ROY B. DALTON, JR., District Judge.
This cause is before the Court on consideration of the following: (1) Defendant's Dispositive Motion for Summary Judgment and Supporting Memorandum of Law (Doc. 32); (2) Plaintiff [sic] Motion to Oppose Defendants [sic] Motion for Dispositive Summary Judgment (Doc. 45); and (3) Defendant's Reply to Plaintiff's Response to Defendant's Dispositive Motion for Summary Judgment (Doc. 46).
In this action under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e ("
Melwood now moves for summary judgment in its favor on all of Prince's claims ("
In accordance with Federal Rule of Civil Procedure 56, a party may request that the court enter summary judgment in its favor on a specified claim or any part thereof. See Fed. R. Civ. P. 56(a). The court should not grant such a request unless the movant satisfies its burden to show "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In responding to a Rule 56 motion, the burden "shifts to the non-moving party, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact exists." Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006) (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993)).
Both parties must support their assertions "that a fact cannot be or is genuinely disputed" by: (1) citing to "particular parts of materials in the record" (Rule 56(c)(1)(A)); or (2) "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact" (Rule 56(c)(1)(B)). See U.S. v. Four Parcels of Real Prop. in Green & Tuscaloosa Cntys. in Ala., 941 F.2d 1428, 1438 (11th Cir. 1991) (explaining that movants may point to an absence of evidence to support an issue on which the non-movant bears the burden of proof at trial). The court may consider an asserted "fact undisputed for purposes of the motion" if such fact is not properly supported or addressed (Rule 56(e)), and it "need consider only the cited materials" (Rule 56(c)(3)).
The Court must view the cited material and all reasonable inferences drawn from such material in the light most favorable to the non-movant. See Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006). So viewed, the court should find that a "factual dispute is genuine" only if the cited evidence would allow "`a reasonable jury [to] return a verdict for the nonmoving party.'" Four Parcels, 941 F.2d at 1437 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The "court need not permit a case to go to a jury . . . when the inferences that are drawn from the evidence, and upon which the non-movant relies, are `implausible.'" Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
Under § 1981 and Title VII, employers may be sued: (1) for the unlawful employment practice of intentionally discriminating against a person based on her race (see 42 U.S.C. §§ 2000e-2(a)(1)
The focus of retaliation and most discrimination claims is to determine whether unlawful "animus motivate[d] a challenged employment decision." See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (quoting Damon v. Fleming Supermkts. of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999)). The existence of such animus is an issue of fact that the plaintiff may prove "through direct evidence, circumstantial evidence, or statistical proof." See Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999); Nix v. WLCY Radio/Rahall Comms., 738 F.2d 1181, 1185 (11th Cir. 1984) ("Intentional discrimination is an issue of fact."); see also Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008) (noting that "illegal disparate treatment" is proved "through either direct evidence or circumstantial evidence").
In the U.S. Court of Appeals for the Eleventh Circuit, evidence that "reflects `a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of" is considered "direct evidence." See Wilson, 376 F.3d at 1086 (quoting Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997)). When direct evidence is provided, unlawful animus is proved without resort to inferences or presumptions. See id. In contrast, circumstantial evidence merely "suggests" an unlawful motive. See id.
When a plaintiff relies solely on circumstantial evidence, she may raise a rebuttable presumption that the employer acted illegally by establishing a prima facie case. See Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1322-23 (11th Cir. 2006) (discussing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); see also Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264-65, 68 (11th Cir. 2010). The methods of presenting a prima facie case "are flexible and depend to a large degree upon the employment situation." Wilson, 376 F.3d at 1086 (citing Nix, 738 F.3d at 1185); see Rice-Lamar, 232 F.3d at 842-43 (explaining that the prima facie case method is not "rigid, mechanistic, or ritualistic").
If the plaintiff establishes her prima facie case, the employer may rebut the presumption of illegal conduct by clearly setting forth, "through the introduction of admissible evidence," the non-discriminatory reasons for the challenged employment decision. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981)); see also Meeks v. Comput. Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994) (noting that the defendant's burden is one of production—not proof). When an employer meets its "burden of production, the presumption of discrimination is eliminated," Jackson v. Alabama State Tenure Commission, 405 F.3d 1276, 1289 (11th Cir. 2005), and the employee must "come forward with sufficient evidence to permit a reasonable fact finder to conclude that the legitimate reasons given by the employer were not its true reasons, but were a pretext for discrimination," Vessels v. Atlanta Independent School System, 408 F.3d 763, 771 (11th Cir. 2005). See Alvarez, 610 F.3d at 1265-66 (noting that the plaintiff must meet the employer's proffered reason "head on and rebut it" to survive summary judgment). 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." Burdine, 450 U.S. at 256.
