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Nealis v. Coxcom, LLC

United States District Court, N.D. Oklahoma

March 22, 2017

COXCOM, LLC, Defendant.



         Now before the Court is defendant's motion for summary judgment (Dkt. # 94). Defendant asks the Court to grant summary judgment in its favor, arguing that plaintiff's retaliatory failure to promote claim is time barred, that plaintiff has failed to make a prima facie showing of retaliation or discrimination, and that plaintiff has failed to demonstrate pretext. Dkt. # 94, at 20-30. Plaintiff responds that she has established a prima facie case of retaliation, and that she has presented sufficient evidence of pretext. Dkt. # 112, [1] at 25-27. Defendant replies that plaintiff abandoned her claims of retaliatory failure to promote and sex discrimination by failing to address in her response brief defendant's arguments for summary judgment on those claims. Dkt. # 127, at 1-2.


         In August 2007, defendant hired plaintiff, a white female, as a realtor sales representative to work in its Tulsa office. Dkt. # 94, at 8; Dkt. # 112, at 1. In 2008, plaintiff became an acquisition sales representative, and in February 2009 she became an account executive for defendant's retention team. Dkt. # 94, at 8; Dkt. # 112, at 1. While she worked as an account executive, plaintiff reported to sales manager Tom McPherson, who reported to director of sales Tim Jenney until March 9, 2013, when Jenney resigned. Dkt. # 94, at 8; Dkt. # 112, at 1. After Jenney's resignation, McPherson reported to Jenney's replacement, Christopher Shipman. Dkt. # 94, at 8-9; Dkt. # 112, at 1.

         In June 2012, the sales team took a business trip to Oklahoma City. Dkt. # 94-1, at 22. Defendant provided a charter bus from Tulsa for its employees. Id. at 130. Seated behind plaintiff on the bus was Mark Palzer, who was a member of the small business group, which was managed by Shelley Stauffer. Id. at 23, 130. While on the bus, plaintiff overheard a phone conversation between Stauffer and Palzer in which Stauffer was yelling at Palzer for riding on the bus instead of the separate van provided for the small business group. Id. at 130. The van pulled in front of the bus at a traffic light, and Stauffer got out of the van, pounded on the door of the bus, and ordered Palzer to get off the bus and into the van. Id. Palzer collected his belongings and moved to the van. Id. Plaintiff immediately sent McPherson a text message to tell him what happened and asking him to help Palzer. Id. at 131.

         The next day, plaintiff went to the office of Melissa Cruts, a human resources business partner, to discuss the bus incident. Id. at 25. Jenney was already in Cruts's office when plaintiff arrived, and plaintiff reported to both of them what she had seen between Stauffer and Palzer the day before. Id. at 25, 124. Plaintiff told Cruts and Jenney that she was embarrassed for the company and that she believed Stauffer singled out Palzer for harsh treatment. Id. at 124. Plaintiff also reported that Stauffer told another member of the retention team at some point that, “We have enough white men in the group, we need to hire diversity.” Id. at 30-31, 124. In December 2012, Palzer, a white male over forty years old, filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that Stauffer, a white woman in her fifties, discriminated against him on the basis of his race and age. Dkt. # 116-28. Palzer listed plaintiff as a witness to the bus incident and the diversity comment. Id. at 9.

         In August 2012, defendant issued new corporate policies that stated all accounts funded by the Oklahoma Universal Services Fund (OUSF) must be handled by the designated account representative. Dkt. # 94-1, at 57, 132. Plaintiff had a large account at the time that used OUSF funds, and McPherson and Jenney told plaintiff that an exception to the new rule had been made so that she could continue to work on the account. Id. at 58, 132. In December 2012, McPherson and Jenney told plaintiff that “it had been handed down from corporate headquarters” that there would no longer be an exception to the new rule and the account would be handed over to Brent Sherl, a senior account executive. Id. at 132.

         In December 2012, plaintiff applied for the position of strategic service manager. Dkt. # 94, at 10; Dkt. # 112, at 1. The position reported to Darren Holland, the director of operations for Oklahoma. Dkt. # 94, at 10; Dkt. # 112, at 1. A human resources employee determined that three of the four applicants were qualified for the position, and the three remaining applicants, including plaintiff, were interviewed by Holland and Jenney in early February 2013. Dkt. # 94, at 10; Dkt. # 112, at 1. On March 14, 2013, Holland hired Stephanie Schultze, a white female, for the position. Dkt. # 116-30, at 22.

