Opinion
CASE NO. 02-80936.CIV-DIMITROULEAS
December 22, 2003
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendant National Service Industries, Inc/s Motion for Summary Final Judgment [DE 44], Plaintiff Michelle Wellenbusher's Opposition [DE 51], and Defendant's Reply [DE 58]. The Court has carefully considered the motion and is otherwise fully advised in the premises.
Plaintiff Michelle Wellenbusher has brought this action seeking damages for Title VII pregnancy discrimination pursuant to the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) against Defendant National Service Industries, Inc. d/b/a National Linen Services. Defendant moves this Court for an entry of summary final judgment, arguing that Plaintiff has failed to create a genuine issue of material fact as to whether Defendant's articulated non-discriminatory reason for her termination was pretext for intentional pregnancy discrimination.
I. BACKGROUND
Plaintiff Michelle Wellenbusher began working as a Major Account Specialist in for National Service Industries, Inc. ("National Service") on March 4, 2001. (Wellenbusher Dep. I, Ex. 4.) National Service rents linens to customers such as restaurants and hospitals; they also pick up soiled linens, bring them back to the plant to clean them and return them to the customer. (Gooch Dep. p. 41.) On or around January 29, 2002, Wellenbusher advised her supervisor, Alan Wilson, that she was pregnant. (Wellenbusher Aff. ¶ 3.) She then e-mailed Steve Feinberg in human resources requesting information on the company's policy regarding leave. (Wellenbusher Aff. ¶ 3.) On February 22, 2002, Plaintiff Michelle Wellenbusher was informed by her supervisor, Alan Wilson, that she was being terminated from her position as a Major Account Specialist. (Wellenbusher Aff. ¶ 19.) After Wellenbusher was terminated, Stephanie Hebel, whose position as Regional Account Specialist was eliminated as part of the downsizing, took over some of Wellenbusher's accounts. (Wilson Dep. p. 80-81; Wilson Aff. ¶ 3.) Alan Wilson and Cindi Cieslak, the other Major Account Specialist in the Pompano Beach facility, took care of the remaining accounts. (Wilson Dep. p. 80-81.) As of August, 2002, no one had been placed in Wellenbusher's position. (Feinberg Dep. p. 24.)
Prior to her termination, on February 8, 2002, Wellenbusher received a "Last Chance Memorandum," which stated that several customers had requested that she be replaced as their account representative due to her lack of interest in resolving customer issues, shifting responsibility of follow up and problem resolution to other parties, and defensive and unprofessional behavior. (Wellenbusher Aff. Ex. B.) Wellenbusher had not received any prior oral or written warnings regarding her work. (Wellenbusher Aff. ¶ 6.) After receiving the Last Chance Memorandum, Wellenbusher created a "Major Account Specialist Survey," which she circulated to her customers; she received ten completed surveys out of over thirty customers. (Wellenbusher Aff. ¶ 13; Wellenbusher Dep. p. 43.)
Steve Feinberg, Alan Wilson, and Kathie Renn, Human Resources Director, testified that Wellenbusher was terminated as part of a company downsizing. (Feinberg Aff. ¶ 4; Wilson Aff. ¶ 3; Renn Dep. p. 8.) Specifically, Renn testified that the company had decided to eliminate Major Account Specialist positions sometime in mid-February, 2002, and she was contacted by the local branch regarding the downsizing of that position. (Renn Dep. p. 8, 15.) Wellenbusher was one of two Major Account Specialists at the Pompano Beach facility; the other person was Cindi Cieslak. (Wilson Aff. ¶ 2). Alan Wilson testified that he supported the selection of Wellenbusher for the downsizing because she had less seniority in the branch than Cieslak and he was already in the process of terminating her for performance problems. (Wilson Aff. ¶ 3.)
