Opinion
CIVIL ACTION NO. 1:04-cv-2346-GET.
February 20, 2008
ORDER
The above-styled matter is presently before the court on the Magistrate Judge's Report and Recommendation [docket no. 293].
On August 12, 2004, plaintiff filed this action against her employer pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Pregnancy Discrimination Act of 1978, as amended, 42 U.S.C. § 2000e(k); 42 U.S.C. § 1981a; the Family and Medical Leave Act of 1993, as amended, 29 U.S.C. § 2601 et seq., and its implementing regulations, 29 C.F.R. 875 et seq.; 42 U.S.C. § 1988; the Equal Pay Act, 29 U.S.C. § 206(d); the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., as well as state law. On June 17, 2005, plaintiff filed an amended complaint asserting Count One — Gender and Pregnancy Discrimination and Retaliation under Title VII and the Pregnancy Discrimination Act ("PDA"); Count Two — Retaliation under Title VII; Count Three — Interference with Rights Under the Family and Medical Leave Act ("FMLA"); Count Four — Retaliation under the Family and Medical Leave Act; Count Five — Gender Discrimination under the Equal Pay Act ("EPA"); Count Six — Negligent Retention.
On February 26, 2007, plaintiff filed a motion for partial summary judgment on her claim for interference pursuant to the Family and Medical Leave Act. Defendants filed a motion for summary judgment as to all of plaintiff's claims that same day. Defendants also moved to strike the report and exclude the testimony of plaintiff's expert, Joan Haworth.
On July 27, 2007, the Magistrate Judge issued a Report and Recommendation ("R R") denying plaintiff's motion for partial summary judgment [docket nos. 215 220] and defendant's motion to strike and exclude testimony of plaintiff's expert [docket no. 219]. The R R recommended granting defendants' motion for summary judgment [docket no. 217] with respect to plaintiff's claim of sex and pregnancy discrimination under Title VII and the PDA to the extent that the claim is based on plaintiff's allegations of wage discrimination and discriminatory treatment unrelated to her demotion in April 2003, plaintiff's claim of unlawful retaliation under Title VII, and plaintiff's claim of unequal pay under the EPA. The R R notes that plaintiff advises that she has voluntarily dismissed her state law claim of negligent retention and recommends that this claim be dismissed. The R R recommends denying defendants' motion for summary judgment with respect to plaintiff's claim of pregnancy discrimination under Title VII and the PDA but only to the extent that the claim is based on plaintiff's demotion to the DSM position in April 2003, plaintiff's claim of interference with her rights under the FMLA, and plaintiff's claim of retaliation under the FMLA.
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the R R within ten (10) days of the receipt of an order. Both parties have filed objections to the R R.
Defendant's objections
1. Defendant's objection to the Magistrate Judge's R R denying its motion to strike the report and exclude the testimony of plaintiff's expert Joan Haworth.
The Magistrate Judge's R R recommends denying defendant's motion to strike, without prejudice to defendant filing a motion in limine with regard to the evidence at trial. Defendant contends that the R R is clearly erroneous and contrary to law because it (1) misinterprets defendant's argument regarding Haworth's failure to conduct a multiple regression analysis in her attempt to support liability for discrimination and/or retaliation, (2) does not consider defendant's arguments supporting the exclusion of Haworth's report as it related to alleged damages, (3) does not address evidence that Haworth's report will not only not be helpful to the jury but will be confusing and misleading, and (4) does not address defendant's argument that the report should be excluded under Rules 401, 402, and 403 of the Federal Rules of Evidence.
The decision of a Magistrate Judge on a non-dispositive matter such as this will not be set aside unless it is clearly erroneous or contrary to law. Fed.R.Civ.P. 72(a). A finding is "clearly erroneous" when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. See Johnson Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246 (11th Cir. 2002). A finding is "contrary to law" if the Magistrate Judge has "misinterpreted or misapplied applicable law." Smith v. City of Moultrie, 2006 WL 3535686 (M.D. Ga. Dec. 7, 2006). Likewise, an order is contrary to law when it fails to apply relevant statutes, case law or rules of procedure.Tompkins v. R.J. Reynolds Tobacco Corp., 92 F. Supp.2d 70, 74 (N.D. N.Y. 2000). The party seeking to overturn a Magistrate Judge's order bears the burden of proving that the Magistrate Judge's decision was "clearly erroneous" or "contrary to law."Com-Tech Assoc. v. Computer Assoc. Int'l, 753 F. Supp. 1078, 1099 (E.D.N.Y. 1990), aff'd, 938 F.2d 1574 (2d Cir. 1991).
