United States District Court, D. Maryland, Southern Division
W. Grimm United States District Judge
Alexander, a Caucasian woman, worked for Bloomingdale's,
Inc. (“Bloomingdale's”) for seventeen years,
receiving repeated praise for her success as a sales
associate. Jt. Stip. Facts ¶¶ 4, 9, 10, 35, 45, ECF
No. 34-1. Yet, during the same time period, she also received
“‘Formal Reminder[s], '” a form of
“written discipline” that Bloomingdale's
uses, id. ¶¶ 28, 31, 39, 41, and twice
Bloomingdale's placed her on “‘Decision
Making Leave', the highest form of discipline within the
Responsibility based Performance system prior to termination,
” id. ¶¶ 34, 46. And, she had
numerous interactions with non-Caucasian co-workers and
supervisors that, in Ms. Alexander's view, created a
hostile work environment. Ultimately, Bloomingdale's
terminated Ms. Alexander's employment in 2016. She filed
suit, alleging race discrimination, in the form of a hostile
work environment, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”), and retaliation, in violation of
Montgomery County Code § 27-1 et seq. Am.
Compl., ECF No. 4; see Compl., ECF No. 2. Now
pending is the Motion for Summary Judgment, ECF No. 30, that
Bloomingdale's filed. Because Ms. Alexander cannot prevail on
either of her claims as a matter of law, I will grant
Alexander alleges that the actions of her supervisor Watani
Hatcher and her co-workers Marva Lynch and Genet Oda created
a hostile work environment. Am. Compl. ¶¶ 27-31.
Ms. Lynch, an African-American woman, allegedly “called
her the most despicable person she ever met and . . . used
vulgar language toward her.” Jt. Stip. Facts ¶ 23.
Mr. Hatcher, an African-American man, called her a
“mental case” or said that she had “mental
issues, ” which he admitted to doing. Alexander Dep.
108:3-5; Ambach Dep. 51:4-21, ECF No. 34-10; Ambach Decl. Ex.
J, ECF No. 34-13, at 23 (personnel notes memorializing
incident). Ms. Alexander also claims that he denied her
overtime, scheduling accommodations, and training
opportunities. Am. Compl. ¶ 14; Handwritten Complaint to
Bloomingdale's, ECF No. 34-32 (claiming that Hatcher
dismissed her February 15, 2015 request for training);
Alexander Aff. ¶ 29, ECF No. 34-22.
Ms. Alexander conceded that she does not “know [Mr.
Hatcher's and Ms. Lynch's] motivation” for
their actions and statements, which did not explicitly refer
to race. Alexander Dep. 75:10-76:3. She believed that the
harassment was race-based simply because she is “a
white individual and they're African American.”
Alexander Dep. 170:21-171:3; see Id. at 169:25-
170:4. And, she admitted in her deposition testimony that she
did not know whether any employees at the Bloomingdale's
store where she worked received more overtime hours than she
did, or whether Ms. Oda, a Black woman from Ethiopia,
received more scheduling accommodations than she did.
Alexander Dep. 77:11-79:17, 84:6-85:10, 167:25-168:5; see
also Id. at 87:25-88:1 (admitting that she did not know
other employees' hours); 135:16-136:9 (admitting that two
of the employees she named who were “allowed to work
off the clock” were white “so it's half and
half”). Cf. Id. at 85:11-86:25, 87:5-7
(stating that “two Moroccan sisters” said that
“they don't have any problems for
accommodations” and “can do basically whatever
they want to”; her “basis for believing that it
was because of their race” was simply that the
“store wanted to present a very, very good image . . .
. in terms of treating people of diverse backgrounds”).
Indeed, she stated that she was “not talking about the
. . . statistical amount of overtime.” Id. at
82:6-7. Notably, Alexander asserted that she “never had
any problem to obtain overtime before the incident with Genet
Oda of 2012 . . . .” Id. at 80:4-5. When asked
for the “basis [she had] for claiming it was because of
[her] race, ” she answered: “Because I reported
racially hostile environment, pervasive, and constant.”
Id. at 80:18-21.
Alexander complained that Ms. Oda “called her a
‘stupid white bitch' in May 2012, ” Jt. Stip.
Facts ¶ 32, a statement Ms. Oda denies having said, Oda
Dep. 47:3-48:1, ECF No. 34-19. Ms. Alexander asserted that
she “immediately . . . reported this incident” to
her supervisor, both verbally and in writing. Alexander Dep.
