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Pipkins v. Service Corporation International

April 24, 2008


The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge

Chief Judge Curtis L. Collier


Before the Court is the motion for summary judgment (Court File No. 37) filed by defendants Service Corporation International, SCI Management, SCI Tennessee Funeral Services Inc., Eugene M. Pike, Jr., and Tim Brown ("Defendants"). Defendants filed a memorandum in support of their motion (Court File No. 40), plaintiff Florence Pipkins ("Plaintiff") filed a response (Court File No. 44), and Defendants filed a reply (Court File No. 47). For the following reasons, the Court will GRANT IN PART and DENY IN PART the summary judgment motion (Court File No. 37).


A. Plaintiff

Plaintiff, who is female, is a member of the Seventh Day Adventist Church, and part of her religious observance involves performing no work from sundown Friday to sundown Saturday (Pl. dep., p. 30). Her parents are white and Indian but she has African-American ancestry (Pl. dep., p. 60).

B. The Defendants

SCI Tennessee Funeral Services does business as Chattanooga Funeral Home ("CFH"), which has four funeral homes and two cemeteries in the Chattanooga area (Pl. dep., p. 73; Lovin dep., p. 5; Pike dep., p. 17). Defendant Pike is president of CFH (Pike dep., p. 6). Defendant Brown is CFH's sales director, and is responsible for hiring and terminating sales counselors (Brown dep., pp. 6-7; Pike dep., p. 18).

Service Corporation International ("SCI") is CFH's parent company (Lovin dep., p. 6; Brown dep., p. 13). SCI provides employment forms, handbooks, and employment contracts for employees, and sets policy and procedures for CFH (Brown dep., pp. 13, 21-22). Paperwork for newly hired employees is sent to SCI, as are sales documents (Lovin dep., pp. 6, 25, 34). Employee sales records have the words "Service Corporation International" at the bottom (Court File No. 46). SCI also provides online classes for employees (Brown dep., p. 36). SCI Management is CFH's management company (Pike dep., p. 37).

C. Plaintiff's Employment With Defendants

In January 2004, Brown interviewed Plaintiff for a sales counselor position at Valley View funeral home. At the first interview, Plaintiff told Brown she was a Seventh-Day Adventist. After a second interview, conducted with Brown and Pike, Plaintiff was hired (Pl. dep., pp. 63, 66, 72, 74). She began work on February 9, 2004 (Brown dep., ex. 48).

There was only one other sales counselor at Valley View, Dick Butler, who is a white male. Butler, who had worked for CFH for over 20 years, had the same $20,000 monthly sales quota as Plaintiff. When she began work, Butler asked Plaintiff about her sales goals; when she communicated them to him, she contends Butler stated that if she met her goals, it would cause him to get fired (Pl. aff., ¶ 3). Plaintiff believed Butler and others attempted to divert sales from her. For instance, Plaintiff had put business cards in the kitchen and ladies' restroom at Valley View, but they were removed during her first month of work and again the next month (Pl. aff., ¶¶ 4-5). Butler testified that he put his cards in the ladies' restroom but implied that he did not remove her cards (Butler dep., p. 23).

Because of her conflict with Butler, Plaintiff sought to be transferred to a different CFH location (Pl. dep., p. 147). Brown told Plaintiff she could work at their North Chapel site but it would require she work on Saturday (Pl. dep., p. 148). The North Chapel site needed sales counselors seven days a week, and Plaintiff was willing to work every Sunday but not on Saturdays because she is a Seventh-Day Adventist (Pl. dep., p. 149). The transfer did not occur.

