivating a new
account (which would include checking a new customer’s
creditworthiness and obtaining their signature on the
contract terms and conditions for service) over the phone is
against Verizon policy” and is a “terminable
offense.” (Id., at 2). Jonathan Grant Laisure,
a Project Manger for Verizon who was a District Manager for
the region including the Pine Bluff, Arkansas, location from
December 2014 until December 2016, also avers that activating
a new account over the phone is against Verizon policy (Dkt.
No. 36-5, at 1).
time, Ms. Bumpass’ supervisor was Kisha White (Gaddy)
(Dkt. No. 36, ¶ 8). In late October 2014, Ms. Gaddy
learned that Ms. Bumpass had activated the new account over
the phone when the customer had questions about the service
and requested a refund; Ms. Gaddy was told that the customer
had not been informed about the charges she was incurring
(Id., ¶ 10). The record evidence includes an
email dated October 22, 2014, from Darryl Adams to Ms. Gaddy
in which he explains that he spoke with Shirley Owens who
told him that she went into a store in California to get
information about a Verizon service and that she then called
into the Pine Bluff location (Dkt. Nos. 36-1, at 5; 44-3, at
1, 4). Ms. Owens told Mr. Adams that Ms. Bumpass helped her
set up services over the phone (Id.). Mr. Adams
noted that there were two accounts open for Ms. Owens,
“one for the Sure Response and HPC.”
(Id.). Mr. Adams stated that Ms. Owens claimed that
Ms. Bumpass did not tell her that the Sure Response service
was extra and would cost an extra $30.00 a month in addition
to the HPC service (Id.). Mr. Adams also noted that
he “[p]ulled up the order number and the contract is
not signed, this is a clear indicator that [the] process was
done without the customer being in the store.”
Mosely and Mr. Laisure aver that activating a new account and
checking creditworthiness of a new customer over the phone is
against Verizon’s Code of Conduct (Dkt. No. 45, ¶
11). Ms. Bumpass contends that, contrary to Verizon’s
written policy and based on the defacto policy, her actions
were permitted (Id.). The record evidence includes
Verizon’s Code of Conduct, which states that “the
customer must be clearly informed of all monthly and per-use
fees and any other material terms and restrictions for
obtaining the advertised rate in marketing and promotional
materials.” (Dkt. No. 36-1, at 9). Ms. Moseley and Mr.
Laisure aver that failing to warn a customer about continued
charges is against Verizon’s Code of Conduct (Dkt. Nos.
36-1, at 2; 36-5, at 1). Ms. Bumpass disputes this
contention, claiming that no such failure has been
established and that there is no specific rule which declares
her alleged actions were a code violation under the
circumstances (Dkt. No. 45, ¶ 12).
Gaddy also learned that, earlier in 2014, Ms. Bumpass had
processed a transaction for a friend on which she earned a
commission (Dkt. Nos. 36-2, at 4-5; 44-3, at 5). In her
deposition, Ms. Bumpass admits that in August 2014 she
activated a line of service for a friend and was paid a
commission on the sale (Dkt. No. 44-1, at 14).
Moseley and Mr. Laisure aver that processing a transaction
for friends or family is against Verizon’s Code of
Conduct (Dkt. Nos. 36-1, at 2; 36-5, at 1. Verizon’s
Code of Conduct states that “[y]ou may not access
account information concerning yourself, your friends,
acquaintances, family or co-workers without prior approval by
your supervisor.” (Dkt. No. 36-7, at 1). Ms. Bumpass
disputes that such conduct violates Verizon’s Code of
Conduct (Dkt. No. 45, ¶ 14).
point, Verizon learned that Ms. Bumpass had asked Mr. Wilson
about adding a line to Ms. Bumpass’ account. Mr. Wilson
then asked Ms. Gaddy what he should do, and he was advised
not to touch Ms. Bumpass’ account (Dkt. No. 36-8, at
1). Later, Ms. Bumpass asked Mr. Wilson for his tablet, which
he gave her (Id.). Mr. Wilson told Ms. Gaddy that
Ms. Bumpass then started “to process the transaction by
typing her number in and [Mr. Wilson] . . . doesn’t
remember at what point . . . he took over processing the
account but did state that he finished the transaction and
activated the phone.” (Id.).
November 24, 2014, Ms. Moseley and Ms. Gaddy interviewed Ms.