38:7-8, 21-25, 39:2-8, 58:11-19. She stated that she
“repeatedly asked about the investigation” that
she was “promised” would take place, but
“was never informed about the results of that
investigation.” Id. at 39:8-40:5.
next incident with Ms. Oda that Ms. Alexander complained
about was in May 2014, when she told Susan Cannaday, the
general manager of Bloomingdale's Chevy Chase, Maryland
store, where Ms. Alexander worked at the time, that
“Genet Oda, due to jealousy over the sales, was
bullying [her].” Alexander Dep. 48:9-12. Then, in
November 2014, Ms. Alexander complained that Ms. Oda
“used aggressive sales techniques and had threatened
that Plaintiff should watch out for herself.” Jt. Stip.
Facts ¶ 32. Specifically, Ms. Oda was “making
faces” at her, “bullying” her and
“shouting at [her], ” and in June 2014, five
months before Ms. Alexander complained, Ms. Oda had knocked
her phone off the counter and broken it. Alexander Dep. 48:2-
49:4. Ms. Alexander testified that Ms. Oda's
“behavior was constantly offensive toward
[Plaintiff].” Alexander Dep. 37:14-16. She claims that
Ms. Oda “was very upset that [Plaintiff] had many
clients coming to [her].” Id. at 48:2-8.
Alexander “filed an incident report with the Montgomery
County Police Department against Genet Oda for alleged
‘harassing communications' at work, ” Jt.
Stip. Facts ¶ 33; see Incident Report, ECF No.
33-31 (stating that Ms. Alexander had “at least
three” incidents with Ms. Oda that left Plaintiff
“feeling intimidated and threatened”; Ms. Oda
would “harass [Ms. Alexander] around the work place and
try to bully customers into making purchases from her
instead”; Ms. Oda called her a “stupid white
bitch” two years earlier and more recently broke her
phone into pieces; and a car “occupied by one, not
white, male” followed Ms. Alexander home from work one
day). Ms. Alexander stated:
[T]he main issue of that report was the threats that I
received from Genet Oda. She threatened me, You don't
know what I can do for(sic) you outside of
Bloomingdale's. And you can be very sorry, and nobody
will find you. And I am telling you the last time, and I know
so many people.
And it means that so many people that it can cover for her. I
was so frightened. On that day also, I went to security
department in our store. I reported everything to the
security because I was so scared.
Alexander Dep. 49:19-50:4.
Alexander made the same complaints to Bloomingdale's.
Id. at 52:17-54:2, 59:20- 60:18. When asked whether
she complained to Bloomingdale's that she was being
discriminated against based on her race, Plaintiff testified
that this conduct amounted to “physical threats, but
there were no racial slurs.” Id. at 56:1-12.
She testified that, after Ms. Oda's May 2012 comment,
there were no “other race comments that . . . were made
to [her] while [she was] at Bloomingdale's.”
Id. at 61:3-8.
she complained that, on “multiple occasions, ”
Ms. Oda drove her car deliberately “towards [Plaintiff]
when [she] was walking in the parking garage, ” making
“intimidating gestures” and faces and causing
Plaintiff to have to “move to the other side” and
to be “afraid about [her] safety.” Alexander Dep.
67:11-68:19; Alexander Aff. ¶¶ 26-28, ECF No.
34-22; Ambach Dep. 92:7-14, ECF No. 34-10. Oda also denies
this allegation. Oda Dep. 37:14- 39:3, 41:16-42:8. Plaintiff
stated that “the security officers at [the] store . . .
escorted [her] . . . about twice to [the] garage.”
Alexander Dep. 66:23-25. She claimed that the incidents in
the parking lot occurred “over the last few years of
[her] employment, ” Am. Compl. ¶ 20, but she did
not provide specific dates. She eventually reported it to
Bloomingdale's, stating that it “happened many
times in the past” and that she had “informed . .
. the security department of the store.” Alexander Dep.
in June 2015, she “complained to the management at
Bloomingdale's that Ms. Oda referred to her as a
‘trash woman.'” Jt. Stip. Facts ¶ 37.
Ms. Oda denies this allegation as well. Oda Dep. 48-49. Then,
in December 2015, Ms. Alexander and Ms. Oda “had a
verbal altercation [in the stockroom at work], after which
both Plaintiff and Oda complained about one another to store
management.” Jt. Stip. Facts ¶ 42; see
Alexander Dep. 61:9-13 (stating that she complained that Ms.
Oda “threatened [her] in December 2015, again, in the
stockroom”). Ms. Alexander stated that Ms. Oda's
“behavior was . . . harassment, intimidation, ”
but she did not complain to Bloomingdale's that the
conduct was “because of [her] race.” Alexander
Dep. 64:20-65:15. The store investigated Oda's and
Alexander's complaints against each other. Id.
