PAUL G. BYRON, District Judge.
This cause comes before the Court without oral argument on Defendant's Motion for Summary Judgment. (Doc. 29). Plaintiff responded in opposition (Doc. 32), and Defendant submitted a Reply (Doc. 37). With briefing complete, the matter is ripe. Upon consideration, Defendant is entitled to summary judgment on Plaintiff's claims.
In this consolidated
In February 2013, Plaintiff began working for Defendant as a "term" Plant Protection and Quarantine ("
After filing an informal EEO complaint in 2013, Plaintiff filed a formal EEO complaint alleging hostile work environment based on race or color in April 2014, which she amended in May 2014. Plaintiff alleged:
(Doc. 29-3; Doc. 33, ¶ 2).
The November Complaint avers four grounds to support her hostile work environment claim. (Id. ¶¶ 6-17). First, Plaintiff asserts her request to attend a leadership program was denied discriminatorily. (Id. ¶ 14; Doc. 29-11).
The June Complaint (alleging failure-to-promote and retaliation claims) is predicated on separate facts. In 2015, APHIS announced two vacancies (respectively, the "
Plaintiff applied to both positions but was hired for neither. Plaintiff's questionnaire scores were 87.7 for the 319 Position and 97.1 for the 361 Position. (Id. ¶ 12). Her application therefore only made the best qualified list for the 361 Position. (Id. ¶ 14). To inform the selection process, Ms. Jowyk used a "matrix to objectively evaluate each candidate's qualifications in light of the criteria listed in the vacancy announcements." (Doc. 29-16, ¶ 7). The matrix was developed by Defendant in 2015 and has been frequently used since its creation. (Id.). The matrix derives a score from three factors, weighted as follows: (i) 50% specialized experience criteria; (ii) 30% reference checks; and (iii) 20% performance rating. (Id. ¶ 8). Mr. Russell compiled data for the matrix scores, and the pertinent scores were:
(Id. ¶¶ 9-10). Neither Mr. Russell nor Ms. Jowyk interviewed candidates. (Doc. 29-16, ¶ 16; Doc. 29-17, ¶ 13). Most of the disparity in matrix scores between Plaintiff and the selected candidates—Liane Pizzo and Nube McDermott—is explained by Ms. Pizzo's and Ms. McDermott's superior specialized experience scores. (Doc. 29-16, p. 8). Plaintiff "lacked [r]egulatory and PDA/MIST experience and expertise as compared to other candidates, had lower proficiency test scores as compared to other candidates, and had lower performance ratings as compared to other candidates." (Doc. 29-17, ¶ 12). Critically, Ms. Pizzo and Ms. McDermott had at least seven years more experience in their PPQ Technician roles than Plaintiff. (Doc. 29-15, pp. 42-47; Doc. 29-17, pp. 35-38, 55-57).
Liane Pizzo, a white female with no prior EEO activity, was selected for one of the vacancies, and Nube McDermott, a Hispanic female with no prior EEO activity was selected for the other. (June Comp. ¶ 16; Doc. 33, ¶¶ 14-15). Frances Jowyk, a white female, selected the applicant to fill both vacancies with Phillip Russell's assistance. (June Comp. ¶ 14). The June Complaint alleges that Plaintiff's non-selection constituted disparate treatment based upon race and gender, (Id. ¶¶ 20-25); it also avers a retaliation claim based on Plaintiff's non-selection, asserting that Phillip Russell "did not rate . . . Plaintiff as high as he rated other individuals who have not participated in protected activity." (June Comp. ¶¶ 26-31).
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party moving for summary judgment must "cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials" to support its position that it is entitled to summary judgment. Fed. R. Civ. P. 56(c)(1)(A). A factual dispute is "genuine" only if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if the fact could affect the outcome of the lawsuit under the governing law. Id.
The moving party bears the initial burden of identifying those portions of the record demonstrating the absence of a genuine factual dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). If the movant shows that there is no evidence to support the non-moving party's case, the burden then shifts to the non-moving party to demonstrate that there are, in fact, genuine factual disputes which preclude judgment as a matter of law. Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006). Summary judgment is proper when a plaintiff fails to adequately prove up an essential element of their claim. Celotex, 477 U.S. at 322-23. Also, "[t]he court need consider only the cited materials" when resolving a motion for summary judgment. Fed. R. Civ. P. 56(c)(3); see also HRCC, LTD v. Hard Rock Café Int'l (USA), Inc., 703 F. App'x 814, 816-17 (11th Cir. 2017) (per curiam).
