Opinion
Case No. 99-8659-CIV-RYSKAMP/VITUNAC.
December 28, 2000
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court on Defendant Palm Beach County's ("County") motion for summary judgment. [DE 36] Plaintiff William Nieves ("Nieves") has responded, and Defendant has not replied within the allotted time. Oral argument was heard in open court on December 21, 2000. This motion is ripe for adjudication.
I. BACKGROUND
This is an action brought by Plaintiff Nieves for national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000, et seq., and for retaliation in violation of Title VII against his former employer, Palm Beach County ("County").
Plaintiff's Complaint also included a count of national origin discrimination in violation of Florida Statutes § 760 and retaliation in violation of Florida Statutes § 760. These counts were dismissed by the Court's Order of November 4, 1999.
Beginning in January 1994, Plaintiff, a Puerto Rican male, was employed as a Utilities Maintenance Worker for Defendant County in the Palm Beach County Utilities Department. (Compl. ¶¶ 5, 9, 10.). In February 1999, while still employed with Defendant, Plaintiff filed a charge of discrimination with the Florida Commission on Human Relations ("FCHR") and the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination on the basis of national origin for denials of promotional opportunities beginning in November 1997. (Compl. ¶¶ 21, 35.). Plaintiff alleges that after filing this Charge of Discrimination, he was subjected to adverse employment treatment. (Compl. ¶ 36.). Specifically, Plaintiff asserts that in retaliation for and after the filing of his Charge, Defendant continued to fail to promote Plaintiff; unfairly and disparately subjected him to drug testing, unlike any other similarly situated non-Hispanics; falsely accused him of time card theft and stealing gasoline; and, finally, terminated him. (Compl. ¶¶ 60-63.).
In March 1999, after his termination, Plaintiff amended his Charge Forms to include a claim of retaliation. (Compl. ¶ 22.). After the FCHR determined that it was unable to conduct an investigation within the 180-day time frame and forwarded the Charge to the Department of Justice, the Department of Justice issued a dismissal and Notice of Right to Sue. (Compl. ¶¶ 23, 24.).
Defendant has argued that since Plaintiff's claims of false accusations of stealing overtime and gasoline occurred prior to April 28, 1998, the statutory deadline, they are time-barred and cannot be complained of by Plaintiff. Indeed, Frank Ferrano testified that the "accusation" of falsification of overtime records occurred at about the same time as the gas theft "accusation," around February 1997. (Ferrano Depo., pages 70-71, lines 18-2.). Therefore, these claims are time-barred and will not be considered by the Court. The Court previously found in its November 4, 1999 Order that the claims of denial of promotional opportunities were time-barred:
Although the complaint alleges that plaintiff filed the Charge on or about January 3, 1999, the record evidence clearly reveals that the actual date of filing was February 20, 1999. Therefore, since plaintiff filed his Charge on February 20, 1999, he cannot complain of events occurring more than 300 days earlier, i.e., prior to April 26, 1998. According to the complaint, plaintiff applied and was denied promotional opportunities on three separate dates: November 11, 1997, April 16, 1998, and April 24, 1998. Compl. ¶¶ 27, 31, 33. Since these alleged acts of discrimination occurred prior to April 26, 1998, they are barred from consideration because plaintiff did not file the Charge within 300 days of these discriminatory acts.
(Order Partially Granting and Denying Mot. to Dismiss, Granting Mot. to Strike, Granting Mot. to Amend and Denying Mot. to Sever and Remand at 4-5.).
In support of his claims of discrimination based on national origin, Plaintiff asserts that Plaintiff was treated disparately in that the drug testing policy was applied to him differently than other similarly situated non-Hispanic employees. (Compl. ¶ 47.).
Defendant filed a Motion for Summary Judgment on October 30, 2000. As to Count I (national origin discrimination), Defendant argues that Plaintiff has failed to establish a prima facie case because he has not met his burden of demonstrating that similarly situated non-Hispanic employees were treated more favorably. Defendant asserts that even if the Court were to determine that a prima facie case had been made, that Defendant has articulated legitimate, non-discriminatory reasons for any alleged adverse employment action taken against Plaintiff and Plaintiff has not shown that these reasons are pretextual and that Defendant's conduct was instead intentional discrimination. With regard to Count II (retaliation), Defendant argues that Plaintiff has failed to establish a prima facie case for retaliation because he has failed to meet his burden of establishing that the adverse employment actions were causally related to Plaintiff's protected activity — filing a Charge of Discrimination.
II. DISCUSSION A. Standard on Motion for Summary Judgment
Summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). " Some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510 (1986) (emphasis in the original). For the Court to deem a factual issue to be genuine, it must have "a real basis in the record." Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993). The Court will enter summary judgment if, after adequate time for discovery, a party fails "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Fed.R.Civ.P. 56(e).
