Opinion
Case No. 99-8736-CIV-HURLEY/LYNCH
January 12, 2001
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon defendant's motion for summary judgment [DE#25] upon racial discrimination and retaliation claims brought under Title VII of the Civil Rights Act of 1964 [ 42 U.S.C. § 2000e et seq.] and § 760.11, Florida Statutes, the Florida Civil Rights Act. Following oral argument and careful review of the parties' memoranda in support of [DE#26] and in opposition to [DE#36] the motion, the court has determined to deny the motion as to all claims.
I. INTRODUCTION
Plaintiff Joanes Clermont ("plaintiff" or "Clermont") is a black Haitian male. He was employed by defendant Frenchman's Creek Country Club ("defendant" or "Frenchman's Creek") as a full-time maintenance worker from November 1996 through June 1998. Clermont complains that he was disciplined more harshly and paid less than similarly situated white employees during his tenure at Frenchman's Creek. In addition, he contends that Frenchman's Creek retaliated against him by issuing unfounded disciplinary write-ups and ultimately firing him because he voiced complaints about discriminatory conduct perpetrated against him by his direct supervisor, Gonzalo Navarro.
After leaving his employ at Frenchman's Creek, Clermont filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC") on December 23, 1998, and commenced this lawsuit on September 27, 1999. In his Complaint, Clermont alleges unlawful employment discrimination in violation of Title VII [42 U.S.C. § 2000 (e)] and the Florida Civil Rights Act, § 760.11, Florida Statutes. His complaint consists of four counts: unlawful employment discrimination based on disparate treatment (Counts I and III) and unlawful retaliation for voicing complaints of racial discrimination to his superiors at Frenchman's Creek (Counts II and IV).
Defendant contends that it is entitled to summary judgment on these claims, arguing, first, that there are insufficient allegations to support a hostile work environment claim as a matter of law (apparently interpreting Counts I and III to subsume such a claim); second, that plaintiff has not established a prima facie case of disparate treatment because he has adduced no evidence of similarly situated non-blacks who were treated differently from him in disciplinary treatment or pay; and third, that plaintiff has not established a prima face case of retaliation because he has adduced no evidence of a causal link between protected activity and allegedly adverse employment action suffered by him.
These counts are both generically labeled "racial discrimination," one under Title VII (Count I) and the other under § 760.11, Florida Statutes (Count III). They contain identical allegations that plaintiff was disciplined more harshly than similarly situated non-black employees for the same or similar internal violations, and that he was paid less than similarly situated non-black employees. These counts also allege that plaintiffs supervisor, Gonzalo Navarro, made certain derogatory racial slurs or epithets directed toward him, but there is no allegation here or in any other count of the complaint charging the existence of a racially charged hostile work environment.
At the time of oral argument, plaintiff's attorney stipulated that the racial discrimination counts were premised on disparate treatment theory and that the allegations of racial epithets and slurs set forth in the complaint were simply proffered as direct evidence of discriminatory intent by a decision maker in support of that theory.
The Court agrees that the race discrimination counts have been pled as disparate treatment claims, and will accordingly limit the analysis in its disposition of the pending motion.
The defendant's analysis, however, ignores or overlooks the impact of direct evidence of discriminatory animus on the part of either an ultimate decision maker or a person who had a significant influence on the ultimate decision making process. There is ample direct evidence of such animus here, which creates a genuine issue of material fact on the ultimate issue of whether plaintiff suffered an adverse employment action "because of" a protected personal characteristic thereby precluding summary judgment on the disparate treatment claims. It also creates an issue of material fact on the requisite causal link between Clermont's protected activity and the employer's adverse employment action which precludes summary judgment on the retaliation claims.
II. FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise noted, the facts recited are derived from the parties' respective statement of material facts and supporting affidavits to the extent uncontradicted by specific evidence from the opposing party.
Frenchman's Creek is a corporation which owns and operates a country club located in Palm Beach County, Florida. It employs as many as 280 employees during the year, with approximately 50% of the employees working only during the winter season (November through April of each year). Approximately 90% of the housekeeping department at Frenchman's Creek is of Haitian origin. At the time of plaintiffs tenure, all of the housekeeping staff were Haitians, with the exception of one Chinese worker.