Having reviewed the arguments of the parties, the court finds that defendant fails to establish that the Magistrate Judge's decision to deny defendant's motion to strike is clearly erroneous or contrary to law at the summary judgment stage. Furthermore, this decision does not preclude defendant from filing a motion in limine to exclude the evidence at trial. Accordingly, defendant's objection to the R R with regard to its motion to strike [docket no. 295] is OVERRULED and DENIED. The court hereby ADOPTS the Magistrate Judge's R. R [docket no. 293] DENYING defendant's motion to strike [docket no. 219] without prejudice to defendant's ability to file a motion in limine to exclude the evidence from trial, if necessary.
2. Defendant's objection to the Magistrate Judge's R R denying summary judgment as to three of plaintiff's claims.
With regard to dispositive motions, if any party serves and files written objections, the district court is required to conduct a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1)(C). Therefore, the court will apply this de novo standard with regard to the remaining objections of the parties.
Defendant contends that the decision to deny summary judgment as to three of plaintiff's claims is based on an erroneous application of well-established legal standards. According to defendant, the evidence as described in the R R does not meet the legal standard required to create a genuine issue of material fact. Specifically, defendant cites to the Magistrate Judge's finding that "Plaintiff has presented some evidence to cast doubt on Defendant's proffered reasons underlying the decision to remove Plaintiff from her RVP position, and some evidence suggesting that Plaintiff's decision to take leave may have played some role in that decision, however slight." Furthermore, defendant argues that the Magistrate Judge's assessment of plaintiff's evidence falls below the requirement that plaintiff prove her pregnancy was a substantial or motivating factor that prompted her demotion and the requirement that plaintiff present significantly probative evidence showing defendant's asserted reason is merely pretext for discrimination. See Clark v. Coats Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993); Dudley v. Wal Mart Stores, Inc., 166 F.3d 1317, 1322 (11th Cir. 1999). The court finds that the Magistrate Judge applied the correct standard for reviewing summary judgment motions as well as the correct substantive law in identifying facts material to plaintiff's pregnancy discrimination/demotion and FMLA claims.
With regard to plaintiff's pregnancy discrimination/demotion claim, plaintiff presented sufficient evidence to establish a prima facie case by presenting evidence that she was a member of a protected class, qualified for her RVP position, was demoted from that position, and the position was filled, at least at the time of plaintiff's demotion, by a male. See e.g., Hawkins, 883 F.2d at 982. Furthermore, although defendant presented a legitimate non-discriminatory reason for demoting plaintiff, the court agrees with the Magistrate Judge that plaintiff presented sufficient evidence to create a question of material fact as to whether defendant's reason was pre-text. It is undisputed that Gonzalez, plaintiff's supervisor, previously had told plaintiff that she would have thirty days after she returned from maternity leave to complete the requirements of her performance improvement plan but, instead, Gonzalez notified plaintiff on the day she returned from maternity leave that she would no longer be employed in the RVP position plaintiff had held before she left on leave. Furthermore, plaintiff was forbidden from contacting anyone at the workplace or conducting any work while she was on leave even though defendant admits that the team met to discuss plaintiff's shortcomings during the leave period, leaving plaintiff unable to respond to any of the complaints. Likewise, plaintiff presents evidence of a draft letter dated March 28, 2003 which, taken together with other evidence, suggests that Gonzalez was considering removing plaintiff from her RVP position well before Gonzalez's April 1 meeting with plaintiff's team which Gonzalez cites as the "straw that broke the camel's back" and convinced Gonzalez that plaintiff should not be returned to the RVP position. While defendant now has produced a "transmittal email" that defendant argues establishes that the purpose of the continued assignment for plaintiff's replacement was only "to allow for a smooth transition" upon plaintiff's return, this new evidence merely gives a jury more information to consider in resolving the question of fact. This evidence does not resolve the issue of fact as a matter of law.
When a plaintiff has presented sufficient evidence to suggest that the defendant's explanation lacks credibility or that discrimination is the more likely motive, a case is made for pretext. Burdine, 450 U.S. at 256, 101 S. Ct. at 1095. Once the plaintiff produces evidence sufficient to permit the factfinder to disbelieve the defendant's explanation for its actions, summary judgment is not appropriate because "[i]ssues of fact and sufficiency of evidence are properly reserved for the jury."Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 921 (11th Cir. 1993).