Ms. Alexander received repeated warnings from her employer
regarding her conduct at work. She received a Formal
Reminder on May 22, 2014, noting that she had
“been disrespectful to [her] team mates, or refused to
follow the direction of [her] supervisor or a store
senior.” May 22, 2014 Formal Reminder 1, ECF No. 34-9;
see also Jt. Stip. Facts ¶ 28. Specifically,
[O]n March 13th, [Alexander] had an incident with
[her] supervisor regarding the scheduling of a rally. When a
senior supervisory came to address the issue with both
involved parties, [Alexander] refused to acknowledge her
attempt to mediate and resolve the issue, and simply walked
away. This has been a pattern for [Alexander], making it a
challenge to deliver feedback
2014 Formal Reminder 1. Additionally, she had charged a
“registered bride” for an item that was not in
stock, which was against store policy. Id. And, Ms.
Alexander had, “on many occasions . . . asked [a
co-worker] to put [her] in ‘ringer' mode, often
when [she was] scheduled for [her] break, ” even though
it also was “against policy to work when [she was] on a
break.” Id. The Formal Reminder cautioned
that, if the employee's conduct did “not improvie,
th[e] process may result in additional reminder(s) or [she]
may be asked to decide if [she]'d like to continue [her]
employment at Bloomingdale's. Id. at 2. Ms.
Alexander left the May 22, 2014 meeting with Human Resources
Executive Nancy Ambach without signing the Formal Reminder.
received another Formal Reminder on November 6, 2014, citing
“several conversations regarding insubordination,
particularly in [her] interactions with [her] manager, Watani
Hatcher.” Nov. 6, 2014 Formal Reminder 1, ECF No.
34-11; Jt. Stip. Facts ¶ 31. The Formal Reminder stated
that Ms. Alexander had walked away, slamming a door while
Hatcher Id. Notably, the “manager may not
necessarily use all of these steps and under certain
circumstances immediate termination may be appropriate if
[the employee's] behavior is considered a significant
disregard of [his or her] commitment to the expectations of
the Bloomingdale's values, ” and “[n]othing
in this policy modifies the employment-at-will
doctrine.” Id. was speaking to her. Nov. 6,
2014 Formal Reminder 1. Again, she did not sign the Formal
Reminder. Id. at 2.
on February 11, 2015, Ms. Alexander received Decision Making
Leave; the form that stated that, despite being told on
December 17, 2014 that Bloomingdale's “needed to
observe improvement in [her] positive and productive
communication” with her manager, ” Ms. Alexander
persisted in failing to copy her manager on email
correspondence with clients, and she continued to “work
off the clock, ” even though she previously had been
told that she could not do so. Feb. 11, 2015 Decision Making
Leave Form 1, ECF No. 34-12; see also Jt. Stip.
Facts ¶ 34. Additionally, Mr. Hatcher reported that Ms.
Alexander “‘mocked' him” and whispered
to a client in front of him. Feb. 11, 2015 Decision Making
Leave Form 1. Ms. Alexander refused to sign the form or take
a “DML [Decision Making Leave] day, although she did
agree to meet with Mr. Hatcher within three days and respond
at that time. Id. at 3.
received another Formal Reminder on June 25, 2015, which she
also refused to sign. June 25, 2015 Formal Reminder 1, 3, ECF
No. 34-14; see also Jt. Stip. Facts ¶ 39. The
Formal Reminder stated that “a significant amount of
Personal Client Information . . . for a number of
[Alexander's] clients” had been “found in a
stockroom” on June 13, 2015, ” which violated
company policy. June 25, 2015 Formal Reminder 2. On December
9, 2015, Ambach met with Ms. Alexander and “attempted
to share with her the addendum that had been drafted for her
[February 2015 Decision Making Leave], ” but Ms.
Alexander “would not read it or sign it, ” even
though it was handed to her. Ambach Decl. Ex. C, ECF No.
34-13, at 6. The addendum described incidents in which Ms.
Alexander was disrespectful to her co-workers in front of
clients; it stated that Ms. Alexander's
“performance/conduct [wa]s not meeting
Bloomingdale's expectations” and cautioned that a
“[f]ailure to be professional and respectful may lead
to disciplinary action up to and including
termination.” Ambach Decl. Ex. B, ECF No. 34-13, at 4.
Alexander received Decision Making Leave for a second time on
April 14, 2016, noting that Bloomingdale's had “had
numerous conversations related to [Alexander's] level of
respect towards [her] co-workers” and had “spoken
to [her] about respectful treatment of [her] supervisor, and
of other selling partners both in [her] department, and in
other departments in [the] store.” April 14, 2016
Decision Making Leave Form 1, 3, ECF No. 34-16; see
also Jt. Stip. Facts ¶ 46. The Decision Making
Leave Form described incidents on December 23, 2014 and
February 5, 2015, in January 2016, and on February 1, 2016
and March 21, 2016 in which she had been disrespectful to
co-workers and a senior manager and had worked, without
permission, during her time off. April 14, 2016 Decision
Making Leave Form 3. She refused to sign the form. Agnew Dep.
