Heller et al v. Logan Acquisitions Corporation

RESPONSE in Opposition re MOTION for summary judgment Plaintiffs' Opposition to Motion for Final Summary Judgment

M.D. Fla.January 31, 2019

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LESLIE HELLER, MARQUIS GRIFFIN, and LAKISHA MITCHELL, Plaintiff, v. LOGAN ACQUISITIONS CORPORATION, d/b/a LIDO BEACH RESORT, f/k/a LIDO BEACH, LLC, Defendant. / CASE NO.: 8:17-cv-1715-T-17TGW PLAINTIFFS’ OPPOSITION TO MOTION FOR FINAL SUMMARY JUDGMENT Plaintiffs Leslie Heller (“Heller”), Marquis Griffin (“Griffin”) and Lakisha Mitchell (“Mitchell”) (collectively “Plaintiffs”), pursuant to Fed. R. Civ. P. 56 and M.D. Fla. L.R. 3.01, hereby oppose Defendant’s Motion for Final Summary Judgment and Supporting Memorandum of Law (“Defendant’s MSJ”) (D. 42). I. Introduction and Standard of Review Defendant’s MSJ and Defendant’s Statement of Undisputed Facts (D. 43) present only evidence favorable to Defendant and draw all inferences in its favor, which is contrary to how this Court must view the evidence. E.g., Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012). “The court must draw all reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility determinations, which ‘are jury functions, not those of a judge.’” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Further, the Court must Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 1 of 35 PageID 5330 2 review the record as a whole and must disregard all evidence favorable to the moving party that the jury is not required to believe . . . That is, the court should give credence to the evidence favoring the nonmovant as well as that “evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 151 (2000). Accordingly, pursuant to the Court’s Case Management and Scheduling Order (D. 12), Plaintiffs are filing a Statement of Disputed Facts (“SDF”) which properly presents the record evidence. As demonstrated in the SDF and below, every material issue of fact is at issue in this case and, when viewed properly, the evidence overwhelmingly demonstrates that summary judgment is inappropriate. Id. (stating that, if reasonable people, in the exercise of impartial judgment might reach differing conclusions, then a motion for summary judgment must be denied and the case submitted to the jury); Fed. R. Civ. P. 56(c). II. Applicable Law and Analysis Section 1981 (§ 1981) proscribes discrimination based on race and prohibits retaliation. 42 U.S.C. § 1981; CBOCS W., Inc. v. Humphries, 553 U.S. 442, 455 (2008) (holding § 1981 encompasses retaliation). While § 1981 claims are often analyzed like Title VII claims, there are differences. One difference, which Defendant’s MSJ fails to recognize but is critical, is that the mixed-motive causation analysis applies to § 1981 claims rather than the “but for” causation analysis Defendant relies upon. E.g., Vinson v. Koch Foods of Alabama, LLC, No. 17-10075, 2018 WL 2329800, at *3 (11th Cir. May 23, 2018) (mixed-motive applies to race discrimination claims brought under § 1981 and Title VII). This is true for the race discrimination claims, id., as well as for the retaliation claims. See Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 355- 56 (2013) (holding Title VII’s detailed statutory scheme and language requires “but for” causation Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 2 of 35 PageID 5331 3 for retaliation claims unlike the broad and general terms of Title IX, § 1981, § 1982).1 A. Defendant’s MSJ Applies the Wrong Analysis Defendant’s MSJ incorrectly relies upon the McDonnell Douglas analysis which the Eleventh Circuit has made clear does not apply in mixed-motive cases. Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1238 (11th Cir. 2016) (“In light of this clear incongruity between the McDonnell Douglas framework and mixed-motive claims, it is improper to use that framework to evaluate such claims at summary judgment.”); accord Vinson, 2018 WL 2329800, at *3 (applying Quigg to race discrimination claims brought under § 1981 and Title VII); Chavez v. Credit Nation Auto Sales, LLC, 641 F. App’x 883, 887, 892 (11th Cir. 2016) (holding that, even though the employee failed to show pretext, the employer was not entitled to summary judgment because the employee was still able to provide evidence that her termination was not only motivated by a legitimate reason, i.e., sleeping on the job, but also discriminatory reasons). As the Eleventh Circuit explained, the McDonnell Douglas “framework is fatally inconsistent with the mixed-motive theory of discrimination because the framework is predicated on proof of a single, ‘true reason’ for an adverse action.” Quigg, 814 F.3d at 1238. “Thus, if an employee cannot rebut her employer’s proffered reasons for an adverse action but offers evidence demonstrating that the employer also relied on a forbidden consideration, she will not meet her 1 While Nassar held that “but for” causation applies to Title VII retaliation claims (not discrimination claims), the Court limited its holding and distinguished retaliation claims asserted under § 1981. Nassar, 570 U.S. at 355-56. Thus, the mixed-motive causation standard still applies to § 1981 retaliation claims after Nassar. Id.; see also Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 301 n. 5 (4th Cir. 2015) (“although the elements of prima facie Title VII and § 1981 retaliation claims are identical, the causation standard for a Title VII claim may differ from that for a § 1981 claim” after Nassar); St. Ange v. ASML, Inc., No. 3:10-CV-00079-WWE, 2015 WL 7069649, at *2 (D. Conn. Nov. 13, 2015) (“Nassar provides no basis for applying Title VII's causation standard for retaliation to Section 1981 retaliation claims.”); McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008) (stating plaintiff may establish causation by showing that “the protected activity and the adverse action were not wholly unrelated”); Berman v. Orkin Exterminating Co., Inc., 160 F.3d 697, 702 (11th Cir. 1998) (same). Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 3 of 35 PageID 5332 4 burden. Yet, this is the exact type of employee that the mixed-motive theory of discrimination is designed to protect.” Id. Thus: The appropriate framework for examining mixed-motive claims at summary judgment requires a court to determine only whether a plaintiff has offered “evidence sufficient to convince a jury 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.” Vinson, 2018 WL 2329800, at *3 (quoting Quigg, 814 F.3d at 1238) (emphasis in original). The McDonnell Douglas analysis applies only in “single-motive” or “but for” causation cases such as ADEA claims and Title VII retaliation claims. Id. Defendant’s MSJ makes no argument that Plaintiffs cannot establish race discrimination or retaliation claims using the appropriate mixed-motive analysis, let alone that there is no genuine issue of material fact on the issues. Instead, Defendant incorrectly argues that Plaintiffs must establish a prima facie case under McDonnell Douglas and prove pretext. But see Vinson, 2018 WL 2329800, at *3; Quigg, 814 F.3d at 1238; Chavez, 641 F. App’x at 892. Thus, Defendant’s MSJ fails on its face. Moreover, as explained below, the record evidence demonstrates more than sufficient evidence to establish Plaintiffs’ claims under the appropriate mixed-motive analysis. Infra pp. 5- 16. Thus, to avoid liability, Defendant must prove that it would have made the same decisions based on legitimate reasons even if it had not considered the prohibited factors. Price Waterhouse v. Hopkins, 490 U.S. 228, 260-61 (1989) (White, J., concurring) (O’Connor, J., concurring); Quigg, 814 F.3d at 1242. It is not enough to prove “that the same decision would have been justified,” rather, “the employer must prove that the same decision would have been made.” Price Waterhouse, 490 U.S at 252 (plurality opinion) (internal quotation marks and citations omitted).2 2 Defendant recognized that it had the burden to establish this defense as asserted in its Fourth Affirmative Defense. (D. 10 p. 7). Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 4 of 35 PageID 5333 5 Defendant’s MSJ makes no argument that it can meet this burden, let alone that there is an absence of any genuine issue of material fact on the issue. In fact, there is no record evidence that would suffice to meet Defendant’s burden. Thus, Defendant’s MSJ fails on this basis as well. B. Applying the Correct Analysis Requires Denying Defendant’s MSJ Plaintiffs have presented sufficient evidence to convince a jury that: (1) Defendant took an adverse employment action against Plaintiffs; and (2) Plaintiffs’ race and/or protected activity was a motivating factor for Defendant’s adverse employment action.” Quigg, 814 F.3d 1238; Vinson, 2018 WL 2329800, at *3; Chavez, 641 F. App’x at 892. First, it is undisputed that Heller and Griffin were terminated, and thus, subjected to adverse employment actions. SDF ¶¶28, 63. It is also undisputed that Mitchell was moved from the Front Desk to the Gift Shop, SDF ¶84, the only dispute is whether the move was an adverse employment action, which it was, as described below. Infra pp. 14-15, 32-34. Second, Plaintiffs have presented sufficient evidence to convince a jury that their race, protected activity, or both, was a motivating factor for Defendant’s adverse actions. That evidence includes the following: Heller was the only Black3 Director of Human Resources employed by Defendant at any of its properties. SDF ¶2. Mitchell was the only Black Front Desk Agent and was hired during Heller’s tenure. SDF ¶3. Griffin was the only Black Houseman and was hired during Heller’s tenure. SDF ¶4. Plaintiffs all testified to the race discrimination they were subjected to after August 1, 2016 when John Haviaras (“Haviaras”) became the General Manager of the Lido Beach Resort (the “Resort”). SDF ¶5. 