Bumpass, and the notes from that interview are part of the
record evidence. Ms. Bumpass was asked about the transaction
with Shirley Owens, and Ms. Bumpass explained that Ms. Owens
has a cousin in Warren, Arkansas, named “Lula”
who is blind (Dkt. No. 44-6, at 1). According to the notes
from the interview, Ms. Bumpass explained that Ms. Owens
asked if Ms. Bumpass could assist her cousin in obtaining a
home phone and asked Ms. Bumpass to run her cousin’s
credit over the phone (Id.). Ms. Bumpass claimed
that, out of compassion for the cousin, who is blind and
without a home computer, Ms. Bumpass ran the transaction
(Id.). She admitted that she did not get anyone in
leadership involved in the transaction (Id., at 2).
Further, although Ms. Bumpass did collect some money for the
transaction from the cousin, Ms. Bumpass also admitted that
she covered a portion of the cost of the transaction out of
her own pocket (Id.).
January 9, 2015, Ms. Moseley and Mr. Laisure met with Ms.
Bumpass about the transaction involving the friend (Dkt. No.
44-7). There are notes regarding this meeting
parties do not dispute that Verizon’s records indicate
that, on January 16, 2015, Ms. Gaddy submitted to Verizon
management a request for Ms. Bumpass’ termination (Dkt.
No. 45, ¶ 18). The parties do not dispute that Ms.
Bumpass had a good relationship with Ms. Gaddy, the manager
who recommended her termination (Id., ¶ 21).
The parties do not dispute that Ms. Bumpass filed her charge
with the Equal Opportunity Commission (“EEOC”) on
June 26, 2015 (Id., ¶ 24). In her deposition,
Ms. Bumpass testified that her lawyer assisted her with
filing the EEOC charge in June 2015, and she agreed that her
statements in the charge reflected her complaints at the time
(Dkt. No. 44-1, at 16). There is record evidence that the
EEOC issued its dismissal and notice of right to sue to Ms.
Bumpass on February 18, 2016 (Dkt. No. 1, at 7). Further, the
parties do not dispute that Ms. Bumpass filed her complaint
in this action on April 8, 2016 (Dkt. No. 45, ¶ 26).
Record Evidence Related To Disputed Issues Of Fact
reaching a determination on the pending motion for summary
judgment the Court has reviewed the record evidence in this
case in the light most favorable to Ms. Bumpass, as the Court
is required to do at this stage. The Court recites certain of
that record evidence here.
Promotions At Pine Bluff
Bumpass contends that she applied for promotions at the Waco
and Pine Bluff stores (Id., at 17). In that portion
of her EEOC intake questionnaire where she lists incidents of
discrimination specifically, Ms. Bumpass does not list the
denial of a promotion at the Pine Bluff store. She does list
the denial of promotions at the Waco store (Dkt. No. 44-4, at
2-3). Despite this, in her deposition, Ms. Bumpass
represented that she applied for an assistant manager and
manager position at the Pine Bluff store once (Dkt. No. 44-1,
at 17). She was unsure of the date she applied, although she
said it was around the time Ms. Gaddy and Robin Trotter, who
is an African American female and who held the position of
assistant manager at the Pine Bluff store, started
(Id.). Ms. Bumpass recalled that she applied through
the PeopleSoft system but admitted that she received no
acknowledgment or receipt of her application that time,
despite having received such acknowledgments in the past
(Id.). Further, she testified that she did not have
a manager at the time to ask about her application being
Prior Complaints About Pine Bluff
Bumpass alleges that, while she worked in the Pine Bluff
store, members of management “handed off”
customers who walked into the store to African American
employees and male employees, instead of to her (Dkt. No.
44-1, at 18-19). She asserted a similar claim in her EEOC
intake questionnaire (Dkt. No. 44-4, at 6). She claims that
she complained about this to several members of management at
the Pine Bluff store, asking why they were steering customers
to employees of other races despite Ms. Bumpass standing
there ready to greet customers (Dkt. No. 44-1, at 18-19).
Despite these alleged actions, Ms. Bumpass concedes that she
was a “Winner’s Circle finalist for three years,
” meaning that she was actually doing better than the
other salespeople (Id.).
respect to prior complaints about alleged conduct, Ms.
Bumpass on her EEOC intake questionnaire claimed that she
told Mr. Laisure about what she considered to be some
harassment (Dkt. Nos. 44-1, at 20; 44-4, at 7). Ms. Bumpass
claims that she reported Lemuel Smith, who is an African
American male and who was a co-worker and later an assistant
manager at the Pine Bluff store, according to Ms. Bumpass.
Ms. Bumpass claims that Mr. Smith acted “extremely
aggressive . . . in regards to approach, in regards to
conversation, in regards to – almost like a bully
action where, you know, if you don’t do what I tell you
to do, I’ll write you up.” (Dkt. No. 44-1, at
20). Although Ms. Bumpass described an incident at the Pine
Bluff store involving Mr. Smith threatening to strike another
employee, she admits that Mr. Smith’s conduct in that
incident was directed at another employee, not her
(Id.). Further, she testified that Verizon
investigated that incident (Id.).
