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Bradley v. XDM, Inc.

United States District Court, E.D. Michigan, Southern Division

February 3, 2017

VALERIE BRADLEY, an individual, Plaintiff,
XDM, Inc., f/k/a DIALOGUE MARKETING, a Michigan corporation, Defendant.



         Plaintiff Valerie Bradley brings this cause of action alleging that her former employer, Defendant XDM, Inc., discriminated against her based on her color, race and age, and also retaliated against her in contravention of the Michigan Elliot Larsen Civil Rights Act (ELCRA), M.C.L. § 37.2101, and Title VII of the Civil Rights Act of 1964 (Title VII). 42 U.S.C. § 2000e-2. (Dkt. I).[1]

         Before the Court is Defendant XDM Inc.'s (XDM) motion for summary judgment on Plaintiffs remaining claims against it for color, race, and age discrimination under the Michigan ELCRA, and unlawful retaliation under Title VII. On January 18, 2016, the Court heard oral argument on Defendant's motion in Flint, Michigan.

         For the reasons set forth below, Defendants' motion for summary judgment is GRANTED as to both of Plaintiffs claims against it.

         I. Background

         Plaintiff Valerie Bradley is an African-American female. At the time that XDM allegedly discriminated and unlawfully retaliated against her, she was approximately fifty years of age.[2] Plaintiff began working for XDM on or about October 15, 2012. The company operated a call center that served the telemarketing and support needs of its customers, such as Frito-Lay and PepsiCo. XDM assigned Plaintiff to its "Snacks 2 You program, " which provided customer support services to agents of retail stores that purchased its customers' products and who could call XDM in regard to matters such as shipping and product information. Plaintiff was hired to work as a customer service representative; her job responsibilities included taking customer orders and responding to customer complaints over the phone.

         On August 8, 2013, Plaintiff filed a Charge of Discrimination against XDM with the EEOC. (Dkt. 16, Ex. 13). On December 27, 2013, XDM terminated Plaintiff. (Id., Ex. 24). The remaining claims in Plaintiffs complaint are that: (1) during the approximately fourteen months Plaintiff worked at XDM, she was denied opportunities for promotion or other incentives on the basis of her race, and (2) XDM supervisors severely or pervasively harassed her, or decided to terminate her, because she filed a discrimination charge. Plaintiff argues that because of her race, she was not told about certain opportunities for promotion and was denied favorable changes to her shift time and a request to train on an additional software program.[3] She further claims that as a result of her decision to file an EEOC Charge, she was harassed and terminated. XDM responds by asserting that Plaintiff was never denied opportunities for promotion, harassed, or prevented from obtaining favorable changes to her shift time or software training opportunities on the basis or her race or because of her EEOC complaint. Instead, XDM contends that Plaintiff was terminated because of her record of unprofessionalism and inability to improve her performance after receiving coaching.

         Plaintiffs Initial Work Performance Issues

         The evidentiary record indicates that Plaintiff was formally assessed negative feedback from her supervisors, customers, and colleagues, on the following occasions during the time period of February, 2013 through May, 2013:

• On February 21, 2013, Plaintiffs supervisor completed a written performance review for the first ninety days of Plaintiffs employment with XDM:[4] the review noted Plaintiff had an upbeat and patient attitude on the phone, and that she has an outgoing personality and tries to reach out to her colleagues, but that she also struggles with arriving on time and can be abrupt. (Dkt. 16, Ex. 2). In the competency categories of "quality, customer focus, [and] team work, " Ms. Boling rated Plaintiff as "meets requirements, " and in the competency category of "attendance/punctuality" as "occasionally meets requirements." (Id.).
• On February 22, 2013 XDM issued Plaintiff a "mistreat/mishandle" form for taking an "argumentative/rude" tone with a customer, which is in contravention of XDM's Quality Assurance Manual. (Id., Ex. 7 at Pg ID 331; Ex. 4 at Pg ID 203). In response to this, Plaintiff testified that she received one-on-one coaching from a supervisor on how to be patient during phone calls. (Id., Ex. 2 at Pg ID 120).
• On February 25, 2013, two XDM employees logged formal complaints in the company's computer system stating that Plaintiff had been "kind of snotty" and "offensive" to them respectively. (Id., Ex. 8 at Pg ID 333).
• On April 23, 2013, Plaintiff received a "corrective action form" stating that it was the "final notice" that XDM would be providing her regarding her late arrivals to work. (Id., Ex. 9 at Pg ID 339-40). XDM has an attendance policy whereby employees are assigned points whenever they are late to work, and the later they arrive, the more points they are assigned. (Id., Ex. 5 at Pg ID 318). According to the policy, when an employee accrues six points they will receive a written warning, and when an employee receives twelve points, they will be reviewed for termination. (Id.) The April 23, 2013 corrective action form stated that Plaintiff had accrued eleven and one quarter points, though Plaintiff testified that this amount was incorrect, and that her point total on account of lateness was eight and a half. (Id. Ex. 9 at Pg ID 339-40; Ex.2 atPgID 121-22).
• On April 24, 2013, a supervisor advised Plaintiff against elevating her voice with customers and reprimanded her for "smacking [his] desk to grab [his] attention." (Id., Ex. 8 at Pg ID 334).
• On May 22, 2013, a colleague logged a formal complaint stating that Plaintiff "got snappy" with her. (Id.).
• On May 29, 2013 Plaintiff received a corrective action form-i.e. a written warning-after, in reference to a customer whom Plaintiff mistakenly thought was on mute, she stated to her supervisor "this crazy lady wants to talk to you, " such that the customer heard this comment. (Id., Ex. 10 at Pg ID 342). The audio recording of this call is entered in the evidentiary record. (Id., Ex. 11 at 4:38).