In considering a motion for summary judgment the Court views the facts in the light most favorable to the nonmoving party. See Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491 (1962). The Court is not, however, permitted to consider inadmissible or incompetent evidence. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991) (court should disregard portion of evidence which contains legal conclusions or inadmissible evidence), cert. denied sub nom. Christic Institute v. Hull, 502 U.S. 1048, 112 S. Ct. 913 (1992). The Court also may not consider conclusory allegations. See id. What are considered the "facts" at this stage may not turn out to be the actual facts if the case goes to trial, but these are the facts for summary judgment purposes. See Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996).
To defeat a motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Once a party has made a showing that no material issues of fact are in dispute, mere conjecture or speculation by the party resisting summary judgment does not provide a basis upon which to deny the motion." Quarles v. GMC, 758 F.2d 839, 840 (2d Cir. 1985).
As Plaintiff notes, the Eleventh Circuit has provided specific instruction to district courts considering summary judgment motions in employment discrimination cases. In Jameson v. Arrow Co., 75 F.3d 1528 (11th Cir. 1996), the court noted that it "generally . . . eschew[s] an overly strict formulation of the elements of a prima facie case" and that "[i]n an employment discrimination case, the plaintiff must produce sufficient evidence to support an inference that the defendant employer based its employment decision on an illegal criterion." Id. at 1531 (citation omitted). In Grigsby v. Reynolds Metals Co., 821 F.2d 590 (11th Cir. 1987), the court stated that "[i]n general, summary judgment is an inappropriate tool for resolving claims of employment discrimination, which involve nebulous questions of motivation and intent." Id. at 595 (citing Thornbrough v. Columbus and Greenville R.R., 760 F.2d 633, 640 (5th Cir. 1985); Beard v. Annis, 730 F.2d 741, 743 (11th Cir. 1984); Hayden v. First National Bank, 595 F.2d 994, 997 (5th Cir. 1979)) (internal quotations omitted). However, the Grigsby court also noted that "a plaintiff may not in all eases merely rest on the laurels of her prima facie case in the face of powerful justification evidence offered by the defendant." Id. at 596.
B. The Burdens of Proof and Production under McDonnell Douglas v. Green
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981), the Supreme Court fashioned the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, a Title VII plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of a Title VII violation. Second, if the plaintiff proves a prima facie case, the burden of production shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for its employment decision or conduct. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1823. The Eleventh Circuit has noted that this intermediate burden is "exceedingly light[,]" Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir. 1994), and that the "employer need only offer admissible evidence sufficient to raise a genuine issue of fact as to whether it had a legitimate reason for not hiring the plaintiff." Id. (citing Hill v. Seaboard Coast Line R.R. Co., 767 F.2d 771, 774 (11th Cir. 1985)). The employer's reasons for its action may be good, bad, or based upon erroneous facts, or there may be no reason at all, so long as the action is not for a discriminatory reason. See Nix v. WLCY Radio, 738 F.2d 1181, 1187 (11th Cir. 1984).
Finally, if the defendant carries its burden, the plaintiff must then prove by a preponderance of the evidence that the legitimate reasons offered by defendant were merely a pretext for discrimination. See Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94; McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. at 1824-25. The plaintiff "may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256, 101 S.Ct. at 1095 (citing McDonnell Douglas, 411 U.S. at 804-805, 93 S.Ct., at 1825-1826); see also Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2108 (2000) ("In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose."). In Evans v. McClain of Georgia, Inc., 131 F.3d 957 (11th Cir. 1997) (per curiam), the Eleventh Circuit noted that
[u]nder the established rule of law in this Circuit, a plaintiff can survive a motion for summary judgment or for judgment as a matter of law simply by presenting evidence sufficient to demonstrate a genuine issue of material fact as to the truth or falsity of the employer's legitimate, nondiscriminatory reasons.Id. at 964-65 (emphasis added); see also Combs v. Plantation Patterns, 106 F.3d 1519, 1530-32 (11th Cir. 1997) (collecting cases).
Furthermore, "although the presumption of discrimination `drops out of the picture' once the defendant meets its burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual[.]'" Reeves, 120 S.Ct. at 2106.
C. Plaintiff's Discrimination Claim
The Court finds that Plaintiff has made out a prima facie case of discrimination, by showing (1) that Plaintiff is Hispanic, and therefore a member of a protected class; (2) that Plaintiff suffered adverse employment action, namely, his termination; and (3) that similarly situated non-Hispanic employees were not terminated for the reasons stated in Plaintiff's termination notice — for operating a County vehicle without a driver's license in his possession and an alleged violation of the controlled substances use and testing policy for failing to take a drug test on his day off — and that mitigating circumstances were not considered in making the termination decision.