Frenchman's Creek initially hired plaintiff as a dishwasher for the 1994 winter season, and later hired him as a full-time maintenance worker in the housekeeping department in November 1996. As an employee in the housekeeping department, his job duties included taking out the trash, buffing the floors, shampooing the carpets, vacuuming the floors, dusting, shining brass fixtures and a variety of other cleaning tasks. His starting pay was approximately $6.00 an hour, which later increased to approximately $7.50 an hour. Plaintiff's direct supervisor at the beginning of his employment was Gonzolo Navarro, Director of Operations for the Housekeeping Dcpartment at Frenchmen's Creek, who was later replaced by Gary Martin.
Clermont's employment at Frenchman's Creek ended in June, 1998. According to the defendant, Clermont voluntarily quit after being disciplined with a three day suspension imposed pursuant to its "three strikes and you're out" policy, memorialized in the Employee Handbook, which allowed for employee suspension or termination after three disciplinary write ups. Internal violations warranting disciplinary write-ups under this policy included use of vulgar or abusive language, refusal to perform assigned job tasks, insubordination and tardiness. Defendant claims that it suspended Clermont from employment for violation of these internal rules pursuant to the "three strikes" policy, based on the following incidents:
(1) May 21, 1998 Ramirez incident
On May 21, 1998, Gonzalo Navarro, then plaintiffs direct supervisor, cited Clermont for vulgar/abusive language" and "intimidating behavior towards a co-worker" following an episode between Clermont and a Spanish housekeeper employee named Marisol Ramirez. According to Frenchman's Creek, on that date Navarro asked plaintiff to retrieve a cleaning solution from the laundry room, where Clermont found another Ramirez completing a mop and wax job on the floor: Ramirez told Clermont not to come in because the floor was wet, prompting Clermont to pound on the door demanding to be let in. Navarro was summoned to the scene, and, after speaking with Marisol, dismissed plaintiff for the day with a written warning as memorialized in a Disciplinary Warning Notice and Action Taken Form dated June 15, 1998.
According to plaintiff, when Navarro arrived to investigate he discussed the episode in Spanish with Ramirez, and then told Clermont "didn't [he] know that [he] wasn't supposed to talk hard with the whiteys," and that "black[s] do not have to talk [to] white people." Clermont also charges that Navarro called him a "fucking Haitian," stating that "in [his] country [he] was a slave" and "in [his] country [he] never used to work for money." He states that Navarro also threatened to call immigration and have him "shipped back to [his] country." In the formal disciplinary report, Clermont denied using vulgar or abusive language and made note of the derogatory racial remarks allegedly made by Navarro.
(2) June 8, 1998 chemical episode
Sometime in late May, 1998, Navarro gave Clermont permission to go home early after he experienced dizziness from inhaling fumes from a chemical floor cleaner. According to defendant, some two weeks later, on June 8, 1998, Navarro asked plaintiff to use the same cleaning solution in an open outdoor area, but Clermont refused, necessitating that Navarro finish the job himself with the assistance of another employee. Navarro later issued a written disciplinary warning notice to Clermont dated June 15, 1998 citing him for "refusal to perform assigned work." Plaintiff refused to sign the form, but included his statement within it disputing that he ever refused an assignment, and complaining that he was simply the victim of discrimination, apparently seeking to illustrating this latter contention by inclusion of a statement that Gonzolo had earlier told him that "flicking black Haitians were slaves, and did not get pay for what they work" in response to an earlier inquiry he made about his paycheck. Clermont admits here that he did "respectfully refuse" to use a particular cleaning chemical requested by Navarro on this date due to his prior adverse reaction to it, but contends that he offered to use another cleaner to complete the task and did in fact clean the area in question with a bleach substitute.
After this incident, then acting Human Resources director, Ms. MacQuarrie and General Manager, Mr. Goswami, met with Navarro and plaintiff to discuss the disciplinary warning form and the alleged use of racial slurs by Navarro. MacQuarrie and Goswami counseled Navarro privately at the conclusion of this meeting, which apparently prompted a cessation of any further racial commentary by Navarro toward Clermont. In addition, MacQuarrie offered to transfer plaintiff to another department so he would not have to work any longer with Navarro, but plaintiff declined the transfer. Navarro was shortly thereafter transferred to the Beach Club, terminating any further contact between him and Clermont.