With regard to plaintiff's FMLA claims, plaintiff alleged that defendant interfered with her rights under FMLA and retaliated against her for exercising those rights. The R R denied both parties' motions for summary judgment on plaintiff's claim for interference finding that it was undisputed that defendant refused to restore plaintiff to her previous position upon her return from leave but also finding that a question of fact existed as to whether defendant would have taken that action even if plaintiff had not taken FMLA leave. The R R also denied the motions for summary judgment as to plaintiff's retaliation claim, stating that the immediate temporal proximity between plaintiff's return from FMLA leave and her removal from the RVP position is significant evidence of a causal link between her decision to take leave and the adverse employment action.
Defendant objects to the R R, arguing that any inference to be drawn from the immediate temporal proximity between plaintiff's FMLA leave and demotion is rebutted by intervening factors. Specifically, defendant cites the Verbal Warning and Performance Improvement Plan ("PIP") (and subsequent failure to complete these plans), ongoing discipline issues while on leave, substantial improvement of the region under different leadership, and the discovery of gross administrative errors by plaintiff. Defendant also objects to the R R, stating that the R R did not address other reasons articulated by defendant as to why the FMLA interference claim should be dismissed.
Having reviewed the evidence and the arguments of the parties, the court finds that a question of fact exists as to whether defendant demoted plaintiff because she took FMLA leave. While the court acknowledges the evidence of intervening factors presented by defendant, this evidence is insufficient to negate plaintiff's claims as a matter of law.
Therefore, in light of all the foregoing, the court hereby OVERRULES and DENIES defendant's objections to the R R.
Plaintiff's objections
The R R grants defendant's motion for summary judgment on plaintiff's claims of gender and pregnancy discrimination based on her unlawful placement on a Verbal Warning and Performance Improvement Plan, plaintiff's Title VII retaliation claim and her claims for discriminatory compensation. As addressed more specifically below, plaintiff objects, arguing that genuine issues of fact remain as to these claims.
1. Plaintiff objects to the finding by the Magistrate Judge that plaintiff's claims of discrimination regarding her placement on a Verbal Warning and Performance Improvement Plan fail as a matter of law.
Plaintiff argues that the Magistrate Judge disregarded the record evidence and failed to draw reasonable inferences in favor of plaintiff. Plaintiff cites to several items in the record which she contends present "ample evidence that she was treated less favorably than similarly situated male and/or non-pregnant RVPs with purported `management style' issues." Furthermore, plaintiff cites the following findings in the R R as erroneous:
— "The Court agrees with Defendant that none of the alleged comparators could be considered similarly situated to Plaintiff. Plaintiff has not shown that any of these RVPs were the subject of multiple complaints from more than one subordinate."
— "Plaintiff has not cited to any evidence that suggests that any of the DSMs who complained about her did not do so in good faith or that they were encouraged to lie or exaggerate their complaints about Plaintiff and her management style."
— "In any event, assuming that Plaintiff's version of events is completely accurate and Gordon conspired with Castrillo, Miller and Murray to fabricate accusations against Plaintiffs with the HR department, the Court finds that Plaintiff's conspiracy theory is not material to her Title VII claim."
— "Moreover, Plaintiff has not pointed to any evidence that Gonzalez had any reason to believe that Barnette and Teunis did not accurately summarize the results of the interviews with the DSMs." — "Although Plaintiff contends that Gordon disliked her and harbored a bias against her because she had refused to hire Gordon's brother, Plaintiff has not alleged that Gordon harbored any animus against Plaintiff because of her sex or pregnancy. At most, Plaintiff has shown that she was treated unfairly by the HR department because Gordon was `out to get' her and convinced Castrillo, Miller and Murray to join her crusade against Plaintiff."
Plaintiff argues that these findings fail to construe the evidence in the light most favorable to plaintiff. Plaintiff contends that these events should be considered as evidence of pretext because defendant failed to reconsider or reduce the level of discipline levied against plaintiff even though it was presented with evidence that the "complaints" against plaintiff were not legitimate.
The court finds that the Magistrate Judge properly construed the evidence in the light most favorable to plaintiff. Furthermore, the Magistrate Judge correctly concluded that the evidence cited by plaintiff did not raise an inference of discrimination.
Plaintiff also cites the following findings of the Magistrate Judge as erroneous:
— "Plaintiff has also not shown that any of these RVPs were accused of having significant communication and accessibility problems, a hostile and threatening management style and administrative problems."
