KENNETH A. MARRA, District Judge.
This cause is before the Court upon Defendant's Motion for Summary Judgment (DE 27). The Motion is fully briefed and ripe for review. The Court has carefully considered the Motion and is otherwise fully advised in the premises.
The facts, as culled from affidavits, exhibits, depositions, answers, answers to interrogatories and reasonably inferred therefrom in the light most favorable to the non-moving party, for the purpose of this motion, are as follows:
In July 2010, Plaintiff Jennifer Williams ("Plaintiff"), who is African-American, was hired by Defendant Pediatric Alternative Treatment Care ("Defendant") as a certified nursing assistant in Fort Pierce, Florida. (Pl. Statement of Facts ¶ 1, DE 35.) In 2011, Gail Steward was promoted to director of nursing and administrator of Defendant's Fort Pierce facility and became Plaintiff's immediate supervisor. (Pl. Statement of Facts ¶ 2.)
According to Plaintiff, she and Ms. Steward were "always at it" and Ms. Steward was "disrespectful," "rude" and "nasty." (Pl. Dep. 44, 48, 69, DE 29-1.) Ms. Steward would get more upset with the workers who worked with the children as opposed to the office staff, and the child care workers were predominately African-American. (Pl. Dep. 48-49.) Once Ms. Steward was promoted to the directorship, Plaintiff felt her own job would be in jeopardy. (Pl. Dep. 52-53.)
In January 2014, Plaintiff received a five-day suspension and 90 day probation period, for among other reasons, attendance. (Pl. Dep. 82.) The form was drafted by Ms. Steward nearly a year after the alleged disciplinary violation occurred. (Ex. 3, DE 29-1.) Next, according to Plaintiff, when she returned from maternity leave in October of 2014, her schedule changed. (Pl. Dep. 29; Steward Aff. ¶ 5.) During her deposition, Plaintiff testified, "That's what this whole allegation about because she changed my schedule." (Pl. Dep. 31.) Plaintiff testified no one else's schedule was changed.
On November 13, 2014, Plaintiff received another written warning regarding her attendance and hours. (Pl. Dep. 84-85; Ex. 4, DE 29-1.) Plaintiff claims she was not able to meet her hours, however, due to the schedule changes and because she was asked to leave early when there were no children present at the facility. (Pl. Dep. 88-90.) On November 25, 2014, Plaintiff received another disciplinary/counseling writeup concerning her attendance. (Pl. Dep. 86; Ex. 5, DE 29-1.) Plaintiff testified that she was not able to make her hours because she was sent home when there were no more children left at the facility. (Pl. Dep. 90.)
Based on these issues with Plaintiff's hours and attendance, Defendant's chief executive officer and the human resources director decided a final warning should be given to Plaintiff. They directed Mary Ellmore, an employee in Florida City, to prepare the final warning document. The final warning document did not contain Ms. Ellmore's signature. Instead, it had the signature of Ms. Steward. (Steward Decl. ¶ 7; Ex. 6, DE 29-2.) The final warning provided that Plaintiff must work Monday through Wednesday one week and Wednesday through Friday the alternate week. The final warning provided that if Plaintiff could not follow this schedule she would be terminated immediately. (Pl. Statement of Fact ¶ 15.)
Plaintiff received the final warning regarding her hours and attendance on December 18, 2014.
In contrast, Plaintiff claims that Ms. Steward notified her of her termination over the telephone and called Plaintiff a "stupid nigger." (Pl. Dep. 64-69.) Ms. Steward denies the termination was over the phone or that she used that slur. (Steward Decl. ¶ 12.) Plaintiff does not know who decided to terminate her. (Pl. Dep. 74.) No other employee was terminated for attendance issues during the time period of 2010 through 2014. (Def. Resp. to Pl. Second Set of Interrog. No. 1, DE 34-4.)
Defendant's headquarters is in Florida City and no one in Fort Pierce, including Ms. Steward, has the authority to terminate any employee without direction from headquarters. (Steward Decl. ¶ 3.) According to Defendant, Ms. Steward did not make the decision to put Plaintiff on a final warning, or prepare the final warning, or make the decision to terminate Williams. (Steward Decl. ¶ 13.)
Defendant moves for summary judgment on the following ground: (1) Plaintiff has no direct evidence of discrimination by any decision maker: (2) neither the final warning nor the change in schedule constitutes an adverse employment action: (3) Plaintiff fails to identify a comparator and (4) Plaintiff cannot rebut Defendant's legitimate, non-discriminatory reason for her termination; namely, Plaintiff's failure to work the required schedule.
The Court may 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 stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party.
The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact."
After the movant has met its burden under Rule 56(a), the burden of production shifts and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts."
Essentially, so long as the non-moving party has had an ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim.
A plaintiff may establish a claim of illegal disparate treatment either through direct or circumstantial evidence.
"[D]irect evidence of discrimination is evidence that reflects a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee."
Lastly, in a direct evidence case, "production of nondiscriminatory reasons is not enough . . . the defendant must prove that there was a [race]-neutral reason for its employment decision."
With respect to circumstantial evidence, one way to show discriminatory intent is through the burden-shifting framework set out in
To establish a prima facie case of employment discrimination under this framework, a plaintiff must show (1) she is a member of a protected group; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) employment or disciplinary policies were differently applied to her.
The Court concludes that Plaintiff has raised a genuine issue of material fact with respect to the discrimination claims in counts one, three and five. Under Plaintiff's version of the facts, which the Court must accept at the summary judgment stage, Ms. Steward terminated Plaintiff and contemporaneously referred to Plaintiff as a "stupid nigger." Such evidence, if believed by the trier of fact, constitutes direct evidence of discrimination.
Plaintiff has also raised a genuine issue of material fact as to whether Ms. Steward was the decision maker with respect to the decision to terminate Plaintiff. Although Defendant claims that management in the Florida City office directed Ms. Steward to issue the final warning and terminate Plaintiff, the final warning is not signed by those officials. Instead, it is signed by Ms. Steward. Moreover, even if the Court were to accept that Ms. Steward was not the decision maker, the record evidence does provide a basis for a fact finder to conclude that Ms. Steward harbored a discriminatory animus against Plaintiff and used the Florida City officials as "cat's paws" to unlawfully terminate Plaintiff's employment. Under the cat's paw theory, "causation may be established if the plaintiff shows that the decisionmaker followed the biased recommendation without independently investigating the complaint against the employee. In such a case, the recommender is using the decisionmaker as a mere conduit, or `cat's paw' to give effect to the recommender's discriminatory animus."
Although Plaintiff withstands summary judgment on the direct evidence theory, the Court will address the circumstantial theory for the purposes of a complete record. Plaintiff has raised genuine issues of material fact under this theory as well.
With respect to the prima facie case, Defendant only challenges the third and fourth prongs. It is beyond dispute that termination of an employee is an adverse employment action.
Assuming
For the foregoing reasons, the Court denies Defendant's summary judgment motion with respect to counts one, three and five. With respect to the remaining counts of retaliation, Defendant has failed to proffer any factual basis to justify granting summary judgment on these counts. Therefore, summary judgment on counts two, four and six is denied as well.
Accordingly, it is hereby