(3) June 28, 1998 time sheet episode
Navarro was replaced by Gary Martin, who disciplined plaintiff on June 28, 1998 for "falsifying time sheet," and specifically, for improper recording of time by way of having "clocked in street clothes before working or dressing for work" on June 25, 1998. Clermont admits that he did not arrive to work on June 25, 1998 in his work uniform, but testified that this was the norm and that he came to work in his street clothes during his entire term of employment at Frenchman's Creek.
According to his Affidavit, Clermont maintains that a few days prior to this incident he had a meeting with Macquarrie, Gaswami and Navarro at which time he complained about Navarro calling him a "thief" "slave" and "flicking Haitian." On the day of the incident, June 25, 1998, he claims that Navarro approached him and told him he was late for work, and that he should not "clock in" with his street clothes on; later that day, he was told he was fired and should go home. [In his deposition testimony, Clermont states he is unable to recall whether he was suspended or terminated on the date of this incident].
According to Frenchman's Creek, Navarro was not involved in the third disciplinary write up or in the decision to suspend Clermont which followed it. It claims that this discipline was meted out by Navarro's replacement — Gary Martin — who did not fire Clermont but instead simply imposed a three day suspension memorialized on a Disciplinary Warning and Action Taken Notice Form dated June 28, 1998 and on a personnel change form dated June 25, 1998. it also contends that it attempted to telephone plaintiff during the suspension with the intent of asking him to return to work, but that plaintiff did not return the phone call. Clermont admits that he saw his employer's telephone number on his caller ID after he was discharged, but that he did not return the call because he was upset at the way he was treated.
Clermont claims that all of the disciplinary write ups were unfounded and instigated by Navarro in order to discriminate against him because of his race, and to retaliate against him for reporting Navarro's racially derogatory remarks to Frenchman's Creek management, which Clermont claims was accomplished as early as March, 1998.
Clermont avers that in March of 1998 Navarro accused him of being a thief, charging that "all people from Haiti are thieves" and that "in [your] country you were a slave," and that he immediately complained about this commentary to the Club's general manger, Achal Goswami, as well as to the then human resource manager Ann Gunn.
III. SUMMARY JUDGMENT STANDARD
Under Rule 56(c), Federal Rules of Civil Procedure, summary judgment may be granted when all "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Whether a fact is material is determined by examination of the substantive law governing plaintiffs claims. Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir. 1993). An issue of fact is thus considered "material" within this context "if proof of that fact would have [the] effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect [the] application of appropriate principle[s] of law to the rights and obligations of the parties." Kendall v Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984).Under the Federal Rules, "the burden on the moving party may be discharged by "showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Once the moving party discharges that burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine issue regarding a material fact by producing affirmative evidence sufficient for a reasonable jury to return a verdict in his favor. Earley v. Champion International Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). This standard mirrors the standard for a directed verdict under Fed.R.Civ.P. 50(a): A mere "scintilla" of evidence, or evidence that is only "colorable" or is not significantly probative" is insufficient. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). See also Matsushita Elec. Indus. Co., Ltd. v, Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (commenting that where factual context of claim is implausible, the non moving party must come forward with more persuasive evidence than would otherwise be necessary).
In ruling on a summary judgment motion, and assessing these shifting burdens of proof, the district court must view the evidence in a light most favorable to the non-movant and draw all justifiable inferences in the non-movant's favor, without weighing the credibility of the witnesses or other evidence on file. Eastman Kodak Co. v. Image Technical Serv., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 2076, 119 L.Ed.2d 265 (1992); Anderson v. Liberty Lobby, supra, 477 U.S. at 255.
