United States District Court, W.D. Tennessee, Western Division
BARRY L. HILL, Plaintiff,
SHOE SHOW, INC., Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
S. THOMAS ANDERSON, District Judge.
Before the Court is Defendant Shoe Show, Inc.'s Motion for Summary Judgment (ECF No. 19) filed on May 1, 2015. Plaintiff Barry L. Hill has responded in opposition, and Defendant has filed a reply brief. For the reasons set forth below, Defendant's Motion is DENIED.
I. Factual Background
Plaintiff's Complaint alleges that Defendant discriminated against him on the basis of his race in violation of Title VII, 42 U.S.C. § 1981, and the Tennessee Human Rights Act. Defendant now seeks summary judgment on each of Plaintiff's claims for relief. Defendant has prepared a statement of undisputed facts as required by Local Rule 56.1(a), to which Plaintiff has responded. For his part Plaintiff has asserted that additional facts are not in dispute, and Defendant has responded to Plaintiff's statement of additional facts. For purposes of summary judgment, the Court finds that the following material facts are not genuinely in dispute.
Defendant operates retail shoe stores throughout the country. (Def.'s Statement of Undisputed Fact ¶ 1.) Plaintiff was originally hired by David Bowser (white male), one of Defendant's district managers, as a store manager at Defendant's location on Summer Avenue in Memphis, Tennessee. ( Id. ) Plaintiff commenced his employment on March 12, 2012. ( Id. ¶ 2.) Plaintiff voluntarily resigned his employment with Defendant without notice on March 17, 2012, less than one week after he started. ( Id. ¶ 3.) Plaintiff cited the area of town and the fact that he thought shoes were being stolen from the store as the reasons for his resignation. ( Id. ) A few months later in July 2012, Plaintiff was shopping at Defendant's store in the Oak Court Mall in Memphis, when he was approached by David Bowser who happened to be at the store that day. ( Id. ¶ 5.) Plaintiff testified that Bowser approached him and asked him whether he was interested in managing the store. ( Id. ¶ 6.) Plaintiff had gone to the Oak Court store to shop, not to seek a job; Bowser brought up the management opportunity to Plaintiff. ( Id. ¶ 7.) Plaintiff accepted Bowser's offer and started as the store manager in the Oak Court location on July 16, 2012. ( Id. ¶ 8.)
In Defendant's stores, each employee is assigned a one-digit employee code at the outset of his or her employment. ( Id. ¶ 11.) The code allows the employee to clock in and out of the computer-based register. ( Id. ) Each employee also records time on a timesheet. ( Id. ¶ 13.) The timesheet is a green-bar piece of paper kept in the back of the store where the employee signs his or her name and enters the date and the number of hours worked. ( Id. ¶ 14.) The handwritten timesheet is used to calculate employee hours for payroll purposes. ( Id. ¶ 15.) A sign was posted in the back of the Oak Court store near the timesheet reading: "Notice, do not sign in/out for another employee, consequences = termination!!!" ( Id. ¶ 16.) Furthermore, the store's policy manual contained a section entitled "work schedules, " which stated that all employees must sign in and out for themselves and that an employee may be terminated for signing in and out for someone else. ( Id. ¶ 18.) Plaintiff understood that the rules regarding clocking in or out for other employees applied to him as the store manager. ( Id. ¶ 17.) For the week ending February 14, 2013, Plaintiff handwrote times worked by Taylor King, Amber Peters, Jamie Padden, and Cash Montesio on the sign-in sheet. ( Id. ¶ 19.) These employees did not complete or sign the timesheet themselves. ( Id. )
Plaintiff disputes Defendant's characterization of the timekeeping policy. According to Plaintiff, the posted notice did not address or apply to clocking in and out of the store computer system to perform managerial functions. (Pl.'s Resp. to Def.'s Statement ¶ 16.) Plaintiff has adduced a declaration from Rosalba Espinoza, a former store manager at one of Defendant's stores who worked under Boswer's supervision. Espinoza explains that a code was needed to carry out managerial functions such as inventory control, completing transfers, completing payroll, entering time, transmitting time and payroll to the home office, and keying in bank deposits. (Espinoza Decl. ¶ 4, ECF No. 22-1.)