In March 2004, Plaintiff's first full month of employee, she exceeded the quota by $11,000 (Pl. dep., p. 120). That month, Plaintiff and Butler had approximately equal number of floor days (Court File No. 44-18, p. 1), which are when a sales counselor remains in the building to handle sales made by callers or walk-ins. On one of Plaintiff's floor days, the family of a deceased individual came to the building to make funeral arrangements, but Butler made the sale because he said he had taken care of the family previously (Pl. dep., ex. 13). Plaintiff complained to Brown about this incident (id.).In April 2004, the floor schedule was changed so Butler had 14 floor days and Plaintiff had 8 (Court File No. 44-18, p. 2). The schedules for May and June 2004 were similarly unequal (Court File No. 44-18). Plaintiff complained to another manager in May that the floor days were unfair (Pl. aff., ¶ 6). In July 2004, Plaintiff was scheduled for some extra floor days at other CFH facilities (Pl. dep., p. 230). Later, assistant sales manager Kathy Landrum reassigned floor days as Valley View to equalize Plaintiff's and Butler's floor days, but Brown revised the schedule, giving Butler more floor days (Pl. aff., ¶ 8).

In May, with $18,000 in sales, Plaintiff barely missed her quota (id.). The following month, in June, Brown sent Plaintiff a written warning for having not met her sales quota twice in a six-month period, and warned that she could be terminated for failure to meet the quota for a third time in a six-month period (Pl. dep., ex. 12). The next month, June, Plaintiff did meet her sales quota (Pl. dep., p. 131). In December 2004, Plaintiff received a second written warning for her failure to make quota twice since September, but she made quota in December (Pl. aff., ¶ 15). She received no other written warnings until August 8, 2005, but she was terminated before having the opportunity to meet her quota for August (Pl. aff., ¶ 16).

Brown testified that no sales counselors met their quotas every single month, and there were no repercussions for failing to meet the quota for one month (Brown dep., p. 197). If a sales counselor did not meet the quota for three months, there would be a verbal reprimand (Brown dep., p. 197). After a fourth month, the counselor would receive a written reprimand, and the counselor would typically be terminated for not making the quota for a fifth month (Brown dep., p. 198).

Plaintiff also complains of a number of other incidents: Newspaper ad: In December 2004, CFH ran a full-page newspaper advertisement with pictures of their personnel (Pl. dep., ex. 17). Butler was included but Plaintiff was not. Several women were included in the ad. Employees selected for the ad had either a long tenure with the company or were employed in managerial positions (Pike dep., pp. 47; S. Pike dep., pp. 77-78).*fn1

Slavery comment: In May 2005, a discussion between Plaintiff and Mary Jo Vaughn, an elderly part-time reception, led Vaughn to note that both women had ancestors with the same last name. Plaintiff testified Vaughn said, "Your family must have been one of our slaves." Until that point, the two had a great relationship. Plaintiff did not report Vaughn's comment to Pike or Brown, but she did tell Landrum, who told Brown, who told Pike. Pike eventually talked to Vaughn about the comment (Pl. dep., p. 218-19; Brown dep., p. 53; Vaughn dep., p. 17).

Pike's comment: In June 2005, a black man passed away (Pl. dep., pp. 223-27). Services were at CFH's East Chapel facility, which is where Plaintiff encountered the man's family and learned no family service counselor was assigned to them. Plaintiff was given the opportunity to take care of them, which she accepted. She insists no one was going to be assigned to the family (id.). A couple days later, at an employee sales meeting, Plaintiff testified Pike referred to the incident and said, "We're going to get more of 'those' families," followed by, "I'm not a racist, am I?" (Pl. dep., p. 249). Pike denies making the statement (Pike dep., p. 21).

Stratford House: Plaintiff scheduled a seminar at a nursing home, the Stratford House. Although Plaintiff had scheduled a seminar at the nursing home, Brown accused her of lying about having scheduled a seminar based on conversations with people at the nursing home other than the person Plaintiff had spoken to (Pl. dep., pp. 182-85; Baxter dep., p. 15; Court File No. 44-21).

