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Tilmon v. Ralph Lauren Retail, Inc.

United States District Court, D. Kansas

May 14, 2019

MELBA A. TILMON, Plaintiff,



         Plaintiff Melba Tilmon, proceeding pro se, filed these actions alleging discrimination and retaliation against her employer, Ralph Lauren Retail, Inc., under Title VII of the Civil Rights Act of 1964, [1] and the Age Discrimination in Employment Act of 1967 (“ADEA”).[2] The cases were consolidated on June 4, 2018, because Plaintiff's claims stemmed from a common nucleus of operative facts.[3] The consolidated action is before the Court on Defendant's Motion for Summary Judgment (Doc. 56). The motion is fully briefed, and the Court is prepared to rule. As explained more fully below, the Court grants Defendant's motion for summary judgment.

         I. Summary Judgment Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.[4] In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[5] “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party.”[6] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[7] An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.”[8]

         The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.[9] In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.[10]

         Once the movant has met this initial burden, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[11] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[12] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[13] To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.”[14] Rule 56(c)(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence.[15] The non-moving party cannot avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.[16]

         Where the defendant seeks summary judgment on an affirmative defense:

The defendant . . . must demonstrate that no disputed material fact exists regarding the affirmative defense asserted. If the defendant meets this initial burden, the plaintiff must then demonstrate with specificity the existence of a disputed material fact. If the plaintiff fails to make such a showing, the affirmative defense bars his claim, and the defendant is then entitled to summary judgment as a matter of law.[17]

         Finally, summary judgment is not a “disfavored procedural shortcut;” on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”[18] In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.”[19]

         Because Plaintiff is a pro se litigant, the court must construe her pleadings liberally and apply a less stringent standard than that which is applicable to attorneys.[20] However, the court may not provide additional factual allegations “to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.”[21] The court need only accept as true the plaintiff's “well-pleaded factual contentions, not h[er] conclusory allegations.”[22] Additionally, a pro se litigant is not excused from complying with the rules of the court and is subject to the consequences of noncompliance.[23]

         II. Uncontroverted Facts

         Most of the material facts in this matter are stipulated in the Pretrial Order. To the extent the following facts are not stipulated, they are either uncontroverted or viewed in the light most favorable to Plaintiff as the nonmoving party.

         Defendant Ralph Lauren Retail, Inc. (“Ralph Lauren”) opened a Kansas City, Kansas retail factory store in 2011. On September 11, 2011, Defendant hired Plaintiff Melba Tilmon as a Store Supervisor; she was one of the original employees of that store. Plaintiff is an African American female, born in 1960. Prior to joining Ralph Lauren, she had more than twenty years' experience working in retail. Plaintiff received an overall “Achieves Expectations” performance rating in April 2013. In April 2014, Plaintiff again received an overall “Achieves Expectations” performance rating, but a “Below Expectations” rating in “Building Relationships.” Jill Jones completed this performance evaluation of Plaintiff. Plaintiff does not claim that Jones discriminated against her.

         Assistant Manager Opportunities

          Plaintiff applied to be an Assistant Manager at Defendant's Kansas City, Kansas store twice between June and November 2014. Plaintiff first applied on June 1, 2014. She interviewed on June 17, 2014 with then-General Manager Janet Haller. Plaintiff was not hired for the position. Ms. Haller instead hired Rebecca Perkins-a Caucasian woman under the age of forty. Ms. Perkins was qualified for the position and had prior experience as an Assistant Manager that Plaintiff did not have.

         Plaintiff next applied for an Assistant Manager position on August 10, 2014. This time, however, Plaintiff did not interview for the position. Ms. Haller hired Kimberly Harland-an African American woman over the age of forty. On August 22, after learning she was not granted an interview, Plaintiff sent an email to District Manager Winston Mays and Senior Director of Human Resources Patricia Moffett, alleging “unfair differential treatment in a hostile work environment.”[24] She complained that her “desire to advance within the Company has been met with negativity each time I have applied internally for an open position, ” and that she is the “victim of . . . bias and discrimination.”[25]

         One month later, on October 14, Plaintiff called Defendant's Fair Employment Practice (“FEP”) hotline to complain about Ms. Haller's management style and failure to promote her. Plaintiff also submitted a written complaint. The Senior Director of the FEP Department, Ty Ragland, investigated Plaintiff's complaints about Ms. Haller-complaints that were similar to complaints Plaintiff had made about Ms. Haller's predecessor, Brian Weiss. Plaintiff claimed that Mr. Weiss: (a) treated her differently, (b) never talked to her, (c) demonstrated inappropriate behavior in bringing up her prior lawsuits, (d) discouraged her from applying for Assistant Manager positions, and (e) had not spent time with her or spoke with her as he did with others. Plaintiff does not allege, however, that Mr. Weiss discriminated against her based on any protected status. Mr. Ragland sent Plaintiff the results of the FEP investigation on November 19, 2014, and informed her that his office was “unable to substantiate [the] allegations of unlawful discrimination and inappropriate management behavior.”[26]

         Another Assistant Manager position opened in November 2014. Due to the quickly approaching holidays, Defendant did not post or interview for this position. Ms. Haller instead hired the “runner-up” for the August Assistant Manager position-April Shea, a Caucasian woman who was under forty years old. Plaintiff was not interested in this position because it was for an Assistant Manager of Human Resources, whereas Plaintiff wanted to be an Assistant Manager of Merchandising.

