Scott v. Shoe Show, Inc.

38 F.Supp.3d 1343

Monique SCOTT, Plaintiff

v.SHOE SHOW, INCORPORATED, et al., Defendants.

Civil Action No. 1:12–CV–3286–TWT.

United States District Court, N.D. Georgia, Atlanta Division.

Signed Aug. 14, 2014.

Nathaniel J. Middleton, Nathaniel J. Middleton, Attorney at Law, Decatur, GA, for Plaintiff.

John R. Hunt, Stokes Wagner Hunt Maretz & Terrell, Atlanta, GA, for Defendants.

ORDER

THOMAS W. THRASH, JR., District Judge.

This is an employment discrimination action. It is before the Court on the Report and Recommendation [Doc. 35] of the Magistrate Judge recommending granting the Defendants' Motion for Summary Judgment [Doc. 32]. The Plaintiff was fired for stealing merchandise from her employer. The Court approves and adopts the Report and Recommendation as the judgment of the Court. The Defendants' Motion for Summary Judgment [Doc. 32] is GRANTED.

MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

RUSSELL G. VINEYARD, United States Magistrate Judge.

Plaintiff Monique Scott (“Scott”) brings this action against defendant Shoe Show, Inc. (“Shoe Show”), alleging claims of discrimination and hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.¹ See [Doc. 1].² Shoe Show seeks summary judgment, [Doc. 32],³ which Scott opposes, [Doc. 33].⁴ For the following reasons, it is RECOMMENDED that Shoe Show's motion for summary judgment, [Doc. 32], be GRANTED.

I. FACTS AND PROCEDURAL BACKGROUND

A. Preliminary Procedural Issues

In compliance with Local Rule 56.1B(1), Shoe Show, as movant, filed a statement of material facts as to which there is no genuine issue to be tried. [Doc. 31–1]. Scott was required to submit a response under Local Rule 56.1B(2)a, but she failed to do so. Specifically, Local Rule 56.1B(2) requires the non-moving party to include with the responsive brief “[a] response to the movant's statement of undisputed facts[ ] ... [that] contain[s] individually numbered, concise, nonargumentative responses corresponding to each of the movant's numbered undisputed material facts.” LR 56.1B(2)a(1), NDGa.; see also Linao v. GCR Tire Ctrs., Civil Action No. 2:09–CV–134–RWS, 2010 WL 4683508, at *2 (N.D.Ga. Nov. 12, 2010). If the non-moving party fails to respond to a material fact contained in the moving party's statement by directly refuting the fact with concise responses supported by specific citations to evidence, stating a valid objection to the admissibility of the fact, pointing out that the movant's citation does not support the movant's fact, or showing that the movant's fact is not material, the fact will be deemed admitted. See LR 56.1B(2)a(2), NDGa.; BMU, Inc. v. Cumulus Media, Inc., 366 Fed.Appx. 47, 49 (11th Cir.2010) (per curiam) (unpublished). Accordingly, the factual statements contained in Shoe Show's statement of material facts as to which there is no genuine issue to be tried, [Doc. 31–1], are deemed admitted. Nevertheless, the Court has disregarded those facts that are not material, are supported by a citation to a pleading rather than to evidence, or are stated as issues or legal conclusions, see LR 56.1B(1)-(2), NDGa., and the facts will be construed in the light most favorable to Scott as required on a motion for summary judgment, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir.2003) (per curiam).

B. Statement of Facts

Shoe Show is a retailer of footwear and accessories that operates retail stores in 38 states, including Georgia. [Doc. 31–3 (Manning Decl.) ¶ 3].⁵ Scott, an African–American, was employed as a Sales Associate at Shoe Show's retail store in Stockbridge, Georgia, from August of 2008 until August of 2010, and again from February of 2011 until September of 2011. [Doc. 28 (Pl.'s Dep.) at 29 p. 29, 32–33 pp. 32–33, 39 p. 39, 41–43 pp. 41–43].⁶

When Scott returned to Shoe Show in 2011, she took several written tests based on materials contained in the company manual, a copy of which was maintained at the store. [Id. at 44–45 pp. 44–45]. The tests covered topics such as sales, service, and shoplifting. [Id. at 46 p. 46]. Scott received a perfect score on each test. [Id. at 45–53 pp. 45–53]. Scott also took and signed a “Greeting Test & Employer–Employee Agreement,” which, among other things, stated, “I understand and agree ... I will not allow anyone to take merchandise and not report it.” [Id. at 54 p. 54; Doc. 28–7]. Scott understood that this was the company policy throughout her employment with Shoe Show and that she could be terminated from her employment with Shoe Show for violating this policy. [Doc. 28 at 55–56 pp. 55–56].⁷ In addition, Scott read and understood Shoe Show's Money Policy, which she signed to acknowledge her receipt and understanding of when she returned to work at Shoe Show in February of 2011, [id. at 56–58 pp. 56–58; Doc. 28–8], and she acknowledged that she had taken and passed the test regarding Shoe Show's theft policy, which was in place throughout Scott's employment with Shoe Show, [Doc. 28 at 50–56 pp. 50–56].

