Opinion
Case No. 06-21828-CIV-LENARD/TORRES.
October 11, 2007
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (D.E. 37)
THIS CAUSE is before the Court on the Motion of Defendant The School Board of Miami-Dade County, Florida ("Defendant") for Summary Judgment ("Motion," D.E. 37), filed May 30, 2007. On July 26, 2007, Plaintiff Marjorie Santayana Figueira ("Plaintiff") filed a Motion in Opposition to Defendant's Motion. ("Opposition," D.E. 51.) On August 6, 2007, Defendant filed a Reply to Plaintiff's Opposition. ("Reply," D.E. 64.) Having considered the Motion, the Opposition, the Reply, and the record, the Court finds as follows.
I. Factual Background
Plaintiff is a female American of Cuban descent. (D.E. 52 at 4.) She was hired by Miami-Dade County Public Schools ("M-DCPS") in 1970. (D.E. 38 at 1.) Plaintiff served in a variety of capacities during her employment by M-DCPS, including teacher, principal, and senior positions in M-DCPS administration. (D.E. 38 at 1-2.)
In 2003, Plaintiff was reassigned from M-DCPS's District office to a directorship in a Region office. (Id. at 2.) On March 12, 2003, Plaintiff filed her retirement application with M-DCPS and enrolled in the Florida Retirement System's Deferred Retirement Option Program. (Id.) Plaintiff withdrew her retirement application on March 14, 2003, at the urging of Mercedes Toural, the Deputy Superintendent at the time, and Dr. Lourdes Rovira, Plaintiff's colleague. (Id.) Dr. Rovira told Plaintiff that she had a future in the school system and that retiring would be a bad decision. (Id.)
In the late fall of 2003, Dr. Rovira and Ms. Toural recruited Plaintiff for the position of Administrative Director in the Language Arts/Reading Division. (Id. at 2-3.) Plaintiff was named Administrative Director in the Language Arts/Reading Division in January 2004. (Id. at 3.) In her new position, Plaintiff reported to Dr. Rovira. (Id.)
Every January, all M-DCPS administrators, including Plaintiff, receive a mid-year evaluation. (Id. at 5.) The mid-year evaluations allow only two ratings: "Meets Performance Standards" or "Below Expectations on Performance Standards." (Id.) In January 2005, Plaintiff completed her mid-year evaluation form for the period of July 1, 2004 through December 31, 2004, rating herself as "Meets Performance Standards." (Id.) Plaintiff then submitted the mid-year evaluation form to Dr. Rovira, and Dr. Rovira reviewed it with her supervisor, Dr. Sonia Diaz, Deputy Superintendent of Curriculum and Instruction. (Id.) Following review by Dr. Rovira and Dr. Diaz, Plaintiff's mid-year evaluation was changed from "Meets Performance Standards" to "Below Expectations on Performance Standards." (Id.) Plaintiff and Defendant dispute whether the impetus for the change came from Dr Rovira or Dr. Diaz — Plaintiff alleges it was Dr. Rovira who insisted on the change and Defendant alleges the change came from Dr. Diaz. (See D.E. 52 and 38.)
Defendant alleges that Dr. Rovira agreed with Plaintiff's assessment of "Meets Performance Standards," and made no revisions to the evaluation form. (D.E. 38 at 5.) Defendant alleges that when Dr. Rovira presented the form to Dr. Diaz, Dr. Diaz instructed Dr. Rovira to change Plaintiff's rating to "Below Expectations" because Dr. Diaz believed that Plaintiff did not have the "reading content knowledge" to lead the Language Arts/Reading Division. Dr. Diaz revised Plaintiff's mid-year evaluation to reflect where improvement was needed. (Id.)
Plaintiff alleges that her mid-year evaluation was not changed at the instruction of Dr. Diaz. Dr. Diaz testified that she has no recollection of meeting Plaintiff and denies being the impetus for Plaintiff's negative mid-year evaluation. (D.E. 52 at 2-3.) Plaintiff alleges that Dr. Rovira was the one claiming sub-par performance by Plaintiff. (Id. at 3.) Further, Plaintiff alleges that Dr. Diaz would have had no grounds to evaluate Plaintiff's job performance during the period from July 1, 2004 to December 31, 2004, as Dr. Diaz only started working for M-DCPS on December 15, 2004 and was out of the office for a week during the two weeks between her start date and the end of Plaintiff's mid-year evaluation period. (Id. at 2-3.)
