United States District Court, D. Arizona
V. Wake Senior United States District Judge.
Norma and Booker Coleman sued Norma Coleman's former
joint employers, Defendants Home Health Resources, Inc. and
The Crossing: Hospice Care, Inc., alleging retaliation under
Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967. On August 28, 2017,
this Court granted summary judgment in favor of Defendants.
See generally Coleman v. Home Health Res. Inc., 269
F.Supp.3d 935 (D. Ariz. 2017). Now before the Court are
Defendants' Motion for Award of Attorneys' Fees (Doc.
118), the Response, and the Reply.
summary judgment order (Doc.116) states the underlying facts
of the case. The Court assumes familiarity with that order
but reiterates the following for ease of reference.
Norma Coleman (“Coleman”) is an African-American
woman. She was jointly employed by Defendants Home Health
Resources, Inc. and The Crossing: Hospice Care, Inc.
(“Defendants”) from February 7, 2007, until July
was first hired as their chief financial officer, which
primarily involved bookkeeping. Three months later, she
received a positive performance evaluation. Roughly six
months after starting, she was promoted to Human
Resource/Payroll Manager. Coleman's new position carried
her original bookkeeping duties but also included managerial
duties in the human resources department. Her next three
performance reviews were uniformly positive.
began to suspect she was being paid less than Defendants'
younger, non-African-American employees. She approached her
supervisor in early fall of 2010 and asked for a pay raise-a
request that was denied because of a supposed pay freeze. But
Coleman had heard of other employees receiving raises, so she
asked again and was again rejected. She received a
discretionary bonus at the end of 2010.
after first requesting a raise, on October 15, 2010,
Coleman's supervisor issued her a “written warning
for work performance, ” which identified four areas
“requiring immediate improvement.” Coleman failed
to include complete information in personnel files, ran a
backlog of work, exhibited an inappropriate attitude, and
demonstrated unfamiliarity with the requirements of her job.
Coleman says Defendants had a policy of providing verbal
warnings before written ones, a policy not adhered to in this
filed a Charge of Discrimination with the EEOC on November 1,
2010 (the “2010 EEOC Charge”). She alleged race,
gender, and age discrimination, as well as retaliation. The
EEOC dismissed the Charge on October 19, 2011.
November 10, 2010, without knowledge of the 2010 EEOC Charge,
Defendants gave Coleman a verbal warning. But Coleman pointed
to other conduct that she interpreted as retaliatory for
having made the Charge:
o Defendants' CEO expressed “bewilderment”
about the Charge and suggested, in a way that
“intimidated” and “scared” Coleman,
that Coleman withdraw it.
o On December 13, 2010, Coleman's supervisor admonished
her for failing to update files in a timely fashion, which
may have been someone else's fault.
o On May 24, 2011, Defendants gave Coleman a written warning
for missing a work-related telephone hearing. Coleman was
actually seven minutes late, not missing entirely.
o Defendants assigned Coleman to work the office reception
desk on top of her other duties. She claims to have been the
only managerial employee required to work at the desk.
o Defendants excluded Coleman from meetings relevant to her
human resources work. They also excluded her from employee
exit interviews, despite having previously required that she
o Management staff stopped greeting Coleman and
“virtually refused to speak to her.” Once,
Coleman greeted the CEO, and she responded, “[W]hy are
you still here.”
o Defendants invited everyone except Coleman to a
co-worker's office birthday party.
o Coleman's supervisor told employees to stop directing
employee-related documents to Coleman.
o Coleman's May 31, 2011 performance evaluation showed a
“needs improvement” rating in nine areas. She
exceeded the standard in one area, and met the standard in
three others. Her supervisor refused to go over the
evaluation with Coleman when Coleman asked her to do so.
Coleman asked the CEO to review the evaluation with her. The
CEO said she would do so upon returning from a vacation. But
Coleman was terminated on July 11, 2011, before any meeting
ever took place.
filed a second Charge of Discrimination with the EEOC on
September 26, 2011 (the “2011 EEOC Charge”). The
2011 EEOC Charge alleged Defendants retaliated against
Coleman for the 2010 EEOC Charge. On October 19, 2011, the
EEOC found reasonable cause to believe Defendants retaliated
against Coleman by terminating her for engaging in a
protected activity. It “made no finding regarding any
other allegations raised in this charge.” (Doc. 131-1,
four years later, on July 15, 2015, Coleman filed this
action. Coleman's original Complaint categorized itself
as redressing “racial discrimination and retaliation in
the workplace.” (Doc. 1 at ¶ 1.) It contained 22
paragraphs of various facts and events without
differentiating what was discrimination and what was
retaliation. The discrimination allegations originally
included in the 2010 EEOC charges were time barred. On
December 16, 2015, in response to a motion, Coleman amended
her Complaint to list her husband as a co-plaintiff. (Doc.
33.) On January 19, 2016, Coleman again amended her Complaint
with the same 22 paragraphs of substantive allegations as the
original and first amended complaints. The only substantive
difference between the 22 paragraphs of the Second Amended
Complaint and the original Complaint was in the first line of
the first paragraph. Instead of characterizing the complaint
as alleging “racial discrimination and retaliation in
the workplace, ” it now characterized it as redressing
only “retaliation in the workplace.” (Doc.
Thus, only the retaliation claims, brought under Title VII of
the Civil Rights Act of 1964 and the Age Discrimination in
Employment Act of 1967 (“ADEA”), remained.
Court granted summary judgment in favor of Defendants on
August 28, 2017. (Doc. 116). It explained that Coleman's
only protected activity was filing the 2010 EEOC Charge. 269
F.Supp.3d at 941. It was not a protected activity to ask for
higher pay or to challenge the truth of the pay freeze, which
Coleman styled an “informal complaint, ” because
she “pointed to nothing in the record here indicating
she even hinted at discrimination on the basis of any status
protected under Title VII or the ADEA.” Id. at
941-42. Next, the Court analyzed which of Defendant's
actions could be construed as adverse employment
actions-non-trivial actions that would deter reasonable
employees from making Title VII complaints. It concluded that
only the termination and negative performance reviews and
admonishments (the December 13, 2010 admonishment, the May
24, 2011 written warning, and the May 31, 2011 performance
evaluation) qualified. Id. at 943. All other claims
failed either because they reflected mere ostracism, lacked
evidentiary support, or were otherwise too trivial to deter a
reasonable employee as a matter of law. Id. at
the Court found that there was no prima facie causal link
between Coleman's discharge and her 2010 EEOC Complaint
because there was an eight-month gap between the Complaint
and her termination. Id. at 945. With only the
performance reviews and admonishments remaining, the Court
determined that Defendants indisputably had a legitimate,
non-retaliatory rationale: Coleman “was not able to
meet the demands of the job.” Id. at 946. In
addition to various specific instances, pre- and postdating
her 2010 EEOC Complaint, Defendants had an independent,
outside consultant “who identified at least twelve
significant deficiencies in Coleman's job performance
that could expose Defendants to liability and advised them to
hire a ‘human resources professional' to take
over.” Id. Consequently, as recommended by the
independent consultant, Defendants eliminated Coleman's
position entirely “and brought in a number of outside
groups to run the department before settling on someone
satisfactory.” Id. Finally, the Court found no
genuine dispute that the proffered rational was
non-pretextual: Coleman received good performance reviews
until Defendants discovered the undisputed deficiencies in
her work. Id. at 947. “Overpromotion, if
that's what it was, does not vest an employee with a
Title VII or ADEA right to tenure after the employer
discovers its mistake and takes action to get the job