3 Some witnesses used the term Black while some used African-American. For consistency and brevity, Plaintiffs use Black to mean African-American. Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 5 of 35 PageID 5334 6 Plaintiffs first noticed that Haviaras avoided speaking to or looking at Black employees, but always greeted non-Blacks. SDF ¶¶6,14. Then, in September or October 2016, Haviaras approached Heller with a list of eight (8) Black employees, including Griffin and Mitchell, with alleged criminal records to compare with their employment applications to see if they lied about their criminal records so he could fire them if they did. SDF ¶6-7. Haviaras said he could not have all these Black people with records working at the Resort where customers spend thousands of dollars to stay. SDF ¶6. Heller did as Haviaras instructed and none of the employees had lied on their applications. SDF ¶6-7. Nonetheless, Haviaras began attempting to find other excuses to fire the Blacks on his list, including Griffin. Id. None of the African-Americans on the list are still employed by Defendant. Id. According to Defendant’s employee roster, some on the list were terminated like Griffin, and others quit, like Mitchell, because of the hostile environment. Id. For example, Dimeon Anderson resigned and put in writing that it was because he felt he was “discriminated against” and “treated unfairly,” but Defendant’s roster omitted that information, instead stating only that he “resigned with no notice.” Id. Although Haviaras later tried to justify his list by claiming that he checked every employee’s criminal record and those on list were the only ones with records, that is not true: there were six Caucasians and two Hispanics with criminal records employed at the time. SDF ¶¶8-13. Additionally, of the eight Blacks on Haviaras’ list, on-line searches revealed that only five (5) of them had a criminal records and only three (3) of those five (5) had felony records. Id. Two (2), Lakisha Mitchell and Marquis Griffin, had only misdemeanors. Id. Haviaras also lied about whether it was company policy to not employ people with felony convictions and why he checked current employees’ criminal records in the first place, repeatedly changing his testimony on the Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 6 of 35 PageID 5335 7 issue. SDF ¶¶8-13. Griffin complained repeatedly to Haviaras that the day-shift Housemen (all Hispanic) left their work for him to do, such as leaving the trash they should have taken out. SDF ¶15. After Griffin complained to Haviaras, Griffin told Heller that Haviaras does not like Black people and would not listen to him. SDF ¶16. Griffin also told Heller that he felt he was not treated fairly because he is Black. SDF ¶16. Heller confronted Haviaras about this issue, but nothing changed. SDF ¶17. On October 14, 2016, Susan Ryan (“Ryan”), a Caucasian Concierge at the Resort, emailed Haviaras that an employee called housekeeping on the radio just before 4:00 p.m. and continued to call for almost 45 minutes to attempt to get an iron for a guest. SDF ¶18. Ryan singled out Jean Mombrum (“Mombrum”) (a Black Haitian) and Griffin to question why they did not respond even though there were five or six Hispanic Houseman working at the same time who were supposed to answer the radio. SDF ¶18. Based on her email, and without any investigation, Haviaras disciplined Griffin on October 19, 2016 for not responding. SDF ¶19. He also disciplined Griffin for leaving trash on a cart one time, aware that the Hispanic Housemen did so repeatedly without discipline. SDF ¶19. Griffin attempted to explain to Haviaras that his previous supervisor trained him to not turn his radio on before 5:00 p.m. or respond to calls while the day-shift was still on duty because Griffin had other duties to perform during that time. SDF ¶20. Griffin asked Haviaras to contact his prior supervisor to verify. SDF ¶20. Haviaras ignored Griffin’s explanation and request. SDF ¶20. Thus, Griffin complained that he was being “targeted” because he was Black and asked why none of the Hispanics who were on duty and were supposed to answer the radio were being disciplined. SDF ¶¶21-24. Haviaras raised his voice and told Griffin to shut up and sit down and Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 7 of 35 PageID 5336 8 that they were not there to discuss other employees. SDF ¶21. Griffin persisted and Haviaras ordered him to leave. SDF ¶21. The only person Defendant disciplined for not answering the radio other than Griffin was the one Black Housekeeping Supervisor, Mombrum. SDF ¶25. Defendant first tried to excuse the fact that only the Blacks were disciplined by claiming that Griffin and Mombrum may have been the only two with radios at the time, which is not true. SDF ¶26. Defendant then claimed that they were disciplined because they were the only ones with keys to the supply closet, which was not true either. SDF ¶26. In fact, Defendant did not assert either of these reasons for singling Blacks out at the time – even when Griffin complained that he was being unfairly singled out because he is Black. SDF ¶¶22-26. Of course, there have been other occasions where employees failed to answer the radios as well, but no one else was disciplined. SDF ¶27. The same day, October 19, 2016, Haviaras drafted a second Corrective Acton to terminate Griffin, which essentially admitted that he terminated him for engaging in protected activity, claiming that Griffin was “aggressive” when he complained that “he wasn’t the only one not answering the radio.” SDF ¶28. The only basis Haviaras could come up with during his deposition for claiming Griffin was “aggressive” was that Griffin raised his voice in response to Haviaras raising his voice and telling Griffin to shut up. SDF ¶29. Tellingly, despite claiming that Griffin was “aggressive” and that he felt “threatened” by Griffin, Haviaras chose to have Griffin return to work on October 24th for the sole purpose of terminating Griffin in person rather than by writing him a letter of termination, sending him an email, texting him, or calling him to advise him not to return to the resort because he was terminated – even though Haviaras had decided to terminate him on October 19th. SDF ¶30. In fact, Griffin had not been “aggressive” towards Haviaras in the disciplinary meeting. SDF ¶31. Griffin simply raised his voice in response to Haviaras raising his Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 8 of 35 PageID 5337 9 voice and telling Griffin to shut up and sit down when he complained he was being singled out for discipline because he is Black, which was obviously dismissive, demeaning and disrespectful toward Griffin. SDF ¶31. Defendant also shifted its reason for terminating Griffin, claiming it was not because Griffin failed to answer his radio, but for being “aggressive,” then claiming it was both reasons, then claiming it was “mostly” that Griffin was aggressive but there were “other factors.” SDF ¶29. There were others who raised their voices to managers and were not terminated such as Yvette who did so to Carmen several times and Ryan who did so to Heller in front of Haviaras. SDF ¶33. Defendant replaced Griffin with a Hispanic Houseman from the day-shift. SDF ¶34. Beginning in or around October 2016, Heller complained repeatedly about the racial discrimination and that Haviaras was retaliating against her. SDF ¶35. Heller made complaints to Nasser Wehbe (“Wehbe”) that Haviaras was discriminatory and that she needed to speak to him about it, but Wehbe never responded and no investigation was ever conducted into her complaints. SDF ¶36. While Heller complained about Haviaras’ wife, Patricia, raising her voice and being belligerent toward her, which she thought started Haviaras’ retaliation against her, Heller never said the retaliation was only because she complained about Patricia, nor did she say Patricia’s treatment of her was not because of race. SDF ¶37. In fact, there is no legitimate reason why Patricia treated Heller with disrespect, which she never did to anyone else. Notably, around the same time, Patricia told Heller that Haviaras had been sent to “clean house” and Haviaras told Heller there was too much “black” or “color” at the Resort. SDF ¶37. Moreover, Heller testified that the retaliation resulted from her complaints about Haviaras’ discrimination against her and other Blacks. SDF ¶38. After Wehbe failed to respond to her verbal complaints, Heller started putting her Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 9 of 35 PageID 5338 10 complaints in writing and sent them to him on December 17, 18, and 23, 2017, and on January 4 and 