Bumpass maintains that she used the words
“discrimination and race” when complaining to Mr.
Laisure (Id., at 22). According to Ms. Bumpass, she
described to him her observation of “the favoritism of
sale staff – and discrimination between male and
female, black and white.” (Id.). She claims to
have told him specifically about certain incidents that
happened to her and how she hoped he would work to
“deter that type of behavior.” (Id.).
She admits that she only made a verbal complaint; she did not
memorialize her conversation with him in any way
(Id.). Further, she admits that she never went to
Human Resources or compliance with these complaints
(Id.). As Ms. Bumpass explained it, she understood
to start by reporting her complaints to management and then
to Human Resources or compliance if a complaint was not
resolved (Id.). She testified that, if she believed
an issue had been resolved, she did not go to Human Resources
or compliance (Id.).
Bumpass also claims that she complained to Ms. Gaddy about
Mr. Smith (Id.). She admits that her complaints were
verbal; she did not submit written complaints or emails
(Id.). Further, although she acknowledges that
Verizon has a confidential compliance line for employees to
call to file complaints, Ms. Bumpass admits that she did not
do that (Id.). Ms. Bumpass contends that she
complained about Mr. Smith at least three times to Ms. Gaddy
(Id.). She asserts that the first complaint to Ms.
Gaddy involved the way Mr. Smith purportedly spoke to the
sales staff (Id.). She claims the second complaint
was in relation to Mr. Smith taking a customer with whom she
was working and giving that customer to another sales person
in November 2014 (Id.). The third complaint involved
Mr. Smith’s alleged failure to assist her with
customers’ accounts (Id., at 21-22). Ms.
Bumpass admits that she did not report any of these incidents
to Human Resources or compliance and that she was under the
impression that management at the Pine Bluff store was taking
care of the situations (Id., at 22).
Ms. Bumpass claims Mr. Smith told her she would not succeed
because she was white, she admits that Mr. Smith said this
before he became a manager (Id., at 42). Ms. Bumpass
also alleges that Mr. Smith made comments that women
“should not be in the position of sales, that women are
– basically should be at home washing dishes and having
babies. . . .” (Id., at 21).
Bumpass contends that she and another female employee told
Mr. Smith, during this conversation, that he was being very
discriminatory against women (Id.). Ms. Bumpass
admits that Mr. Smith, as an assistant manager at the Pine
Bluff store, never disciplined her in writing but instead
just took her to the side and had conversations with her
about work and performance goals (Id.). Ms. Bumpass
contends that she reported Mr. Smith’s alleged conduct
to Ms. Gaddy and assistant managers Jeffie Ford, who is
female, and Ms. Trotter, but Ms. Bumpass acknowledges that
she never made a written complaint, complained by email, or
called the compliance hotline in regard to Mr. Smith
(Id.). Ms. Bumpass admits that she was encouraged to
bring problems to management but was aware that, if
management could not resolve the issue, she could go to Human
Resources or compliance (Id.). With respect to Mr.
Smith’s conduct, Ms. Bumpass admits that, after she
spoke with Ms. Gaddy about the situation, Mr. Smith spoke to
Ms. Bumpass differently, and Ms. Bumpass did not feel the
need to speak with Human Resources or compliance
(Id.). Mr. Smith testified that he had no
involvement in the decision to terminate Ms. Bumpass (Dkt.
No. 44-10, at 10).
Bumpass also claims to have complained to Ms. Gaddy about
language, referring to the “N-word” being used by
co-workers; that she believed several assistant managers were
showing favoritism to sales staff; and that she felt slighted
by not being asked to attend a kickoff function while other
employees were asked (Id., at 26). When pressed, Ms.
Bumpass claimed to have told Ms. Gaddy she believed the
favoritism was occurring because of race (Id., at
Bumpass also testified about being brought in by Ms. Trotter
and asked not to use the word “Hon” when
referring to customers (Dkt. No. 44-1, at 24). Ms. Bumpass
takes issue with this counseling because she claims that
other employees, specifically African American males, were
permitted to say, “What’s up, my dog?” or
more offensive language to greet customers (Id., at
24-25). Ms. Bumpass admits that, when she raised this issue
with Ms. Trotter, Ms. Trotter spoke to the other employees
about their language and that those comments stopped when
managers were around (Id., at 25). Further, Ms.
