ROY B. DALTON, Jr., District Judge.
This cause is before the Court on the following:
Defendant Grunau Company, Inc. ("
While so employed, Palermo suffered a stroke and was placed on medical leave on March 29, 2011. (Doc. 2, ¶ 6.) On May 16, 2011, Grunau hired James Wells ("
On July 26, 2011, Palermo returned to work without restrictions after receiving approval from her doctor. (Doc. 2, ¶ 8.) Upon her return, Cross and Mark Peters ("
Palermo began work in the Fort Myers office on August 1, 2011. (Doc. 2, ¶¶ 11-12.) She performed her inspections as she had done before but did so in her personal vehicle rather than a company car. (Doc. 49-1, p. 91.) A week later—on August 8, 2011— Grunau terminated Palermo citing lack of work in the Fort Myers office. (Doc. 2, ¶¶ 11-12; see also Doc. 50, p. 3; Doc. 49-1 p. 40.) According to Peters, Grunau "unexpectedly learned that the workload in the Fort Myers office was about to significantly decrease as well" and, as a result, Grunau downsized its workforce. (Doc. 47-1, ¶ 19.) Consequently, Grunau terminated twenty-seven employees—including Palermo—and closed the Fort Myers office. (Doc. 47-1, ¶ 20; see also Doc. 47-1, p. 6.)
On August 1, 2011, Grunau posted an Inspector vacancy. (Doc. 2, ¶¶ 16-17.) Following her August 8, 2011 termination, Palermo applied for the Inspector vacancy on August 10, 2011. (Id.) Grunau never contacted Palermo about the vacancy and did not hire another Inspector until more than a year after Palermo's termination on
On August 12, 2011, Palermo filed a charge with the Florida Commission on Human Relations ("
Palermo then filed a four-count Complaint against Grunau in state court alleging claims of disability discrimination and retaliation under the Florida Civil Rights Act ("
Summary judgment is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). As to issues for which the movant would bear the burden of proof at trial, the "movant must affirmatively show the absence of a genuine issue of material fact and support its motion with credible evidence demonstrating that no reasonable jury could find for the nonmoving party on all of the essential elements of its case." Landolfi v. City of Melbourne, Fla., 515 F. App'x 832, 834 (11th Cir. 2012) (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)).
As to issues for which the nonmovant would bear the burden of proof at trial, the movant has two options: (1) the movant may simply point out an absence of evidence to support the nonmoving party's case; or (2) the movant may provide "affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial." U.S. v. Four Parcels of Real Prop. in Green & Tuscaloosa Ctys., 941 F.2d 1428, 1438 (11th Cir. 1991) (citing Celotex Corp., 477 U.S. at 325). "The burden then shifts to the nonmoving 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, 2 F.3d at 1115-17). "A factual dispute is genuine `if the evidence is such that a reasonable jury could 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 must view the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the nonmovant. Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006). However, "[a] court need not permit a case to go to a jury . . . when the inferences that are drawn from the evidence, and upon which the nonmovant relies, are `implausible.'" Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
To establish a prima facie case of disability discrimination under the ADA, a plaintiff must show that he: (1) is disabled; (2) is a qualified individual; and (3) was subjected to unlawful discrimination because of his disability.
Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id. at 656. The employer must then offer a legitimate, nondiscriminatory reason for the employment decision to rebut the presumption. Id. If the employer successfully rebuts the presumption, plaintiff is given an opportunity to discredit the proffered nondiscriminatory reason by showing that it is merely a pretext for discrimination ("
Reduction-in-force cases ("
The parties disagree about the analytical framework that the Court should apply to Palermo's initial burden. (See Doc. 50, pp. 7-8; see also Doc. 55, pp. 2-4.) Grunau contends that the RIF Test applies and that Palermo cannot show a critical factor of this test—that a nondisabled, similarly situated employee was treated more favorably than Palermo. (Doc. 50, pp. 7-8.)