IV. DISCUSSION A. DISPARATE TREATMENT CLAIMS
In an intentional discrimination case, plaintiff must show that "the decision maker . . . selected or reaffirmed a particular course of action at least in part `because of,' and not merely `in spite of,' its adverse effects on an identifiable group." In re Employment Litig. against the State of Ala., 198 F.3d 1305, 1321 (11th Cir. 1999). Intentional discrimination within this dynamic may be established under one of two discrete theories: "pattern and practice" discrimination or "disparate treatment" discrimination. "Disparate treatment" cases, the category in which this case falls, may be further divided into two sub-categories: facial disparate treatment cases and pretextual disparate treatment cases. In re Pan American World Airways, Inc. Maternity Leave Practices Flight Attendant Weight Program Litigation, 905 F.2d 1457, 1460 (11th Cir. 1990). The former is generally established with direct evidence of discriminatory intent, while the latter is proven with circumstantial evidence. In this case, Clermont's complaint contains allegations which support both direct and circumstantial theories of disparate treatment discrimination.
I. Pretextual disparate treatment theory
To establish a prima facie case of disparate treatment based on circumstantial evidence, under the familiar McDonnell-Douglas analysis, the plaintiff must show (1) he is a member of a protected class; (2) he was subjected to adverse employment action; (3) his employer treated similarly situated employees outside of his class more favorably; and (4) he was qualified to do the job. Maniccia v. Brown, 171 F.3d 1364 (llth Cir. 1999); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). In determining whether similarly qualified employees were more favorably treated than plaintiff within this dynamic, the existence and adequacy of comparators is crucial. Marshall v Western Grain Co., Inc., 838 F.2d 1165, 1168 (11th Cir.), cert. den., 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988). If plaintiff cannot show that there was a similarly situated employee who was treated differently, "summary judgment is appropriate where no other evidence of discrimination is present." Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997).
In this case, defendant contends that plaintiff's allegations of disciplinary action do not meet the legal definition of "adverse" employment action as this element is defined in a prima facie disparate treatment case. To the extent plaintiff's pretextual disparate treatment theory is based on the series of negative disciplinary reports, the court agrees that these actions fall short of "ultimate" actionable employment decisions. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.) (adverse action must be "ultimate employment decision" such as hiring, compensating, promoting, granting leave, or firing), cert. den., 522 U.S. 932, 118 S.Ct. 336, 139 L.Ed.2d 260 (1997). See e.g. Johnson v. Danzig, 213 F.3d 631 (4th Cir. 2000) (letter of reprimand and admonishment and denial of training are not actionable adverse employment actions); Ledergeber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997) (plaintiff's loss of status and prestige with reassignment of her staff insufficient to state claim for adverse employment action under Title VII); Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987) (temporary demotion did not give rise to cognizable employment action where plaintiff continued to receive same salary and benefits). Dudley v. Metro Dade County, 989 F. Supp. 1192 (S.D. Fla. 1997) (falsified performance review is not "adverse employment decision").
Additionally, the defendant urges that these allegations are insufficient to establish a hostile work environment claim. The Complaint is devoid of any allegations or separate counts reflecting such a claim, however, and it is therefore not addressed here in the resolution of the pending summary judgment motion. To the extent there are allegations concerning racial slurs and epithets directed by Navarro toward Clermont, these are made within the context of the disparate treatment allegations set forth in Count I (Title VII) and Count III (Section 760.11) of the Complaint and are interpreted here as simple direct evidence of discriminatory animus on the part of Navarro in support of a direct evidence disparate treatment claim, which is alternatively pled with a prextextual disparate treatment claim in these two Counts of the complaint.
On the other hand, as to the ultimate disciplinary action taken in consequence of these three disciplinary reports — a discharge from employment which was either a temporary suspension or permanent termination — this event clearly qualifies as an "ultimate" employment decision of a genre which constitutes an "adverse employment action." However, plaintiff is still unable to establish a prima facie prextual disparate treatment case upon the basis of this disciplinary action because he has no evidence that he was treated differently from similarly situated employees outside his protected class in the complained of categories. That is, plaintiff adduces no evidence that other employees outside of his protected class accused of the same or similar misconduct (vulgar, abusive language/falsification of time reports/insubordination) were treated differently from plaintiff.
The allegation that plaintiff received lesser pay than non-blacks also plainly qualifies as "adverse employment action"; however, this strand of the disparate treatment theory was abandoned by plaintiff's attorney at the time of oral argument upon the motion for summary judgment.