Under M-DCPS guidelines, administrators receiving a below expectations rating on their mid-year evaluations must be placed on "prescription," a type of performance probation. (D.E. 38 at 6.) In her deposition, Dr. Rovira described the prescription process:
You have to go through a series of activities, you have to prescribe, as a doctor would prescribe medications for a condition. If the condition that was being presented by Dr. Diaz was that [Plaintiff] did not have the content knowledge to be leading the reading department, I would have had to prescribe a number of activities to bring that content knowledge up, college courses or professional development or reading or research, those are the kinds of things that are done when a person is on prescriptions. . . .
(D.E. 55 at 43-44.) As an administrator, Plaintiff knew what prescription entailed. (Id. at 44.)
In her Opposition, Plaintiff quotes from the Dade County School Administrator's Association's labor contract with Defendant to demonstrate that an administrator placed on prescription is ineligible for promotions or increases in salary:
"An overall rating of Unacceptable shall require a written Professional Improvement Plan specifying the manner in which performance in deficient categories will be improved. An unacceptable rating, determined by the mid-year Progress Conference, may result in appropriate employment action(s), which may include a recommendation for non-reappointment.
"Employees who receive an unacceptable rating on the year-end evaluation and are reappointed are not eligible in the subsequent school year to apply for transfers or promotions. Further, they are not eligible for any salary improvements until an acceptable performance level, as required by the Performance Improvement Plan, is attained."
(Opposition at 7 (quoting http://www2.dadeschools.net/employees/labor_union/dcsaa/pdf05/Art_VIII.pdf).) Plaintiff's quotation from the labor contract is of limited use to the Court. First of all, the quotation from the labor contract refers to a negative rating as "Unacceptable," while the facts as otherwise asserted by the parties refer to a negative rating as "Below Expectations on Performance Standards." Plaintiff makes no attempt to explain whether a rating of "Unacceptable" carries the same consequences as a rating of "Below Expectation on Performance Standards." This Court is loathe to make that logical leap without further assurance that the two ratings, in fact, refer to the same thing. Second, the Plaintiff uses the quotation as evidence that prescription resulting from a negative mid-year evaluation renders an administrator ineligible for promotions or increases in salary. What the quotation actually says is that a negative year-end evaluation will result in those consequences.
In February 2005, Dr. Rovira advised Plaintiff of the change in her mid-year evaluation rating. (D.E. 38 at 6.) Dr. Rovira recommended that Plaintiff retire rather than be put on prescription. (Id. at 7.) Dr. Rovira thought that the prescription process would be tedious and uncomfortable for Plaintiff. (Id. at 8.) Additionally, the prescription process would be a "black mark" on Plaintiff's record. (Id. at 8.) Dr. Rovira told Plaintiff that if she did not retire, "horrible things" were going to be said about her and "terrible things" were going to happen to her, although Plaintiff does not remember Dr. Rovira referring to any specific thing in particular. (D.E. 38 at 6.) Plaintiff recalls being told by Dr. Rovira that she should retire in "an elegant manner" and "allow [her] husband to support [her]." (D.E. 54 at 32.)
On February 8, 2005, Plaintiff completed her retirement documents indicating that she would retire effective March 1, 2005. (D.E. 38 at 8-9.) Because Plaintiff chose to retire, Dr. Rovira changed her mid-year evaluation assessment back to "Meets Performance Standards." Dr. Rovira did not need to put Plaintiff on prescription as she had chosen to retire. (Id. at 9.)
Plaintiff also alleges in her Opposition and sworn evidence that other administrators were exposed to discriminatory comments around the time that Plaintiff retired. Dr. Diaz testified that Dr. Rudolph Crew, the Superintendent of M-DCPS, rejected a candidate for the position of Dr. Diaz's assistant because "the people that [she] was bringing to him looked too much like [her]." (D.E. 57 at 15.) Dr. Crew wanted Dr. Diaz to hire more African Americans. (Id.) Dr. Diaz also testified that during a conversation with Dr. Crew regarding his relationship with state legislator Ralph Arza, Dr. Crew stated, "Cubans are the enemy." (D.E. 57 at 39-40.) Dr. Diaz is an American of Puerto Rican descent. Dr. Diaz worked for M-DCPS from December 15, 2004 through June 2005. (D.E. 52 at 5.)
