United States District Court, N.D. Indiana, Hammond Division
LORINE BLAKELY, LILLIAN M. BROWN, TIERNEY LOKEY, MABEL OWUSU, KIA THOMAS, LEOLA NANCY STONE, JULIA E. ROGERS, VERRETTA TERRY, ANGELA SALES-STEPHENS, ANGELA L. WALKER, MARLO WILLIAMS, MARY B. WILLIAMS, Plaintiffs,
BIG LOTS STORES, INC., Defendant.
OPINION AND ORDER
JAMES T. MOODY, District Judge.
Defendant Big Lots Store, Inc. ("Big Lots" or "defendant") has moved for summary judgment on plaintiff Angela Sales-Stephens's ("plaintiff") claims against it. (DE # 72.) Plaintiff has filed a response to this motion (DE # 75), and defendant has filed a reply (DE # 79.) For the following reasons, defendant's motion is denied.
I. Facts and Procedural History
In the summary that follows, the court refers only to undisputed facts, or, if there is a dispute, notes that it exists and relies on the version of the fact, or inference therefrom, that is most favorable to plaintiff. This summary provides an overview. Additional relevant undisputed facts will be referred to in the analysis that follows. The court will do its best to summarize the facts in a chronological order.
Big Lots is a national retailer that focuses on selling closeout and discounted merchandise. (DE # 70 at 2; DE # 75-1 at 21-22; DE # 1 at ¶ 15.) Plaintiff began her career at Big Lots in 1993 as a part-time cashier. (DE # 75 at 6; Sales-Stephens Deposition pages 176-77.) Plaintiff eventually became store manager of Store # 1739 in Merrillville, Indiana, around 2004, and held that position for approximately five or six years. (DE # 75 at 6; DE # 75-1 at 23; Sales-Stephens Deposition page 183.) Plaintiff's duties as store manager included merchandising, operations, staff selection, and management of the store. (DE # 75 at 6; DE # 75-2 at 1.) Plaintiff, who is Caucasian, is married to an African-American man, and has five biracial children. (DE # 70 at 2; DE # 75-1 at 19; Sales-Stephens Deposition page 113.)
As the store manager, plaintiff received annual performance reviews from Mike Batka ("Batka"), the district manager for the Merrillville Big Lots location. (DE # 71-5 at 33; Sales-Stephens Deposition page 53; DE # 71-13 at 2.) In her 2006 performance review, plaintiff was given an overall rating of "very good." (DE # 71-11 at 3.) Plaintiff's performance was reduced from "very good" to "good" in her 2007 performance review. (DE # 71-13 at 3.) Batka's comments in her 2007 performance review indicate that he thought plaintiff needed to improve her performance in some areas. ( Id. ) Specifically, Batka stated: "[Plaintiff] [n]eeds to show immediate improvement on company/regional/district directives, to be measured immediately." ( Id. ) Additionally, Batka also indicated that plaintiff needed to "work to improve the performance of her management team" and "work to develop her team to be better merchants through more training and hiring some new talent." ( Id. )
In 2008, Big Lots instituted a new quality assurance initiative known as "Ready For Business." (DE # 70 at 3; Sales-Stephens Deposition page 62; DE # 71-5 at 36.) The "Ready For Business" initiative was aimed at, among other things, improving store appearance, increasing customer traffic, increasing the amount of time and money customers spent in the store, reducing losses, and improving profits. (DE # 70 at 3-4; Sales-Stephens Deposition pages 61-67; DE # 75-1 at 35-41.)
In October or November of 2008, Batka visited the Merrillville store, which employed primarily African-American employees. (DE # 75 at 6; Sales-Stephens Deposition page 33; DE # 75-1 at 10; Batka Deposition page 107; DE # 75-3 at 4.) Batka and plaintiff, who was the store manager at that time, walked around the store observing the employees. (DE # 75 at 6; Sales-Stephens Deposition page 34; DE # 75-1 at 11.) At that point, Batka told plaintiff that she did not have "the right caliber of employees in [her] store." (DE # 75 at 6; Sales-Stephens Deposition page 34; DE # 75-1 at 11.) As they continued to walk through the store, they walked past employee Mabel Owusu, and Batka told plaintiff that Owusu was "just a high-priced stocker." (Sales-Stephens Deposition page 34; DE # 75-1 at 11.) Additionally, Batka told plaintiff that employee Leola "Nancy" Stone was just a "high-priced" bookkeeper that could not perform management duties. (Sales-Stephens Deposition page 34; DE # 75-1 at 11.) Batka also told plaintiff that she needed to get rid of Lorine Blakely, who he described as "dead weight." (DE # 75 at 6; Sales-Stephens Deposition page 102; DE # 75-1 at 17.) Then, after plaintiff and Batka returned to the store's office, Batka told plaintiff that she needed to "diversify [her] store." (DE # 75 at 6; Sales-Stephens Deposition page 34; DE # 75-1 at 11.) In response, plaintiff told Batka that she did not see anything wrong with the employees that were currently working at the store. (Sales-Stephens Deposition page 35; DE # 71-5 at 29.)
In November of 2008, plaintiff set up a hiring table at the Merrillville store to hire new employees for the Christmas season. (DE # 75 at 6; Sales-Stephens Deposition page 36; DE # 75-1 at 12.) A short time later, after Batka returned to the Merrillville store, plaintiff asked Batka to look over the holiday applications with her. (DE # 75 at 6; Sales-Stephens Deposition page 36; DE # 75-1 at 12.) At that point, Batka told plaintiff that she just needed to pull applications from the Highland and Portage Big Lots stores. (DE # 75 at 6-7; Sales-Stephens Deposition page 36; DE # 75-1 at 12.)