         On February 25, 2013, plaintiff submitted her resignation to McPherson to open her own transportation business. Dkt. # 94-1, at 46-47. The next day, plaintiff wrote an email to Randy Chandler, vice president of Cox Business, informing him of her resignation and asking to meet with him that week to talk about the strategic service manager position and her future at the company. Id. at 139. After meeting with Chandler, during which he encouraged plaintiff to stay at the company, plaintiff decided to rescind her resignation. Id. at 52-55.

         On June 10, 2013, defendant terminated Palzer. Dkt. # 94-2, at 2. Defendant's proffered reason for firing Palzer was “poor performance.” Id. Plaintiff asserts that she made “additional complaints” to “management” about Stauffer's “discriminatory treatment of Palzer” after plaintiff's initial discussion with Jenney and Cruts in June 2012. Dkt. # 116-5, at 2. Plaintiff states that the last of these complaints was to McPherson in August 2013, two months after Palzer was fired. Id.

         On October 4, 2013, defendant terminated Steven Fulps for violating its conflict of interest policy. Dkt. # 94, at 13-14; Dkt. # 112, at 1. Human resources business partner Erin Vierthaler conducted the conflict of interest investigation, during which she discovered that Fulps owned a company that provided services offered by defendant and that Fulps had used his position with defendant to solicit business for his personally-owned company. Dkt. # 116-3, at 12-17. During his interview with Vierthaler, Fulps “complained that there were other employees who ran their own businesses.” Dkt. # 94-4, at 3. Fulps asserts that he did not specifically identify any employees who ran other businesses, Dkt. # 116-7, at 1, but Vierthaler asserts that Fulps named plaintiff, Dkt. # 94-4, at 3.

         After Fulps was fired, McPherson, at Vierthaler's request, asked plaintiff to review defendant's conflict of interest policy to determine whether she needed to file a disclosure form. Dkt. # 94, at 16; Dkt. # 112, at 1, 5-6. Plaintiff completed a disclosure form stating that her domestic partner and two uncles owned “telcom-related” businesses used by some of defendant's customers. Dkt. # 94-1, at 86, 240. At the request of human resources manager Heather Romeike, Vierthaler conducted an investigation into Tulsa Telesolutions, the company managed by plaintiff's domestic partner. Dkt. # 94-4, at 3. Vierthaler interviewed plaintiff in November 2013 about her potential conflict of interest. Dkt. # 94, at 17; Dkt. # 112, at 1. Based on her investigation, Vierthaler determined that plaintiff had been the owner/operator of Tulsa Telesolutions frm August 2011 to sometime in 2012, and that her partner ran the company after 2012. Dkt. # 94-4, at 43. Vierthaler also concluded that plaintiff financially benefitted from the business and that the company competed with defendant. Id.

         In early December 2013, Vierthaler sent a summary of her investigation to vice president of human resources Becky Ordoyne. Id. at 5, 37. Ordoyne reviewed the summary and determined that a conflict of interest existed. Id. at 37. On December 16, 2013, Vierthaler sent an email to McPherson, Shipman, and Romeike attaching her investigation summary and recommending termination of plaintiff's employment. Id. at 6, 43. Vierthaler asserted that a conflict of interest existed because plaintiff had the ability to refer defendant's customers to outside vendors, including Tulsa Telesolutions, and she had access to defendant's current and potential customer lists, sales strategies, and network information. Id. at 43. Shipman, Chandler, McPherson, and Romeike approved of plaintiff's termination under the conflict of interest policy. Id. at 57-61. On December 20, 2013, defendant terminated plaintiff's employment. Id. at 7.

         On December 3, 2015, plaintiff filed this suit in the Tulsa County District Court, State of Oklahoma. Dkt. # 2-3, at 1. Defendant removed the case to this Court. Dkt. # 2. Plaintiff alleges claims of retaliatory discharge, retaliatory failure to promote, and sex discrimination, all under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII). Dkt. # 2-3, at 10-14. Defendant now moves for ...

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