II. Procedural Background
On June 21, 2007, Plaintiff brought this employment discrimination action against Defendant in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. (D.E. 1). Plaintiff alleges three claims for relief, all based on her constructive discharge by Defendant. Court I alleges that Defendant discriminated against Plaintiff based on her sex and national origin resulting in her constructive discharge in violation of Title VII. Count II alleges that Defendant discriminated against Plaintiff based on her age resulting in her constructive discharge in violation of the Age Discrimination in Employment Act ("ADEA"). Count III alleges that Defendant discriminated against Plaintiff based on her age, gender, and national origin resulting in her constructive discharge in violation of the Florida Civil Rights Act of 1992 ("FCRA"). On July 24, 2006, Defendant removed Plaintiff's action to this Court.
In its Motion, Defendant asserts several arguments for disposing of Plaintiff's claims. First, Defendant argues that Plaintiff cannot prove "constructive discharge," therefore undermining all of her claims. (Motion at 2-5.) In order to prevail in a discrimination claim based on constructive discharge, Plaintiff must prove that her working conditions were so intolerable that a reasonable employee would be compelled to resign. (Id. at 2.) Defendant argues that being placed on prescription is not so intolerable that a reasonable employee would be compelled to resign. (Id. at 4.) Second, Defendant argues that Plaintiff's subjective belief of discrimination is legally insufficient to sustain Plaintiff's claims. (Id. at 5-6.) Third, Defendant argues that any isolated offensive remarks directed to Plaintiff are insufficient to establish unlawful discrimination. (Id. at 6-7.) Fourth, Defendant argues that Plaintiff cannot satisfy her burden of proving that her alleged constructive discharge was motivated by her age, gender, or national origin. (Id. at 7-9.) Fifth and finally, Defendant argues that assuming, arguendo, that Plaintiff can prove a prima facie case of discrimination, Defendant has a legitimate, non-discriminatory reason for putting Plaintiff on prescription — namely, that Plaintiff did not have sufficient "reading content knowledge" to lead the Language Arts/Reading Division. (Id. at 9-11.)
In Plaintiff's Opposition, she argues that she has presented genuine issues of material fact making summary judgment inappropriate. Plaintiff argues that, under the evidentiary framework developed in McDonnell Douglas Corp. v. Green, 530 U.S. 133 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), she has established a prima facie case of discrimination, thereby requiring the Defendant to articulate a legitimate, non-discriminatory reason for its employment decision. (D.E. 51 at 3-8.) Plaintiff argues that Defendant's reason for placing Plaintiff on prescription — that Plaintiff did not have sufficient "reading content knowledge" to lead the Language Arts/Reading Division — is pretextual, and thus summary judgment is inappropriate. (Id. at 12-15.) Further, Plaintiff argues that Dr. Rovira's statements to Plaintiff and Dr. Crew's statements to Dr. Diaz are circumstantial evidence of discrimination sufficient to defeat summary judgment. (Id. at 8-12.)
In its Reply, Defendant argues that Plaintiff has failed to satisfy her burden of proving a prima facie case of discrimination as she cannot establish an adverse employment action taken against her. (Reply at 1-4.) Further, Defendant argues that Plaintiff cannot demonstrate that its legitimate non-discriminatory reason for placing Plaintiff on prescription was pretextual. (Id. at 4-10.)
III. Discussion
A. Plaintiff's Title VII Claims
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). A plaintiff may establish a prima facie case of discrimination either by (1) direct evidence of discrimination, or (2) circumstantial evidence of discriminatory intent via theMcDonnell Douglas framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997).
1. Direct Evidence
Direct evidence is "evidence, which if believed, proves the existence of the fact or issue without inference or presumption."Jones v. Bessemer Carraway Medical Center, 151 F.3d 1321, 1323 n. 11 (11th Cir. 1998). The Eleventh Circuit has defined direct evidence in the employment discrimination context as
evidence which reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee . . . [o]nly the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination. If the alleged statement suggests, but does not prove, a discriminatory motive, then it is considered circumstantial evidence.Richardson v. Dougherty County, GA, 2006 WL 1526065, at *3 (11th Cir. June 5, 2006) (citations omitted). "An example of direct evidence would be a management memorandum saying, `Fire Earley — he is too old.'" Damon v. Fleming Supermarkets, Inc., 196 F.3d 1354, 1359 (11th Cir. 1999) (internal quotations and citations omitted).