         Events Preceding Plaintiffs EEOC Charge

         Plaintiff testified that she verbally requested a change in shift time from the night shift to the day shift from Ms. Boling in "May or June [2013], " but that Ms. Boling denied her request, stating to her, "get in line, there are people with three and a half years seniority." (Dkt. 18, Ex. A at Pg IDs 469-70, 480). When XDM's lawyer asked Plaintiff at her deposition if it was her opinion that Boling denied her request based upon "her race and age, " Plaintiff testified, "[t]hat played a part, yes." (Id. at Pg ID 478).[5] Plaintiff further stated that "in [her] department, " switching from the night shift to the day shift was "considered a promotion." (Id. at Pg ID 480). As Defendant points out, XDM policy requires employees to submit a Schedule Change Form to change shift times. (Dkt. 16, Ex. 5 at App. A, 16). On July 5, 2013, Plaintiff completed a Schedule Change form, and it was signed by a supervisor, indicating that her shift would be permanently changed from 11:30 am - 8:00 pm to 10:30 am - 7:00 pm, effective July 15, 2013. (Dkt. 16, Ex. 25). Plaintiff testifies, however, that this shift change was not permanent, as it was "only for a specific date." (Dkt. 18, Ex. A at Pg ID 476). Moreover, Plaintiff testifies, two of her Caucasian colleagues, whom she identifies as "Keegan" and "Scott" were "promoted"-i.e. given permanent day shifts-even though they were hired after her. (Id. at Pg ID 479-80). Plaintiffs testimony conflicts, however, on whether Keegan and Scott were awarded shift changes when Ms. Boling-the alleged discriminatory supervisor-was at the company. It is undisputed that Ms. Boling left XDM on August 15, 2013. (Id. at Pg ID 550). At her deposition Plaintiff first testified that Keegan and Scott received "promotions" to the day shift in September, 2013; just a few moments later, however, she testified that Keegan and Scott changed shifts "by May, June [2013]." (Id. at Pg ID 479). At some point between mid-August, 2013 and mid-September, 2013, after Ms. Boling left XDM on August 15, 2013, Plaintiff testified that her shift was changed permanently to 8:30 am to 4:30 pm. (Id. at Pg ID 482).

         In addition to her allegations that shift change decisions were made on the basis of race, Plaintiff testified that Ms. Boling "had [the employees] sitting segregated" and did not "post" any opportunities for promotions or incentives. (Dkt. 18, Ex. A at Pg ID 551). "You never knew what was available, " Plaintiff testified, "until [Ms. Boling] brought [an opportunity for incentive or promotion] to whoever she wanted to." (Id. at 552). Plaintiff added that she felt like Ms. Boling "favored Caucasians in this regard." (Id.; Id. at Pg ID 539-40). Plaintiff testified further that Ms. Boling denied her request to be trained on a software program that would have allowed her to work as a customer service representative for Pepsi Co. (at that time, she was trained only to work for Frito-Lay) (Id. at 579-80, 582-83). Plaintiff states that she saw Ms. Boling training two white colleagues-"Steven [who Plaintiff stated she mistakenly referred to as "Scott" earlier in her deposition] and Keegan"- and walked up to Ms. Boling to request that she be allowed to join the training session, but Ms. Boling said no. (Id.) Plaintiff acknowledged that she was trained on Pepsi Co. "a couple months later, " when XDM offered training for this product to their entire staff (Id. at 582-83).

         Although Plaintiff also testified to the facts that she applied and was turned down for two different promotions within the company on June 12 and June 17, 2013, (Dkt. 16, Ex. 12), as well as a position as a human resource assistant in or about July 31, which she does not characterize as a promotion, (Dkt. 18, Ex. A at Pg ID 468), Plaintiff maintained that she does not attribute any of these hiring decisions to discriminatory animus. (Id. at Pg IDs 467-69). Moreover, with respect to the first two positions, Plaintiff admits that she was ineligible for these promotions, because she received a written warning on May 29, 2013 and, according to XDM ...

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