Heller et al v. Logan Acquisitions Corporation

REPLY to Response to Motion re MOTION for summary judgment Final Summary Judgment and Supporting Memorandum of Law

M.D. Fla.February 13, 2019

TPA 512487670v2 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LESLIE HELLER, MARQUIS GRIFFIN, AND LAKISHA MITCHELL, Plaintiffs, v. CASE NO. 8:17-cv-01715-EAK-TGW LOGAN ACQUISITIONS CORPORATION, d/b/a LIDO BEACH RESORT, f/k/a LIDO BEACH LLC, Defendant. / DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Defendant Logan Acquisitions Corporation d/b/a Lido Beach Resort, f/k/a Lido Beach, LLC (“Defendant”), by and through undersigned counsel, files this reply brief in support of its Motion for Summary Judgment [DE 89], and states as follows: I. Defendant is Entitled to Summary Judgment Even Under Plaintiffs’ Theory of Mixed-Motive Discrimination In their response to Defendant’s Motion for Summary Judgment, Plaintiffs for the first time argue that their employment discrimination claims should be evaluated under a mixed-motive theory of liability. Even accepting this interpretation of Plaintiffs’ claim, which is not found in Plaintiffs’ Amended Complaint, Defendant’s Motion for Summary Judgment should still be granted because Plaintiffs have not provided sufficient evidence of discrimination to create a triable issue of fact. Case 8:17-cv-01715-WFJ-TGW Document 100 Filed 02/13/19 Page 1 of 11 PageID 5649 2 TPA 512487670v2 Ultimately, Plaintiffs’ claims fail under either theory because Plaintiffs cannot show that racial animus played a role in any of the decisions at issue in the case. Under the mixed-motive theory,1 “a plaintiff must show that: (1) the defendant took an adverse employment action against the plaintiff; and (2) a protected characteristic was a motivating factor for the defendant's adverse employment action.” Martin v. Shelby Cty. Bd. of Educ., No. 18-11386, 2018 U.S. App. LEXIS 33178, at *12 (11th Cir. Nov. 27, 2018) (citing Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1239 (11th Cir. 2016). To survive a motion for summary judgment, a plaintiff must provide “sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that [her protected characteristic] was a motivating factor for [an] adverse employment decision.” Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1239 (11th Cir. 2016) (internal citations omitted). Here, Plaintiffs have failed to produce any evidence that race was a motivating factor with respect to any of the decisions at issue in this case. In fact, each of the Plaintiffs’ purported arguments of discrimination are directly rebutted by the record evidence. First, as it relates to Plaintiffs’ arguments that Haviaras avoided speaking or looking at Black employees, Heller admitted that Haviaras would talk to her. Heller 1 Defendant’s Motion for Summary Judgment addressed Plaintiffs’ claims as set forth in Plaintiffs’ Amended Compliant, which alleges that they were subject to adverse employment actions because of their race. See DE 2, ¶¶ 36, 39, 42. Plaintiffs’ Response to Defendants’ motion for summary judgment is the first time that Plaintiff has raised the possibility that race was not the sole reason for the employment actions at issue. “Although district courts ordinarily do not consider new arguments raised in reply briefs, such new arguments are properly considered if they address unexpected issues raised for the first time by the opposing party's response.” Vargas v. Michaels Stores, Inc., No. 8:16- cv-1949-T-33JSS, 2017 U.S. Dist. LEXIS 116817, at *4 (M.D. Fla. July 26, 2017) (holding that defendant should have addressed new mixed-motive arguments in reply brief). Case 8:17-cv-01715-WFJ-TGW Document 100 Filed 02/13/19 Page 2 of 11 PageID 5650 3 TPA 512487670v2 Depo. 64:13-14 [DE 39-1 p. 16]. This directly contradicts Plaintiffs’ arguments that Haviaras avoided speaking with African-American employees. Moreover, this alleged evidence of racial animus is insufficient to create an issue of fact under the mixed-motive theory or otherwise, as it is not tied to any employment decision at issue. When relying on circumstantial