5, 2018. SDF ¶39. He did nothing in response to any of her complaints. SDF ¶¶ 39, 64, 70. On December 16, 2016, Ryan (again, the Caucasian Concierge) yelled at Heller because Heller told her she had to clock out for breaks. SDF ¶40. Haviaras not only failed to stop Ryan’s tirade, but he also solicited Ryan to file a complaint against Heller which he then used as an excuse to not only discipline Heller but also to justify terminating Heller. SDF ¶40.4 As Heller also pointed out, Griffin was terminated for allegedly engaging in the same behavior as Ryan, and she said that if Haviaras “isn’t stopped OPL will have law suits against them for his racist discriminating behavior.” SDF ¶46. The next day, December 17, 2015, Heller complained to Wehbe in a text message that she felt threatened and that there was a target on her back. SDF ¶41. Heller also stated that she believed “Mr. Haviaras harbors ill will against me and ulterior motives were his basis for encouraging Ms. Ryan to file a written complaint against me.” SDF ¶47. In her December 23, 2017 “Retaliation Complaint,” Heller complained that Haviaras was retaliating against her by creating a “hostile work environment,” that his retaliation included the invitation to Ryan to file a complaint against her after she called Wehbe about his “clandestine strategies for terminating employees inequitably – especially African Americans,” among other things. SDF ¶49. On December 24, 2016, Defendant drafted a Corrective Action for Heller concerning the Ryan incident – eight (8) days after it occurred but only one day after Heller submitted her “Retaliation Complaint.” SDF ¶50. The Corrective Action was for a supposed “policy violation,” although Heller had not violated any policy. SDF ¶51. Moreover, Defendant’s various attempts to justify disciplining Heller were impeached. For example, the incident was not in front of 4Heller had never been disciplined before Haviaras became the General Manager and had received a favorable performance evaluation and raise just before Haviaras arrived. SDF ¶68. Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 10 of 35 PageID 5339 11 customers, but in a manager’s office with the door closed; and Heller did not take it upon herself to discipline Ryan, rather, Ryan’s manager requested that Heller to speak to Ryan about not clocking out, thus, Defendant eventually admitted that it was appropriate for Heller to do so. SDF ¶43, 44. On the other hand, Ryan was disciplined only for not clocking out. SDF ¶44. Haviaras did not discipline Ryan even though he observed her raise her voice and speak to Heller in an aggressive, hostile and threatening manner, as Heller pointed out in her statement regarding the incident dated December 19, 2016. SDF ¶45. In other words, despite that Ryan engaged in the same type of conduct Haviaras claimed Griffin engaged in, he imposed no discipline on Ryan but terminated Griffin. Id. Ryan was also behind Kayla Scott’s January 4, 2017 complaint about Heller taking a picture of Scott’s backside to illustrate that her pants did not properly cover her backside when Scott did not understand. SDF ¶¶52, 55. Contrary to Defendant’s claim, there was no “altercation” between Heller and Scott. In fact, Scott did not appear upset at all at the time and, in fact, thanked Heller for assisting her. SDF ¶55. However, later that day, after Ryan solicited Scott to complain, Haviaras accused Heller of sexually harassing Scott by taking the picture. SDF ¶56. Defendant immediately investigated the White employee’s complaint and used that as the excuse to terminate Heller. SDF ¶52. Defendant lied to attempt to justify the sexual harassment excuse for Heller’s termination, claiming Heller took an “indecent picture” of Scott’s backside “completely naked.” SDF ¶53. However, not even Scott made this ridiculous, untruthful claim. Id. Parker attempted to justify the termination by saying Heller created a “hostile working environment” by taking the picture, but later admitted the incident did not fit within even her convoluted definition of the term. SDF ¶54. Moreover, Defendant’s attempts to inflate the incident were repeatedly refuted by Heller’s explanation of what occurred both at the time and in her Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 11 of 35 PageID 5340 12 testimony, and her explanation was corroborated by the Department Head, Jeanne Rugala, who originally asked Heller to be sure to order the correct size uniform for Scott because Scott’s backside and underwear were showing. SDF ¶55. The same day as the Scott incident, Heller complained to Wehbe in a written statement explaining what actually happened and telling him that Haviaras was trying to get rid of her with the false accusations, among other things.5 SDF ¶58. The following day, January 5, 2017, Heller again emailed a statement concerning the Scott incident to Haviaras, with a copy to Wehbe, explaining what actually happened and stating she felt that Haviaras was creating a hostile working environment. SDF ¶59. Parker called Heller about the Scott complaint the night before Heller was terminated, i.e., the evening of January 5, 2017. Parker testified that she contacted Heller to find out if her version differed from Scott’s version before agreeing to terminate Heller; but Parker incorrectly claimed that Heller’s version of what happened did not differ from Scott’s. SDF ¶60. Parker eventually admitted that she did not even consider Heller’s version of events. SDF ¶60. Moreover, when Heller raised her complaints of discrimination and retaliation to Parker, Parker told Heller she knew nothing about the issues even though Parker received copies of the complaints from Wehbe earlier that day. SDF ¶61. In fact, Parker understood from the complaints that Heller “had been very concerned and felt that John was discriminating against or showed unfavorable treatment toward black employees.” SDF ¶62. However, she admitted she did not ask Heller about the allegations. SDF ¶62. The next morning, Defendant terminated Heller. SDF ¶57,63. Lido replaced Heller with Audrey Lucas, a Caucasian, who is still in Heller’s position. SDF ¶63,69. Defendant never 5 Heller also raised the issue of the inequitable treatment of Dimeon Anderson, one of the African American’s on Haviaras’ “list” in her complaint that day. SDF ¶58, n.8. Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 12 of 35 PageID 5341 13 investigated or responded to any of Heller’s complaints. SDF ¶70. Defendant now claims that Heller should have complained to someone other than Wehbe but admitted in its deposition that Wehbe was the appropriate person. SDF ¶¶64, 71. Moreover, Defendant’s policy did not provide any other avenue for Heller to complain. SDF ¶¶71, 107-10. Defendant also shifted its reasons for terminating Heller, first claiming the only reason was because of the Scott and Ryan incidents, then later claiming it was also because she interfered with other Department Heads’ operations by meeting with their employees – all but one of whom are Black – behind closed doors for long periods of time (which Defendant tried to portray as separate issues but eventually admitted were one and the same). SDF ¶¶65, 66. Mitchell was also harassed by co-workers and managers during her employment. For example, on or about November 16, 2016, less than a month after Haviaras terminated Griffin (who is also Mitchell’s boyfriend), Ryan (the Caucasian Concierge) saw Mitchell returning from a lunch break and commented to the person she was speaking to on the phone, “here comes the situation,” which Mitchell understood to be a derogatory comment towards her. SDF ¶72. Minutes later, Haviaras called Mitchell to his office and wrongly accused her of taking too long for her lunch break. SDF ¶73. Mitchell complained to Haviaras concerning Ryan’s derogatory comment, stating that Ryan may as well have said here comes the “Nigga,” but Haviaras dismissed her complaint outright. SDF ¶74. Ryan also made Mitchell uncomfortable with her attitude and demeanor, including making snide comments and making Mitchell feel incompetent when she asked Ryan for help with learning the computer system. SDF ¶75. Similarly, when Mitchell sought assistance with a customer complaint from her co-worker, Ben (also Caucasian), he embarrassed her in front of the customer, referring to her as incompetent. SDF ¶¶75, 82. Mitchell complained to her supervisor, but nothing Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 13 of 35 PageID 5342 14 was done; so Heller asked Haviaras to intervene, but he did not. SDF ¶¶77, 83. Ryan and others also accused Mitchell of not clocking out for lunch even though she did, and even though Ryan and other non-African-American employees regularly failed to clock out and were not disciplined.6 SDF ¶¶76, 79. Mitchell complained to her supervisor (Caucasian) about her co-workers taking breaks without clocking out and taking longer than permitted, and said she felt she was being treated differently because they did not think she should be working at the Front Desk because of her skin color, which the supervisor dismissed. SDF ¶77. Mitchell was also under constant surveillance, while non-African-American co-workers were not. In particular, Ryan and Smith would follow and watch Mitchell