In differential treatment involving disciplinary action, the quantity and quality of the comparator's misconduct must be nearly identical to prevent courts from second guessing employer's reasonable decisions. See Maniccia v Brown, 171 F.3d 1364, 1368 (11th Cir. 1999), citing Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989) ("Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.").
2. Direct Evidence Disparate Treatment Theory
However, while the pretextual disparate treatment theory necessarily fails for complete failure of proof on an element essential to plaintiff's prima facie case, there is direct evidence of discriminatory disparate treatment which precludes summary judgment on plaintiffs racial discrimination claims. Navarro, plaintiffs direct supervisor, was either an ultimate decision maker or at least a person with a significant impact on the decision making process that culminated in plaintiffs suspension/firing, and is alleged to have directed highly inflammatory racial epithets and slurs towards Clermont which on their face indicate a serious discriminatory racial bias or animus correlating to the discrimination of which Clermont complains. This is direct evidence of discriminatory intent creating a genuine issue of material fact as to whether the challenged employment action was taken "because of" and not "in spite of" a protected personal characteristic. See e.g. EEOC v. Alton Packaging Corp., 901 F.2d 920 (11th Cir. 1990) (decision maker's racial slur constituted direct evidence of discrimination which employer was required to rebut); EEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1072 (11th Cir. 1990) (overwhelming amount of evidence of racial hostility, including barrage of racial slurs and statement that "those niggers out there will get nowhere in this company" constituted direct evidence); Wilson v. City of Aliceville, 779 F.2d 631 (11th Cr. 1986) (racial slurs made by employment decision makers can constitute direct evidence of discrimination); Miles v. M.N.C. Corp. 750 F.2d 867, 873-76 (11th Cir. 1985) (statement by plant manager that he wouldn't hire blacks because "half of them weren't worth a shit" was direct evidence). Such evidence precludes summary judgment on the direct evidence disparate treatment claims.B. RETALIATION CLAIMS
To establish a claim of retaliation under Title VII, a plaintiff must show: (1) statutorily protected expression; (2) adverse employment action; and (3) a causal link between the protected expression and the adverse action. Gupta v. Florida Board of Regents, 212 F.3d 571 (11th Cir. 2000); Taylor v. Runyon, 175 F.3d 861 (11th Cir. 1999). Statutorily protected expression includes filing complaints with the EEOC and complaining to superiors about unlawful discrimination. Johnson v. Booker T. Washington Broadcasting Service Inc., 14 Fla. L. Weekly Fed. C245 (11th Cir. Case No. 99-6078, opinion filed Nov. 9, 2000).
In retaliation cases, the element of "adverse employment action" is more broadly defined; that is, Title VII protection against retaliatory discrimination extends to adverse actions which fall short of "ultimate" employment decisions, although the conduct in question must meet a threshold level of "substantiality" in order to be cognizable. Gupta v. Florida Board of Regents, 212 F.3d 571 (11th Cir. 2000). Thus, for example, negative job evaluations, demotions, suspensions, disadvantageous transfer and toleration of harassment may be actionable as a retaliation claim. See Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998);Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274 (11th Cir. 1999).
A plaintiff can demonstrate the causal connection requisite for the prima facie case by showing that the protected activity and the adverse action are not wholly unrelated. Berman v. Orkin Exterminating Co., 160 F.3d 697 (11th Cir. 1998). This may be accomplished by either direct evidence of retaliatory motive, or by inferences arising from adverse employment action that closely follows the protected conduct. Maniccia v. Brown, 171 F.3d 1364 ((11th Cir. 1999); Candelaria v. EG G Energy Measurements, Inc., 33 F.3d 1259, 1261-62 (10th Cir. 1994); Miller v. Fairchild Industries, Inc., 797 F.2d 727 (9th Cir. 1986). If the element of temporal proximity is missing, plaintiff cannot establish a prima facie retaliation case based purely on circumstantial evidence consisting of the chronology of the first two elements. See Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1999) (transfer and termination which occurred 15 and 21 month after filing of grievance were isolated events having no temporal or causal relationship where there was no other evidence of retaliatory motivation) and cases cited infra, and direct evidence of retaliatory animus must be supplied to establish the causal link. Krouse v. American Sterilizer Co., 126 F.3d 494, 504 (3d Cir. 1997).