evidence, such as a vague failure to greet black employees, Plaintiffs must prove that the circumstances around this interaction create a genuine issue of fact as to whether Defendant actually relied on their race in making its decision. See Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1241 (11th Cir. 2016); Burton v. Gwinnett Cty. Sch. Dist., 2018 U.S. App. LEXIS 33379, at *11 (11th Cir. Nov. 28, 2018) (holding that statements that did not relate to bias in the decision-making process or that were not linked to the decision-making process were insufficient to create an issue of fact as to mixed-motive discrimination). Plaintiffs cannot show that these amorphous actions are in any way connected to Defendant’s decision to terminate Heller and Griffin, or otherwise associated with the decision to discipline or temporarily transfer Mitchell.2 Accordingly, Plaintiffs cannot rely on this evidence to survive summary judgment. As to the list created by Haviaras when he began his employment, Plaintiffs cannot connect the list to any personnel decisions. It is undisputed that Haviaras did not know the races of his employees when he created the list. Corporate Rep. Depo. 27:24-28:6 [DE 40-1 p. 7]. Furthermore, Haviaras testified that he ran the names of all 150 employees through the website when he conducted his search, irrespective 2 This is especially true when Heller admits the conduct did not apply to her interactions with Haviaras. Heller Depo. 64:13-14 [DE 39-1 p. 16]. Case 8:17-cv-01715-WFJ-TGW Document 100 Filed 02/13/19 Page 3 of 11 PageID 5651 4 TPA 512487670v2 of race. Corporate Rep. Depo. 23:1-56 [DE 40-1 p. 6]. This testimony, which cannot reasonably be disputed,3 shows that the list cannot serve as indicia of racial animus, as it was created by Haviaras from a complete roster list, not knowing the race of the individuals on the list.4 Furthermore, Haviaras did not intend to utilize the list as a basis for any personnel decisions, an intention bolstered by the fact that even when he discovered Plaintiff Mitchell had failed to disclose her criminal history, he still took no action against the employee.5 Corporate Rep. Depo. 29:2-9, 30:14-31:2 6 [DE 40-1 p. 8]. Finally, the list cannot support any suggestion of racial bias as it relates to Plaintiff Heller’s claims, as it is undisputed that Heller’s name was not on the list. Heller Depo. Ex. 2 [DE 39-1 p. 133]. Therefore, it does not tend to show that Defendant considered Heller’s race in terminating her. The alleged statement of Haviaras directing Heller to hire a blonde for the front desk also does not support Heller’s or Griffin’s claims. This alleged comment was limited in scope to the front desk position, and not related to Heller or Griffin’s positions. See Heller Depo. 80:20-22; 82:23-25 [DE 39-1 pp. 20, 21]. It is also not probative for Mitchell’s claims, as it is undisputed that the decision to transfer 3 As set forth below and Defendant’s Motion to Strike the Affidavit of Veneza Rivera, Rivera’s declaration is inadmissible and cannot be considered for purposes of summary judgment. 4 While Plaintiffs’ Statement of Disputed Facts states that Haviaras “said he could not have all these Black people with records working at the resort,” [DE 92 ¶ 6], Heller clarified in her deposition that Haviaras had told her “I don't want any more Blacks on the front desk. I don't want any more color. I need this place to be -- not having all these felons…” Heller Depo. 82:13-83:9 [DE 39-1 p. 21]. Haviaras never made a reference to race specifically in regards to the list of individuals he identified as having criminal convictions, as he didn’t know the races of the individuals on the list. 5 Plaintiffs argue that all employees on the list are no longer employed by Defendant, but ignore the reasons for the former employee’s separation, claiming only that Dimeon Anderson said he left due to discrimination. [DE 92 ¶ 6]. However, nowhere does Anderson state that the discrimination was due to his race, [DE 92-1] and Heller testified the issues leading to his resignation arose because Anderson was a