Palermo counters that the McDonnell Douglas Test applies here because she was replaced by someone outside the protected class. (Doc. 55, p. 2.) According to Palermo, the record shows that Grunau hired Wells to replace Palermo while she was on medical leave.
Contrary to the parties' positions, this 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. See Knowles v. Sheriff, 460 F. App'x 833, 835 (11th Cir. 2012) (requiring only that a plaintiff prove that he was "discriminated against because of his disability"); Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) ("the plaintiff's failure to produce a comparator does not necessarily doom the plaintiff's case"); Reed v. Heil Co., 206 F.3d 1055, 1061 (11th Cir. 2000).
The parties' dispute regarding the RIF Test concerns only the third prong—whether Grunau intended to discriminate against Palermo in making its discharge decision. (See Doc. 50, pp. 7-8; see also Doc. 55, p. 2.) Grunau contends that Palermo was not subjected to unlawful discrimination because her termination was due to a legitimate RIF. (Doc. 50, pp. 7-8.)
Viewing the evidence in the light most favorable to Palermo, the Court finds that she has presented a "convincing mosaic of circumstantial evidence" from which a jury could infer Grunau's intent to discriminate based on Palermo's disability. First, Cross's statements while Palermo was on medical leave are probative. (See Doc. 53-1.) According to Smith, on multiple occasions, Cross stated: (1) Palermo would never return to work because she would never get a complete doctor's release; (2) even if she did return, Palermo would have another stroke and have to go on leave again; and (3) Palermo could not drive because she might have another stroke. (Id.)
Additionally, after returning from medical leave, Grunau transferred Palermo to its Fort Myers office purportedly because it lacked sufficient work in Orlando. (Doc. 47-1, ¶ 15.) At this time, it was common knowledge that Grunau was considering closing the Fort Myers office and had already begun the process of laying off employees. (Doc. 53-1, ¶ 8; see also Doc. 47-1, p. 6.) Moreover, Smith declared that when Palermo returned, the Orlando office had a profusion of work. (See Doc. 53-1, ¶ 8.)
Finally, Grunau offered no explanation as to why out of the three Orlando-based Inspectors—Smith, Wells, and Palermo—it chose to transfer Palermo to Fort Myers. Standing alone, Grunau's business decisions with respect to its employees are inconsequential; however, the combination of the transfer, along with Cross's statements, is fatal at the summary judgment stage.
In light of the foregoing and, in particular, the timeline of events leading to Palermo's termination, the Court finds that Palermo has established a prima facie case of discrimination. The Court's inquiry, however, is not terminated, as the burden now shifts to Grunau to present a legitimate, nondiscriminatory reason for Palermo's termination.
The employer's burden is merely one of production, not persuasion. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)); see also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981) (explaining that an employer's burden is met where it "raises a genuine issue of fact as to whether it discriminated against the plaintiff"); Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1060-61 (11th Cir. 1994) (explaining that such burden is "exceedingly light").
To rebut Palermo's presumption, Grunau maintains that it terminated Palermo as part of a legitimate RIF that led not only to the termination of twenty-six other Fort Myers employees, but also to the closing of the Fort Myers office. (Doc. 50, p. 8.) Grunau's proffered reason satisfies its burden of production.
Once an employer carries its burden of production, the presumption raised by the prima facie case is rebutted. Burdine, 450 U.S. at 255. A plaintiff then is afforded a "`full and fair opportunity to demonstrate' through presentation of his own case . . . `that the proffered reason was not the true reason for the employment decision.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993) (quoting Burdine, 450 U.S. at 256). This burden merges with the ultimate burden of persuading the court that he has been victimized by intentional discrimination. Burdine, 450 U.S. at 256.
In this context, a plaintiff may succeed 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." Id. However, it is not enough to simply disbelieve the employer's stated reason; rather, "the factfinder must believe the plaintiff's explanation of intentional discrimination." Hicks, 509 U.S. at 519 (emphasis in original); see also Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1993) ("the ultimate question [is] discrimination vel non"); McDonnell Douglas, 411 U.S. at 805 (explaining that a plaintiff must demonstrate through competent evidence that the employer's stated reason was "in fact a cover up for" a discriminatory decision).