Defendant has articulated legitimate reasons for the alleged adverse employment actions. In particular, Defendant argues that "[c]ounty policy mandates termination for a second positive [drug] test result" and notes that Plaintiff tested positive for marijuana in a random test in 1996. (Def.'s Mot. for Summ. J. at 1.). Plaintiffs "refusal to cooperate" in the March 8, 1999 testing procedure constituted a positive result, and, in conjunction with his operation of a County vehicle without a driver's license in his possession, this resulted in his termination. ( Id. at 1-2.).
Plaintiff, however, has demonstrated pretext by "showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. As required by the Eleventh Circuit in Evans, Plaintiff has presented evidence sufficient to demonstrate a genuine issue of material fact as to the truth or falsity of Defendant's legitimate, nondiscriminatory reasons. See Evans, 131 F.3d at 965. As Plaintiff notes, none of Defendant's witnesses were able to demonstrate a single example of another employee being terminated for the alleged reasons Plaintiff was fired. (Pl.'s Response at 4.). For example, Libby Crick was aware of other employees who were not terminated despite the fact that they did not have proper identification at a drug test because they were able to call their supervisors, who vouched for them. (Crick Depo., page 26, lines 13-20.). Plaintiff tried to contact two of his supervisors but was unable to do so because it was after 4:30 p.m. and the supervisors had left for the day. ( Id., page 27, lines 1-5.). Karen Thompson, Donald Gray, and Frank Ferrano all testified that they were not aware of similar disciplinary actions based on lack of proper identification. (Thompson Depo., page 27, lines 2-13; Gary Depo., page 38, lines 18-24; Ferrano Depo., page 41-42, lines 25-1.). Similarly, the other facts presented in Plaintiff's Response to the Motion for Summary Judgment demonstrate genuine issues of material fact as to Defendant's proffered explanations for the termination that must be determined by a jury. Therefore, Defendant's Motion for Summary Judgment should be denied as to Count I.
D. Plaintiff's Retaliation Claim
To establish a prima facie case of retaliation under Title VII or the FCRA, a plaintiff must prove: (1) that she engaged in protected expression, (2) that she suffered an adverse employment action, and (3) that a causal relationship exists between the two events. See Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1196 (11th Cir. 1997); Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994). Protected activities include: (1) opposing employment practices made unlawful by Title VII (the "opposition clause"), and (2) participation in an investigation, proceeding or hearing under Title VII, or filing a charge (the "participation clause"). See 42 U.S.C. § 2000e-3 (a)(1994). As long as a plaintiff has a good faith (subjective) belief, which is also objectively reasonable in light of the circumstances, plaintiff need not prove that the underlying conduct opposed was actually unlawful to establish a prima facie case. See Little v. United Technologies, 103 F.3d 956, 960 (11th Cir. 1997). Although proof of causal relatedness must be more than "mere curious timing coupled with speculative theories," Raney, 120 F.3d at 1197, the plaintiff only need to show "that the protected activity and the adverse action are not completely unrelated." Meeks, 15 F.3d at 1021.
As described above, once a plaintiff establishes a prima facie case, the burden shifts to the defendant to produce a legitimate, nondiscriminatory reason for the adverse action. Raney, 120 F.3d at 1195. If the defendant meets this burden, the plaintiff can only prevail if she demonstrates that the reason set forth by the defendant is mere pretext for discrimination. Id. The overall burden of persuasion remains with the plaintiff. Id.
In this case, Plaintiff claims that Defendant retaliated against him for filing a Charge of Discrimination with the FCHR and the EEOC. While Defendant does not dispute that Plaintiff has satisfied the first two prongs of a prima facie retaliation claim, Defendant asserts that Plaintiff has not adduced any competent evidence to support the third essential prong.
Plaintiff asserts that Defendant had knowledge of Plaintiff's charge filed with the EEOC prior to his termination. Karen Thompson, the Manager of Diversity and Development for Defendant, testified that she had already begun her investigation of Plaintiff's allegations prior to his pre-termination hearing. (Thompson Depo., page 22, lines 8-12.). Dana Moss, Bruce Burks, Todd Hacker, and Chuck Davis, all supervisors of Plaintiff, and Donald Gray, Plaintiff's partner, testified that they were aware of the EEOC charge. (Moss Depo., page 9, lines 20-25; Thompson Depo., page 29, lines 11-24; Gray Depo., page 26, lines 16-23.). Furthermore, Plaintiff filed his EEOC Complaint on February 20, 1999, and was terminated on March 22, 1999. (Compl. ¶ 38.). Causal connection may be established circumstantially by showing a close-time link between the adverse employment actions and the protected activity. See Balletti v. Sun-Sentinel Co., 909 F. Supp. 1539, 1549 (S.D. Fla. 1995). Therefore, Plaintiff has established a causal connection between the filing of the Charge and his termination.