Wilson had received customer complaints about Wellenbusher's attitude and professionalism and felt that she was not diligently performing her responsibilities. (Wilson Aff. ¶ 3.) For example, she would call in from home or send e-mails when he felt she should have been meeting with customers. (Wilson Aff. ¶ 3.) He also felt that she was not devoted to resolving customer issues and complaints when confronted with quality control issues and would blame the plant instead of trying to resolve the problems. (Wilson Aff. ¶ 3.) Additionally, Steven Feinberg testified that Wellenbusher had a very sour attitude. (Feinberg Aff. ¶ 3.) Jim Gooch, the plant manager at the West Palm Beach facility while Wellenbusher was there, testified that Wellenbusher was not successful in creating a partnership with the customer; he also testified that she was an "e-mail manager." (Gooch Dep. p. 38, 41.)
Andrew Brown was Acting General Manager for National Service's Pompano Beach facility until January 23, 2002 when he was terminated as part of the company downsizing program. (Brown Aff. ¶ 2.) Both Wellenbusher and Cieslak reported to him until he was terminated. (Brown Aff. ¶ 2.) In January 2002, Brown decided to terminate Wellenbusher due to her poor performance, including the fact that she chronically had customers in "yellow and red alert" categories, meaning those customers were in danger of cancelling their contracts. (Brown Aff. ¶ 4.) Cieslak's customers were not on alert. (Brown Aff. ¶ 4.) Brown also testified that Wellenbusher was unprofessional and tended to blame everyone else for problems with her customers. (Brown Aff. ¶ 3.) Brown states that the only reason he did not terminate Wellenbusher is because he was laid off on January 23, 2003. (Brown Aff. ¶ 5.)
II. DISCUSSION A. Summary Judgment Standard
The Court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and any doubts in this regard should be resolved against the moving party, Adickes v. S.H. Kress Co., 398 U.S. 144, 157(1970).
The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party's case. Id. at 325.
After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). According to the plain language of Fed.R.Civ.P. 56(e), the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings," but instead must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e);Matsushita, 475 U.S. at 587.
Essentially, so long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson, 477 U.S. at 257. "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). If the evidence advanced by the non-moving party "is merely colorable, or is not significantly probative, then summary judgment may be granted," Anderson, 477 U.S. 242, 249-50.
B. Analysis
Wellenbusher has alleged that she was terminated because of her pregnancy in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) . The Pregnancy Discrimination Act of 1978 amended Title VII by providing that the prohibition against employment-related discrimination "because of sex" or "on the basis of sex" includes discrimination based on pregnancy, childbirth, or related medical conditions. See 42 U.S.C. § 2000e(k). The analysis applied to pregnancy discrimination is the same analysis used in other Title VII sex discrimination cases. Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1312-13 (11th Cir. 1994). A plaintiff alleging a claim of disparate treatment must establish that the employer intended to discriminate against the protected group, Id. at 1313. If no direct evidence of intentional discrimination is available, a plaintiff may present circumstantial evidence from which an inference of intentional discrimination may be drawn. Id.
42 U.S.C. § 2000e-2(a)(1) provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise 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."
Because Wellenbusher attempts to prove her case with circumstantial evidence, the Court turns to the burden-shifting framework established inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). Under this approach, plaintiff initially bears the burden of establishing a prima facie case of discrimination. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie case of pregnancy discrimination, a plaintiff must demonstrate: (1) that she was a member of a protected class; (2) that she was qualified for her position; (3) that she suffered an adverse affect on her employment; and (4) that she suffered from differential application of work or disciplinary rules. Armstrong, 33 F.3d at 1314. If plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for its action. Burdine, 450 U.S. at 253. Last, if the defendant articulates a legitimate, nondiscriminatory reason, the burden shifts to plaintiff to present evidence that the reasons offered by the defendant were a pretext for discrimination. Id. Finally, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Id.