In addition to the store manager, each of Defendant's stores is staffed with a keyholder, who operates much like an assistant manager, as well as one or more sales associates. (Def.'s Statement of Undisputed Facts ¶ 9.) Jamie Padden became a keyholder at the Oak Court store on February 1, 2013. ( Id. ¶ 10.) Padden was assigned an employee code by Bowser on Padden's first day of employment. ( Id. ¶ 12.) Padden's code allowed her to clock in on the computer-based register but did not enable her to perform managerial functions such as a completing a return of merchandise. ( Id. )
On Monday, February 11, 2013, Bowser visited the Oak Court location. ( Id. ¶ 20.) When Bowser arrived, he discovered that Jamie Padden was the only employee in the store. ( Id. ¶ 21.) Defendant asserts that this was a scheduling error by Plaintiff because Padden had only been on the job for a few days at that time and was too inexperienced to be the only employee in the store. ( Id. ¶ 22.) Bowser also discovered that although Plaintiff was not in the store, Plaintiff was clocked in on the computer-based register as if he were present. ( Id. ¶ 23.) When Bowser asked Padden if Plaintiff had been there, Padden responded that Plaintiff had not. ( Id. ¶ 24.) According to Defendant, Padden stated to Bowser that Plaintiff had instructed her to clock him in. ( Id. )
Plaintiff disputes these facts and contends that Bowser had given Plaintiff approval to take the day off and knew that Plaintiff would not be present at work on February 11, 2013. (Pl.'s Resp. to Def.'s Statement ¶ 22.) Plaintiff further claims that Bowser knew that in Plaintiff's absence, a keyholder would be running the store that day. ( Id. ¶ 23.) As for Padden's preparation to take charge at the store, Padden had prior retail experience and had completed her mandatory training. ( Id. ¶ 22.) Plaintiff had also advised Bowser that Padden needed a working keyholder's code because the code she had did not allow her to perform managerial functions. ( Id. ¶ 23.) In fact, Bowser had instructed Plaintiff to allow other keyholders to use his code to perform managerial functions in the past. ( Id. ¶¶ 16, 17, 23.) Plaintiff denies that he ever instructed Padden to clock him in on February 11, 2013. ( Id. ¶ 24.) If Padden clocked Plaintiff in on February 11, 2013, she did so to use his manager code to perform managerial functions. ( Id. )
When Plaintiff reported to work on Tuesday, February 12, 2013, Bowser asked him how Plaintiff had been clocked in the previous day. (Def.'s Statement of Undisputed Fact ¶ 25.) Plaintiff responded that he did not know. ( Id. ) At that point Bowser asked for Plaintiff's keys and terminated his employment. ( Id. ) Bowser completed a separation report on which he marked the reason for Plaintiff's termination as "Violation of Company policy" and wrote in the "Remarks" section: "Barry is terminated for failure to follow or comply with established Company policies and procedures including clock-in/clock-out procedures." ( Id. ¶ 26.) Plaintiff adds that during a site visit one week prior to his termination, Bowser had complimented Plaintiff on the store only later to remark to Plaintiff, "Seriously, get your resume prepared." (Pl.'s Resp. to Def.'s Statement ¶ 26.)
Pursuant to Local Rule 56.1(b), Plaintiff has submitted a statement of the following additional facts. A keyholder or store manager can operate a store and perform necessary and required managerial functions, though the parties disagree over whether a keyholder can perform all of those functions. (Pl.'s Statement of Add'l Facts ¶ 27; Def.'s Resp. to Pl.'s Add'l Fact ¶ 27.) Defendant never reprimanded or terminated Padden for using Plaintiff's code for clocking in and clocking out to perform managerial functions. (Pl.'s Statement of Add'l Facts ¶ 28.) Plaintiff was replaced with an individual who was not in Plaintiff's protected class, Troy Shrekengeist a white male. ( Id. ¶ 29; Def.'s Resp. to Pl.'s Add'l Fact ¶ 29.) Defendant hired Skrekengeist to replace Plaintiff within two or three days of Plaintiff's termination. (Pl.'s Statement of Add'l Facts ¶ 37.)
Plaintiff next asserts that once Plaintiff filed a charge of discrimination with the EEOC, Defendant responded to the charge and cited only Plaintiff's violation of the clocking in and clocking out policy as the cause for his termination. ( Id. ¶ 33.) With respect to the timesheets, Plaintiff asserts that he kept two timesheets, the official form signed by the employees and another for personal use at his desk. ( Id. ¶ 35.) Defendant adds that the timesheet signed by employees was a predated timesheet each store manager was required to submit to payroll. (Def.'s Resp. to Pl.'s Add'l Fact ¶ 35.) Bowser discovered the predated timesheet with Plaintiff's handwriting on it, and ...