— "If a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate if no other evidence of discrimination is present."
Plaintiff contends that alleged administrative failings played no role in her discipline and defendant's claim to the contrary is "a clear after-the-fact attempt by [defendant] to justify its inequitable treatment of [plaintiff]." Plaintiff further argues that her comparators were "nearly identical" because they were disciplined for management style and communication issues.
According to plaintiff, the R R "disregards the ample evidence of discrimination." Plaintiff cites five items of "additional evidence" including items related to the misconduct of Human Resources Manager Pam Gordon and defendant's "failure to abide by its own progressive disciplinary policy. . . ."
This "additional evidence" was before the Magistrate Judge and it is evident from the R R that the Magistrate Judge considered this evidence under the appropriate standard of review. In any event, this court has reviewed and considered the cited evidence and the arguments of the parties and agrees with the Magistrate Judge that plaintiff's Title VII/PDA claims regarding plaintiff's placement on Verbal Warning and Performance Improvement Plan fail as a matter of law. Accordingly, plaintiff's objections with regard to her Title VII/PDA discrimination claim are OVERRULED and DENIED.
2. Plaintiff objects to the Magistrate Judge's finding that she fails to state a prima facie case of Retaliation under Title VII.
Plaintiff argues that the Magistrate Judge incorrectly determined that plaintiff was unable to establish the first element of her prima facie case of retaliation, i.e. that she engaged in protected activity. Plaintiff further argues that the Magistrate Judge failed to address the "series of severe adverse actions taken against [plaintiff] and the numerous examples of pretext in the record." Plaintiff cites the following findings as "incorrect in light of the record evidence:"
— "Based on a review of the evidence in the record, the Court finds that Plaintiff has failed to present evidence sufficient to create a genuine issue of fact as to whether she had a reasonable belief that Indermill was subjecting her to a sexually hostile work environment in violation of Title VII."
— "Furthermore, even assuming that Plaintiff had pointed to evidence in the record indicating that Indermill did exhibit `sexual hostility' towards her, Plaintiff has failed to point to any evidence that Indermill's behavior was either severe or pervasive enough to rise to the level of a hostile work environment under Title VII."
Plaintiff argues that the Magistrate Judge assumed plaintiff complained of harassing and discriminatory conduct by Indermill but failed to consider whether plaintiff had a reasonable belief that Indermill's behavior constituted gender discrimination. Indermill, as plaintiff's peer and not her supervisor, could not engage in gender discrimination with regard to plaintiff. Therefore, it would have been objectively unreasonable for plaintiff to lodge a complaint against Indermill for gender discrimination. Furthermore, the allegations against Indermill, as well as the claims that "some" DSMs made sexist remarks, were not severe or pervasive enough to objectively rise to the level of sexual hostility or harassment. Therefore, plaintiff's objections with regard to her Title VII retaliation claim are OVERRULED and DENIED.
3. Plaintiff objects to the Magistrate Judge's finding that summary judgment should be granted on plaintiff's claims of Discriminatory Compensation.
The Magistrate Judge determined that plaintiff has presented sufficient evidence to establish a prima facie case of wage discrimination under the EPA and, for the purpose of Title VII, that a question of fact exists as to whether plaintiff's job was similar to the jobs of the 29 higher-paid RVPs plaintiff alleges are comparators. The Magistrate Judge, however, also found that defendant had satisfied its burden under the EPA of proving that the compensation differences were the result of factors other than sex. Furthermore, the Magistrate Judge found that plaintiff had failed to establish pretext under Title VII regarding the defendant's legitimate non-discriminatory reasons for the compensation differences.
Plaintiff objects to the following findings with regard to her wage claims:
— "Defendant, however, has presented evidence that some of the items included in `other compensation' were based on voluntary employee elections regarding insurance coverage, educational expenses, relocation expenses, deferred compensation, and other personal choices made by each employee. . . . Plaintiff has not made any attempt to present evidence that breaks down the `other compensation' category to specific items of compensation that are not affected by voluntary elections made by the employee."
— "Because Plaintiff has not compared herself to any male RVP in any particular category of `other compensation,' the Court finds that Plaintiff has failed to present sufficient evidence that she was similarly situated to any of these alleged comparators with respect to a category of `other compensation."
— "In particular Defendant has presented evidence that, with respect to most of the male Sales RVPs who were paid a higher base salary than Plaintiff, they had a longer tenure with the Company than did Plaintiff."
