United States District Court, W.D. Tennessee, Western Division
CHAVA NIKE BEY, formerly known as, DORIS A. NETTLES, Plaintiff,
TERMINIX INTERNATIONAL, L.P. and SERVICEMASTER GLOBAL HOLDING, INC., Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS TERMINIX
INTERNATIONAL, L.P. AND SERVICEMASTER GLOBAL HOLDING,
INC.'S MOTION FOR SUMMARY JUDGMENT
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE
the Court is Defendants Terminix International, L.P.
(“Terminix”) and ServiceMaster Global Holding,
Inc.'s (“ServiceMaster”) Motion for Summary
Judgment. (Docket Entry (“D.E.”) #48). Pursuant
to Administrative Order 2013-05,  the instant motion has been
referred to the United States Magistrate Judge for Report and
Recommendation. For the reasons set forth herein, it is
RECOMMENDED that Defendants' Motion for Summary Judgment
17, 2017, Plaintiff Chava Nike Bey, formerly known as Doris
A. Nettles, filed a pro se Complaint in this Court
alleging violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e (“Title VII”). (D.E.
#1). On November 21, 2017, Plaintiff filed an Amended
Complaint again asserting violations of Title VII; therein,
she also asserted for the first time a claim of breach of
contract as well as various other claims. (D.E. #9).
December 19, 2017, Defendants filed a partial Motion to
Dismiss the majority of these other claims added in her
Amended Complaint, the only exception being her breach of
contract claim. (D.E. #13). The Magistrate Judge recommended
that Defendants' partial Motion to Dismiss be granted.
(D.E. #24). The District Court adopted the Magistrate
Judge's recommendation as to these claims on September
17, 2018. (D.E. #27). Accordingly, the claims remaining
before the Court against Terminix and ServiceMaster are as
follows: Title VII discrimination; Title VII retaliation;
and, breach of contract.
Proposed Findings of Fact
Plaintiff's Employment and Compensation
was employed by Terminix and worked at the Memphis Contact
Center (“MCC”) in the Commercial Termite Renewals
department. (Plaintiff's Deposition (Pl.'s Dep.) at
25:1-13, 37:13-19, 46:1-20, 96:4-11). Terminix paid Plaintiff
general sales commissions as well as commissions with
specific rates for different renewal campaigns or
“blitzes.” (Id. 23:7-13).
November 7, 2005, Terminix distributed the November 2005
Renewal Blitz Commission Plan to Plaintiff's department,
which she acknowledged and signed. (Id. at
22:20-23:6 & Exh. 8). The November 2005 Renewal Blitz
Commission Plan applied to all employees in the Residential
and Commercial Renewal Departments, not just to Plaintiff.
(Id. at 26:20-25).
21, 2006, Terminix issued a revised Commercial Renewal
Incentive Plan, which required the signee to acknowledge as
follows: “I understand that Terminix management
reserves the right to alter the employee compensation pay
plan as business needs dictate with minimal
notification.” (Id. at 23:4-9 & Exh. 9).
Plaintiff signed the Commercial Renewal Incentive Plan on
July 24, 2006. (Id.) The 2006 Commercial Renewal
Incentive Plan applied to all employees in Plaintiff's
department. (Id. at 27:6-9).
August 27, 2008, Plaintiff signed the MCC Sales Commission
Plan, which stated as follows: “***Commission plan is
subject to change at any time based on business need and/or
the discretion of management***.” (Id. at
24:14-25 & Exh. 10). The 2008 MCC Sales Commission Plan
applied to all employees in Plaintiff's department.
(Id. at 27-10-12).
August 12, 2009, Plaintiff signed a new MCC Sales Commission
Plan. (Id. at 25:15-19 & Exh. 11). The 2009 MCC
Sales Commission Plan provided a 2.5% commission rate for
commercial renewals. (Id. at Exh. 11). The 2009 MCC
Sales Commission Plan applied to all employees in the
commercial renewal department. (Id. at 25:24-26:15).
22, 2011, Plaintiff signed the 2011 Compensation Plan for MCC
employees. (Id. at 27:13-20 & Exh. 12). The 2011
Compensation Plan applied to all employees in the MCC.
(Id. at 27:25-28:9).
February 22, 2012, Plaintiff signed the 2012 Compensation
Plan Summary for Contract Center Sales Representatives.
(Id. at 28:10-16 & Exh. 13 at 4). The 2012
Compensation Plan applied to all employees in contract center
sales representative positions. (Id. at 28:21-25).
The 2012 Compensation Plan states as follows:
“Terminated Associates are not eligible to earn any
variable compensation based on revenue collected after
his/her termination, regardless of when the sale was
proposed, signed, and/or approved, unless required by state
law.” (Id. at Exh. 13 at 2).
Jesse Allen's Termination and EEOC Activity
fired Jesse Allen (“Allen”), Plaintiff's
supervisor, when it learned that he borrowed money from
Plaintiff, his subordinate, in violation of company policy.
(Id. at 49:1-13 & Exh. 21 at 2-3). Plaintiff
admits that Allen had borrowed money from her but states that