JAMES LAWRENCE KING, District Judge.
This is an employment discrimination case that hinges on the legitimacy of Defendant's Reduction in Force, as well as the sufficiency of Defendant's accommodations of Plaintiff's disability pursuant the Family and Medial Leave Act ("FMLA")
In February 2005, Plaintiff de la Cruz applied for a position at Defendant Children's Trust as a Capacity Training Specialist. He was interviewed by Tisa McGhee, Trust Capacity Training Manager, and Dr. K. Lori Hanson, Director of Research Evaluation and Training, (de la
As a Capacity Training Specialist, Plaintiff de la Cruz was assigned to the Research Evaluation and Training Section where he was responsible for preparing and delivering training classes to personnel working with children, youth, and family programs around the county. (DE # 18-7). Plaintiff de la Cruz reported to McGhee who, in turn, reported to Dr. Hanson, (de la Cruz Dep. 34:23-35:13, DE # 18-3). Dr. Hanson reported to Mr. Abety, the Chief Executive Office of Defendant Children's Trust. (Id.)
In 2005, Plaintiff de la Cruz was diagnosed with chronic migraine headache. Sometime in 2006, Plaintiff de la Cruz had to seek "medical attention due to this condition. Said condition resulted in other ailments such as breathing problems and sleep apnea...." (EEOC charge, DE # 18-5). After his diagnosis, Plaintiff de la Cruz requested accommodations pursuant to the ADA and leave pursuant to the FMLA. (de la Cruz Dep. 71:11-19, DE # 18-3; June 7, 2006 de la Cruz Email, DE # 18-6). Defendant Children's Trust granted Plaintiff de la Cruz' requests for FMLA leave in 2006 and 2007, as well as his lone request for ADA accommodation to modify the lights in his office and adjust the air temperature in July 2006. (de la Cruz Dep. 71:11-19, 161:10-15, DE # 18-3).
Plaintiff de la Cruz claims that beginning in 2006, McGhee continually mocked his "thick Mexican accent." (de la Cruz Dep. 133:9-134:9, DE # 18-3). According to Plaintiff de la Cruz, McGhee is the only employee of Defendant Children's Trust who directed discriminatory statements towards him. (de la Cruz Dep. 111: 4-7, DE # 18-3). Plaintiff de la Cruz testified that last time McGhee made reference to his Mexican accent and ancestry was on May 5, 2008. (de la Cruz Dep. 176:18-19, DE # 18-3).
In 2006 and 2007, Plaintiff de la Cruz filed multiple written internal complaints about McGhee's treatment of him in the workplace. (March 27, 2006 Email, DE # 24-12; de la Cruz Sept. 14, 2007 Memo, DE #18-9). Bob Bromberg, Defendant Children's Trust's Human Resources consultant, received the complaints and held meetings with Plaintiff de la Cruz, McGhee, and Dr. Hanson "to address concerns regarding Mr. de la Cruz's relationship with his supervisor, Tisa McGhee." (Bromberg March 30, 2006 Memo, DE # 18-8). Also in 2006, Plaintiff de la Cruz met with Mr. Abety to discuss McGhee. (de la Cruz Dep. 98:15-99:16, DE # 18-3).
Along with McGhee's allegedly mocking comments, Plaintiff de la Cruz claims that McGhee's discriminatory attitude influenced her to issue adverse performance evaluations of Plaintiff de la Cruz that affected his salary and ultimately led to his termination.
In October of 2009, as a result of a dramatic reduction in property tax revenues, Defendant's budget was reduced. (Abety-Gutierrez Decl. ¶ 4, DE # 18-2). Defendant implemented a Reduction in Force ("RIF") to deal with the budget shortfall. (Id.) As a result of the RIF, nine employees were terminated and three departments were eliminated. (Abety-Gutierrez Decl. ¶¶ 5-6, DE # 18-2). Four of the employees were terminated based on retention scores calculated based on the employees' seniority and performance evaluations. (Abety-Gutierrez Decl. ¶ 6, DE # 18-2). Five employees, including Plaintiff de la Cruz, were terminated without calculation or consideration of their retention scores because their entire departments were eliminated. (Abety-Gutierrez Decl. ¶ 5, DE # 18-2).
On October 16, 2009, after he was terminated, Plaintiff de la Cruz filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (EEOC Charge, DE # 18-5). On September 30, 2010, the EEOC issued a "Right to Sue" letter. (DE # 18-15). Then, on December 27, 2010, Plaintiff de la Cruz filed the instant action against Defendant Children's Trust. Before the Court now is Defendant Children's Trust's Motion for Summary Judgment.
Summary judgment is appropriate where the pleadings and supporting materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See FED.R.CIV.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses." Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548.
The moving party bears the burden of pointing to the part of the record that shows the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). Once the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Chanel, Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir.1991) (holding that the nonmoving party must "come forward with significant, probative evidence demonstrating the existence of a triable issue of fact.").
"Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the factual
In the above-styled action, Plaintiff alleges that while he was employed at Defendant Children's Trust, he was discriminated against because of his race, national origin, medical disability, and age, retaliated against for exercising his rights under the ADA, FMLA, and Title VII, subjected to a hostile work environment, and denied his rights under the ADA and FMLA. (Compl., DE # 1). Defendant Children's Trust has moved for summary judgment on the discrimination and retaliation claims on that basis that Plaintiff has failed to make out a prima facie case of discrimination and that Plaintiff has failed to rebut Defendant's offering of a Reduction in Force ("RIF") as a legitimate, nondiscriminatory reason for Plaintiff's termination. Defendant Children's Trust also argues that summary judgment is warranted in its favor on the FMLA interference and ADA accommodation claims because the undisputed evidence shows that Defendant granted all of Plaintiff's FMLA and ADA requests. Lastly, Defendant moves for summary judgment on the hostile work environment claim on the basis that it is time-barred. For the following reasons, the Court finds it must grant summary judgment on all counts in Defendant's favor.
The significance of the RIF in this matter cannot be underestimated. With the exception of the hostile work environment claim, all of Plaintiffs discrimination claims hinge on the legitimacy of and the circumstances surrounding the RIF. When Plaintiff filed the Complaint in December of 2010, the crux of his allegations of adverse treatment was that his direct supervisor, McGhee, gave him adverse performance evaluations that reduced his retention score, ultimately resulting in his termination. (Compl. ¶¶ 24, 31, 32, DE # 1). At that time, Plaintiff labored under the belief that Defendant's decision to terminate Plaintiff was directly influenced by the purported adverse evaluations. (Compl. ¶ 31).
Now, with the benefit of close to a year of discovery, the uncontested evidence on the record reveals that Plaintiff's termination pursuant to the RIF occurred because his entire section, along with two other sections, was eliminated. Further, the uncontested evidence shows that although Defendant calculated and considered retention scores, based on seniority and performance evaluations, for a majority of the employees, Defendant did not apply the retention score system to any of the employees whose entire department was being eliminated. Consequently, the uncontested evidence proves that the performance evaluations, no matter how positive or negative a factfinder may find them to be, did not influence Defendant's decision to terminate Plaintiff because they were never considered. Given this assessment of the uncontested evidence on the record, the Court now turns to the implications of the RIF on Plaintiff's claims of discrimination and retaliation.
To succeed with an employment discrimination claim, the burden is on the plaintiff to prove that the plaintiff was terminated by the defendant employer because of the plaintiff's race, national origin, medical disability, or age. See, e.g., Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 2351-52, 174 L.Ed.2d 119 (2009). To make out a prima facie case of discrimination when the termination is the result of an RIF, a plaintiff must show: (1) "that he was in a protected... group and was discharged;" (2) "that he was qualified for another position at the time of discharge;" and (3) "circumstantial or direct evidence by which a factfinder might reasonably conclude that the employer intended to discriminate ... in reaching the decision not to place him in that other position." Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565, 567-68 (11th Cir.1992).
Here, it is uncontested that Plaintiff, a 40 + Hispanic male of Mexican origin with chronic migraine, is a member of the groups protected by Title VII, the ADA, and AEDA so as to satisfy the first element. There is a dearth of evidence, however, in support of the second element — that Plaintiff was qualified for another position that was available at or closely after the time of discharge. Although "Plaintiff alleges that Plaintiff was qualified to continue working for the Trust in any other capacity or could have been rehired as other employees with less seniority and experience," Plaintiff's qualifications, absent the existence of an open position, are insufficient to satisfy the second element of a prima facie case of discrimination in the context of an RIF. (DE # 22, at 6). In addition, although Plaintiff claims an employee who worked in a different department took over some of Plaintiff's former responsibilities and duties after the RIF, Defendant is under no obligation to "establish an interdepartmental transfer program during the course of an RIF." Jameson v. Arrow Co., 75 F.3d 1528, 1532 (11th Cir.1996) (finding evidence of discrimination where defendant employer did not consider plaintiff for "job openings for which [plaintiff] was qualified [that] existed at the time of her termination....") (emphasis added). Further, despite Plaintiff's stated belief during a deposition that Defendant rehired other employees who were terminated during the RIF, nowhere on the record is there any evidence that there was an available position for which Plaintiff was qualified or that any other employees were rehired to fill positions for which Plaintiff was qualified.
Absent the offering of any evidence in support of Plaintiff's allegations, Plaintiff has failed to create a factual issue as to whether plaintiff was qualified to assume an alternate open position. See Mitchell, 967 F.2d at 568 (finding evidence such as an interoffice memorandum listing open positions, defendant employer's answers to interrogatories, or admissions to create a factual issue as to whether plaintiff was qualified to assume an alternate open position). Accordingly, upon the finding that
Along with the employment discrimination claims, Plaintiff also alleges retaliation under the ADA, FMLA, and Title VII. To advance past the summary judgment stage, the plaintiff must offer either direct evidence of retaliation or establish a prima facie case of retaliation with circumstantial evidence. See generally Strickland v. Water Works and Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1207 (11th Cir.2001) (instructing that the McDonnell Douglas burden-shifting framework applies to retaliation claims). For a supervisor's comment or demeanor to constitute direct evidence of retaliation, the comment or action must conclusively show bias that caused the adverse result in the workplace. See Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1226 (11th Cir. 1993). A plaintiff who offers circumstantial evidence must establish a prima facie case of retaliation before the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse action. Chapman v. Al Transp., 229 F.3d 1012, 1024 (11th Cir.2000). If the defendant employer offers a legitimate, nondiscriminatory reason for the adverse action, then the burden shifts back to the plaintiff to demonstrate that the employer's alleged nondiscriminatory reason was pretext for retaliation. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.2004). To establish pretext, a plaintiff must present evidence "sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Martin v. Brevard Cnty. Pub. Schs., 543 F.3d 1261, 1268 (11th Cir.2008) (finding evidence that defendant employer warned plaintiff about taking FMLA leave and then fired plaintiff while on leave to be sufficient to create an issue of fact regarding pretext).
To state a prima facie case of retaliation, a plaintiff must offer evidence that: "(1) [he] engaged in a statutorily protected activity; (2) [he] suffered an adverse employment decision; and (3) the decision was causally related to a protected activity." See generally Pereda v. Brookdale Senior Living Cmty., Inc., 666 F.3d 1269, 1275 (11th Cir.2012) (setting forth the FMLA relation elements); Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.2008) (setting forth the Title VII retaliation elements); Standard, 161 F.3d at 1328 (setting forth the ADA relation elements). Given the chronology of Plaintiff's ADA and FMLA requests, Title VII complaints about his supervisor, and the alleged retaliatory act of termination based on heightened scrutiny and negative performance reviews, the Court will assume without deciding that Plaintiff has set forth a prima facie case of retaliation. The Court now turns to the Parties' arguments with regard to whether the RIF was legitimate or pretextual.
As was previously discussed at length, Defendant claims that it terminated Plaintiff without regard to Plaintiff's employee file or performance evaluations when his entire department was eliminated pursuant to an RIF. Plaintiff contends that the RIF was pretextual and maintains that the real reason he was terminated is that Defendant's CEO "was annoyed with him for airing his complaints." (DE # 22, at 13).
In the Response in Opposition to the Motion for Summary Judgment, Plaintiff claims that "[t]he discriminatory animus of a decision maker," whether Defendant considered
For instance, there is nothing on the record to support Plaintiff's allegation that Mr. Abety, Defendant's CEO, felt "discriminatory animus" toward Plaintiff.
Accordingly, the Court finds that Plaintiff has failed to raise a disputed issue of material fact with regard to pretext to preclude entry of summary judgment on the retaliation claims. Therefore, summary judgment is warranted in Defendant's favor for Plaintiff's retaliation claims (Count II, Count IV, and Count V).
Pursuant to the ADA, an employer may not discriminate against a disabled employee by refusing to make "reasonable accommodations." 42 U.S.C. § 12101 et seq., If an employee has a disabling medical condition, the FMLA entitles the employee to take leave when medically necessary. 29 U.S.C. § 2612. To make out a claim of FMLA interference, a plaintiff "must demonstrate by a preponderance of the evidence that [he] was denied a benefit to which [he] was entitled." Pereda, 666 F.3d at 1274 (citing Harley v. Health Ctr. of Coconut Creek, 487 F.Supp.2d 1344, 1357 (S.D.Fla.2006)).
Here, Plaintiff was entitled to take leave when medically necessary, and it is uncontested that Defendant granted
The facts alleged in support of Plaintiff's Title VII hostile work environment claim are that his supervisor made consistent comments about his race and national origin that were offensive and exacerbated his medical condition. It is uncontested that the last time Plaintiff's supervisor made any reference to Plaintiff's accent, ancestry, or national origin was on May 5, 2008. Yet, Plaintiff did not file his complaint alleging hostile work environment with the EEOC until October 26, 2009. As Plaintiffs EEOC complaint was well beyond the maximum 300-day filing requirement, the Court finds that Plaintiff's hostile work environment claim is time-barred. See generally Maynard v. Pneumatic Prods. Corp., 256 F.3d 1259, 1262 (11th Cir.2001). Accordingly, summary judgment in Defendant's favor is warranted on Plaintiff's claim of hostile work environment (Count III).
Upon consideration of the uncontested facts on the record, the Court finds that Plaintiff de la Cruz has failed to set forth a prima facie case of employment discrimination in the context of a Reduction in Force. The also Court finds that Plaintiff de la Cruz has not met his burden to advance past the summary judgment stage with the retaliation claims as Plaintiff de la Cruz has failed to rebut Defendant Children's Trust's offering of a legitimate, nondiscriminatory reason for his termination. In addition, the Court finds that Plaintiff de la Cruz' FMLA interference and ADA accommodation claims are without merit and unsupported by any evidence on the record. Finally, the Court finds that Plaintiff de la Cruz' hostile work environment claim is time-barred.
Accordingly, upon a careful review of the undisputed facts on the record and being otherwise advised, it is hereby