— "Plaintiff has failed to present evidence disputing Defendant's evidence that it had legitimate reasons unrelated to gender for the disparity in salary between Plaintiff and each of the alleged comparators." — "With respect to David Fields and Lafimin [sic] Morgan, the only male RVPs on Plaintiff's list of alleged comparators who worked as Sales RVPs and who did not have a longer tenure with the Company than Plaintiff, . . . Plaintiff has not presented any evidence to dispute that Fields had broader experience than she, or that Morgan had broader experience, a higher level of education, and a higher salary prior to his promotion to the RVP position."
Plaintiff contends that these fact findings misconstrue plaintiff's burden of proof. Plaintiff argues that it was defendant's burden under the EPA to specifically identify any voluntary elections that caused a difference in the total "other" compensation. Furthermore, Plaintiff argues that there is a question of fact as to whether factors, such as tenure, actually were determinative of the salary differences. Pointing to certain testimony of defendant's 30(b)(6) witness, plaintiff argues that a question of fact exists as to whether background, education, and experience were actual factors that warranted the salary differences. Finally, Plaintiff asserts that evidence comparing plaintiff to an "average" male RVP is "additional indicia of gender discrimination in pay, along with the undisputed evidence that specific males in the same position were consistently paid more than she." (emphasis in original).
Having reviewed and considered the evidence and the arguments of the parties, the court finds that the Magistrate Judge applied the appropriate burden of proof to both the plaintiff's EPA and Title VII wage discrimination claims. Furthermore, defendant points to sufficient evidence proving that any pay differences were the result of factors other than sex. While plaintiff points to evidence that each of these factors, independently, may not determine compensation to a mathematical certainty, plaintiff fails to raise a question of fact as to whether these factors, working together, influence compensation levels. Therefore, plaintiff's objections with regard to her claims of discriminatory compensation are OVERRULED and DENIED.
Accordingly, and for all the foregoing reasons, the court hereby OVERRULES AND DENIES defendant's [docket nos. 294 295] and plaintiff's [docket no. 296] objections to the R R. The court ADOPTS the Magistrate Judge's R R and incorporates it herein as if fully set forth. Plaintiff's motion for partial summary judgment [docket nos. 215 220] is DENIED. Defendant's motion to strike and exclude the testimony of plaintiff's expert [docket no. 219] is DENIED without prejudice to defendant filing a motion in limine with regard to the evidence at trial. Defendant's motion for summary judgment [docket no. 217] is DENIED in part and GRANTED in part. The motion is DENIED with regard to plaintiff's claim of pregnancy discrimination under Title VII and the PDA to the extent the claim is based on plaintiff's demotion to the DSM position in April 2003, plaintiff's claim of interference with her rights under the FMLA, and plaintiff's claim of retaliation under the FMLA. Defendant's motion is GRANTED with regard to plaintiff's claims of sex and pregnancy discrimination under Title VII and the PDA to the extent that the claim is based on plaintiff's allegations of wage discrimination and discriminatory treatment unrelated to her demotion in April 2003, plaintiff's claim of unlawful retaliation under Title VII, and plaintiff's claim of unequal pay under the EPA. Plaintiff's state law claim of negligent hiring and retention is DISMISSED.
Summary
Defendant's [docket nos. 294 295] and Plaintiff's [docket no. 296] objections to the R R are OVERRULED AND DENIED. The court ADOPTS the Magistrate Judge's R R and incorporates it herein as if fully set forth.
Plaintiff's motion for partial summary judgment [docket nos. 215 220] is DENIED.
Defendant's motion to strike and exclude the testimony of plaintiff's expert [docket no. 219] is DENIED without prejudice to defendant filing a motion in limine with regard to the evidence at trial.
Defendant's motion for summary judgment [docket no. 217] is DENIED in part and GRANTED in part. The motion is DENIED with regard to plaintiff's claim of pregnancy discrimination under Title VII and the PDA to the extent the claim is based on plaintiff's demotion to the DSM position in April 2003, plaintiff's claim of interference with her rights under the FMLA, and plaintiff's claim of retaliation under the FMLA. Defendant's motion is GRANTED with regard to plaintiff's claims of sex and pregnancy discrimination under Title VII and the PDA to the extent that the claim is based on plaintiff's allegations of wage discrimination and discriminatory treatment unrelated to her demotion in April 2003, plaintiff's claim of unlawful retaliation under Title VII, and plaintiff's claim of unequal pay under the EPA.
Plaintiff's state law claim of negligent hiring and retention is DISMISSED.