I enjoy the Cracker Barrel. Their chicken and dumplings is almost as good as what my southern family cooked up when I was a child. And, their sourdough French toast is wonderful, with or without a few of those small bottles of syrup. Alas, this is not a food blog. This post is about a recent decision affirming summary judgment against former Cracker Barrel employee Beatrice Lovett (African-American) on her Title VII and Section 1981 retaliation claims. Lovett v. Cracker Barrel Old Country Store, Inc., No. 16-1472 (4th Cir. July 7, 2017) (unpublished).
Cracker Barrel (CB) hired Lovett in August 2012 to be a Retail Shift Leader Trainee at a store in North Carolina. Lovett was hired as part of a program that permits certain retail employees to serve in temporary leadership roles when a store manager is absent. As part of the training program, a trainee is required to go through the Company’s Personal Achievement Responsibility (PAR) training program.
In fall 2012, a white female temporarily became Lovett’s direct supervisor. Lovett alleged that the supervisor started training a white employee instead of her, that she was subjected to derogatory statements, and that the supervisor discriminated against her because of her race. Lovett filed an internal complaint in early 2013. CB investigated and concluded that Lovett’s claims of race discrimination were unfounded.
In February 2013, CB assigned a different white female as Lovett’s supervisor. After this supervisor also refused to train Lovett, Lovett filed a second internal complaint. The Company’s investigator learned that the supervisor chose to train another employee (African-American) as a shift leader because that employee was with CB for a longer period of time and had completed the prerequisite for training – the PAR program. As before, Lovett’s claims were determined to be meritless.
Lovett filed a charge of discrimination in September 2013. A few weeks after filing her charge, Lovett informed the company that she could no longer work on Saturdays.
In her lawsuit, Lovett alleged that she was discriminated against and subjected to racist statements in retaliation for filing her EEOC charge. Among her allegations, Lovett claimed that she was told that, “[p]eople who go to the EEOC don’t get work around here anymore.” Between September 2013 and March 2014, Lovett was assigned less work, averaging roughly four fewer hours per week. Lovett subsequently told CB that she could not work at all on weekends.
After the EEOC dismissed Lovett’s charge, her hours were reduced even more. The Company claimed that Lovett’s hours were reduced because of her limited availability. By April 14, Lovett was taken off the Company’s schedule. That same month, management met with Lovett to discuss her availability. A supervisor informed Lovett that the Company scheduled employees who worked weekday shifts to the weekend shifts in order to be fair. Lovett was told that she would be placed back on the schedule if she expanded her availability.
The district court granted summary judgment in favor of Cracker Barrel on Lovett’s race discrimination and retaliation claims. On the race claim, the court concluded that Lovett could not establish a prima facie case or rebut the Company’s legitimate, non-discriminatory explanation. Likewise, on the retaliation claim, the court found that CB offered a legitimate, non-retaliatory reason for reducing Lovett’s hours (her limited availability). Lovett challenged only the retaliation claim on appeal.
The Fourth Circuit concluded that Lovett had not created a genuine dispute of material fact regarding whether CB’s proffered justification was pretext. In order to overcome CB’s explanation, Lovett was required to show “both that [Cracker Barrel’s] reason was false and that [retaliation] was the real reason for the challenged conduct.”
While Lovett established a prima facie case of retaliation, she could not show pretext. Lovett could not show pretext by relying solely upon “her own, self-serving declaration.” The court explained that “Lovett’s strongest evidence is her affidavit and a transcript of a March 2014 voice message . . . . In her affidavit, Lovett claim[ed] that during late 2013” she was subjected to “numerous racist statements” and told that “people who go to the EEOC don’t get work around here anymore.” The Company’s records, however, showed that Lovett’s hours were not reduced until after Lovett reduced her availability. Furthermore, the evidence showed that CB emphasized, and told Lovett of, the importance of expanded work availability. Absent evidence to show pretext, the Fourth Circuit affirmed the district court’s decision.