         Performance Issues

         Ms. Haller described Ms. Tilmon as “unresponsive to coaching and dismissive of anything she has to say, ”[27] and her performance as “below average because she does not execute efficiently, communicate well with others, or take feedback/coaching without getting defensive.”[28] Plaintiff's direct supervisor April Degraffenreid stated, “[c]ommunication is the biggest challenge that

Ms. Tilmon faces” and that Ms. Tilmon comes to work and does not communicate with the store management team, rather she will come in and just to a particular spot in the store and begin working in that area. When managers try to communicat[e] with her there is a lot of resistance or she will just blatantly ignore. She will keep herself busy completing tasks that need to be completed, but will not check in to see what the agenda for the day may be.[29]

         On February 5, 2015, Defendant placed Plaintiff on a Performance Improvement Plan (“PIP”), which was signed by Ms. Haller, Ms. Degraffenreid, and Plaintiff. The PIP required Plaintiff to improve in three areas: (1) nurturing customer relationship and partnerships; (2) fostering open communications with others in the company; and (3) building relationships. Among the problems listed under item 2 are: “Melba has a difficult time taking direction from the leadership team and being redirected in her focus, ” and “Melba struggles with change and isn't open to feedback to improve her performance.”[30] Plaintiff disagreed with the substance of the PIP and sent Ms. Haller a letter rebutting the alleged performance issues. She explicitly refused to make any adjustments to her behavior and how she handled her supervisor role, especially as to Ms. Haller.

         On March 9, 2015, Plaintiff received a follow-up Written Performance Discussion from Ms. Degraffenreid, indicating that Plaintiff's performance had not adequately improved since the PIP was issued. Plaintiff again disagreed with the substance of the document, and again sent Ms. Haller a letter rebutting the alleged performance issues.

         On April 9, 2015, Defendant's Kansas City store received an email from the manager of Sales Audit/Finance, stating there had been a shortage error on March 28. Ms. Haller responded to the email that Plaintiff did not follow procedure. It was Ms. Haller's task to investigate the shortage, and as part of the investigation Ms. Haller spoke with Plaintiff and Ms. Perkins, because they were the two members of management who closed the store on March 28. In April 2015, Ms. Tilmon received an overall rating of “Below Expectations” on her annual appraisal. Plaintiff indicated below her signature that she did not agree with the assessment.

         On April 10, 2015, Plaintiff received a Final Written Warning on her PIP. This document again indicated that Plaintiff had not made adequate progress since the PIP's issuance, and that the next step would be termination. Again, Plaintiff disagreed with the substance of the document, and again she sent Ms. Haller a letter rebutting the alleged performance issues.

         On June 15, 2015, Ms. Haller took a picture with the store iPad of merchandise Plaintiff had brought out. Ms. Haller captioned the photo “Leftover product” and sent it to her personal email. Ms. Haller often took pictures with the store iPad to help coach employees, including both Caucasian and minority employees. As the General Manager of Defendant's Kansas City store, Ms. Haller was responsible for the overall operations of the store, including ensuring that all employees were doing their jobs and complying with Defendant's policies.

         On July 7, 2015, the Regional Manager, the Senior Director of Human Resources, and the District Manager all visited the store to conduct interviews with the staff about the atmosphere of the store. Plaintiff was called to the office and questioned about a May 20, 2015 shoplifting incident. On that day, two suspected shoplifters left Defendant's Kansas City store. Defendant's Suspected Shoplifter Response Policy states: “NEVER leave the building to follow a suspected shoplifter; do NOT chase or attempt to run after a suspected shoplifter; stay in the building.”[31]Despite this policy, Plaintiff exited the store after two suspected shoplifters had left. Plaintiff, however, stated that she was not following the shoplifters, but instead going to retrieve the merchandise.

         The Senior Director of Human Resources told Plaintiff that leaving the building during a shoplifting incident was against company policy. Plaintiff explained that she had not pursued the shoplifters but had simply “reacted to a customer stating that the merchandise was dropped outside the store.”[32] Plaintiff was asked to write a statement regarding the incident. On July 30, Plaintiff was called back to the office. There, the Senior Director of Human Resources informed her that the company had concluded that she had indeed violated company policy by stepping outside the store. The Senior Director also informed Plaintiff that if it happened again it would be grounds for termination.

