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Alexander v. Bloomingdale's, Inc.

United States District Court, D. Maryland, Southern Division

May 17, 2019



          Paul W. Grimm United States District Judge

         Elizabeth 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.[1] Because Ms. Alexander cannot prevail on either of her claims as a matter of law, I will grant Defendant's motion.

         Factual Background[2]

         Ms. 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.

         Yet, 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”).[3] 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.

         Ms. 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.[4] 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.

         The 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.[5] 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.

         Ms. 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.

         Ms. 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.

         Additionally, 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. 69:7-20.

         Also, 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. at 62:12-63:5.

         Meanwhile, Ms. Alexander received repeated warnings from her employer regarding her conduct at work. She received a Formal Reminder[6] 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

         May 22, 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. Id.

         Alexander 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.

         Then, 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.

         She 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.

         Finally, 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. 34-17.

         Ms. 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.[7] 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.

         Also on 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, 191:23-193:7.

         On June 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.

         She 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 be applicable.

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.

         Bloomingdale's terminated Ms. Alexander's employment on June 29, 2016. Jt. Stip. Facts ¶ 53.

         Standard of Review

         Summary 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).


         Hostile ...

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