Plaintiff has not presented direct evidence that the treatment complained of by Plaintiff was motivated by discrimination on the basis of her age, sex, or national origin. Dr. Rovira's statements to Plaintiff that she should "retire in an elegant manner" and "allow [her] husband to support [her]" do not constitute direct evidence "whose intent could mean nothing other than to discriminate on the basis of some impermissible factor." Richardson, 2006 WL 1526065, at *3. The Eleventh Circuit has refused to classify far more suggestive comments as direct evidence of discrimination. See, e.g., Burrell v. Bd. of Trustees of Ga. Military Coll., 125 F.3d 1390, 1393-94 (11th Cir. 1997) (evidence that the decisionmaker told the plaintiff that "he wanted to hire a man for the position because too many women filled First Federal's officer positions" was not direct evidence that she was terminated because of her sex). Similarly, Plaintiff's factual allegations regarding statements made by Dr. Crew are also not direct evidence of discrimination. Dr. Crew's statements were made outside the context of any situation involving Plaintiff and there is no evidence suggesting that Plaintiff's negative evaluation was motivated by any discriminatory animus displayed by Dr. Crew.
2. Circumstantial Evidence
Plaintiff claims that Defendant discriminated against her based on her sex and national origin resulting in her constructive discharge in violation of Title VII. In evaluating Title VII discrimination claims supported by circumstantial evidence, this Circuit uses the framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836, 842-43 (11th Cir. 2000). Under the framework established inMcDonnell Douglas, a plaintiff can establish a prima facie case that she was discriminated against in violation of Title VII by showing: (1) she is a member of a protected class; (2) she was subjected to adverse employment action; (3) her employer treated similarly situated employees who are not members of the plaintiff's class more favorably; and (4) she was qualified for the job or job benefit at issue. 411 U.S. at 802. Constructive discharge qualifies as an adverse employment decision. See Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 n. 2 (11th Cir. 1997).
To prove constructive discharge, a plaintiff must demonstrate that working conditions were so intolerable that a reasonable person in her position would have felt compelled to resign. Akins v. Fulton County, 420 F.3d 1293, 1302 (11th Cir. 2005). In order for a constructive discharge claim to present a jury issue and thereby survive summary judgment, the plaintiff must produce substantial evidence that conditions were intolerable. Id. at 1302; see also Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1231 (11th Cir. 2001) (holding that the threshold for establishing constructive discharge is "quite high")
Because Plaintiff cannot show that she suffered a constructive charge, she has failed to established a prima facie case of discrimination in violation of Title VII. Plaintiff has not produced substantial evidence that being placed on prescription amounts to intolerable working conditions. Plaintiff's evidence that prescription would be intolerable comes from her own deposition testimony and the deposition testimony and affidavit of Dr. Rovira. Therein, prescription was described as a "black mark" (D.E. 34 at 3), "a badge of dishonor" (D.E. 55 at 44), and a "horrible thing" (Id. at 43). Additionally, Plaintiff testified that Dr. Rovira had told her that "horrible things were going to be said about [her] . . . and that terrible things were going to happen to [her]" if she did not retire. (D.E. 54 at 23). However, Plaintiff was unable to elaborate on the specific things to which Dr. Rovira was referring. In her deposition, Dr. Rovira described prescription:
You have to go through a series of activities, you have to prescribe, as a doctor would prescribe medications for a condition. If the condition that was being presented by Dr. Diaz was that [Plaintiff] did not have the content knowledge to be leading the reading department, I would have had to prescribe a number of activities to bring that content knowledge up, college courses or professional development or reading or research, those are the kinds of things that are done when a person is on prescriptions. . . .
(D.E. 55 at 44.)