The Court's analysis must begin with an evidentiary issue. Throughout its response in opposition of Defendant's Motion for Summary Judgment, Plaintiff cites the Complainant Affidavit, an unsigned, undated statement that Plaintiff gave to investigators regarding her alleged abuse. (See, e.g., Docs. 32, 32-2). This document is not entitled to consideration in defense of summary judgment. To be considered at this stage, an affidavit must, among other things, "be signed by the affiant" and notarized. Bryant v. Orlando Sentinel Comms., No. 6:05-cv-1710-Orl-19UAM, 2007 WL 1796258, at *5 (M.D. Fla. June 20, 2007) (striking unsigned, un-notarized affidavit at summary judgment stage). Federal law also authorizes consideration of unsworn declarations made under penalty of perjury in accordance with 28 U.S.C. § 1746. Here, the Complainant Affidavit is not entitled to consideration because it is neither signed, notarized, nor made under penalty of perjury pursuant to § 1746.
Defendant contends that Plaintiff has not produced sufficient evidence of workplace abuse to sustain her hostile work environment claim. (Doc. 29, pp. 13-19).
Title VII prohibits employers from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, or national origin." 24 U.S.C. 2000e-2(a)(1). A hostile work environment claim under Title VII is established upon proof that "the workplace is 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." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To establish a hostile work environment claim, Plaintiff must show:
Miller v. Kentworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). The requirement that harassment be sufficiently severe or pervasive contains both an objective and a subjective component. Miller, 277 F.3d at 1276. The harassing conduct must result in both (1) an environment "that a reasonable person would find hostile or abusive, and (2) an environment that the victim subjectively perceive[s] . . . to be abusive." Id. (quoting Harris, 510 U.S. at 21-22). The objective element is "not subject to mathematical precision," but rather courts can infer an environment is "hostile" or "abusive" from the circumstantial facts. Edmond v. Univ. of Miami, 441 F. App'x 721, 725 (11th Cir. 2011) (per curiam). This requires consideration of "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance." Bryant v. Jones, 575 F.3d 1281, 1297 (11th Cir. 2009) (quoting Harris, 510 U.S. at 21-22).
To make out a hostile work environment claim, Plaintiff must show harassing conduct based on her race or national origin. Whitehurst v. Liquid Envtl. Sols., Inc., 45 F.Supp.3d 1328, 1343 (M.D. Fla. 2014) ("The touchstone of a hostile work environment claim is the presence of severe or pervasive harassment based on a protected characteristic."). "[N]ot all objectionable conduct or language amounts to discrimination under Title VII, . . . only conduct that is based on a protected category . . . may be considered in a hostile work environment analysis." Trask v. Sec'y, Dep't of Veteran Affairs, 822 F.3d 1179, 1195 (11th Cir. 2016) (holding that "voluminous incidents of pharmacy management's alleged hostility [and] comments . . . were never related to the plaintiffs' protected characteristics").
In assessing Plaintiff's evidence in support of her hostile environment claim, the Court does not consider the Complainant Affidavit for the reasons expressed above. The only other evidence Plaintiff cites in support of this claim is a coworker's signed affidavit (Doc. 32-18), an email where Mr. Russell asks Plaintiff if he can help resolve a conflict, to which Plaintiff responds that the issue has been resolved (Doc. 32-7), and an email from Plaintiff relaying to Mr. Russell a litany of coworker complaints unrelated to race (Doc. 32-8). In this last email, Plaintiff notes: "I hate to add to your stresses and worry you with petty office issues." (Id.). In addition to these materials, the Court considers the documents cited by Defendant, including an email exchange describing Plaintiff's failure to complete the paperwork necessary to qualify for the leadership program (Doc. 29-11), Plaintiff's Responses to Defendant's First Set of Interrogatories (Doc. 29-12),
The evidence before the Court is insufficient to sustain Plaintiff's hostile environment claim. Many of the events Plaintiff complains of—such as Plaintiff's leadership program rejection, Plaintiff's email complaints regarding workplace conflicts, and the bulk of her confrontations with Ms. Tagliarino—were not "based on a protected category" and thus add no support to her hostile work environment claim. See Trask, 822 F.3d at 1195. Setting aside nondiscriminatory workplace turmoil, Plaintiff's work environment was not sufficiently severe or abusive to sustain her claim. See Bryant v. Jones, 575 F.3d at 1297. This is true even if the Court considers the Complainant Affidavit. The incidents recounted do not show that Plaintiff's work environment was "permeated with `discriminatory intimidation, ridicule, and insult' that is `sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive environment,'" in violation of Title VII. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Defendant is therefore entitled to summary judgment on Plaintiff's hostile work environment claim.
