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Wilson v. Pearl Interactive Network Inc.

United States District Court, E.D. Kentucky, Central Division

April 23, 2018



          Joseph M. Hood U.S. District Judge.

         This matter is before the court upon Defendant's Motion for Summary Judgment [DE 25]. Plaintiff has responded, stating her objections [DE 35], and Defendant has filed a Reply [DE 40] in further support of its Motion. For the reasons which follow, the Court concludes that summary judgment is appropriate and that the motion shall be granted.


         Pearl Interactive Network, Incorporated (“Pearl”), opened a contact care center, or call center, in Winchester, Kentucky in the Summer of 2013. In Winchester, Pearl specializes in answering customer service questions from individuals and small businesses related to insurance plans available through the Affordable Care Act. Peak season correlates with open enrollment under the Affordable Care Act. Pearl performs this business pursuant to a series of contracts where the federal government is the ultimate client. The Center for Medicare and Medicaid contracted with General Dynamics Information Technology (“GDIT”) for GDIT to help administer customer service related to health insurance plans, and in turn, GDIT subcontracted with Pearl for Pearl to perform a portion of the call center business for those plans.

         Pearl hired Plaintiff Wilson as a seasonal customer service representative (“CSR”) on September 15, 2014, on an at-will basis. Wilson was one of 19 seasonal employees selected on December 31, 2014, to transition to a full-time CSR position.

         Plaintiff did well in her new role. In February 2015, Kirk Winiarczyk, Wilson's direct supervisor, nominated her for “Rookie of the Month.” Wilson won that award and was featured in Pearl's newsletter for the award, perfect attendance, and for winning the second-round quality and average handle time contest. The newsletter described Wilson as an “excellent employee and outstanding worker.”

         Advancement was available to Pearl employees. Open supervisor positions were only posted internally in an effort to allow existing CSRs to advance their careers with Pearl. In addition, CSRs were offered opportunities to learn skills needed to promote to supervisor. This included: nesting, floor walking, acting as drivers for training classes, and being an acting supervisor.[1]Wilson was identified as someone who desired advancement at Pearl. In addition to her regular job duties, she assisted as a “floor walker” and a peer mentor during nesting.

         During the time that Wilson was a full-time permanent CSR, Pearl posted internally for one supervisor position, on April 9, 2015. Winiarczyk forwarded the posting information to several of his team members, including Wilson, encouraging them to apply.[2]The position announcement stated a preference for candidates with a bachelor's degree or equivalent work experience and required 6 months supervisory or leadership experience, a minimum of two years customer service experience, and leadership and team interaction skills.

         Wilson applied for the position on April 12, 2015, and was interviewed after initial screening, along with 19 other existing Pearl CSRs. Several of the CSRs, unlike Wilson, were being interviewed for the second time. Co-operations managers Jason Howard and Tony Listermann conducted the interviews together. A set of interview questions was developed and used during each interview for consistency. Howard and Listermann took contemporaneous notes for each interviewee. Immediately following each interview, they ranked the candidate on a spreadsheet.

         Wilson was the least tenured candidate, and it was her first time applying for a supervisor position. She had no “acting supervisor” experience and had not yet been a driver. Wilson represented in her cover letter that she had three years of work experience in call centers, although she had actually worked only for Pearl and its subcontractor for 8 months and had an additional five months of call center experience with two other employers over the course of three years. Wilson had no supervisory experience in those call centers or with other employers, even though she had served as a college intern at a women's shelter and led counseling sessions as she worked on her degree in social work. At the time of the interview, based on objective performance benchmarks, Pearl ranked Plaintiff 91st among its CSRs.

         Both Howard and Listermann had concerns about Wilson's interview consistent with their interview notes. Both believed she could benefit from additional call center experience, either as a driver or acting supervisor with Pearl (neither opportunity had been offered to her at the time of the interview) and had concerns about her ability to work with others based on her responses during the interview.[3] Howard and Listermann came to a consensus to offer the position to Deserae Hale, a white female, and Human Resources signed off on the decision. Hale was the highest ranked candidate after the interviews. Her selection was announced on May 22, 2015.

         Hale had been a Pearl CSR since August of 2013 and had previously applied for the supervisor position. She had experience as a driver and acting supervisor for Pearl. While she had only fourteen (14) days of acting supervisory experience with Pearl and no college degree, she had four years prior experience supervising a team of employees in the restaurant industry, and almost three years working at Pearl and other call centers.

         Neither call center nor leadership experience were specifically listed as factors on the spreadsheet used by Howard and Listermann, nor did Hale's higher CSR ranking did not factor into the decision to promote her. On the spreadsheet, Wilson scored a “1” with respect to integrity and trust (Hale received a “3”) and lacked training driver or acting supervisor experience at Pearl (Hale received a “3” while Wilson received a “0”), leadership skills (Hale received a “3” while Wilson received a “2”), and “interview ranking” (Hale received a “5” while Wilson received a “2”), which the Court understands to mean Howard and Listermann's subjective evaluation of a candidate's performance during the interview relative to the other candidates. With respect to these scores, Howard and Listermann routinely reassessed the relative scores of those in the highest positions on their spreadsheet as more interviews took place in order to determine who was the best candidate performance-wise and should be promoted to supervisor.

         After Hale received the promotion, Wilson discussed the supervisor position with Betty Pennington, who was the only African-American supervisor at the facility at that time. Pennington confided in Wilson that she believed that Pearl discriminated against African-American and other minority employees. At some point, Wilson emailed Rutten, the onsite Human Resource representative to request a meeting so that she could review a copy of the affirmative action plan. Rutten did not reply. On May 27 and 28, Wilson made several attempts to find Rutten in her office. Rutten did not contact Wilson during this time. Finally, on May 28, 2015, Wilson spoke to Bruce Koenig about Pearl's affirmative action policy. Koenig worked for Pearl's contractor, GDIT, and his office was situated next to Rutten's office. After Koenig acknowledged to Wilson that Pearl was to have an affirmative action policy as a federal subcontractor, Wilson returned to work.

         Within a couple of hours of speaking to Koenig, Wilson's employment was terminated. Pearl's records indicate that Wilson was terminated for timecard fraud. Timecard fraud was an important issue for Pearl as a federal subcontractor, and all CSRs are trained during orientation regarding the importance of accurate timekeeping and logging on and off their phone for lunch and breaks. CSRs enter their time in Pearl's electronic ...

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