Prince's career in the health field started in 2002, when she became a certified nurse assistant. (See Doc. 33-1, p. 16.) Approximately five years later, Prince became an LPN, and she worked for various employers in South Florida until
After ninety days, Prince received a written Performance Review. (Doc. 33-3.) According to the Performance Review, Prince performed "beyond expectations on occasion" and she needed "little or no supervision" in several categories, including: (1) "Knowledgeably and competently delivers basic nursing care to residents;" (2) "Cares for residents and families with genuine care and concern;" and (3) "Demonstrates sensitivity toward resident needs." (See id.) Prince was ranked "Satisfactory" in the remaining categories. (See id.)
During Prince's employment with LCCM, Preston served as LCCM's Executive Director, Zomcheck was Johnson's supervisor, Johnson was Prince's first direct supervisor, and Unit Coordinator Laurie Touhey ("
When Johnson was Prince's supervisor, she subjected Prince to two racially offensive comments. The first comment occurred while Johnson was admiring Prince's finger nails, and she asked whether Prince "went into the hood" to have them done ("
Prince complained to Zomcheck about Johnson's comments and advised that she did not want to work with Johnson anymore. Although Zomcheck minimized Prince's concerns, Prince was moved to a different unit as a result of her complaint. Nonetheless, Johnson subjected Prince to a third racially offensive comment while she was under Touhey's supervision. (See Doc. 33-1, pp. 93, 133.) Specifically, Johnson commented: "I don't know why they get us confused with one another because you're ghetto, you're from the hood" ("
Although Melwood "waited several months to address" Johnson's improper comments, Prince contends that Melwood immediately retaliated against her for reporting the comments. (Doc. 45, pp. 3-4.) In
According to Preston, Prince received multiple "Corrective Action Forms for medication administration errors and other serious errors and performance problems." (Doc. 32-4, ¶4.) Zomcheck issued the first Corrective Action Form ("
(Doc. 32-1.) The First Action set forth three "Expectations" that Prince: (1) will "notify unit coordinator when leaving unit;" (2) "will be re-educated on the narcotic/narcotic key policy;" and (3) "will take the appropriate time for meal breaks (30 min)."
On
As a result of Prince's complaints, in
Less than a week after the Hotline Call, Zomcheck issued a new Corrective Action to Prince ("
On
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(Doc. 32-20.) On
An employee who is "fired for misconduct makes out a prima facie case" of unlawful discrimination by showing that she is a qualified member of a protected class who was discharged for conduct that was "nearly identical to that engaged in by [an employee outside the protected class] whom [the employer] retained." Rice-Lamar, 232 F.3d at 842-43 (quoting Davin v. Delta Air Lines, Inc., 678 F.2d 567, 570 (5th Cir. 1982)). Prince cannot make out a prima facie case because she has not identified any other employee who Melwood retained after a credible accusation was made that the employee dispensed Flexeril—or any other medication—to a patient without authorization. (See Doc. 33-2, pp. 63-64, 70.) Thus, Prince has not established a prima facie case of discriminatory termination.
Even if Prince Could establish a prima facie case of discrimination or retaliation, her Discipline Claims would fail because: (1) the Flexeril Incident was a legitimate, nondiscriminatory reason for Melwood's termination of Prince's employment; and (2) Prince has not identified probative evidence showing that Melwood did not believe that the Flexeril Incident actually happened. See Vessels, 408 F.3d at 771; see also Alvarez, 610 F.3d at 1266 (explaining that the pretext inquiry "centers on the employer's beliefs, not the employee's beliefs and, to be blunt about it, not on reality as it exists outside of the decision maker's head").
To the extent Prince bases her Discrimination Claims on the Suspensions and Corrective Actions that preceded her termination, such claims also fail because Prince has not shown that Melwood's legitimate non-discriminatory reasons for these employment actions are unworthy of credence. (See Doc. 33-1, pp. 140-41 (agreeing that she failed to document that her patient went to the hospital); id. at 156-58, 174-75 (agreeing that she failed to sign for hydrocodone).) Accordingly, the Motion is due to be granted with respect to Prince's Discipline Claims.
Employees may not be subjected to a workplace "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To establish her Harassment Claim, Prince must demonstrate that she was subjected to such an abusive working environment, and Melwood "knew, or reasonably should have known, of the harassment and failed to take prompt remedial actions." See Allen v. Tyson Foods, Inc., 121 F.3d 642, 646-47 (11th Cir. 1997) (citing Faragher v. City of Boca Raton, 111 F.3d 1530, 1535, 1538 (11th Cir. 1997) (en banc)). "The Supreme Court has provided a non-exclusive set of factors to consider in determining whether an environment is hostile," including: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." See id. (quoting Harris, 510 U.S. at 23.)
Johnson's comments were indisputably offensive, but they lack the frequency and severity necessary to establish an abusive working environment. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1299-1304 (11th Cir. 2012). Notably, Prince testified that Johnson did not make any adverse decisions about her employment. (See Doc. 33-2, p. 48.) Further, Prince did not indicate that she felt threatened by Johnson or anyone else, and there is no evidence that Johnson's comments interfered with Prince's work performance. To the contrary, after complaining about the first two comments, Prince was assigned to a different Unit Coordinator and she received a partial apology from Johnson. Although Melwood's discipline of Johnson was delayed, there is no indication that such delay rendered Prince's work environment unlawfully hostile. Accordingly, the Motion also is due to be granted with respect to Prince's Harassment Claims.