While the Court recognizes that it would have been embarrassing and unpleasant for Plaintiff to be placed on performance probation and forced to enroll in professional development courses after almost thirty-five years of distinguished service with M-DCPS, the Court cannot say that these working conditions rise to the level of intolerance as defined by the Eleventh Circuit. See Poole, 129 F.3d at 552 (plaintiff's working conditions were found intolerable where: she was regularly displaced from her desk and computer by her boss's wife; her key to her boss's office was taken from her and never returned; her boss refused to process her worker's compensation claim for over a year and then made plaintiff process it herself; her boss regularly made disparaging comments about her age to other people in front of plaintiff; after going on medical leave, plaintiff was relieved of all responsibilities, was given a chair with no desk, was not allowed to pack her belongings after being moved to a new workstation, and other employees were instructed not to speak to her); Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1015 (11th Cir. 1994) (plaintiff's working conditions were found intolerable where plaintiff was placed on probation, received unjustified work evaluations, and was repeatedly screamed at so that her supervisor's "spit was flying in [plaintiff's] face" and plaintiff felt physically threatened) Morgan v. Ford, 6 F.3d 750, 752-53 (11th Cir. 1993) (finding issue of fact as to plaintiff prison guard's intolerable working conditions where she was subject to continuous sexual harassment by her immediate supervisor over the course of six months and suffered extensive retaliation after reporting her supervisor's sexual harassment including being reassigned to the more distasteful duties around the prison compound).
Besides quoting the testimony of Plaintiff and Dr. Rovira that prescription is "horrible," "terrible," and a "badge of dishonor," Plaintiff has not demonstrated why receiving a negative evaluation and attending professional development courses is so intolerable that a reasonable person in her position would have felt compelled to resign. See Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir. 2001) ("Repeatedly receiving poor evaluations would be unpleasant for anyone, but it does not rise to the level of such intolerable conditions that no reasonable person would remain on the job.");Hill v. Winn-Dixie Stores, 934 F.2d 1518, 1527 (11th Cir. 1991) (affirming district court's grant of judgment notwithstanding the verdict because evidence of reprimands, criticism, and supervisor's withdrawal of support was insufficient to prove constructive discharge) Wardwell v. School Bd. of Palm Beach County, Florida, 786 F.2d 1554, 1557 (11th Cir. 1986) (holding that an employer's failure to promote and consequent embarrassment to employee, together with employee's added workload, "simply do not rise to the intolerable level at which a reasonable person would feel compelled to resign."). Plaintiff has not alleged the type of highly unpleasant working conditions — such as extreme verbal harassment (see Meeks, 15 F.3d at 1015) or sexual harassment (see Morgan 6 F.3d 752-53) — necessary for a finding of constructive discharge.
B. Plaintiff's ADEA Claim
Plaintiff also claims that Defendant discriminated against her based on her age resulting in her constructive discharge in violation of the ADEA. The ADEA prohibits discrimination on the basis of age "against any individual with respect to his compensation, terms, conditions, or privileges of employment." 29 U.S.C. § 623(a)(1). The McDonnell Douglas framework applies to claims of discrimination under the ADEA as well as discrimination claims under Title VII. See Cofield v. Goldkist, Inc., 267 F.3d 1264, 1267 n. 6 (11th Cir. 2001). As explained above, Plaintiff has not established a prima facie case of discrimination supported by circumstantial evidence under the McDonnell Douglas framework because she cannot show that she was constructively discharged. Further, she has not presented any direct evidence of discrimination. Accordingly, Plaintiff's discrimination claim under the ADEA fails.
C. Plaintiff's FCRA Claim
Plaintiff also claims that Defendant discriminated against her based on her age, sex, and national origin resulting in her constructive discharge in violation of the FCRA. (See Compl. at 4.) The FCRA makes in unlawful for any employer to "discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status." Fla. Stat. 760.10(1)(a) "The FCRA is modeled after Title VII, so that federal case law regarding Title VII is applicable to construe the Act." Albra v. Advan, Inc., 490 F.3d 826 (11th Cir. 2007) (quoting Byrd v. BT Foods, Inc., 948 So. 2d 921, 925 (Fla. 4th DCA 2007)). Therefore, for the same reasons that Plaintiff's claims fail under Title VII, so do her claims under the FCRA.
Accordingly, it is:
ORDERED AND ADJUDGED that:
1. Defendant's Motion for Summary Judgment ("Motion," D.E. 37), filed on May 30, 2007, is GRANTED.
2. This case is CLOSED.
3. All pending motions are DENIED as moot.DONE AND ORDERED in Chambers at Miami, Florida.