Once the elements of the prima facie retaliation case are established, as with a prima facie case of disparate treatment based on circumstantial evidence, the burden of proof shifts to the employer to proffer of a legitimate, nonretaliatory reason for its challenged action. Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999); Sullivan v. National R.R. Passenger Corp., 170 F.3d 1056 (11th Cir. 1999), cert. den. 120 S.Ct. 402 (1999). To meet this burden, the defendant need not necessarily advance a reason that the judge or jurors would act on or approve; rather, it is enough that the employer simply advance an explanation for its action that is not discriminatory in nature. Schoenfeld v. Babbitt, 168 F.3d 1257, 1269 (11th Cir. 1999). Once this is accomplished, defendant has met its burden of production, the presumption of retaliation drops from the case and the burden shifts back to the plaintiff to show that the defendant's proffered reasons are false, or a pretextual ruse to mask retaliatory action. See Raney v. Vinson Guard Service, Inc., 120 F.3d 1192 (11th Cir. 1997); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995).
In this case, the court concludes that plaintiff has put forth sufficient evidence to establish a prima facie retaliation case. There is evidence that Clermont engaged in protected expression (complaints of racial discrimination made to his superiors) which preceded imposition of adverse employment action (three disciplinary write-ups, and a suspension and/or firing), thus establishing the first two elements of a prima facie retaliation case. There is also circumstantial evidence of the causal link between these two events, established by the proximity in time between the protected activity and the adverse employment action, as well as direct evidence in the form of inflammatory racial epithets allegedly made by Navarro which facially evince discriminatory racial animus or bias.
The burden of production therefore shifts to Frenchmen's Creek to advance a legitimate, nondiscriminatory reason for its actions. Defendant satisfied this burden by identifying the internal rule violations leading up to the write ups and the corporate "three strikes and you're out" policy leading up to the discharge. Consequently, the burden of production shifts back to plaintiff to produce evidence demonstrating that the defendant's proffered reason for its action is pretextual, a burden which may be discharged by demonstrating "such weakness, implausibility, inconsistency, incoherency or contradiction" in the employer's proffered reasons that a reasonable fact finder could rationally find them unworthy of credence and thus infer that the employer did not act for the asserted reasons. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
Here, plaintiff accomplishes this with the evidence that Navarro harbored serious racial animus or bias toward him, and with evidence that Navarro may have instigated the third and final write up against him despite the fact that his replacement manager, Gary Martin, actually signed off on it. In addition, plaintiff proffers that no other housekeeping employee was ever disciplined for "clocking in" in their street clothes, casting some element of implausibility upon the notion that this offense was the last "strike" or "straw" that supposedly broke Frenchman's Creek's back.
While defendant disputes that Navarro had any involvement in the final decision to suspend Clermont, there is undisputed evidence that Navarro was responsible for making the first two disciplinary "strikes", and there is evidence that he may have been involved in at least instigating the third "strike." This evidence suggesting at least a significant impact upon the decision making process may permit the imputation of his motive to the defendant even if the trier of fact determines he was not the ultimate decision maker. See Johnson v. Booker T. Washington, supra; Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1110 (7th Cir. 2000), citing Dey v. Colt Construction Co., 28 F.3d 1446, 1459 (7th Cir. 1994).
On this background, the court is satisfied that reasonable triers of fact could reach different conclusions as to whether Frenchmen's Creek proffered reason for disciplining and (at least temporarily) discharging Clermont was a pretext for retaliation and will accordingly deny defendant's motion for summary judgment on plaintiff's retaliation claims. See e.g. Pfeil v. Intercom Telecommunications, 90 F. Supp.2d 742, 752 (N.D. Tex. 2000).
Based upon the foregoing, it is ORDERED and ADJUDGED:
1. The defendant's motion for summary judgment as to the disparate treatment claims, Counts I and III is DENIED,
2. The defendant's motion for summary judgment as to the retaliation claims, Counts II and IV is DENIED.
DONE and SIGNED in Chambers at West Palm Beach, Florida.