when she went on breaks. SDF ¶81. Plaintiffs did not know it at the time, but this supervisor also kept notes on all three Plaintiffs although she did not keep notes about any of the Caucasians. SDF ¶78. A month after Haviaras wrongfully accused Mitchell of taking a long break and ignoring her complaint about Ryan’s derogatory comment, on December 24, 2016, Haviaras issued her a written warning without first issuing a verbal warning pursuant to the progressive discipline policy and demoted her to the Gift Shop. SDF ¶84. The alleged reason for the written warning and demotion was that Mitchell made a mistake by posting a transaction as cash rather than comp, a procedure she had not been trained to perform. SDF ¶¶84, 85. However, shortly before moving Mitchell from the Front Desk, Haviaras had told Heller to hire “a blond” for the Front Desk because 6 Griffin, though, had been disciplined for not clocking out for breaks. Griffin received a write-up once before for not clocking out to take meal breaks in or about July 2016. SDF ¶80, n.14. Griffin explained at the time that he had no choice but to work through his meal breaks when he was left working as the only Houseman on his shift after his supervisor would leave for the day. SDF ¶80, n. 14. He complained that he was singled out for this disciplinary action because many other non-African-American employees either skipped their meal breaks, as he did, or took the breaks but failed to clock out for them and were not disciplined. SDF ¶80, n.14. As discussed above, Ryan was the only other person disciplined for not clocking out, which Defendant was forced to do after Ryan blew up at Heller for telling her she had to clock out for breaks. Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 14 of 35 PageID 5343 15 there was too much “color” at the Resort. SDF ¶86. The transfer removed the only Black from customers’ view upon arriving at the Resort. SDF ¶87. Although Defendant claims the “transfer” to the Gift Shop was not a demotion, Defendant knew Mitchell was unhappy about it. SDF ¶¶88, 91. Mitchell is a single mother and the schedule change was a hardship for her because she could no longer pick her youngest child up from the bus stop, which she tearfully explained to Haviaras while pleading with him to not move her to no avail. Mitchell believed the “transfer” was a harsh punishment for the mistake since she was not given a prior warning pursuant to the progressive discipline policy and was not trained on how to handle the transaction at issue. SDF ¶¶88, 89. Additionally, the move from the Front Desk, where Mitchell interacted with customers continually, to the Gift Shop, which few customers visit and is in a corner away from the front, was not a desirable move because Mitchell prefers interacting with people and staying busy. As Griffin put it, putting her in the Gift Shop was like putting her in a cage like a monkey, in a room with no windows and away from the front. Defendant did not identify any non-African-American employee who was disciplined, let alone demoted or reassigned, for making a simple mistake even though all employees, including those working the Front Desk, make mistakes at times. SDF ¶92. Although Defendant claims that Mitchell’s transfer was only temporary, she was still working in the Gift Shop when she involuntarily resigned over a month later. SDF ¶101. A Caucasian employee took over Mitchell’s Front Desk position when she was transferred to the Gift Shop. SDF ¶93. Haviaras also declined to allow Mitchell to bring her boyfriend, Griffin, to the employee holiday party even though Kayla Scott was permitted to bring her girlfriend, who had been terminated from the resort and made a scene on the way out. On January 5, 2017, Mitchell went to Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 15 of 35 PageID 5344 16 the EEOC to file a complaint of race discrimination. SDF ¶95.7 Approximately a month after Mitchell was transferred and filed her EEOC charge, on January 31, 2017, Scott (Caucasian) – the same person who complained about Heller taking a picture of her behind and who also worked in the Gift Shop - accused Mitchell of taking a picture of her behind. SDF ¶96. Mitchell heard Heller had been terminated for the same thing. SDF ¶¶97, 98. Thus, Mitchell took great offense and again complained to her supervisor and the new HR manager. SDF ¶98. Mitchell asked to be moved back to answering phones, which she had done before starting training on the Front Desk, but Defendant refused to move her out of the Gift Shop. SDF ¶101. By February 7, 2017, Defendant had done nothing in response to Mitchell’s complaint. SDF ¶99. Thus, Mitchell provided her two-week notice of resignation, as required by Defendant’s policy, stating that she was resigning due to the “Extreme Harassment, Hostile Work Environment.” SDF ¶99. In summary, there is more than sufficient record evidence to permit a reasonable jury to conclude that race or retaliation or both was at least a motivating factor for each Plaintiff’s terminations and demotion. Vinson, 2018 WL 2329800, at *3; Quigg, 814 F.3d at 1238; Chavez, 641 F. App’x at 892. Indeed, the fact that there are three Plaintiffs who all say that Defendant discriminated and retaliated against them further supports the discriminatory and retaliatory intent for each of their claims. See, e.g., Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008) (evidence that others were treated similarly is evidence of intent).8 7 Griffin had already filed an EEOC charge on December 30, 2016, which was sent to Defendant on January 11, 2017. SDF ¶94. 8 See also Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 419 (11th Cir. 1999) (ruling “me too” evidence is admissible to rebut employer’s good-faith defense); Phillips v. Smalley Maint. Servs., Inc., 711 F.2d 1524 (11th Cir. 1983) (ruling testimony of former employee who had been treated the same way as plaintiff was admissible to prove employer’s motive, intent or plan); see also Harris v. Birmingham Bd. of Educ., 712 F.2d 1377, 1383 (11th Cir. 1983) (stating proof of an immediate past history of discrimination alone is enough to show discriminatory intent). Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 16 of 35 PageID 5345 17 Accordingly, Defendant would have to prove the affirmative defense that it would have made the same decision even if it had not considered Plaintiffs’ race or protected activity. Price Waterhouse, 490 U.S at 252, 260-261; Quigg, 814 F.3d at 1242. Defendant’s MSJ does not claim to have met this burden, nor could it given that there is no record evidence showing that Defendant had ever terminated or demoted any other employee for the same reasons – not to mention all the evidence of discriminatory and retaliatory intent, see supra pp. 5-16, and pretext, see infra pp. 28- 32. Thus, Defendant is not entitled to summary judgment. Id. C. Applying the Incorrect Analysis Also Requires Denying Defendant’s MSJ Even if this were a single-motive case to which the McDonnel Douglas analysis applied (it is not), Vinson, 2018 WL 2329800, at *3; Quigg, 814 F.3d at 1238, Defendant’s MSJ still applies the wrong analysis and therefore would have to be denied. 1. Defendant Erroneously Argues that Plaintiffs Must Prove There Were Similarly Situated Comparators to Establish a Prima Facie Case. Defendant argues that Heller and Griffin cannot establish a prima facie case of race discrimination under McDonnell Douglas because they cannot show that “similarly situated” comparators who engaged in the same alleged conduct were not disciplined as harshly. Even if this were accurate,9 however, Plaintiffs are not required to utilize the formulation of the prima facie case Defendant chooses, even under the inapplicable McDonnel Douglas analysis, as the Eleventh Circuit has made clear. E.g., Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (holding a plaintiff is not required to show comparators to state a prima facie case); Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1184-85 (11th Cir. 1984) (“a prima facie case 9 As discussed above, Griffin demonstrated that Hispanic Houseman who engaged in the same conduct as him were not disciplined like he was, and that others like Yvette and Ryan who raised their voices to managers were not terminated like he was. Heller was the only Director of Human Resources so there could be no comparator for her. Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 17 of 35 PageID 5346 18 of discriminatory discharge may be established in different ways”). “[E]stablishing the elements of the McDonnell Douglas framework is not, and never was intended to be, the sine qua non for a plaintiff to survive a summary judgment motion in an employment discrimination case.” Smith, 644 F.3d at 1328. This is because, while the McDonnell Douglas-Burdine framework is a valuable tool for analyzing evidence in cases involving alleged disparate treatment, it is only a tool. “The prima facie case method . . . was ‘never intended to be rigid, mechanistic, or ritualistic.’” Nix, 738 F.2d at 1185 (citations omitted). Thus, “[e]ven without similarly situated comparators, ‘the plaintiff will always survive summary judgment if he [or she] presents circumstantial evidence that creates a triable issue concerning the employer's discriminatory intent.’” Id. “This, of course, is perfectly logical. Not every employee subjected to unlawful discrimination will be able to produce a similarly situated comparator. Among other things, a proper comparator simply may not exist in every work place.” Id. “The ‘ultimate question’ is not whether the plaintiff established a prima facie case or demonstrated pretext, but ‘whether the defendant intentionally discriminated against the plaintiff.’” Id. at 1184 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983) (citing Lehman v. Trout, 465 U.S. 1056 (1984)). A “plaintiff will always survive summary judgment if he presents . . . ‘a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.’” Id. (quotations omitted).10 Intentional discrimination is an issue of fact. Nix, 738 F.2d at 1185 (citing Pullman-Standard v. Swint, 456 U.S. 273 (1982)). In the present case, Plaintiffs have established a prima facie case under three different McDonnell Douglas frameworks even though they are not required to do so because this is a mixed-motive case. Vinson, 2018 WL 2329800, at *3; Quigg, 814 F.3d at 1238. First, Plaintiffs 10 Accord Lewis v. City of Union City, 877 F.3d 1000, 1018 (11th Cir. 2017), en banc review granted and opinion vacated on other grounds 2018 WL 3150524 (June 28, 2018). Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 18 of 35 PageID 5347 19 have presented a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional race discrimination, as detailed above. Supra pp. 5-16; Smith, 644 F.3d at 1328 (“plaintiff will always survive summary judgment if he presents . . . ‘a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.’”) (quotations omitted).11 From Haviaras ignoring Black employees, to creating a list of only Black employees to attempt to terminate them for lying on their applications about criminal records, to saying there were too many Blacks working at the resort, to instructing Heller to hire a blond at the front desk, to using any excuse to discipline and terminate each of the Black Plaintiffs as well as other Blacks, to outright ignoring all of their complaints of discrimination, there is more than enough record evidence for a reasonable jury to find in favor of Plaintiffs. Id. Second, Plaintiffs have established a prima facie case under the inapplicable McDonnell Douglas analysis by demonstrating that they were: (1) members of a protected class (Black), (2) qualified for their positions, (3) subjected to adverse actions, and (4) replaced by persons outside of their protected class (two Caucasians and a Hispanic). Nix, 738 F.2d at 1185; accord Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). Defendant does not challenge the first two elements as to either of the Plaintiffs, nor does it challenge the third element with regard to Heller or Griffin. Defendant argues only that Heller and Griffin were not replaced with individuals outside their protected class. Defendant’s theory appears to be that Plaintiffs cannot show they were replaced with someone outside of their protected class because Defendant claims it did not hire new employees 11 Many cases have held the same over the years. E.g., Nix, 738 F.2d at 1185; Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1046 (11th Cir. 1989); Benson v. Tocco, Inc., 113 F.3d 1203, 1208 (11th Cir. 1997); Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1344 (11th Cir. 2003); accord Perez v. Pavex Corp., No. 8:01-CV-69-T-27MSS, 2007 WL 4105833, at *6 (M.D. Fla. Nov. 15, 2007); see also Watkins v. Sverdrup Tech., Inc., 153 F.3d 1308, 1314 (11th Cir. 1998) (plaintiff need only show evidence by which a fact finder could reasonably conclude that the employer intended to discriminate on the basis of age). Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 19 of 35 PageID 5348 20 to permanently replacement Heller or Griffin. However, no such showing is required. E.g., Mazzeo v. Color Resolutions Int'l, LLC, 746 F.3d 1264, 1271-72 (11th Cir. 2014) (stating a plaintiff can “demonstrate that he was replaced by showing that, after his termination, some of his former responsibilities were delegated to another employee in addition to that other employee's own responsibilities.”) (citing Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987)); see also Padilla v. N. Broward Hosp. Dist., 270 F. App'x 966, 971 n. 4 (11th Cir. 2008) (“Contrary to the District's argument, the law of this circuit does not require the plaintiff prove that he was replaced by someone outside the protected class [race].”); Palermo v. Grunau Co., Inc., No. 615CV1375ORL37DCI, 2016 WL 6584866, at *4 (M.D. Fla. Nov. 7, 2016) (“[T]his circuit does not require a plaintiff to prove he was replaced by a non-disabled person in order to establish a prima facie case concerning ADA claims.”). Defendant cannot avoid liability for discharging Plaintiffs based on their race by simply not hiring permanent replacements and instead replacing them with Caucasians already employed by Defendant. Id.12 Moreover, there is no record evidence to support Defendant’s claim that Plaintiffs were not permanently replaced with non-Blacks; all evidence is to the contrary. The evidence establishes that a Caucasian woman, Audrey Lucas, permanently replaced Heller immediately after she was terminated. SDF ¶69. Likewise, Defendant assigned a Hispanic Houseman from day-shift to permanently work Griffin’s night-shift immediately after his termination. SDF ¶34. Thus, Defendant replaced Plaintiffs with individuals outside of their protected class and Heller and Griffin have established a prima facie case under this formulation of the inapplicable McDonnel 12 Indeed, the fourth element “may be satisfied even if a member of a minority class is eventually replaced by another member of that class,” particularly where it appears the replacement was hired to avoid liability. Hawkins v. Ceco Corp., 883 F.2d 977, 982 n. 7 (11th Cir. 1989) (citing Howard v. Roadway Express, Inc., 726 F.2d 1529, 1535 (11th Cir. 1984), in which the Eleventh Circuit “was suspicious of the employer's motives where it hired a black employee eleven months after rejecting plaintiff's application and only after plaintiff, who was black, had filed an EEOC complaint.”). Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 20 of 35 PageID 5349 21 Douglas analysis as well. Id.; Mazzeo, 746 F.3d at 1271; Rollins, 833 F.2d at 1529; Palermo, 2016 WL 6584866, at *4; Padilla, 270 F. App'x 966, 971 n. 4. Alternatively, a prima facie case may be shown by replacing the fourth element discussed above with sufficient evidence from which a rational fact finder could conclude that his employer intended to discriminate against him in making the discharge decision. Perez v. Pavex Corp., No. 8:01-CV-69-T-27MSS, 2007 WL 4105833, at *6 (M.D. Fla. Nov. 15, 2007). Plaintiffs have established a prima facie case utilizing this method as well. Supra pp. 5-16. For example, the evidence that Haviaras said there were too many Blacks employed at the resort and set out to find reasons to get rid of them is sufficient to infer that Plaintiffs were terminated because they were black. Id. With regard to Mitchell’s race discrimination claim, Defendant’s MSJ asserts that her transfer was not an adverse employment action,13 ignoring that the transfer from the position of Front Desk Clerk to the Gift Shop placed her in a position that was less prestigious, had entirely different responsibilities, and changed her working hours such that it interfered with her child care responsibilities as a single mother. SDF ¶¶72-85. This is sufficient to constitute an “adverse employment action” for purposes of her discrimination claim. Jefferson v. Sewon Am., Inc., 891 F.3d 911, 921 (11th Cir. 2018) (reversing summary judgment and holding that denial of transfer 13 Defendant does not challenge her retaliatory transfer claim in its MSJ, recognizing that the transfer was a “materially adverse action” for purposes of her retaliation claim. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) (“A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children.”) (citing Washington, supra, at 662 (finding flex-time schedule critical to employee with disabled child)); accord Crawford v. Carroll, 529 F.3d 961, 973-74 (11th Cir. 2008) (negative performance evaluation constitutes adverse action for retaliation claim). Retaliation “is not limited to discriminatory actions that affect the terms and conditions of employment.” Burlington, 548 U.S. at 64. Rather, an employee may succeed on his retaliation claim if “a reasonable employee would have found the challenged action materially adverse”—that is, that the challenged action would “have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68; see also Jones v. Ala. Power Co., 282 Fed. Appx. 780, 784–85 (11th Cir. 2008). Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 21 of 35 PageID 5350 22 to a different position was an adverse employment action); see generally Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (proof of direct economic consequences is not required to establish an adverse employment action, rather, the action must have a tangible adverse effect on the plaintiff's employment).14 Finally, a Caucasian employee took Mitchell’s Front Desk position when she was transferred to the Gift Shop. SDF ¶93. Thus, Mitchell also was replaced by someone outside the protected class and has established a prima facie case of race discrimination under this formulation of the McDonnel Douglas analysis as well. Nix, 738 F.2d at 1185; Wilson, 376 F.3d at 1087. In summary, Defendant’s position that Plaintiffs can only establish a prima facie case of race discrimination using its comparator formulation under McDonnell Douglas is without merit. Id. Plaintiffs can and have established a prima facie under three other formulations of McDonnell Douglas, Smith, 644 F.3d at 1328; Watkins, 153 F.3d at 1314; Verbraeken, 881 F.2d at 1046; Nix, 738 F.2d at 1185, even though they are not required to do so because this is a mixed-motive case. Vinson, 2018 WL 2329800, at *3; Quigg, 814 F.3d at 1238; Chavez, 641 F. App’x at 892. 2. Plaintiffs Have Established a Prima facie Case of Retaliation Defendant does not move for summary judgment on Mitchell’s claim of retaliation, thus, it necessarily survives. Defendant’s MSJ on Heller and Griffin’s retaliation claims is again based upon the inapplicable McDonnell Douglas framework. However, even under that framework, summary judgment would be inappropriate as described below. “To establish a claim of retaliation under . . . [§] 1981, a plaintiff must prove that he engaged in statutorily protected activity, he suffered a materially adverse action, and there was 14 Likewise, Defendant’s refusal to transfer Mitchell back to answering the phones when she complained was also an adverse employment action, id., as is her constructive discharge discussed infra at pp. 32-34. Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 22 of 35 PageID 5351 23 some causal relation between the two events.” Moore v. Grady Mem'l Hosp. Corp., 834 F.3d 1168, 1176 (11th Cir. 2016) (quoting Goldsmith, 513 F.3d at 1277). To establish protected activity, the plaintiff need only show that he had a “reasonable belief” that an unlawful employment practice was occurring and is not required to show that the employer actually engaged in an unlawful employment practice. Berman v. Orkin Exterminating Co., Inc., 160 F.3d 697, 702 (11th Cir. 1998); see generally Crawford v. Metro. Gov't of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 276, (2009) (““When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication” virtually always “constitutes the employee's opposition to the activity.”) (citation omitted). A plaintiff establishes causation by showing that “the protected activity and the adverse action were not wholly unrelated.” McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008) (quotations omitted); Berman, 160 F.3d at 702 (causation is established if the “evidence shows that the protected activity and the adverse action are not totally unrelated”). One way to accomplish this is to demonstrate that there was close temporal proximity between the two events. E.g., Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (“The general rule is that close temporal proximity between the employee's protected conduct and the adverse employment action is sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection.”); accord Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). Again, Defendant does not dispute that Heller and Griffin were subjected to adverse actions. Rather, Defendant argues that Griffin and Heller did not engage in protected activity. However, the record evidence clearly shows that they did. For instance, Defendant focuses on Griffin’s testimony that he did not think his termination was retaliatory, leaving out Griffin’s testimony that he did not understand what defense counsel meant by retaliation. However, Griffin Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 23 of 35 PageID 5352 24 clearly testified that he thought Haviaras terminated him because Haviaras was intimated when Griffin stood up for himself and told Haviaras that he believed Haviaras was singling him out for discipline because he is Black. SDF ¶32. Thus, Griffin clearly believed he was terminated in retaliation for opposing race discrimination. Moreover, Griffin’s belief that he was being discriminated against when he opposed the disciplinary action was more than reasonable given that he knew he was not responsible for answering the radio – his Hispanic co-workers were. Plus, he knew that his Hispanic co-workers had repeatedly failed to take out the trash. Supra pp. 6-7. Not to mention, Griffin was correct, none of the Hispanics were disciplined for either not answering the radio or not taking out the trash. Id. Thus, there is sufficient record evidence for a reasonable jury to find that Griffin reasonably believed he was being discriminated against and his complaints constitute protected activity. Berman, 160 F.3d at 702; Crawford, 555 U.S. at 276. Defendant similarly argues that Heller did not have an objectively reasonable basis for her complaints of race discrimination and retaliation. However, the record evidence is overwhelmingly to the contrary. Supra pp. 9-12. For example, Defendant focuses on Heller’s testimony that she felt the retaliation started when she complained about Haviaras’ wife, Patricia, who is also an employee of Defendant and Caucasian, claiming that her complaint about Patricia was not protected. However, as set forth above, Defendant ignores both Heller’s written complaints and her testimony which establish that Heller also complained about Haviaras discriminating against her and other Blacks and complained that Haviaras was retaliating against her for those discrimination complaints. Supra pp. 9-12, SDF ¶38. For example, Heller’s written complaints included that: if Haviaras “isn’t stopped OPL will have law suits against them for his racist discriminating behavior,” SDF ¶ 47; “Mr. Haviaras harbors ill will against me and ulterior motives were his basis for encouraging Ms. Ryan to file a written complaint against me,” SDF ¶ 48; Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 24 of 35 PageID 5353 25 Haviaras retaliated by creating a “hostile work environment,” that his retaliation included the invitation to Ryan to file a complaint against her after she called Wehbe about his “clandestine strategies for terminating employees inequitably – especially African Americans,” and that Haviaras had “unjustifiably called my professional integrity into question,” and was “making a practice of speaking publicly to me in a demeaning manner.” SDF ¶ 50. In fact, Parker clearly understood that Heller was complaining of race discrimination against Black employees. SDF ¶ 62. Further, there is more than sufficient record evidence to show that Heller reasonably believed that she, Griffin, Mitchell and other Blacks were being discriminated against because of race, and that she was being retaliated against for complaining about it. Supra pp. 5-16. Among other things, Heller knew about: the list of Black employees Haviaras wanted to fire; Haviaras’ comments indicating he felt there were too many Black employees; that Havairias fired Griffin - who was on his list – allegedly for engaging in the same type of conduct Ryan had engaged in with Heller without any discipline for her conduct; that Griffin, Mitchell and other Blacks also felt they were being discriminated against; and that Defendant also was ignoring her complaints about the discrimination. Id. Thus, Heller clearly had a reasonable belief that Defendant was discriminating based upon race and retaliating against her for her related complaints. Thus, she clearly engaged in protected activity. Berman, 160 F.3d at 702; Crawford, 555 U.S. at 276. Similarly, Defendant argues Heller and Griffin have not established any causal connection, which ignores the record evidence showing they both were fired immediately after engaging in protected activity. It is undisputed that Haviaras decided to terminate Griffin on October 19, 2016, immediately after Griffin engaged in protected activity, and that Haviaras informed Griffin when he returned to work on his next scheduled day: October 24, 2016. SDF ¶¶20, 28. Thus, within hours of his protected activity the decision was made and five (5) calendar days later Griffin was Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 25 of 35 PageID 5354 26 terminated upon his return to work. Likewise, Heller was terminated immediately after complaining that Haviaras was discriminating against her and other Black employees and retaliating against her. SDF ¶63. Heller submitted written complaints of discrimination and retaliation to “corporate” employee Wehbe on December 19 and 28, 2016 and January 4, 2017, and complained to Haviaras and Wehbe on January 5, 2017, stating that Haviaras was creating a “hostile working environment.” SDF ¶39, 59. She was fired the morning of January 6, 2017, within three weeks of her first written complaint and the morning after her last complaint. SDF ¶63. Indeed, she was fired within hours of informing Parker of her complaints. SDP ¶ 61-63. This close proximity in the timing between Plaintiffs’ complaints and terminations, alone, is sufficient to prove causation. E.g., Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999) (seven weeks close enough to establish causation); Donellon v. Fruehauf Corp., 794 F.2d 598, 602 (11th Cir. 1986) (one month close enough); see generally Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per curium) (causation may be proved by “mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action”); Brungart, 231 F.3d at 799; Thomas, 506 F.3d at 1364.15 Moreover, Haviaras admitted that he decided to terminate Griffin because of his protected activity, although he mischaracterized it as “aggressive.” As such, Defendant’s MSJ on Heller and Griffin’s retaliation 15 The close temporal proximity between Plaintiffs’ protected activity and terminations would be sufficient to prove causation even if this were a Title VII retaliation case in which they had to prove “but for” causation. E.g., Trice v. Infinity Staffing Sols., LLC, No. 1:15-CV-3401-WSD-JFK, 2017 WL 9472897, at *12 (N.D. Ga. July 5, 2017) (“If an employer takes an adverse employment action against an employee shortly after becoming aware of the employee's protected expression, then the close temporal proximity between the two events “is generally sufficient for a plaintiff to establish but-for causation.”), report and recommendation adopted, No. 1:15-CV-3401-WSD, 2017 WL 3499035 (N.D. Ga. Aug. 16, 2017) (quoting Abernathy v. Science Applications Intern. Corp., 2013 WL 6904089, at *1 (N.D. Ala. December 31, 2013) (citing Raspanti v. Four Amigos Travel, Inc., 266 Fed. Appx. 820, 823 (11th Cir. 2008))). Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 26 of 35 PageID 5355 27 claims must be denied; the issue of Defendant’s retaliatory intent is for the jury to decide. Id.; Vinson, 2018 WL 2329800, at *3; Quigg, 814 F.3d at 1238. 3. Defendant Erroneously Argues that Plaintiffs’ Must Show Pretext and Cannot. a. Plaintiffs Need Not Prove Pretext because this is a Mixed-Motive Case. Again, contrary to Defendant’s contention, there is no need for the Court to analyze the issue of pretext, as “pretext has no place in a motivating factor analysis.” Vinson, 2018 WL 2329800, at *3 (emphasis added); Quigg, 814 F.3d at 1238. Rather, a plaintiff need only demonstrate a genuine issue of material fact as to whether race or protected activity was a motivating factor in the decision to take adverse action. Id. (“Vinson did not need to discredit the defendant’s reasons. She only needed to demonstrate a genuine issue of material fact as to whether race or national-origin was a motivating factor in the decision to terminate her.”). As set forth above, there is sufficient record evidence for a jury to infer that both Plaintiffs’ race and protected activity was at least a motivating factor in the decisions to terminate Heller and Griffin and remove Mitchell from the Front Desk. Supra pp. 5-16. Thus, even if the jury were to believe Defendant’s stated reasons, the jury could still hold Defendant liable if it found that Plaintiffs’ race or protected activity also motivated the adverse actions. Id. As such, Defendant’s MSJ must be denied. Id. b. Plaintiffs Need Not Prove Pretext because Defendant’s Stated Reasons Come from Interested Witnesses Who Were Impeached. Even if pretext were otherwise an issue, the record evidence demonstrates that Defendant’s witnesses are not only interested witnesses, but also have been contradicted, impeached, or both, on many material facts. SDF ¶¶8-13, 26, 29-31, 42-44, 51, 53-57, 60-61, 65-66, 71, 84-85, 101- 07. For example, as detailed in Plaintiffs’ SDF: Haviaras lied about being involved in the decision to terminate Heller and when and why it was made; lied about having the authority to terminate Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 27 of 35 PageID 5356 28 employees like Griffin and Heller; lied about having a policy against employing individuals with felony records and about how he created his “list” of African American employees he wanted to terminate; lied about the reason for Griffin’s termination; and lied about the reason for Mitchell’s transfer. SDF ¶¶7-10, 103-107. Thus, the Court should not give any credence to Defendant’s stated reasons and summary judgment should be denied outright. Reeves, 530 U.S. at 151. c. Plaintiffs Can Prove Pretext. Even if Plaintiffs were required to prove pretext, and even if Defendant’s reasons had not been impeached, however, there is more evidence that would allow a reasonable jury to find pretext. Pretext may be shown 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. E.g., Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981) (explaining a plaintiff "may succeed in [showing pretext and intentional discrimination] 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.") (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973), holding modified by Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)); accord Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1346 (11th Cir. 2000) (stating a plaintiff is not required to introduce evidence of discriminatory intent, the plaintiff “may satisfy this burden indirectly by undermining the legitimacy of the employer's proffered reason”). Evidence of pretext includes anything that tends to show the employer’s nondiscriminatory reason should not be believed or that, considering all the evidence, a discriminatory reason more likely motivated the decision. Patterson v. McLean Credit Union, 491 U.S. 164, 188 (1989). Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 28 of 35 PageID 5357 29 To establish pretext directly, the plaintiff need only present enough evidence to allow the jury to decide that a discriminatory reason more likely motivated the decision. Id. at 188; Burdine, 450 U.S. at 256; Smith, 644 F.3d at 1328; Holland v. Gee, 677 F.3d 1047, 1055-56 (11th Cir. 2012). To establish pretext indirectly, a plaintiff may show that (1) the proffered reason had no basis in fact, (2) the proffered reasons did not actually motivate the employment decision, or (3) the reason was insufficient to motivate the employment decision. E.g., Walker v. NationsBank of Fla., 53 F.3d 1548, 1564 (11th Cir. 1995) (Johnson, J., concurring) (emphasis added); Combs v. Plantation Patterns, 106 F.3d 1519, 1537-28 (11th Cir. 1997). With regard to the indirect method, “[t]he district court must evaluate whether the plaintiff has demonstrated “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Combs, 106 F.3d at 1537-38 (citations omitted); Holland, 677 F.3d at 1055-56. The plaintiff is not required to prove that the stated reasons “were pretextual” at the summary judgment stage; the plaintiff “need only ‘cast sufficient doubt’ such that a jury could infer that [the defendant’s] “proffered legitimate reasons were not what actually motivated its conduct.” Batson v. Salvation Army, 897 F.3d 1320, 1331 (11th Cir. 2018) (reversing summary judgment) (citing Combs, 106 F.3d at 1538). Likewise, a defendant cannot win judgment as a matter of law merely by proffering nondiscriminatory reasons as neither the Court nor the jury is not required to believe Defendant’s stated reasons. E.g., Reeves, 530 U.S. at 151; Combs, 106 F.3d at 1537 (“A defendant who puts forward only reasons that are subject to reasonable disbelief in light of the evidence faces having its true motive determined by a jury.”); Munoz, 223 F.3d at 1345 (explaining that the jury is not required to believe testimony that employer genuinely believed Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 29 of 35 PageID 5358 30 there was basis for termination where that basis was disputed).16 As described above, Plaintiffs have provided sufficient evidence for a reasonable jury to conclude that it is more likely that they were terminated because of their race and/or protected activity than for any reason put forth by Defendant. Supra pp. 5-16. This constitutes direct evidence of pretext which precludes summary judgment under the McDonnell Douglas analysis. Burdine, 450 U.S. at 256; Munoz, 223 F.3d at 1346. Although not necessary given the direct evidence of pretext, there is indirect evidence of pretext as well. For instance, Haviaras’ dishonesty about the adverse actions, in particular the reasons for terminating Heller and Griffin, evidences pretext. Reeves, 530 U.S. at 147 (stating evidence that an employer’s “explanation is unworthy of credence” allows an inference that the employer is “dissembling to cover up a discriminatory purpose”); Damon, 196 F.3d 1354 (reversing summary judgment because inconsistencies in decision-maker’s testimony constituted evidence of pretext). Likewise, Haviaras’ creation of the “list” of Black employees with criminal records, and his contradictory testimony about it, further support that he was trying to and did create pretexts for terminating Black employees and, thus, his stated reasons for terminating them are unworthy of credence. Id. Similarly, as detailed above, supra pp. 8-9, 10-13, Defendant has shifted its reasons for disciplining and terminating Plaintiffs. SDF ¶¶26-27, 29-31, 43-44, 51, 53-57, 60-61, 65-66, 85- 86. This alone is sufficient to establish pretext. E.g., Cleveland v. Home Shopping Network, Inc., 16 In other words, “a defendant cannot escape the fact that a jury must use its good common sense in addressing how much, if at all, the foolishness or unfairness of the employer’s decision weighs in the evidence of pretext.” Wichmann v. Bd. of Trs. of S. Ill. Univ., 180 F.3d 791, 805 (7th Cir. 1999). Any suggestion otherwise is contrary to the law governing pretext and the long-established law that neither the Court nor jury need to accept a witness’ testimony as true even if not contradicted. See, e.g., Slater v. U.S. Steel Corp., 871 F.3d 1174, 1190 (11th Cir. 2017) (J. Carnes concurring) (citing multiple cases including Murphy v. City of Flagler Beach, 846 F.2d 1306, 1310 (11th Cir. 1988)); Reeves, 530 U.S. at 151. Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 30 of 35 PageID 5359 31 369 F.3d 1189, 1195 (11th Cir. 2004) (stating that shifting reasons allow the jury to question the employer’s credibility and infer that the plaintiff was fired for a prohibited reason rather than any of the varying reasons stated); Holland v. Gee, 719 F. Supp. 2d 1361, 1369 (M.D. Fla. 2010) (finding “Plaintiff established inconsistencies or contradictions in defendant’s proffered reasons such that a reasonable fact-finder could find them unworthy of credence” where defendant had “advanced different and potentially conflicting reasons for its actions at various stages of the process”). Likewise, the close timing between Plaintiffs’ protected activities and their terminations supports a finding of pretext as well as retaliatory intent. E.g., Jefferson, 891 F.3d at 921 (reversing summary judgment and holding that timing of adverse action shortly after complaint demonstrated pretext); Blasic v. Chugach Support Servs., Inc., 673 F. Supp. 2d 389, 400-01 (D. Md. 2009) (“An adverse employment action closely following protected activity may support an inference of pretext.”); Farley; 197 F.3d at 1337. Additionally, not following Defendant’s own progressive discipline policies, such as not issuing a verbal warning before issuing a written warning and demoting Mitchell, evidences pretext. E.g., Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir. 1985) (“Departures from normal procedures may be suggestive of discrimination.”) (citation omitted); accord Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1299 (11th Cir. 2006). Likewise, the fact that each of the Plaintiffs was disciplined and/or terminated for things that non-Blacks also did but were not disciplined or terminated for is further evidence of not only discriminatory intent, but also pretext. Id.; McDonnell Douglas, 411 U.S. at 804. Also, Haviaras’ statements regarding there being too much “color” or too many “Blacks” working at the resort and telling Heller to hire a “blond” to work the Front Desk demonstrate Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 31 of 35 PageID 5360 32 pretext as they make it less likely that his stated reasons for terminating Heller and Griffin and moving Mitchell from the Front Desk were true and more likely that race was the reason for the adverse actions. See, e.g., Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1256 (11th Cir. 2012) (comments by supervisor about plaintiff’s pregnancy showed that was the real reason he failed to look for a light duty job for her and terminated her were the pregnancy rather than his stated reasons). Such statements of bias by a decision-maker serve as evidence of pretext even if they do not meet the standard for “direct evidence” of discrimination. Id.; Wilson v. B/E Aerospace, 376 F.3d 1079, 1091 (11th Cir. 2004). Finally, all the evidence establishing Plaintiffs’ prima facie cases and the inferences properly drawn therefrom further support that Defendant's explanations are pretextual. Burdine, 450 U.S. at 260 n.10 (“Indeed, there may be some cases where the plaintiff's initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant's explanation.”). In summary, there is more than enough evidence that Defendant’s “explanation is unworthy of credence” which allows an inference that Defendant acted with discriminatory and/or retaliatory intent. Reeves, 530 U.S. at 147 (stating evidence that an employer’s “explanation is unworthy of credence” allows an inference that the employer is “dissembling to cover up a discriminatory purpose”). Defendant’s dishonesty is “affirmative evidence of guilt.” Cleveland, 369 F.3d at 1195. Thus, a reasonable jury could conclude that Defendant was motivated by race and/or protected activity even if Plaintiffs had to prove pretext, which they do not. Supra pp. 4-5. D. Defendant Is Not Entitled To Summary Judgment On Mitchell’s Hostile Environment And Constructive Discharge Claims As explained above, there is considerably more record evidence than Defendant admits to support Mitchell’s claim that she was subjected to pervasive harassment by both co-workers and Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 32 of 35 PageID 5361 33 supervisors. Supra pp. 13-16. Mitchell was constantly ridiculed, surveilled, wrongfully accused of wrongdoing, and not only disciplined, but transferred for mistakenly pushing the cash button rather than “comp” button on the computer when checking a guest out, and all of her complaints were simply ignored until she resigned because of the hostile environment. Id. This is enough to state a claim. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002) (ruling there was sufficient evidence to establish the type of frequent conduct to constitute a hostile environment based upon race, stating no magic number of incidents is required); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-2 (1998) (stating court must consider the “entire constellation of surrounding circumstances” when analyzing sufficiency of plaintiff’s evidence); see also Vance v. Southern Bell T&T Co., 863 F.2d 1503, 1510-11 (11th Cir. 1989) (retaliation claim is “a single cause of action rather than a sum total of a number of mutually distinct causes of action to be judged each on its own merits”). Moreover, a constructive discharge is established where, as here, an employee quits in response to an adverse action such as a humiliating demotion or transfer. Pennsylvania State Police v. Suders, 542 U.S. 129, 143 (2004).17 In fact, Defendant cannot avail itself of the Faragher defense where there is a constructive discharge because it is considered a tangible employment action. Id. (“This affirmative defense will not be available to the employer, however, if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion.”); accord Bryant v. Jones, 575 F.3d 1281, 1299 (11th Cir. 2009) (same). Further, even if the Faragher affirmative defense were available to Defendant, and even if 17 Defendant once again relies on one formulation for establishing a case, i.e., a constructive discharge case based upon a hostile environment formulation, ignoring the formulation that applies here. Suders, 542 U.S. at 143. Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 33 of 35 PageID 5362 34 the harassment were only by co-workers, neither of which is the case, the record evidence demonstrates its policies were anything but clear and effective, SDF ¶¶ 107-110, which Defendant has the burden of proving. For example, the harassment policy instructs employees to complain to the corporate office, but no one knows where it is or who works there. Id. Further, Defendant did not bother to investigate let alone take prompt remedial action in response to any of Mitchell’s, Griffin’s, or Heller’s complaints before Mitchell resigned due to the hostile environment, SDF ¶¶ 74, 77, 83, 97-98, which Defendant also must prove both to avoid vicarious liability. E.g., Frederick v. Sprint, 246 F.3d 1305, 1314 (11th Cir. 2001); Dees v. Johnson Controls, 168 F.3d 417 (11th Cir. 1999); Farley v. American Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th Cir. 1997). Thus, there is sufficient record evidence to support Mitchell’s hostile environment and constructive discharge claims. Id. III. Conclusion. As demonstrated in the SDF and above, every material issue of fact is at issue in this case and, when viewed properly, the evidence overwhelmingly demonstrates that summary judgment is inappropriate. E.g., Reeves, 530 U.S. at 151 (stating that, if reasonable people, in the exercise of impartial judgment might reach differing conclusions, then a motion for summary judgment must be denied and the case submitted to the jury); Fed. R. Civ. P. 56(c). Based on the totality of evidence and inferences therefrom viewed in Plaintiffs’ favor, a jury could reasonably conclude that Defendant took the adverse actions against Plaintiffs and subjected Mitchell to a hostile working environment, at least in part, because of Plaintiffs’ race, or protected activity, or both. E.g., Holland, 677 F.3d at 1055-56. As such, the case must go to the jury. Id. Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 34 of 35 PageID 5363 35 Respectfully submitted, SHANKMAN LEONE, P.A. /s/ Kendra D. Presswood Kendra D. Presswood Florida Bar No.0935001 kpresswood@shankmanleone.com 707 N. Franklin Street, 5th Floor Tampa, Florida 33602 Phone: (813) 223-1099; Fax: (813) 223-1055 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 31st day of January 2019, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: Catherine Molly, Esq. Greenberg Traurig, P.A. 101 E. Kennedy Blvd., Ste. 1900 Tampa, Florida 33602 molloyk@gtlaw.com Counsel for the Defendants /s/ Kendra D. Presswood Attorney Case 8:17-cv-01715-WFJ-TGW Document 91 Filed 01/31/19 Page 35 of 35 PageID 5364