Defendant asserts that those who participated in the pre-termination hearing did not have knowledge of the EEOC Complaint and therefore could not have terminated Plaintiff in retaliation for filing the Charge. Bruce Burks did not attend the pre-termination hearing, (Burks Depo., page 21, lines 12-14), and it appears that Todd Hacker, Chuck Davis and Donald Gray were also not among the participants in the hearing. However, Dana Moss was present at the pre-termination hearing. (Moss Depo., page II, lines 6-8.). Moss testified that he has sole discretion in the determination of whether to terminate an employee, based on the input of representatives from other county departments, like personnel and the county attorney's office. ( Id., pages 5-6, lines 19-11.). Furthermore, James Shamblin, Director of Operation and Maintenance, was present at the pre-termination hearing, (Shamblin Depo., page 25, lines 8-11), and Karen Thompson testified that she spoke with Shamblin about the EEOC Charge prior to Plaintiff's termination. (Thompson Depo., page 29, line 18.). Shamblin, however, has testified that he does not remember if Karen Thompson or anyone with the employee relations and personnel departments contacted him to discuss Plaintiff's discrimination claims. (Shamblin Depo., page 26, lines 15-20.). Therefore, contrary to Defendant's assertion and Libby Crick's testimony that no one at the hearing had knowledge of the Charge, (Crick Depo., page 31, lines 18-24), it appears that at least two of the participants at the pre-termination hearing, one of whom had sole discretion in making the termination decision, knew of Plaintiff's filing of a Charge of Discrimination.
Defendant argues that Plaintiff's allegations that Defendant failed to promote him and falsely accused him of stealing overtime and gasoline in retaliation for his EEOC Complaint are time-barred and therefore do not support a finding of a causal relation between the statutorily protected expression and the adverse employment action. As noted above, the Court has found that these charges are time-barred.
As noted above, Defendant has articulated legitimate reasons for the termination, namely Plaintiff's "refusal to cooperate" in the March 8, 1999 testing procedure, which constituted a positive result, and his operation of a County vehicle without a driver's license in his possession. To show pretext, Plaintiff argues his supervisors provided false and misleading testimony regarding their knowledge of Plaintiff's EEOC Charge and his complaints of discrimination. Karen Thompson, the manager of diversity and development for the County, prepared the County's Position Statement in Response to Plaintiff's EEOC Charge and, in the process, spoke to Plaintiff's supervisors about his claims that he was accused of stealing gas and overtime. (Thompson Depo., page 3, lines 22-24; page 7, lines 18-19; page 14, lines 6-11; page 16, lines 12-24.). Thompson recalls speaking to Todd Hacker, James Shamblin, Bruce Burks and Chuck Davis. (Thompson Depo., page 17-18, lines 12-2; page 29, line 15-24.). Thompson testified that these supervisors said "they were unaware of what the allegation could possibly have been that he was referring to." ( Id., page 16, lines 21-24.). However, Marie Woolbright testified that she spoke about the alleged overtime violation directly with Bruce Burks (Woolbright Depo., page 14-15, lines 19-12.), and Todd Hacker ( Id., pages 13-14, line 19-10.). In fact, Woolbright testified that this alleged violation first "came to [her] attention when Todd Hacker and Frank Ferrano were going over the time sheets for the split shift and became aware of the fact that here was a lot of overtime being put in on that shift." (id., page 12, lines 11-14.).
Plaintiff has made a sufficient showing of pretext, by demonstrating inaccurate and evasive answers in response to Karen Thompson's investigation and other evidence and thus "presenting evidence sufficient to demonstrate a genuine issue of material fact as to the truth or falsity of the employer's legitimate, nondiscriminatory reasons." Evans, 131 F.3d at 965. Therefore, summary judgment is not appropriate.
Defendant has argued that since Plaintiff's claims of false accusations of stealing overtime and gasoline occurred prior to April 28, 1998, the statutory deadline, they are time-barred and cannot be complained of by Plaintiff. Nevertheless, the Court may consider the supervisors' responses to Thompson's questions regarding these claims in determining whether there is evidence of pretext.
III. CONCLUSION
Having considered the motion and the pertinent part of the record and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED
Defendant's motion for summary judgment is DENIED. [DE 36]