As a Sales Associate with Shoe Show, Scott's job duties included greeting customers, assisting customers in finding certain shoes or the correct shoe size, stocking the store's shelves, operating the computerized cash register, and completing a sale, which involved accepting various forms of payments from customers. [Id. at 33–36 pp. 33–36, 62–63 pp. 62–63]. Scott did not experience any difficulties in performing her job duties, and she did not request, nor did she require, any sort of accommodation in order to perform these duties. [Id. at 37 p. 37, 63–64 pp. 63–64]. Scott believed that her job performance was good. [Id. at 36 p. 36, 64 p. 64].⁸

On August 31, 2011, Broome, Shoe Show's Loss Prevention Investigator, conducted an investigation of the Stockbridge store due to the corporate office's concern regarding the high number of refunds being authorized at that store. [Doc. 29 (Broome Dep.) at 18 p. 17, 114–15 pp. 113–14; Doc. 31–3 ¶ 7]. Broome interviewed four employees at the store, including Scott. [Doc. 29 at 46 p. 45; Doc. 31–3 ¶ 7]. Prior to interviewing Scott, Broome provided her with an Interview Acknowledgment form,⁹ which she read aloud and then signed. [Doc. 28 at 67–68 pp. 67–68; Doc. 28–11].¹⁰ Broome's interview of Scott consisted entirely of oral questions and answers, and Scott was not asked to read, review, or comment upon any other documents during her interview other than the Interview Acknowledgment form. [Doc. 28 at 70–71 pp. 70–71]. During the interview, Scott admitted that she had allowed friends and family members to take shoes from the store without paying for them. [Doc. 29 at 35 p. 34]; see also [Doc. 28–12].¹¹

Broome took notes during the interview and specifically wrote down statements made by Scott. [Doc. 28 at 76 p. 76; Doc. 28–12]. In particular, Broome quoted Scott as saying, “I first started doing it by Nov. 2008”; “[t]he last time was by July 2011”; the “most I gave a way in one month = 10 pairs [and] I averaged at least 5 per month”; “I know it's at least 100”; “27 months x 5 pairs of shoes per month = 135 pairs of shoes”; “Average pair cost = $39.98 to 49.28”; “I didn't care if they did it”; “I would give them the [coast] is clear [and] let them take shoes[.] I just didn't care”; and “[t]hey were schoolmates, friends, relatives [and] neighbors[.] The word just got out that I would hook up.” See [Doc. 28–12]. Scott reviewed these notes, wrote on the left side margin of the notes that “[t]he notes right true and I do own the money,” [sic] and she then signed her name and dated it as August 30, 2011. [Id. ]; see also [Doc. 28 at 76–80 pp. 76–80].¹²

Scott also wrote a letter to the company dated August 30, 2011, which states in pertinent part as follows:

I have set down [sic] with [Broome] and told him everything. I'm sorry for letting my friends and family come in[ ]to the store and [steal]. I wasn't trying to hurt the company. I know in the 27 months of working 135 [pairs] of shoe[s] were [taken] and the cost of the shoe[s] were $5,397.30.[ ] I was just try [sic] to help friends and family out. By turn[ing][ ] my back and giv[ing] them the sign that it was ok. They t[a]ken the shoe [sic] and left. I [ ] didn't make any money of[f] the shoe. By tell [sic] you this I give you my word that it will never happen [ ] again. I know what can happen [ ] to me [i]f it does.

[Doc. 28 at 81 p. 81; Doc. 28–13]. Broome left the room while Scott prepared this statement. [Doc. 28 at 83 p. 83; Doc. 29 at 41 p. 40].¹³ When Broome returned, Scott read her statement aloud in the presence of Broome and Greser, Shoe Show's District Manager, who supervises the operations of 14 Shoe Show stores/including the Stockbridge store. [Doc. 30 (Greser Dep.) at 16 p. 15; Doc. 28 at 83–84 pp. 83–84]. Scott did not have any difficulty reading the statement to Broome and Greser, and she testified that she understood the meaning of her statement. [Doc. 28 at 84 p. 84; Doc. 30 at 59 p. 58].

At the conclusion of the interview, Scott signed a Counseling Conference memorandum in which she acknowledged that she had allowed other individuals to take over $5,000 worth of shoes from the store without paying for them. [Doc. 28 at 84–86 pp. 84–86; Doc. 28–14]. In the section titled “Employee comments,” Scott wrote, “I agree to the give away shoe, [sic] I'm sorry and I will never let it happen again.” [Doc. 28–14].¹⁴ Subsequently, J.W. Manning (“Manning”), a supervisor of the loss prevention and human resources departments of Shoe Show, made the decision to terminate Scott's employment based on her admission that she had allowed others to take merchandise from the store without payment in violation of the company's loss prevention policies, and he communicated this decision to Scott in a Separation Report dated ...