Grunau asserts that Palermo has not met her burden here because a RIF attributed to lack of work constitutes a legitimate nondiscriminatory reason for Palermo's termination. (Doc. 50, p. 9.) Palermo counters that the evidence establishes, at minimum, that issues of material fact exist as to whether Grunau's stated reason was pretextual. (Doc. 55, p. 5.) The Court agrees with Palermo.
Pretext is most readily inferred from Smith's declaration that, at the time Grunau transferred Palermo to the Fort Myers office, it was common knowledge that Grunau was considering closing the Fort Myers office. (Doc. 53-1, ¶ 8.) Nonetheless, upon Palermo's return from medical leave, Grunau maintained that the Fort Myers office had work available and that there was insufficient work in Orlando resulting from accelerated deadlines from Walgreens. (Doc. 47-1, ¶ 12; see also Doc. 54-1, p. 56.) Belying this position, Peters explained that any schedule changes would have come at the beginning of the year—months before Palermo went on medical leave. (Doc. 54-1, p. 57.) Additionally, Smith stated that: (1) she was not informed of any schedule changes pertaining to Walgreens and continued to perform inspections for that customer until November 2011 (Doc. 53-1, ¶ 10); and (2) when Palermo returned from medical leave, the Orlando office had more than enough work, so much so that union construction inspectors assisted in covering Smith and Wells's workload (Id., ¶ 8).
Grunau also offers no explanation as to why or how it made the choice to transfer Palermo, rather than Wells or Smith. This absence is especially compelling in light of Smith's previous request to perform work in Fort Myers. (Id.) Once Palermo began work in Fort Myers, Grunau maintains that it "unexpectedly learned that the workload in the Fort Myers office was about to significantly decrease as well." (Doc. 47-1, ¶ 19). Peters explained that the diminished workload in Fort Myers became apparent on August 8, 2011—the same day Palermo was terminated. (Doc. 54-1, p. 54.) In support, Grunau submits evidence of a list of twenty-seven employees, including Palermo, and their respective termination dates ("
A prima facie case of retaliation under the FCRA is established if a plaintiff shows that: (1) he engaged in statutorily protected activity; (2) he suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action.
Generally, "it is for the jury to decide whether anything more than the most petty and trivial actions against an employee should be considered `materially adverse.'" Crawford v. Carroll, 529 F.3d 961, 973 n.13 (11th Cir. 2008). A court may decide the issue as a matter of law if the challenged acts are trivial or do not produce injury or harm. See White, 548 U.S. at 67-68; see also Williams v. Apalachee Ctr., 315 F. App'x 798, 800 (11th Cir. 2009) (affirming the lower court's grant of summary judgment in favor of the defendant employer because the plaintiff failed to create a genuine issue of material fact regarding whether he suffered a materially adverse employment action).
The parties agree that filing the ADA Charge constitutes statutorily protected activity. (Doc. 50, p. 10; Doc. 55, p. 9.) Nonetheless, Grunau represents that it is entitled to summary judgment because Palermo has failed to advance an adverse employment action. (Doc. 50 at 10-11.) Grunau contends that it made no hiring decisions, let alone an adverse one, for more than a year after Palermo filed her ADA Charge; thus, Palermo was treated in identical fashion to similarly situated applicants. (Id. at 11.) Grunau misconstrues Palermo's burden in this context, as there is no comparator requirement for a prima facie showing of retaliation. See McCann, 526 F.3d at 1375.
Contrary to Grunau's position, a failure to rehire is "undoubtedly an adverse employment action" where an employee reapplied for the position post termination. See Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1135, 1141 (5th Cir. 1981).
