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Bey v. Terminix International, L.P.

United States District Court, W.D. Tennessee, Western Division

July 24, 2019

CHAVA NIKE BEY, formerly known as, DORIS A. NETTLES, Plaintiff,
v.
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

         Before 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, [1] 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 be GRANTED.

         I. Introduction

         On May 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).

         On 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.

         II. Proposed Findings of Fact[2]

         A. Plaintiff's Employment and Compensation

         Plaintiff 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).

         On 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).

         On July 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).

         On 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).

         On 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).

         On June 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).[3]

         On 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).

         B. Jesse Allen's Termination and EEOC Activity

         Terminix 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 ...


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