Opinion
Case No. 03-81059-CIV-HURLEY/HOPKINS.
August 13, 2004
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE comes before the court upon a motion for summary judgment filed by the defendant Edward E. Bieluch, as Sheriff of Palm Beach County. For the reasons stated herein, Mr. Turner has failed to offer sufficient evidence to create a genuine issue of material fact that he was discriminated against on the basis of his gender. Therefore, the court grants the defendant's motion for summary judgment.
BACKGROUND
Plaintiff Thomas E. Turner began his first term of employment with the Palm Beach County Sheriff's Office ("Sheriff's office") in 1983. In 1990, Turner resigned from the Sheriff's office. Between 1990 and January 11, 2000, Turner was not employed as a certified law enforcement officer in Florida or in any other state. Upon resigning from the Sheriff's office, Turner relocated to Tennessee to begin a non-law enforcement related enterprise.
On January 12, 2000, Turner began a second term of employment with the Sheriff's office. On July 16, 2002, Sheriff Bieluch implemented Standard Operating Procedure (SOP) 305.01 relating to the promotion process for law enforcement sergeant positions. Section II, A, 4, of that procedure provides that:
[t]o be eligible to participate in the promotional process, each deputy shall have a minimum five (5) years continuous years time in grade, starting from the date of apportionment as a sworn deputy sheriff with the Palm Beach County Sheriff's Office. The five (5) year period must be completed continuously, without broken service or crossover, and be completed prior to the effective date of the eligibility list.
This procedure was published and available for review during the promotional process. Sheriff's office employees are expected to be familiar with the procedures in effect at the Sheriff's office. Under this procedure, a deputy sheriff was required to have been employed with the Sheriff's office on or before October 1, 1997 to be eligible for promotion.
The following day, July 17, 2002, the Sheriff's office posted a notice regarding the process for promotion to law enforcement sergeant ("summary notice"). The summary notice was intended to provide a summary of the promotion procedure and included the eligibility requirements for achieving a promotion. The summary notice only indicated that applicants "[m]ust have a minimum of five (5) continuous years time in grade as a Law Enforcement Deputy Sheriff with [the] Palm Beach County Sheriff's Office." The summary notice failed to include the additional language regarding the fact that "[t]he five (5) year period must be completed continuously, without broken service or crossover, and be completed prior to the effective date of the eligibility list."
Before reading the summary notice, Turner submitted an interoffice memorandum to Sheriff Bieluch requesting a promotional examination waiver and seeking Bieluch's authorization to participate in the sergeant promotional process despite not having five years of continuous employment with the Sheriff. At the time of the memorandum, Turner did not believe that he was eligible for promotion to sergeant. Turner's memorandum did not request to utilize the Sheriff's procedure regarding bridging his prior service time with the Sheriff's office.
Turner's request for a waiver was reviewed and disapproved by then Mayor Jose Figueroa and Sheriff Bieluch. Turner did not seek to appeal this denial or to address this issue with the human resources department of the Sheriff's office. After reviewing the Sheriff's summary notice for the sergeant promotional process, however, Turner believed that a loophole was created in the eligibility requirements. Turner did not confer with the human resources department regarding completing the application and referencing his two different dates of hire. He also failed to inquire as to whether the Sheriff intended for the summary notice to override the previously listed sergeant eligibility requirements. Nonetheless, on August 5, 2002, Turner submitted an internal application for sergeant. Turner stated that his hiring date was December 1983 instead of January 2000.
As a result of an alleged oversight by the Human resources division of the Sheriff's office, Turner's application to participate in the promotional process was placed on the list of persons eligible to take the examinations. Other persons with breaks in their employment with the Sheriff's office had likewise placed their original hire date on their applications and were also initially processed as if they were eligible. As a result of this oversight, Turner participated in the written examination process for the promotion to sergeant.