As a result of this conversation with Batka, plaintiff called the Portage store, and spoke to an employee named Sheryl,  the Portage store manager. (DE # 75 at 7; Sales-Stephens Deposition page 16; DE # 75-1 at 6.) Plaintiff told Sheryl she did not think it was fair that Batka wanted her to get applications from outside of her area, and also told Sheryl she thought Batka's request was "a racial thing." (DE # 75 at 7; Sales-Stephens Deposition page 17; DE # 75-1 at 7.) Ultimately, plaintiff did not get any applications from the Portage store or hire anyone from that store. (DE # 75 at 7; Sales-Stephens Deposition pages 37-38; DE # 75-1 at 13-14.) Instead, plaintiff hired applicants that had applied to the Merrillville store. (DE # 75 at 7; Sales-Stephens Deposition page 38; DE # 75-1 at 14.)
In late 2008, plaintiff began to receive formal written disciplinary warnings. On December 10, 2008, defendant (through Batka) issued plaintiff a written Disciplinary Counseling regarding plaintiff's performance. (DE # 70 at 4-5; DE # 71-12.) In that counseling, Batka listed several specific examples of performance problems he felt plaintiff was having. (DE # 71-12.) Among other things, Batka noted that the conditions at plaintiff's store were "unacceptable" and that plaintiff "must deliver a store that is Ready For Business." ( Id. )
Batka returned to the Merrillville store in January of 2009. (DE # 75 at 7; Sales-Stephens Deposition page 39; DE # 75-1 at 15.) During a private conversation between plaintiff and Batka, plaintiff asked Batka why he no longer liked her. (Sales-Stephens Deposition page 40; DE # 75-1 at 16.) Batka responded: "It's not that I don't like you. I need you to make changes in the store. I need you to diversify the store." (Sales-Stephens Deposition page 40; DE # 75-1 at 16.) Plaintiff responded that she did not feel the same way, and Batka stated: "[D]o you understand what I'm saying to you? Do you understand, for your career here, you need to hire and diversify the store." (Sales-Stephens Deposition page 40; DE # 75-1 at 16.) Plaintiff responded "yes, " and left the office. (Sales-Stephens Deposition page 40; DE # 75-1 at 16.)
Around this same time,  Batka told plaintiff that she needed to remove pictures of her biracial children from a refrigerator at the store because "it needs to be a professional environment." (DE # 75 at 7-8; Sales-Stephens Deposition page 112; DE # 75-1 at 18.) Batka did not make any racial comments during this conversation. (Sales-Stephens Deposition page 113; DE # 75-1 at 19.) Other store managers were allowed to display family photos in their offices. (Sales-Stephens Deposition page 113; DE # 75-1 at 19.) Additionally, Batka displayed a picture of his Caucasian daughter on his work-issued computer. (Sales-Stephens Deposition page 115; DE # 75-1 at 20.)
Plaintiff brought her concerns about the way she was being treated to Josh Hammerschmidt, Regional Human Resources Manager, in January of 2009. (DE # 75 at 8; Sales-Stephens Deposition page 12; DE # 75-1 at 2.) Plaintiff told Hammerschmidt that Batka was being "unfair" and was "picking on" her. (Sales-Stephens Deposition page 12; DE # 75-1 at 2.) She also told Hammerschmidt that the first Disciplinary Counseling that Batka gave her was not true, and that it seemed like Batka was looking for reasons to give her written disciplinary warnings. (Sales-Stephens Deposition page 13; DE # 75-1 at 3.) Plaintiff told Hammerschmidt that Batka was trying to get her fired, and asked Hammerschmidt what she should do. (Sales-Stephens Deposition page 13; DE # 75-1 at 3.) Hammerschmidt told plaintiff that he had not had any conversations with Batka about firing her, and that Batka was not trying to fire her. (Sales-Stephens Deposition pages 13-14; DE # 75-1 at 3-4.) Hammerschmidt also told plaintiff that she needed to follow Batka's directions, and reminded her that her employment was at will. (Sales-Stephens Deposition page 14; DE # 75-1 at 4.)
Plaintiff did not say anything to Hammerschmidt regarding her belief that Batka's behavior was racially motivated. (Sales-Stephens Deposition page 17, lines 20-23; DE # 75-1 at 7.) Plaintiff also testified that she never told any supervisor or any higher-up at Big Lots about the alleged racial discrimination:
Q: And you made no complaint or report of anyone at Big Lots regarding what you regarded as racial harassment of you; isn't that right?
A: I started the conversation with Josh, and in the beginning of the conversation I understood that it would go - it was not going anywhere. He was not listening to what I was saying. So no, I did not report it to Josh.
Q: Or anyone else at Big Lots?
Q: Is that right?
A: Anyone above me, no.
(DE # 70 at 10; Sales-Stephens Deposition pages 24-25; DE # 71-5 at 20-21.)
Additionally, plaintiff did not report the alleged photo incident to anyone at Big Lots:
Q: Did you make any complaint to anyone about having to remove the photographs from the refrigerator?
A: No. I followed [Batka's] direction and did what he told me to do.
Q: Did you believe that that was a violation of the race-harassment policy or equal opportunity policy at Big Lots?
A: I felt it was wrong, yes.
Q: You felt that it was a violation of the policies?
Q: But you never reported it to ...