Bumpass claims to have reported to Ms. Trotter the
“reference of color distinction and the reference of
age, ” but because Ms. Bumpass believed that Ms.
Trotter addressed it, Ms. Bumpass did not take her complaints
to Human Resources or compliance (Id., at 26).
Ms. Bumpass claims generally that, during 2014, she and
female workers “were subject to unwanted and offensive
touching, vulgar and suggestive language and co-workers,
” (Id., at 24), when asked specifically about
language, Ms. Bumpass claimed that one co-worker referred to
her as “white lady” several times in
conversations with customers (Id., at 25) and that
“most of the guys” called her “old
lady.” (Id.). She specifically identified
Shannon Wilson as the individual who referred to her as
“white lady, ” and Fernando and Mr. Smith who
referred to her as “old lady.” (Id.).
She testified that this went on during 2013 and 2014, that
she confronted these individuals about their language, but
that their comments did not stop (Id.). Instead,
according to Ms. Bumpass, these co-workers told her
“jokingly” not to “be so sensitive.”
(Id.). Ms. Bumpass admitted that she did not bring
these comments up with anyone else
when asked to describe the events on which she bases her tort
of outrage claim, Ms. Bumpass described an incident in which
she requested days off while her husband was in the hospital,
but her request “was denied and given to a person of
color that had not been with the company as long as [Ms.
Bumpass] had.” (Id., at 28). Ms. Bumpass
admitted that she was told by Ms. Gaddy that the other
employee had requested the days off before Ms. Bumpass had
submitted her request, but Ms. Bumpass claimed that was false
(Id., at 29). Ms. Bumpass then cited favoritism
(Id.). There is an email exchange between Ms. Gaddy
and Ms. Bumpass regarding this request (Dkt. No. 44-3, at 6).
When describing one of her examples of favoritism by
explaining that certain employees were permitted to pre-sell
inventory stock, Ms. Bumpass admitted that Babe Free was
permitted to do that, too. (Dkt. No. 44-1, at
By Ms. Bumpass’ admission, Ms. Free is a Caucasian
female who at the time was over 40 years of age (Dkt. No.
44-4, at 5). Those were the only events Ms. Bumpass cited
when asked to describe all events on which she based her tort
of outrage claim.
testimony, Ms. Free explained that she perceived Ms. Gaddy to
be hostile and negative by going behind people’s backs
and pitting co-workers against one another (Dkt. No. 44-9, at
8). When asked whether Ms. Gaddy did this based on race, Ms.
Free clarified that Ms. Gaddy did it to all co-workers
(Id.). Further, Ms. Free said that her co-workers
never treated her in the way she perceived Ms. Gaddy treated
Ms. Bumpass claims that she was discriminated against due to
her status as a Native American, when asked about this, Ms.
Bumpass testified that she believed that she was
discriminated against on the basis of her “skin
color” and conceded that many references she relied on
for this claim were “white” references, not
Native American references (Dkt. No. 44-1, at 30).
Alleged Comparator Conduct
EEOC intake questionnaire, Ms. Bumpass contends that other
Verizon employees “did the same thing but were not
disciplined.” (Id., at 22; Dkt. No. 44-4, at
7). Ms. Bumpass claims that everyone ran credit on new
customers to see if those customers qualified over the phone
without the customers in the store (Dkt. No. 44-1, at 22-23).
She maintains that it was done “under directions of
management, ” including Ms. Gaddy (Id., at
23). Ms. Bumpass claims that she saw other employees switch
friends and family over to personal accounts or employee
accounts (Id.). She claims it “was just
something that was not actually pointed out to [employees] as
– as could be a violation.” (Id.).
Free testified that, to gain access to credit reports,
“the customer had to be in front of you. You had to get
a picture ID.” (Dkt. No. 44-9, at 7). She admitted
that, when she first started working at Verizon, employees
were permitted to do things over the phone but that, at a
certain point, the policy changed (Id.). When the
policy allowed it, according to Ms. Free, Ms. Gaddy approved
of it (Id.). Ms. Free also recalled activating
phones for customers who were not in the store, but she
recalled that happening for existing customers (Id.,
at 8). Ms. Free testified that, after the policy changed,
some employees continued this practice “under the
table, ” and Ms. Free admitted that she did not know
for a fact whether Verizon managers were aware of this at the
Smith testified that employees accessed customer accounts
from time-to-time without the customer being in the store
(Dkt. No. 44-10, at 8). He clarified that this was done for
existing customer accounts that were in the system; new
customer accounts to be created were not in the system and
could not be accessed in this way (Id., at 9). Mr.
Smith also testified that, if an employee had a personal
account as well as an employee account, he understood ...