single father. Heller Depo. 120:21-121:2 [DE 39-1 p. 30]. Heller also told the mother of another employee on the list, Myquel Abdullah, that his termination was justified. Randall Depo. 56:20-57:1 [DE 40-11 pp. 14-15]. Case 8:17-cv-01715-WFJ-TGW Document 100 Filed 02/13/19 Page 4 of 11 PageID 5652 5 TPA 512487670v2 Mitchell to the gift shop was only temporary.6 Accordingly, this disputed anecdote is not material and cannot support a mixed-motive theory of discrimination, as it is wholly disconnected from the adverse employment actions related to them. Finally, Plaintiffs have not provided sufficient evidence of pretext regarding Defendant’s reasons for taking adverse employment actions against Plaintiffs Heller and Griffin. While Plaintiffs are not required to prove pretext as part of their mixed motive claim, Plaintiffs attempt to point to pretext as evidence of mixed-motive in the adverse employment decisions. However, Plaintiffs have not identified sufficient evidence of pretext to allow a reasonable juror to find mixed-motive discrimination by a preponderance of the evidence in the face of the legitimate non-discriminatory reasons established by the evidence. Regarding Plaintiff Griffin, Griffin admits that during the disciplinary meeting regarding Griffin’s admitted failure to answer his radio, he threw or tossed the corrective action down, stood up, and raised his voice. Griffin Depo. 123:4-124:12 [DE 39-2 p. 31].7 He refused to sit down, and told Haviaras “I don’t have to listen to you.” Id. He also shouted during the meeting. Griffin Depo. 162:2-13 [DE 39-2 p. 41]. At Griffin’s deposition, when Plaintiffs’ Counsel was attempting to re-habilitate his testimony, Griffin agreed with the contents of his corrective action: Q The Action Plan, it says, "Marquis cannot be spoken to or corrected without being aggressive." Is that accurate? 6 As set forth in Defendant’s Motion for Summary Judgment, there was no adverse employment action against Mitchell, so the alleged statement is irrelevant to Mitchell’s claims, which fail for other reasons. 7 Contrary to Plaintiffs’ claims, Griffin’s termination was because of insubordination, and was made easier due to prior issues: there is no changing testimony. Corporate Rep. Depo. 169:3-19 6 [DE 40-2 p. 3]. Case 8:17-cv-01715-WFJ-TGW Document 100 Filed 02/13/19 Page 5 of 11 PageID 5653 6 TPA 512487670v2 A Yes. Only because Haviaras, the -- the feed that I was getting off of Haviaras, like I said, nobody -- nobody -- was at a standstill, so nobody wasn't getting anywhere. So I guess you can say yes… Griffin Depo 163:13-20. Plaintiffs now argue that Griffin was not aggressive towards Haviaras in the disciplinary meeting, [DE 92, ¶ 31], despite Griffin literally admitting that the statement in his corrective action document was accurate, and that he was aggressive. Griffin Depo 164:13-20, Ex. 13 [DE 39-2 pp. 41, 111]. The undisputed facts show that Griffin’s actions were aggressive and that Defendant’s actions in response to that behavior were motivated by Griffin’s admitted aggression and insubordination, not by Griffin’s race. Similarly, Plaintiffs cannot provide any evidence showing that Defendant’s reasons for terminating Plaintiff Heller were pretextual. Plaintiffs admit that Heller, the Director of Human Resources, took a photograph of an employee’s backside. Wehbe Ex. 41. Plaintiff Heller disputes various details regarding the story, but admits that she took an employee’s phone, directed the employee to turn around, and took a picture of her backside. See Heller Depo. 210:8-19. [DE 39-1 p. 53]. Regardless of Heller’s dispute as to whether she directed the employee to bend over for the photo, the core issue is undisputed: Heller took a photograph of an employee’s backside, which caused the employee to complain. Wehbe Depo. Ex. 41 [DE 40-9, p. 70]. Heller claims that she was “set up” by her co-workers, but does not identify any evidence that Haviaras was part of this alleged “set up.” Furthermore, Heller’s arguments fail to rebut the fact that the decision to take photographs of an employee’s backside in a