9:16-18, ECF No. 34-15. She did, however, submit the required
“Commitment Statement, ” asserting that she
“submit[ted] this statement of [her] sincerity, loyalty
and commitment to subscribe to and fulfill [her]
responsibilities in the performance and conduct of [her]
position with the highest level of professional
behaviors” and she “reiterate[d] the statements
[she] made in [her] January 2016 commitment that [she would]
continue to satisfy all the performance and conduct
regulations and procedures established by
Bloomingdale's.” Commitment Statement, ECF No.
Alexander filed an EEOC charge on April 26, 2016. Jt. Stip.
Facts ¶ 48. On June 3, 2016, Ms. Alexander was
“scheduled to be off at 6:30” but did not clock
out until 7:07 and then continued to work until 7:38 p.m. or
later, and her new manager, Zahra Fardshisheh, informed the
Group Sales Manager that Ms. Alexander was working off the
clock again. Alexander Dep. 180:24-181:1, 187:9-190:16, ECF
No. 34-3. According to Ms. Alexander, “what
[the] schedule said and what were actual demands from
customers were two different things, ” so “it was
common practice . . . that other employees used to stay . . .
and either call customer service on returns and Macy's
furniture customers service or calling clients because many
times [there] were urgent calls from customers in regard [to]
delivery.” Id. at 188:11-16, 189:2-4. She
insisted that “working off the clock” was
“common policy in [the] department, everybody was doing
that, ” but “t was okay for them; not okay for
[her].” Id. at 190:4-16.
June 3, 2016, Ms. Alexander complained to Bloomingdale's
that “Zahra Fardshisheh assaulted her while Plaintiff
was engaged in a phone conversation with Bloomingdale's
customer service.” Jt. Stip. Facts ¶ 51.
Fardshisheh later received a Formal Reminder that stated that
Fardshisheh “acted in an aggressive manner when
[Alexander] refused to hand [her] the phone when she was
speaking to an associate in furniture customer service”
and that, “[a]lthough [Fardshisheh] had no physical
contact with [Alexander], [Fardshisheh's] actions were
inappropriate and made her uncomfortable.” Fardshisheh
Formal Reminder 1, ECF No. 34-18. Fardshisheh acknowledged
that she “was caught up in the frustrations of the
moment when [she] acted.” Id. at 2. In Ms.
Alexander's view, Ms. Fardshisheh's actions, both in
reporting her work beyond her scheduled time and in the phone
incident, were retaliatory. Alexander Dep. 190:12-16,
8 and June 9, 2016, Ms. Alexander “stayed beyond [her]
work time by hours without approval of [her] manager”;
she insisted that she did not need permission to work
overtime because that requirement “didn't apply to
[her] because customers were coming and they were flowing to
[her], . . . and [she] had millions of sales to prove
that.” Alexander Dep. 193:8-194:8, 195:10-196:1.
also worked additional hours without approval on June 10,
2016 and June 11, 2016. Id. at 196:3-8,
197:14-200:8. She testified that she did not “remember
exactly the circumstances” on June 11, 2016, but sales
professionals “were staying long, long hours because
the business required that, ” id. at 202:2-15,
and as for June 10, 2016,
There must have been reason for that. . . .
. . . I must have clients who have been buying and there were
customers' issues that I needed to-and as I said, I was a
$1 million seller and I had tons of customers to attend.
And if Bloomingdale's wants to change its own operating
rules that there is no need for multimillion dollar producers
and all of this fraudulent hour (sic) process, then this will
Id. at 196:7-20. She stated that she did not seek
her supervisor's permission “because she was
abusive and she interfered with [her] professional way of
conduct.” Id. at 200:18-201:9. Ms. Alexander
stated that she stayed late “because [she] had
legitimate reasons to take care of [her] clients.”
Id. at 201:10-21.
terminated Ms. Alexander's employment on June 29, 2016.
Jt. Stip. Facts ¶ 53.
judgment is proper when the moving party demonstrates,
through “particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .
admissions, interrogatory answers, or other materials,
” that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A); see
Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th
Cir. 2013). “A disputed fact presents a genuine issue
‘if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.'”
Cole v. Prince George's Cty., 798 F.Supp.2d 739,
742 (D. Md. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). If the party seeking
summary judgment demonstrates that there is no evidence to
support the nonmoving party's case, the burden shifts to
the nonmoving party to identify evidence that shows that a
genuine dispute exists as to material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 585-87 & n.10 (1986).