Ann Allen: On July 23, 2005, Ann Allen, a friend of Plaintiff's, went to Valley View to purchase a funeral book. Allen knew Plaintiff worked there and wanted to make the purchase from Plaintiff. She asked to speak to Plaintiff but Vaughn told Allen Plaintiff was not there, even though it was one of Plaintiff's floor days and she was apparently in the building (Allen dep., pp. 9-10, 13; Pl. dep., pp. 258-261). Plaintiff told Landrum about this incident (Pl. dep. II, p. 16).

Annise Dodson: Another time in July, Annise Dodson called Valley View and spoke to Vaughn. She told Vaughn she would be late to a meeting with Plaintiff at her home, but Vaughn did not relay the information to Plaintiff, who waited in Dodson's driveway for almost an hour (Pl. dep., pp. 257-58).

End of Life Meeting: Plaintiff was involved in an organization, which was holding a meeting on end of life issues. Plaintiff suggested to Defendants that someone from CFH speak, but the company refused because a previous seminar had not resulted in sales, and Plaintiff was told to focus on sales. Rather than allow someone from a different funeral home to speak, Plaintiff convinced Brown that a CFH employee should speak, and as a result, a CFH employee did speak (Pl. dep., pp. 178-82 & ex. 24 & 25).

Employee directory: Plaintiff's name was never typed into the CFH phone list (Pl. dep., p. 213). She complained about the omission to Landrum (Landrum dep., pp. 19-20). Plaintiff's name was handwritten onto the phone list at Valley View, as were the names of two Caucasian male employees (Pl. dep., pp. 213-15, ex. 32A).

Action plan: On August 8, 2005, Brown sent Plaintiff an "action plan," indicating Plaintiff was "at risk." Plaintiff thought she was not in danger of losing her job because she was going to meet her sales quota. But she was upset that Brown was not addressing her complaints that sales were being diverted to Butler (Pl. dep., pp. 186-89, ex. 26).

Gross/Harrison: In August, Plaintiff was upset that a family asked specifically for her but the sale was made a different sales counselor, John Janik. Plaintiff recalled the name of the family as Gross, but CFH believes it was the Harrison family. It appears the Grosses were friends of the Harrisons, and that Janik made sales to both families in July and August. Peggy Harrison testified that she was referred to Plaintiff, and met with her to make a purchase in the summer of 2005. Harrison said she was pleased with Plaintiff's service, and never told anyone at CFH otherwise. Shortly after the purchase, Janik called the Harrisons about a problem, and the Harrisons "completed a second set of documents" with CFH because they felt the first policy was too expensive. Janik testified he was under the impression the Harrisons were upset about having to go over documents multiple times, and it was possible they were upset with Plaintiff. Brown testified he talked to Janik about the matter and was under the impression the Harrisons were upset about the service provided by Plaintiff. Janik recalls the Gross family approaching him at a funeral and making an appointment with him, which led to a sale (Pl. dep., pp. 190-94; Court File No. 44-17; Brown dep., ex. 43; Court File No. 44-23, p. 10; Court File No. 44-22; Janik dep., pp. 7-8, 10-11).

D. Overtime Hours

CFH held mandatory weekly sales meetings on Fridays, although people did not always attend (Pl. dep., pp. 148-49). Plaintiff states that Brown told her not to write down all of her overtime hours (Pl. dep., p. 101). She claims she was not allowed to report overtime hours if she did not have sufficient sales (Pl. dep., pp. 101, 239; Pl. aff., ¶10). Plaintiff claims, without citing evidence, that she was present at a sales meeting on June 24, 2005, but her timesheet for that day shows no hours (Pl. dep., ex. 29). The timesheet shows Plaintiff worked 41 hours that week between Monday and Thursday (id.).

Plaintiff was permitted to miss a sales meeting on August 12, 2005 because her mother was ill (Pl. dep., p. 192). The following week, on August 18, 2005, Plaintiff told Brown she would not attend the mandatory sales meeting set for the following day (Brown dep., pp. 89-90). Plaintiff had already worked 40 ...

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