Subsequently, the Sheriff's office conducted a review of Turner's eligibility for the sergeant position and determined he was ineligible because of the break in his employment. In response to being informed of his ineligibility, Turner submitted an interoffice memorandum to Sheriff Bieluch and submitted an administrative grievance. After the Sheriff's office denied his grievance, Turner submitted a charge of gender discrimination to the EEOC. Turner bases his discrimination claim on the fact that deputy sheriffs Carol Verdigi and Paula Kronsperger were allowed to participate in the promotion process despite breaks in their service with the Sheriff's office. As a result of the aforementioned sequence of events, Turner filed this gender discrimination action under Title VII of the Civil Rights act of 1964, 42 U.S.C. § 2000e, et seq.
JURISDICTION
This court has federal question jurisdiction over Turner's action pursuant to 28 U.S.C. § 1331 because his action is brought under Title VII of the Civil Rights act of 1964, 42 U.S.C. § 2000e, et seq.Venue is proper in this district pursuant to 28 U.S.C. § 1391(a)(2) because a substantial part of the events or omissions giving rise to the claim occurred in the Southern District of Florida.
DISCUSSION A. STANDARD OF REVIEW — SUMMARY JUDGMENT
Summary judgment is warranted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of meeting this exacting standard. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). In determining whether summary judgment is appropriate, the facts and inferences from the facts are viewed in the light most favorable to the non-moving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
The non-moving party, however, bears the burden of coming forward with evidence of each essential element of his claims, such that a reasonable jury could find in his favor. See Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). In response to a properly supported motion for summary judgment, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
"The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial and requires the court to grant the motion for summary judgment. See Celotex, 477 U.S. at 322. If the non-moving party fails to "make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof," then the court must enter summary judgment for the moving party. Gonzalez v. Lee County Housing Authority, 161 F.3d 1290, 1294 (11th Cir. 1998).
B. STANDARD OF REVIEW — REVERSE DISCRIMINATION CASES
The Eleventh Circuit has stated that "[i]n reverse discrimination suits, plaintiffs must establish a McDonnell Douglas prima facie case." Shealy v. City of Albany, 89 F.3d 804, 805 (11th Cir. 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Wilson v. Bailey, 934 F.2d 301, 304 (11th Cir. 1991)). The test requires a reverse discrimination plaintiff to show that: "(1) he was qualified and applied for the position; (2) he was rejected despite his qualifications; and (3) other equally or less qualified employees who are not members of his race [or gender] were hired." Bass v. Bd. of County Comm'rs, 256 F.3d 1095, 1104 (11th Cir. 2001).
Once a reverse discrimination plaintiff "establishe[s] a prima facie case of [gender] discrimination under the McDonnell Douglas framework. . . . a presumption of discrimination ar[ises] and the burden shift[s] to the [defendant] to proffer a legitimate, non-discriminatory reason for not hiring [the plaintiff]." Id. at 1105. If the defendant articulates a non-discriminatory reason, "the burden shift[s] back to [the reverse discrimination plaintiff] to present sufficient evidence to create a genuine issue of fact that the [defendant's] non-discriminatory reason was pretext for discrimination." Id. att 1006.
As the defendant has recognized, "[s]ome courts use a `background circumstances' test in reverse discrimination cases to determine whether the defendant is `that unusual employer who discriminated against the majority.'" Weeks v. Union Camp Corp., et al., No. 98-2814, 2000 U.S. App. LEXIS 12549, at *21 (4th Cir. June 7, 2000) (citing Parker v. Baltimore O.R.R. Co., 652 F.2d 1012, 1017 (D.C. Cir. 1981); Mills v. Health Care Serv. Corp., 171 F.3d 450, 457 (7th Cir. 1999); Duffy v. Wolle, 123 F.3d 1026, 1036 (8th Cir. 1997); Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1534 (10th Cir. 1995); Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 66 (6th Cir. 1985)). The Sheriff's office acknowledges that the Eleventh Circuit has failed to include the background circumstances test as a requirement in any of the reverse discrimination cases it has decided. Therefore, this court will not require Turner to prove that the Sheriff's office is the unusual employer who discriminates against the majority for the purposes of establishing his prima facie case of discrimination.
C. MERITS OF TURNER'S TITLE VII CLAIM
The Sheriff's office disputes that Turner has established a prima facie case of gender discrimination because Turner has admittedly failed to meet the requirement of being employed as a deputy sheriff for the five consecutive years necessary for promotion to sergeant. Turner responds by arguing that the five consecutive year requirement is not an actual qualification for promotion to sergeant because it was waived in the cases of two female deputy sheriffs. The Seventh Circuit has recognized that, in many employment discrimination cases, the prong in the prima facie test for job qualification often merges with the employer's nondiscriminatory reason for not promoting the plaintiff. See Vanasco v. National-Louis Univ., 137 F.3d 962, 966 (7th Cir. 1998). Thus, the court has held that "although we recognize that the prima facie case is technically the first step in the burdenshifting method, `we shall eschew a mechanistic application of McDonnell Douglas in this circumstance,' and proceed to consider whether the [the plaintiff] met [his] burden of showing pretext." Id.
The court agrees with the logic expressed by the Seventh Circuit and will assume arguendo that Turner has established his prima facie case of disparate treatment. As a result of this determination, the court now addresses whether the Sheriff's office used Turner's failure to meet the five consecutive year requirement as a pretext to discriminate against him on the basis of his gender.
Turner alleges that the five consecutive year requirement was pretextual because the Sheriff's office waived the requirement with respect to a female deputy sheriff named Carol Verdigi. Sheriff Bieuluch does not dispute that this occurred. Rather, he responds that the waiver was improvidently granted during the administration of Robert Neumann, the prior Sheriff of Palm Beach County. According to Sheriff Bieluch's deposition, he explains that, while he recognized that the waiver was wrong with respect to Verdigi, he felt compelled to honor the action taken by Sheriff Neumann. Turner does not offer any evidence to support his contention that Verdigi's service time requirement was waived because of her gender or that Turner's service time requirement was not waived because of his gender. Turner simply argues that "[t]he disbelief of the defendant's proffered reasons, together with the prima facie case, is sufficient circumstantial evidence to support a finding of discrimination."
Given the nature of the evidence in this case, the court now addresses whether an employer's one-time improvident waiver of company policy with respect to an employee of one gender irrevocably invalidates any enforcement of that policy with respect to all employees of the other gender. Courts have recognized that "[a]n employer's failure to follow its own policies may support an inference of pretext." Floyd v. Mo. Dep't of Soc. Servs., 188 F.3d 932, 937 (8th Cir. 1999).
Appellate courts, however, have also recognized that an employer's failure to follow its own policy need not result in a judicial finding of pretext. The Eleventh Circuit has specifically held that "[s]tanding alone, deviation from a company policy does not demonstrate discriminatory animus."Mitchell v. UBSI Co., 186 F.3d 1352, 1355-56 (11th Cir. 1999) (citing EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1182 (5th Cir. 1996) (holding that "deviation from company policy [is] not evidence of discrimination, absent a nexus between deviation and employee's protected status.")). Furthermore, in Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995), the Tenth Circuit held that "[t]he mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the employer was motivated by illegal discriminatory intent or that the substantive reasons given by the employer for its employment decision were pretextual." Similarly, the Eight Circuit has held that the "deviation from the procedural norm [must be] sufficient to view the [employer's] reasons for [promotion] denial as pretextual." Brousard-Norcross v. Augustana College Ass'n, 935 F.2d 974, 977 (8th Cir. 1991).
Therefore, even if Turner could prove that the waiver given to Verdigi was not simply a one-time improvident action by a departing sheriff, he would still have the burden of producing enough evidence to create a genuine issue of material fact that either Verdigi's requirements were waived because of her gender or that Turner's requirements were not waived because of his gender. The Eleventh Circuit has held that "a reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false and that discrimination was the real reason." Mitchell v. UBSI Co., 186 F.3d 1352, 1355 (11th Cir. 1999) (citing Clark v. Coats Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993)).
Turner has failed to provide even a scintilla of evidence tending to prove that there was discriminatory animus in the Sheriff's office. In addition, Sheriff Bieluch has provided uncontroverted evidence that "since [he] has assumed office, no persons have been permitted to prematurely bridge time in violation of policy as was done for Carol Verdigi." Def's Statement of Facts at ¶ 25. Therefore, the action taken with respect to Ms. Verdigi does not, by itself, require a denial of summary judgment in this case. Turner's failure to provide any evidence that Sheriff Bieluch acted with discriminatory intent when he made the decision regarding either Verdigi or Turner means that Turner must provide other evidence in order to survive summary judgment.
As a result of this fact, Turner additionally claims that another female deputy sheriff, Paula Kronsperger, was also allowed to prematurely bridge her service time in order to apply for a promotion to sergeant. Kronsperger was given a one-year leave of absence and returned to the Sheriff's office after only taking four months of her requested leave. Turner contends that the Sheriff's failure to treat her leave of absence as a "resignation" meant that she was given preferential treatment on the basis of her gender.
The Sheriff's office responds by contending that Kronsperger is not similarly situated to Turner because, unlike Turner, she "was on an approved and unpaid leave of absence from her employment with the Palm Beach County Sheriff" and "has never submitted a letter of resignation to the Palm Beach County Sheriff or terminated her employment with the Palm Beach County Sheriff." Def's Statement of Facts at ¶¶ 16-17. Turner does not dispute this explanation. Rather, Turner argues that, under department regulations, her leave of absence should have been "considered as a resignation from the Sheriff's Office." Pl's Statement of Facts at ¶ 16.
The Eleventh Circuit has repeatedly held that "[a] plaintiff must show not merely that the defendant's employment decisions were mistaken but that they were in fact motivated by sex."Wilson v. B/E Aero, Inc., No. 03-14909, 2004 U.S. App. LEXIS 13469 (11th Cir. June 30, 2004) (citing Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253 (11th Cir. 2000)). The court also held that "[t]he role of this Court `is to prevent unlawful hiring practices, not to act as a super personnel department that second-guesses employers' business judgments.' [and that] [o]ur sole concern is whether unlawful discriminatory animus motivates a challenged employment decision." Id.
Therefore, even if the court assumes that the Sheriff's office is mistaken in not classifying Kronsperger's leave of absence as a "resignation," summary judgment must be granted for the Sheriff's office unless Turner can put forth evidence creating a genuine issue of material fact that the Sheriff's office made its determination becuase of her gender. Turner has not provided any evidence to support his claim that the decision regarding Kronsperger was made on the basis of her gender. Furthermore, the Sheriff's office has produced uncontroverted evidence that a similar bridging opportunity was provided to Ray Desmaris, a male deputy sheriff, after an authorized one-year leave of absence to allow him to pursue a law enforcement opportunity overseas. Def's Statement of Facts at ¶¶ 19-21.
The Sheriff's evidence regarding Ray Desmaris establishes that the Sheriff's leave policy did not discriminate against male applicants in general. Moreover, Turner is not similarly situated to either Kronsperger or Desmaris because he resigned from the Sheriff's office for 10 years and did not take a short leave of absence. Finally, Turner has failed to provide any evidence establishing that gender played a role in the Sheriff's employment decisions regarding either himself or Verdigi. Therefore, the court grants summary judgment in favor of the defendant.
CONCLUSION
For the reasons stated herein, the court concludes that the plaintiff has failed to provide sufficient evidence to create a genuine issue of material fact that he was discriminated against by his employer on the basis of his gender.
Accordingly, it is hereby ORDERED and ADJUDGED that defendant's motion for summary judgment as to the plaintiff's claim [DE # 13] is GRANTED. A final judgment will be issued in a separate order.