public forum was entirely her decision, Case 8:17-cv-01715-WFJ-TGW Document 100 Filed 02/13/19 Page 6 of 11 PageID 5654 7 TPA 512487670v2 and that no one directed her to take that course of action. Furthermore, she does not dispute that this action took place shortly after she had been expressly instructed in a December 16 corrective action that “[m]ost important is that when and if a counseling is required we do it upstairs in the privacy of our office following proper HR practices and protocol.” Heller Depo. Ex. 13 [DE 39-1 p. 155]. There is no evidence that this incident was not the sole reason for the termination of Heller’s employment. Accordingly, Plaintiff has failed to provide any evidence of pretext, or of an ulterior motive for this decision as necessary to survive summary judgment under her theory of mixed-motive discrimination or under her retaliation claim. II. The Declaration of Veneza Rivera is Inadmissible and So Factually Flawed That it Lacks Any Probative Value. Plaintiffs filed a declaration of Veneza Rivera in support of their statement of disputed facts. As set forth in Defendant’s Motion to Strike,8 the declaration is inadmissible as it is not based on personal knowledge. Specifically, Rivera’s declaration attempts to provide evidence regarding search results returned by various third-party websites, regarding which she lacks personal knowledge. Her declaration also includes hearsay. Because her testimony is inadmissible her declaration should not be considered. See Fed. R. Civ. P. 56(f). Ms. Rivera is a legal secretary, employed by Plaintiffs’ counsel. She has no personal knowledge of any of the underlying facts of this case. Presumably at the 8 In lieu of repeating the arguments set forth in the Motion to Strike in full, Defendant incorporates the arguments from the Motion to Strike by reference. Case 8:17-cv-01715-WFJ-TGW Document 100 Filed 02/13/19 Page 7 of 11 PageID 5655 8 TPA 512487670v2 bequest of her employer, Rivera went on various third-party websites to attempt to rebut the testimony of Haviaras regarding how he created his list of employees with criminal convictions. Specifically, Haviaras testified that he searched for every associate in the hotel, and entered their names on Mugshots.com and Google. Corporate Rep. Depo. p. 23:1-5 [DE 40-1 p. 6]. This is a narrower search than that performed by Rivera, who “searched Mugshots.com, Arrestfacts.com, Google and the Clerk of Court websites for Manatee, Sarasota, Orange, Osceola and Pinellas Counties.” DE 92-2 ¶ 3. Rivera fails to disclose how she performed her search, or which records she found on which sites. Accordingly, there is insufficient information in her declaration to infer any contradiction with Haviaras’ testimony regarding his search. Furthermore, there are additional problems with Rivera’s methodology that explain in part the difference in results compared to Haviaras. Rivera’s search parameters appear to have included individuals who were not employed by Defendant when Haviaras created his list. Specifically, based on the documents she referenced in her declaration, Scott Lazio had been terminated on September, 4, 2016. See Employee Separation List, [DE 40-5 p. 23 - 27]. Cynthia Janet’s termination date was September 23, 2016. Id. Neither Janet nor Lazio were employed by Defendant at the time that Haviaras gave the list to Heller.9 Accordingly, Plaintiffs’ attempts to argue that Haviaras overlooked these individuals is misplaced, as Haviaras never claimed to have searched for prior employees. 