As for the causal relationship, courts construe such element broadly so that a plaintiff merely has to prove that the protected activity and the adverse action are not completely unrelated. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). The causation element is, thus, satisfied if a plaintiff provides evidence that the defendant knew of the protected activity and that there was a close temporal proximity between the defendant's knowledge and the adverse action. Id. Notwithstanding this broad interpretation, "mere temporal proximity," without more, must be "very close" to establish causation. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (upholding the district court's grant of summary judgment on a retaliation claim because the adverse action taken twenty months later, by itself, suggested "no causality at all"). Where a plaintiff presents no other evidence as to causation and there is a substantial delay between the protected activity and the adverse action, the retaliation claim fails as a matter of law.
Grunau asserts that even if there was an adverse employment action, Palermo has failed to establish the necessary causal link because: (1) the more-than-one-year temporal gap between Grunau's knowledge of the filing of the ADA Charge on October 4, 2011, and Grunau's alleged failure to rehire Palermo for an Orlando Inspector on October 8, 2012 does not satisfy the "very close" temporal proximity requirement; and (2) Palermo's own testimony establishes that she believed she was not rehired because of her stroke, not because of the ADA Charge filed. (See Doc. 50, pp. 4, 12-13.)
For her part, Palermo posits that "the essence of a `failure to rehire' claim" is the refusal to rehire an employee when a position is available. (Doc. 55, p. 10.) According to Palermo, the temporal gap is closed because the job vacancy became available in October of 2012, at which time Grunau should have considered Palermo for rehire but did not. (Id.)
The Court declines Palermo's invitation to view the lapse in time this way. Importantly, Palermo's claim is not for failure to rehire, but rather for retaliation based on Palermo's filing of the ADA Charge. (See Doc. 2, ¶¶ 46-50.) These two claims are distinct. See Underwood v. Perry Cty. Comm'n, 431 F.3d 788 (11th Cir. 2005) (describing the elements required to establish a failure-to-rehire claim); see also King v. Cintas Corp., 920 F.Supp.2d 1263, 1269 (N.D. Ala. 2013) (citing Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1274 (11th Cir. 2002)) (noting the difference between failure-to-rehire claims and retaliation claims)).
Palermo is right that an adverse action did not occur until Grunau failed to rehire her when it had the opportunity to do so either in October of 2012.
In addition, Palermo asserts that she has satisfied the causality requirement because Grunau hired an Inspector only two weeks after the EEOC dismissed the ADA Charge. (Doc. 55, p. 11.) In reliance, Palermo cites Olmsted v. Defosset, 205 F.Supp.2d 1316, 1321-22 (M.D. Fla. 2002), for the proposition that this wait-and-see approach establishes causality. In Olmsted, the court denied the defendant's motion to dismiss the plaintiff's retaliation claim because it found that the plaintiff had "alleged that he filed suit, and after the suit was dismissed, he attempted to look for a job, at which point [defendant] failed to rehire him." Id. at 1322. As to the temporal proximity requirement, the Olmsted court noted that "sometime after the [c]ourt's summary judgment in favor of [d]efendant" on plaintiff's discrimination claims, "plaintiff sought to be rehired." Id. at 1319 (emphasis added). Plaintiff suggests that Olmsted warrants a similar finding of causation here. (Doc. 55, p. 12.) The Court disagrees.
First, unlike here, the Olmsted court's standard of review was limited to the allegations in the complaint. 205 F. Supp. 2d at 1319. Second, the Olmsted court provided no specific time period between the protected activity and the adverse action. Id. Where, as here, Palermo seeks to establish causality based merely on temporal proximity between Grunau's knowledge of the protected activity and the adverse action, binding precedent requires Palermo to show a "very close" temporal proximity. Nothing in Olmsted requires a different conclusion than the one reached here.
As such, the Court finds, that, standing alone, the more-than-one-year temporal gap between Grunau's knowledge of the filing of the ADA Charge and Grunau's alleged failure to rehire Palermo is insufficient to create a factual issue for the jury as to causation. Therefore, Grunau's Motion is due to be granted as to Palermo's retaliation claim (Doc. 2, ¶¶ 46-51).
Accordingly, it is hereby
