Bumpass v. Verizon Wireless

          OPINION AND ORDER

          Kristine G. Baker United States District Judge

         Before 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).

         In her 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;^[1] (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).

         Ms. 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.).

         I. Findings Of Fact

         A. Procedural History

         Verizon 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).

         For the 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).

         Ms. 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 this stage.

         B. Factual Background

         Ms. 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).

         In late 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).

         Ms. 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, ^[2]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^[3] 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).

         At the 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.” (Id.).

         Ms. 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).

         Ms. 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).

         Ms. 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).

         At some 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.).

         On 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.).

         On January 9, 2015, Ms. Moseley and Mr. Laisure met with Ms. Bumpass about the transaction involving the friend (Dkt. No. 44-7).^[4] There are notes regarding this meeting (Id.).

         The 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).

         C. Record Evidence Related To Disputed Issues Of Fact

         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 this stage. The Court recites certain of that record evidence here.

         1. Promotions At Pine Bluff

         Ms. 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 received (Id.).

         2. Prior Complaints About Pine Bluff

         Ms. 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.).

         With 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.).^[5]

         Ms. 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.).

         Ms. 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).

         Although 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).

         Ms. 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).

         Ms. 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 27).

         Ms. 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).

         Although 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 (Id.).^[6]

         Further, 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 29).^[7] 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.

         In her 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 her (Id.).

         3. Racial References

         Although 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).

         4. Alleged Comparator Conduct

         In her 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.).

         Ms. 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 time (Id.).

         Mr. 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 ...