Defendant also moves for summary judgment on Plaintiff's failure-to-promote claim.
To prevail on a failure-to-promote claim,
Where the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Id. "This burden is `exceedingly light'; the defendant must merely proffer non-[discriminatory] based reasons, not prove them." Meeks v. Comput. Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994). The employer "need not persuade the court that it was actually motivated by the proffered reasons." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). Defendant's burden here "is one of production, not persuasion; it `can involve no credibility assessment.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
If the employer carries this burden, "the burden of production shifts [back] to the plaintiff to offer evidence that the alleged reason of the employer is a pretext for illegal discrimination." Wilson, 376 F.3d at 1087. "To show that the employer's reasons were pretextual, the plaintiff must demonstrate 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." Cooper v. S. Co., 390 F.3d 695, 725 (11th Cir. 2004) (quotations omitted).
Plaintiff's failure-to-promote claim cannot survive because Plaintiff has not shown pretext. In reaching this conclusion, the Court first assumes without deciding that Plaintiff proved a prima facie failure-to-promote claim, shifting the burden to Defendant to show legitimate, nondiscriminatory reasons for its actions. Defendant easily carried this "exceedingly light burden" by submitting affidavits from employees, along with supporting documentation, showing that Plaintiff was less qualified and less experienced than the selectees. See Steger v. Gen. Elec. Co., 318 F.3d 1066, 1076 (11th Cir. 2003); (Doc. 29-16, ¶¶ 9-10, p. 8; Doc. 29-17, ¶ 12); see also Meeks, 15 F.3d at 1019; Reeves, 530 U.S. at 142.
Next, the burden shifts to Plaintiff to establish that Defendant's proffered reasons are pretextual. See Wilson, 376 F.3d at 1087. Plaintiff did not carry her burden as to pretext, dooming this claim. In the June Complaint and the briefing, Plaintiff only compares herself to one of the selectees, Nube McDermott. (June Comp. ¶ 17; Doc. 32, pp. 13-14). Plaintiff notes her own biology degree, experience working for "PETO Seeds," internship at the University of Wisconsin, and that Ms. "McDermott did not have a college degree." (June Comp. ¶ 17; Doc. 32, pp. 13-14). Defendant counters that Ms. McDermott had eight years more experience than Plaintiff as a PPQ Technician, and much of Plaintiff's experience is irrelevant to the position, such as the time she spent working as a teacher, chaplain, and mortgage broker. (Doc. 29, p. 21; Doc. 29-15, pp. 42-47; Doc. 37, pp. 7-8). Taken together, Plaintiff has not shown sufficient faults with Defendant's "proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." See Cooper, 390 F.3d 725. At best, Plaintiff has only (1) shown that Plaintiff and Ms. McDermott are similarly qualified and (2) advanced largely unsupported attacks on Defendant's decision process.
Defendant finally moves for summary judgment on Plaintiff's retaliation claim.
Retaliation claims based on circumstantial evidence are likewise reviewed under the McDonnell Douglas framework. First, a plaintiff must establish a prima facie retaliation case by showing: (1) she participated in statutorily protected activity; (2) she suffered an adverse employment action; and (3) a causal link between the protected activity and adverse action. Bryant, 575 F.3d at 1307-08. Plaintiff alleges that Defendant retaliated against her by rating Plaintiff lower than other employees resulting in her non-selection for the 319 and 361 Positions. (June Comp. ¶¶ 26-31).
Like the failure-to-promote claim, Plaintiff's retaliation claim fails at the pretext stage. Because Plaintiff advances the same pretext argument in support of her retaliation claim, the failure-to-promote claim's pretext analysis above applies with equal force here. Plaintiff did not produce even circumstantial evidence that Defendant's proffered reasons for not promoting Plaintiff were pretextual.
Based on the foregoing, it is