         On July 31, 2015, Ms. Haller called Plaintiff to the office and questioned her about a July 11 employee transaction. During Plaintiff's shift that day, an employee had worn a shirt before purchasing it. Employees are required to pay for items before using them, including before wearing any clothing. Plaintiff explained that she knew the employee had not purchased the shirt before putting it on, but that she took the tag from the item and placed it on her register. Because a line of customers had formed, Plaintiff first checked out the customers and then proceeded to sell the employee the shirt. Plaintiff then told Ms. Haller that she was upset about the monitoring of her actions, and that she believed her persecution was unacceptable and would no longer be tolerated. Plaintiff also told Ms. Haller that if the Defendant continued to ignore Ms. Haller's behavior and differential treatment of Plaintiff, then she would take her concerns outside of the company.

         Plaintiff understood that failing to complete the PIP successfully would result in the termination of her employment. Nonetheless, despite the written warning in April 2015, Defendant did not terminate Plaintiff once the PIP was “complete.” Plaintiff continues to work for Ralph Lauren at the Kansas City, Kansas store.


          On April 11, 2015, Plaintiff requested to take four hours of Family and Medical Leave Act (“FMLA”) leave. Plaintiff followed proper procedure but was not paid for those hours until inquiring about it to corporate payroll and Ms. Haller. Ms. Haller said the failure to pay for the time was an oversight and that she would correct the error. The missing pay indeed came in the next pay period.

         Ms. Tilmon's schedule reflects regular days off.

         Administrative Charges

         Plaintiff filed three administrative charges with the Kansas Human Rights Commission against Defendant on April 3, 2015, February 3, 2016, and June 27, 2016. She has received right to sue letters on the charges contained therein.

         III. Discussion

         Plaintiff asserts discrimination and retaliation claims under Title VII and the ADEA.[33] In the Pretrial Order, Plaintiff alleges three discrete acts of discrimination based on race and age: (1) failure to promote; (2) placement on the PIP; and (3) unsatisfactory ratings. Plaintiff alleges retaliation “for filing a Charge of Discrimination” . . . including “non equity in scheduling, work ethics and tasks were inconsistently scrutinized, ” and “lack of communication or refusal to resolve concerns.”[34] The Court first considers Defendant's affirmative defense that Plaintiff failed to exhaust administrative remedies on all failure-to-promote claims, except for the Assistant Manager position in November 2014. The Court next considers the merits of Plaintiff's exhausted claims.

         A. Administrative Exhaustion

         Title VII and the ADEA both require exhaustion of administrative remedies.[35] Failure to exhaust administrative remedies is an affirmative defense.[36] To exhaust administrative remedies, a plaintiff must file an administrative charge with either the EEOC or an authorized state agency and receive a right-to-sue letter based on that charge.[37] The Court must liberally construe the administrative charge to determine whether a particular claim has been exhausted.[38] The inquiry “is limited to the scope of the administrative investigation that can reasonably be expected to follow from the discriminatory acts alleged in the administrative charge.”[39] Potential claims are limited in that “each discrete incident of [discriminatory or retaliatory treatment] constitutes its own ‘unlawful employment practice' for which administrative remedies must be exhausted.”[40]

         Defendant argues that Plaintiff failed to exhaust her failure-to-promote claim except with respect to the November 2014 position discussed in her first charge. Plaintiff's April 3, 2015 Charge alleges discrimination between May 22, 2014 to March 9, 2015. The only reference to a promotion in that charge states: “On November 17, 2014, I was denied the opportunity to apply for an Assistant Manager position.”[41] Neither the second nor the third charge contain allegations related to promotions. The Court finds that Defendant has met its burden of demonstrating as a matter of law that Plaintiff failed to administratively exhaust all non-promotion claims except for the Assistant Manager position that became available in November 2014. Plaintiff does not address this issue in her response to summary judgment. The Court therefore grants Defendant's motion for summary judgment on its affirmative defense that Plaintiff's failure-to-promote claims, except for the claim arising out of the November 2014 Assistant Manager position, were not administratively exhausted.

         B. Merits of Exhausted Claims

         Plaintiff's remaining discrimination and retaliation claims must be decided under the familiar McDonnell Douglas Corp. v. Green[42] burden-shifting framework because Plaintiff relies on circumstantial evidence.[43] Under McDonnell Douglas, plaintiff initially bears the burden of production to establish a prima facie case of discrimination or retaliation.[44] The burden of establishing the prima facie case is “not onerous.”[45] If plaintiff ...

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