Although Johnson's comments did not actually create an unlawfully abusive working environment, Prince's complaints about such comments were statutorily protected activities,
An adverse employment action is one that would dissuade a reasonable employee "from making or supporting a charge of discrimination." Burlington, 548 U.S. at 67-68. This standard is intended to "cover a broad range of employer conduct." See Thompson v. N.A. Stainless, LP, 562 U.S. 170, 174 (2011). Nonetheless, the U.S. Supreme Court has warned that the harm to the employee must be "significant"—not "trivial." See Burlington, 548 U.S. at 68 (explaining that "petty slights, minor annoyances, and simple lack of good manners" are not adverse actions because they would not deter a reasonable employee from complaining about racial discrimination in the workplace). Depending on the circumstances, a "schedule change" may matter enormously to an employee. See id. at 69 (observing that a schedule change might be trivial to some employees, but of extreme importance to a young mother).
Prince was a mother of five who was only a few months back from her maternity Leave when she sought the Day Shift positions. (See Doc. 33-1, pp. 10-11, 70-72.) Prince testified that a change to the Day Shift was so important to her that she considered it a promotion even though her pay would not have changed. (See id. at 79-83.) Based on this record, a jury could reasonably conclude that Melwood's rejection of her applications for the Day Shift positions "would have been materially adverse to a reasonable employee" in Prince's position. See Burlington, 548 U.S. at 71.
Because a jury could reasonably conclude that the Day Shift Decisions constituted adverse employment actions, Prince can establish her prima facie case by showing that such decisions were not "wholly unrelated" Prince's exercise of statutorily protected conduct. See Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (1999). One way to meet this burden is to show a close temporal proximity between Melwood's knowledge of Prince's exercise of statutorily protected conduct and Day Shift Decisions.
Prince contends in her Complaint that Melwood rejected her applications for a Day Shift position "shortly after" her complaints to Zomcheck and Preston about the Hood Comment. (See Doc. 2, ¶¶11-15.) Melwood denied these contentions in its Answer (Doc. 7, ¶¶11-15). During discovery, Prince could not provide definitive testimony concerning this dispute. To the contrary, Prince repeatedly testified that she could not "remember chronologically how the events took place and the timeline." (See Doc. 33-1, p. 136; e.g., Doc. 33-2, pp. 43-44 ("I can't recall the exact dates").) Nonetheless, Prince provided testimony from which a reasonable jury could find in her favor on the causal relation element.
Prince testified that Johnson made the Hood Comment after she left Johnson's unit. (See Doc. 33-1, pp. 136-37.) It was on a Monday after a "Town Hall meeting" during which Johnson had claimed an award that Prince had earned.
Drawing all reasonable inferences in favor of Prince, and viewing the evidence in the light most favorable to her, a jury could conclude that her complaints about the Hood Comment occurred in mid-February or March 2014—which was in close temporal proximity to the time that Prince was rejected for the Day Shift positions in mid-March. (See Doc. 33-2, pp. 51-52 (providing testimony that Prince believed she was not chosen for the Day Shifts because she is "African American" and she "complained about illegal race discrimination" in February 2014); Doc. 33-4, pp. 27-29.) Thus, Prince has satisfied her burden to establish a prima facie case and she is entitled to a presumption that Melwood's rejections of her Day Shift applications were retaliation for her complaints about the Hood Comment.
To rebut this presumption, Melwood must clearly set forth non-retaliatory reasons for its rejections of Prince's applications. See Burdine, 450 U.S. at 255-56; see also Meeks, 15 F.3d at 1019. Melwood has not satisfied this burden. In its discussions of the Day Shift Claims, Melwood does not refute Prince's testimony that she was more experienced and had more seniority than the Caucasian employees. (See Doc. 32, pp. 6, 20; Doc. 46, pp. 2, 3.) Instead, Melwood notes only that: (1) Prince admitted that the First Action was in her file; and (2) she "did not know the performance background of the two Caucasian employees and did not know whether they had Corrective Actions in their files." (See Doc. 32, pp. 6, 20.) Melwood does not clearly state that: (1) the First Action disqualified Prince for the Day Shift positions; (2) the "performance background" of the two Caucasian employees was superior to Prince's performance background; or (3) the Caucasian employees did not have Corrective Actions in their files. At the summary judgment stage, the Court may not draw such inferences in Melwood's favor. Accordingly, the Motion is due to be denied with respect to the Day Shift Claims.
Accordingly, it is
(2) Johnson made the Second Comment when she was Prince's supervisor (see id. at 85); and (3) Prince believes that she complained about the Second Comment the day after it happened, and that she was pregnant when she "requested to move from [Johnson's] unit" (see id. at 77, 86-87). Thus, these events occurred at least four months before the Day Shift Decisions incidents and all but one of the Disciplinary Actions. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (noting that a three month disparity is too long).