9 Plaintiff Heller testified that Haviaras gave her the list on October 17, 2016. Heller Depo. 48:19-20 [DE 39-1 p. 12]. Haviaras testified that he did not recall the date, but that it was between August and October. Haviaras Depo. 127:11-14. [DE 39-4, p. 32]. Case 8:17-cv-01715-WFJ-TGW Document 100 Filed 02/13/19 Page 8 of 11 PageID 5656 9 TPA 512487670v2 Finally, Rivera’s declaration is devoid of any personal knowledge. Rivera is attempting to provide testimony regarding the existence and absence of records in the websites of third parties. Rivera attempts to create a question as to whether Haviaras generated his list of employees in the manner he claims. However, Rivera’s declaration fails to address the temporal difference between when Haviaras searched the sites and when Rivera performed her search. This temporal difference, the exact length of which is unknown due to Rivera’s failure to disclose the details of her search, make any comparison of her search results and Haviaras’ search results impossible. Rivera has no personal knowledge regarding how the records are maintained by the third-party websites or how they generate search results. She cannot provide any admissible testimony regarding what the websites would have produced in response to Haviaras’ search, which is how Plaintiffs’ attempt to use the declaration.10 III. Defendant Moved for Summary Judgment Against Plaintiff Mitchell’s Claims in Their Entirety. Plaintiffs argue that Defendant failed to move for summary judgment on Plaintiff Mitchell’s claim for retaliation, and that it therefore necessarily survives. However, Defendants’ motion clearly stated that it requested the dismissal of Plaintiffs’ amended complaint with prejudice, indicating that the motion was directed at all counts of Plaintiffs’ Amended Complaint. Secondly, Defendant’s Motion clearly 10 To the extent that Rivera’s testimony is intended to show that certain employees were convicted felons, the declaration is hearsay, as it is relying on records from third-party websites- that Ms. Rivera cannot authenticate- for the truth asserted in the documents. Case 8:17-cv-01715-WFJ-TGW Document 100 Filed 02/13/19 Page 9 of 11 PageID 5657 10 TPA 512487670v2 sets forth undisputed facts showing that there was no adverse employment action to support Plaintiff Mitchell’s claims, which necessarily included her retaliation claims. Defendant’s Motion sets forth evidence that there was no adverse employment action taken against Mitchell. Specifically, Mitchell was written up for a $2,000 cash handling mistake and for failing to run her cashier report. Mitchell was temporarily transferred to the gift shop to develop her accounting and cash handling skills, but there was no change in her compensation or total weekly hours. Finally, her resignation was voluntary; Plaintiff cannot meet her high burden of showing that her working conditions were so intolerable that she was forced to resign. The arguments presented in Defendant’s Motion, with both factual and legal support, address why summary judgment is appropriate on Mitchell’s discrimination claim as well as her retaliation claim. Because there was no adverse employment action, Defendant is entitled to summary judgment on Mitchell’s retaliation and discrimination claim. Additionally, Plaintiffs cannot claim they were not on notice that Defendant’s Motion for Summary Judgment was directed at Mitchell’s retaliation claim. Plaintiffs’ response to Defendant’s Motion addresses Defendant’s arguments as it relates to constructive discharge. Therefore, the issue of whether Mitchell suffered any adverse employment action is full briefed and ripe for the Court’s ruling. Because Mitchell suffered no adverse employment action, summary judgment is warranted on both her discrimination and retaliation claims. [ATTORNEY SIGNATURE ON NEXT PAGE] Case 8:17-cv-01715-WFJ-TGW Document 100 Filed 02/13/19 Page 10 of 11 PageID 5658 11 TPA 512487670v2 Respectfully submitted, /s/Catherine H. Molloy Catherine H. Molloy Florida Bar No. 33500 Email: molloyk@gtlaw.com Richard C. McCrea, Jr. Florida Bar No. 351539 Email: mccrear@gtlaw.com West A. Holden Florida Bar No. 113569 Email: holdenw@gtlaw.com GREENBERG TRAURIG, P.A. 101 E. Kennedy Boulevard Suite 1900 Tampa, FL 33602 (813) 318-5700 – Phone (813) 318-5900 – Fax Attorneys for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 13, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system. Kendra D. Presswood Shankman Leone, P.A. 707 North Franklin Street, 5th Floor Tampa, FL 33602 kpresswood@shankmanleone.com /s/Catherine H. Molloy Attorney Case 8:17-cv-01715-WFJ-TGW Document 100 Filed 02/13/19 Page 11 of 11 PageID 5659