Assuming that Wellenbusher can establish a prima facie case, the Court finds that she has produced no evidence that demonstrates that Defendant National Service's legitimate, nondiscriminatory reasons were pretext for pregnancy discrimination. National Service articulates two interconnected nondiscriminatory reasons for Wellenbusher's termination. First, Wellenbusher was terminated as part of a downsizing where the company reduced the number of Major Account Specialist positions. Second, Wellenbusher was chosen to be a part of the downsizing, as opposed to the other local Major Account Specialist in Pompano Beach, Cindi Cieslak, because of Wellenbusher's poor job performance. Wellenbusher argues that the close proximity in time between the company's awareness of her pregnancy and the last chance warning and subsequent termination is evidence that National Service's reasons for her termination are pretext. However, the mere fact that National Service discovered she was pregnant shortly before warning and then terminating her does not constitute evidence from which a factfinder could reasonably infer that National Service intended to terminate Wellenbusher because she was pregnant. Simply pointing out the fact that Wellenbusher was terminated soon after she announced her pregnancy does not meet the summary judgment requirement for specific facts showing that there is a genuine issue.
While Wellenbusher essentially bases her entire case on the timing of the warning and termination, she also attempts to find inconsistencies related to National Service's nondiscriminatory reason for her termination. However, not one of these supplemental attempts to challenge National Service's reasons succeed in creating a genuine issue for trial. First, Wellenbusher points to her "positive employment history." By positive employment history, it appears that Wellenbusher means the fact that she had received no prior warnings during her eleven months of employment; Wellenbusher does not point to any positive evaluations in her employment file that might cast doubt on National Service's contention that she was fired partly for poor job performance. Therefore, the fact that Wellenbusher was not disciplined before the February 8, 2003 Last Chance Memorandum does not amount to more than a mere scintilla of evidence that National Service intentionally discriminated against her because of her pregnancy,
Wellenbusher further argues that the high marks on the customer surveys she prepared and distributed to her customers support her argument that National Service's nondiscriminatory reason related to job performance is pretext. However, assuming these surveys are admissible evidence, receiving high marks on a short, self-serving survey completed by ten out of over thirty customers fails to create a genuine issue of material fact. From her supervisors' point of view, she was not diligent in her responsibilities and tended to blame others for the problems she was hired to resolve. The fact that ten of her customers stated that they were satisfied by her performance does not undermine such criticism of Wellenbusher's job performance. Next, with respect to the downsizing reason, Wellenbusher argues that it is suspicious that the company retained Cindi Cieslak, a less senior representative. First, Cieslak had more seniority in that particular branch. Second, seniority is irrelevant where National Service states that Wellenbusher was chosen to be part of the downsizing because of her poor performance. Also with respect to downsizing, Wellenbusher points to the fact that her position was posted on a job-posting Internet cite, Monster.com. However, according to Wellenbusher's own exhibit, this posting did not occur until September 27, 2002, seven months after her termination. See Wellenbusher Aff. Ex. T. Further, when Wellenbusher was terminated she was not replaced; Stephanie Hebel, Alan Wilson, and Cindi Cieslak, all employees of National Service at the time, took over her job duties. Finally, Wellenbusher argues that the sanitary and production issues the company was experiencing mitigate any of the alleged customer service issues. Again, this argument does not undermine the criticism of Wellenbusher's job performance because Wellenbusher's supervisors were critical of the manner in which she handled such production issues with the customers. Therefore, because none of the above arguments undermine National Service's articulated nondiscriminatory reasons, Wellenbusher has not made a sufficient showing that a jury could reasonably find in her favor. Overall, Wellenbusher has failed to come forward with specific facts, other than mere allegations or denials, showing that there is a genuine issue for trial.
III. CONCLUSION
Because there are no genuine issues as to any material fact, and Defendant National Services is entitled to judgment as a matter of law, it is ORDERED AND ADJUDGED as follows:
1. Defendant National Linen Industries, Inc.'s Motion for Summary Final Judgment [DE 44] is hereby GRANTED;
2. Plaintiffs Request for Oral Argument [DE 52] is hereby DENIED;
3. Defendant National Linen Industries, Inc.'s Motion to Strike Exhibits to and Inadmissible Portions of Plaintiff Wellenbusher's Opposition Affidavit Pursuant to Rules 12 and 56 [DE 59] is hereby DENIED AS MOOT.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida,