WILLIAM H. STEELE, CHIEF UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the defendants' motion for summary judgment. (Doc. 69). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 70-71, 75, 77), and the motion is ripe for resolution. After careful consideration, the Court concludes that the motion is due to be granted in part and denied in part.
According to the amended complaint, (Doc. 4), the plaintiff was employed by defendant Direct General Corporation ("Direct") as an insurance agent until being terminated in October 2013. Defendant Gary Reynolds was her manager. The amended complaint alleges that the defendants violated Title VII's prohibition on sex discrimination by: (1) promoting a male co-employee ("Ruffin") over her and/or placing him in charge of her schedule, (id. at 2); (2) creating a sexually hostile work environment, (id. at 3-4); and (3) terminating her employment.
Summary judgment should be granted only if "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 seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file
"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir.1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
"If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion ....").
In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant ...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003).
There is no burden on the Court to identify unreferenced evidence supporting a party's position.
Title VII prohibits an "employer" from engaging in certain practices. 42 U.S.C. § 2000e-2(a). Direct says that it was not the plaintiff's employer and that Direct General Insurance Agency of Tennessee, Inc. ("Tennessee") was actually her employer. (Doc. 70 at 1 n.1). For this proposition, Direct cites only the defendants' answer to the amended complaint. (Doc. 13 at 1). But just as a plaintiff cannot avoid summary judgment merely by citing to her complaint,
Direct acknowledges that a related entity may be deemed an employer under Title VII. See generally Llampallas v. Mini-Circuits Lab, Inc., 163 F.3d 1236, 1244-45 (11th Cir.1998) (discussing liability of related entities under "single employer" and "joint employer" theories). Direct describes itself as Tennessee's "parent corporation" and asserts — without citation to any part of the record — that "[n]o ... evidence ... exists in this case" that would support Direct's liability as a parent corporation. (Doc. 70 at 2 n. 1). As noted above, however, Direct cannot carry its threshold burden on motion for summary judgment simply by offering its ipse dixit that the plaintiff cannot prove an element of her case; instead, Direct must either "negate" that element with record evidence refuting it or "point" to materials in the record that demonstrate the plaintiff's inability to offer supporting evidence. Direct has done neither and has thus failed to carry its initial burden.
"[W]e now expressly hold that relief under Title VII is available against only the employer and not against individual employees whose actions would constitute a violation of the Act, regardless of whether the employer is a public company or a private company." Dearth v. Collins, 441 F.3d 931, 933 (11th Cir.2006) (emphasis omitted). This is true even when the individual is the president and sole shareholder of the corporate employer. Id. at 932, 934. The amended complaint establishes that Reynolds was merely the plaintiff's "manager" and thus not her employer. (Doc. 4 at 1-2).
"A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ...." 42 U.S.C. § 2000e-5(e)(1). This means that "a charge must be filed with the EEOC within 180 days of the date of the act giving rise to the charge." Calloway v. Partners National Health Plans, 986 F.2d 446, 448 (11th Cir.1993). "A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed.... [I]t is merely an unfortunate event in history which has no present legal consequences." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). "Failure to file a timely complaint with the EEOC mandates the dismissal of the Title VII suit." Wilson v. Bailey, 934 F.2d 301, 304 n.1 (11th Cir. 1991).
The plaintiff knew in January 2013 that Ruffin had been promoted/placed in charge of her schedule. (Doc. 70 at 50, 77). The defendants argue that the plaintiff was required to file an EEOC charge challenging this conduct no later than July 2013; since her charge was not filed until March 2014, they conclude that the promotion claim is time-barred. (Doc. 70 at 8-9). The plaintiff offers no response, and the Court agrees with the defendants. Any Title VII claim regarding promotion is barred by the statute of limitations.
"[A] plaintiff wishing to establish a hostile work environment claim [must] show: (1) that he belongs to a protected group; (2) that he has been subject to unwelcome harassment; (3) that the harassment must have been based on a protected characteristic of the employee...; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for such environment ...." Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.2002). The defendants focus on the fourth element. (Doc. 70 at 10-12).
"Determining whether the harassment was sufficiently severe or pervasive involves both an objective and a subjective component. [citation omitted] In determining the objective element, a court looks to all the circumstances, 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." McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir.2008) (internal quotes omitted). "Any relevant factor must be taken into account, but no single factor is dispositive." Jones v. UPS Ground Freight, 683 F.3d 1283, 1299 (11th Cir.2012).
The plaintiff testified to the following words and conduct that contributed to a hostile work environment: (1) on two occasions, Reynolds "ask[ed] whether [sic] he could get alcohol and go to strip clubs"; and (2) on one occasion, Reynolds urinated on the toilet seat and floor in the men's bathroom.
As to frequency, the plaintiff identifies three incidents during her ten-month employment.
As to severity, "[a] recurring point in these [Supreme Court] opinions is that ... offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotes omitted). Reynolds never
Staring at a subordinate and repeatedly asking her to lunch is not threatening or humiliating. Gupta, 212 F.3d at 585. Rubbing against a plaintiff's hip while touching her shoulder, making sniffing sounds, and saying, "I'm getting fired up," is not threatening or humiliating. Mendoza, 195 F.3d at 1248-49. Given those parameters, Reynolds' vague expression of a desire to visit a strip club cannot be considered threatening or humiliating. And while urinating on the floor might be humiliating if done in the plaintiff's presence or on her belongings, or if she was required to clean up the mess, none of those circumstances are present here. This factor as well weighs against the plaintiff.
Finally, because the plaintiff admits that Reynolds' comments did not interfere with her work performance, (Doc. 70 at 36-37), this factor also weighs against the plaintiff.
The plaintiff (who ignores this claim in her response) has identified no additional factors the Court should consider. Because all four of the factors generally employed in evaluating the fourth element weigh against the plaintiff, it is clear that she cannot establish that element, and her claim therefore cannot stand.
"To prevail on a claim for discrimination [in termination] under Title VII based on circumstantial evidence, [a plaintiff] must show that: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) he was replaced by a person outside his protected class or was treated less favorably than a similarly-situated individual outside his protected class." Maynard v. Board of Regents, 342 F.3d 1281, 1289 (11th Cir.2003); accord Flowers v. Troup County, 803 F.3d 1327, 1336 (11th Cir.2015). The defendant argues the plaintiff cannot establish the fourth element of her prima facie case. (Doc. 70 at 14-15).
The plaintiff was terminated for falsifying her time records. (Doc. 70 at 32, 74-75). "When a plaintiff alleges discriminatory discipline [including termination], to determine whether employees are similarly situated, ... we require that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges." Burke-Fowler v. Orange County, 447 F.3d 1319, 1323 (11th Cir.2006) (internal quotes omitted); accord McCann, 526 F.3d at 1373-74.
"It shall be an unlawful employment practice for an employer to discriminate against any of [its] employees ... because he has opposed any practice made an unlawful employment practice by this subchapter...." 42 U.S.C. § 2000e-3(a). "A prima facie case of retaliation under Title VII requires the plaintiff to show that: (1) she engaged in an activity protected under Title VII; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action." Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.2008). The plaintiff believes she engaged in protected oppositional activity by sending to several corporate representatives a particular e-mail. (Doc. 70 at 71-72). The defendants argue the e-mail was not protected activity because it did not indicate the plaintiff was complaining of
The plaintiff's e-mail complains of "bullying and harassment" by Reynolds, but nowhere does it indicate that his conduct was based on her sex as opposed to, say, a personal dislike. On the contrary, the plaintiff complained that Reynolds "has it out for me or that he doesn't like me," which plainly reflects a personal rather than gender-based bias. Moreover, the e-mail identified the source of Reynolds' animus as that the plaintiff had gone over his head to object to his directive that the office remain open until 7:00, prompting him to announce to the plaintiff that he "did not appreciate being back doored." Finally, all incidents of "bullying and harassment" described in the e-mail (poor evaluation, written warning, false reports, denials of paid time off, refusal of lunch breaks and exclusion from an office contest) are described in gender-neutral terms. (Doc. 70 at 70-71).
"[T]o be classified as a statutorily protected activity the complaint needs to at least say something to indicate discrimination is at issue." Abuelyaman v. Illinois State University, 667 F.3d 800, 814 (7th Cir.2011) (internal quotes omitted). "Although an employee need not use the magic words `sex' or `gender discrimination' to bring her speech within Title VII's retaliation protections, she has to at least say something to indicate her gender is an issue." Sitar v. Indiana Department of Transportation, 344 F.3d 720, 727 (7th Cir.2003). Simply complaining that one feels "picked on" will not suffice. Id.
The Eleventh Circuit apparently has not so held in a published case, but it has come to the same conclusion in unpublished opinions. See Demers v. Adams Homes, Inc., 321 Fed.Appx. 847, 852 (11th Cir.2009) ("[T]o engage in protected activity, the employee must still, at the very least, communicate her belief that discrimination is occurring to the employer, and cannot rely on the employer to infer that discrimination has occurred.") (internal quotes omitted); Jeronimus v. Polk County Opportunity Council, Inc., 145 Fed. Appx. 319, 326 (11th Cir.2005) (a complaint "of being `singled out,' being subjected to `a campaign of harassment,' and working in a `hostile environment' ... did not amount to protected conduct" where it "never suggested that this treatment was in any way related to [the plaintiff's] race or sex"). Most plainly, "[a] complaint about an employment practice constitutes protected opposition only if the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination." Murphy v. City of Aventura, 383 Fed.Appx. 915, 918 (11th Cir.2010) (internal quotes omitted). This Court has recognized that, in light of Murphy, "[t]he law is clear." Roberson v. BancorpSouth Bank, Inc., 2013 WL 6254108 at *10 (S.D.Ala.2013).
As discussed above, the plaintiff's e-mail does not explicitly or implicitly communicate a belief that Reynolds was engaged in discrimination or harassment based on the plaintiff's sex. Therefore, her e-mail does not constitute protected activity and, without such activity, her retaliation claim necessarily fails.
The amended complaint alleges that the defendants constantly violated the FLSA's overtime provisions by requesting her to work off the clock and that Reynolds was able to alter her time cards so that they did not account for all her overtime hours (which hours would reflect badly on him with management). (Doc. 4 at 4). The defendants argue the plaintiff cannot prove she worked overtime hours and cannot
"Although a FLSA plaintiff bears the burden of proving that he or she worked overtime without compensation, the remedial nature of this statute and the great public policy which it embodies ... militate against making that burden an impossible hurdle for the employee." Allen v. Board of Public Education, 495 F.3d 1306, 1315 (11th Cir.2007) (internal quotes omitted).
The defendants first argue that the plaintiff has no evidence that her time records were altered by anyone associated with them. (Doc. 70 at 21-22). The plaintiff's burden, however, is not to prove who is responsible for the underpayment but only that the underpayment occurred. And the very deposition testimony on which the defendants rely provides evidence that on several occasions the plaintiff was paid for fewer hours than her recorded time reflected. (Id. at 43).
The defendants next argue that the plaintiff has no evidence of "any dates or weeks in which" she was not fully compensated. (Doc. 70 at 21). However, they cite to no part of the record — such as, for example, an admission by the plaintiff — supporting such a proposition. Nor have they attempted to show that, despite the remedial nature of the FLSA, a plaintiff cannot recover except as to precise days she can identify as to which she was not fully compensated.
Finally, the defendants assert that the plaintiff cannot offer evidence of the number of uncompensated hours or (which is apparently only a mathematical calculation) the amount of overtime compensation due. (Doc. 70 at 21). The only deposition testimony to which they cite addresses only the plaintiff's claim that her time records were sometimes altered to remove recorded hours; it does not address in any fashion the time the plaintiff worked off the clock. (Id. at 43). Even as to the former, the cited testimony does not reflect the plaintiff's inability to testify as to the amount of uncompensated time.
An employer must pay its employee for hours employed, and "[a] person is employed if he or she is suffered or permitted to work." Allen, 495 F.3d at 1314. "It is not relevant that the employer did not ask the employee to do the work. The reason that the employee performed the work is also not relevant. If the employer knows or has reason to believe that the employee continues to work, the additional hours must be counted." Id. (internal
As noted, one prong of the plaintiff's claim is that time she recorded was altered and her pay cut accordingly. As to this allegation, the defendants make no argument that they lacked actual or constructive knowledge.
The plaintiff claims that she performed work off the clock by engaging in marketing activities, and making bank runs, during her off-the-clock lunch break. (Doc. 70 at 44). The defendants deny they knew, or had reason to know, that she was doing so, because the plaintiff did not report this time on her time records. (Doc. 70 at 22-23). None of the cases cited by the defendants, however, support the proposition that an employer possessing reason to know an employee is working without compensation can escape liability simply because the employee did not report the hours on her time records, and each in fact acknowledges precisely the opposite.
The plaintiff's evidence — as cited by the defendants themselves — is that she worked alone in her office; that she was required to engage in marketing activities that could only be performed outside the office; that she could not perform these activities during the work day because she could not close the office in order to do so; and that, under these circumstances, Reynolds told her she could market on her lunch break. (Doc. 70 at 44-45). The defendants suggest vaguely that they could not have known the plaintiff performed these marketing duties off the clock, but that is difficult to imagine, especially since Reynolds admits he regularly reviewed his agents' time records, (id. at 31), meaning he would know the plaintiff was taking her lunch breaks — the period during which he had told her to conduct her marketing — off the clock.
The defendants note that the plaintiff was paid for overtime hours in every full month she worked, from which they conclude that she knew perfectly well how to report overtime and so cannot be believed when she says she worked unreported hours. (Doc. 70 at 24). This may or may not be a promising jury argument, but it has no force on motion for summary judgment.
The amended complaint alleges that Reynolds' bullying and harassment of the plaintiff breached a contract that forbids such conduct. (Doc. 4 at 4). The plaintiff in deposition confirmed that her contract claim is that Reynolds intimidated her but was not terminated for such conduct after she complained. (Doc. 70 at 51).
The defendants' argument, unfortunately, does not address this claim. Instead, the defendants misinterpret the plaintiffs' claim as one that her termination (not Reynolds' conduct) breached a contract. This error leads them to argue that the plaintiff was an at-will employee who could, under Alabama law, be fired for any reason or no reason at all. (Doc. 70 at 24-26). This may well be true, but it is non-responsive to the plaintiff's actual claim. While it seems doubtful the plaintiff can prove the existence of a contractual right not to be bullied or harassed, the defendants have failed to demonstrate that she cannot do so.
For the reasons set forth above, the defendants' motion for summary judgment is
DONE and ORDERED this 15th day of December, 2015.
