Opinion
CASE NO.: 03-60213-CIV-HUCK/TURNOFF
December 5, 2003
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THIS MATTER is before the Court upon Defendant's, The Children's Psychiatric Center, Inc. ("CPC"), Motion for Summary Judgment [DE#9], filed on October 9, 2003. Plaintiff, Devon Harrington, an African-American female, brings this action against Defendant CPC, her current employer, alleging violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981 and the Florida Civil Rights Act, Florida Statute § 760.01 et seq., for discrimination based on race and for retaliation. The Court has reviewed the Defendant's Motion for Summary Judgment, Reply, Local Rule 7.5 Statements of Facts, and the parties' supplemental memoranda, and is otherwise advised in the premises. For the reasons set forth below, Defendant's Motion for Summary Judgment will be GRANTED.
I. STATEMENT OF THE FACTS
The Plaintiff, Devon Harrington, is currently employed with CPC, where she has worked in various positions since 1991. Plaintiff initially held the position of Alpha Counselor with CPC's Alpha Program for drug prevention at a North Miami elementary school and reported to Richard Del Prete. Her initial salary was $25,000. On or about September 15, 1994, Plaintiff was given a raise which made her annual salary $36,000. The parties dispute whether the Plaintiff was promoted to the position of Alpha Program Supervisor, as argued by CPC, or Alpha Director, as alleged by the Plaintiff. Subsequent to Plaintiff's promotion, her direct supervisor was Dr. Rick Schmitt.
Plaintiff claims that she was discriminated against by CPC on a number of occasions. First, Plaintiff alleges that she was denied a promotion based on her race, Black. On or about June 16, 2000, Plaintiff applied for the position of North Dade Unit Director in response to a memorandum from CPC soliciting open applications.
Six persons applied for the position of North Dade Unit Director. Each filled out an application, was allowed to submit peer references, and sat for a personal interview with Rose Duran-Harvey, Human Resources Director (Black Hispanic Female) and Dr. Robert Nolan, Executive Director (White Male). Plaintiff was not selected for the position of North Dade Unit Director.
Second, the Plaintiff claims that she was excluded from director's and Council on Accreditation meetings based on her race. Plaintiff alleges that the attendees of such meetings were White and Hispanic and that she was not invited to attend because of her race. Plaintiff cannot identify the dates of the meetings from which she was excluded. Plaintiff concedes that the meetings were only for directors and for matters regarding the Council on Accreditation.
Third, Plaintiff claims that her position was unlawfully reclassified under the Fair Labor Standards Act (FLSA). The parties agree that during June 2000, Plaintiff's position was reclassified as "exempt" for purposes of the FLSA. Plaintiff testified as to her belief that the entire re-classification of CPC employees was done because Plaintiff "was Black and making too much money." Plaintiff alleges that the reclassification only adversely affected her, because she was the only director performing over-time work.
Fourth, Plaintiff claims that she was denied the use of a cellular telephone based on her race. Plaintiff testified that her request for a cellular telephone was denied by CPC based on her race solely because she did not receive one and White and Hispanic employees did. However, the Plaintiff never made a formal request for a cellular telephone from CPC. Instead, the Plaintiff orally asked her supervisor for one. Although the Plaintiff did not receive a cellular telephone, she was provided with a beeper. Furthermore, the parties agree that the Plaintiff never requested reimbursement from CPC for work use of her personal cellular telephone.
Fifth, the Plaintiff alleges that she was denied a pay raise based on her race. On October 15, 1999, Plaintiff, who testified that she was earning approximately $38,000 at that time, made a written request for a pay raise of $15,000, which was denied. Plaintiff does not contend that she was denied any other raises by CPC, and admits that she did receive all across-the-board raises given to all employees.
Plaintiff submitted a Charge of Discrimination with the EEOC (number 150A03272) which was signed on September 1, 2000 ("First Charge"). The Plaintiff listed the date June 16, 2000 in the First Charge's "Date Discrimination Took Place" box. In her First Charge, Plaintiff alleged five separate bases for racial discrimination against CPC: (a) denial of promotion to North Dade Unit Director; (b) exclusion from certain meetings; (c) change of status to "exempt" under the Fair Labor Standards Act (FLSA); (d) denial of request for cellular telephone; and (e) denial of a pay raise. No other type of discrimination, including retaliation, was alleged. A Notice of Right to Sue was issued to Plaintiff on the First Charge on February 11, 2003.
Plaintiff submitted a second Charge of Discrimination to the EEOC which was signed on September 27, 2002 ("Second Charge"), and alleged that she was subjected to racial discrimination and retaliation between September 1, 2000 and September 4, 2002. A Notice of Right to Sue was never issued as to the Second Charge. In her Second Charge, Plaintiff alleged that due to racial animus and retaliation: (a) certain programs were taken away from her; (b) the Alpha Program was reorganized under the aegis of the North Dade Unit and her title was changed to Program Coordinator; and (c) she was made to fill out certain time sheets.
Plaintiff claims that she was denied duties for the CPC's Compass Program and for Clinical On-Site ("CIX") work in Allapattah based on her race and CPC's retaliatory motives. Plaintiff concedes that she has no oral or written support for her claims of racial or retaliatory intent on the part of CPC regarding the Allapattah CIX or Compass Program duties.
Plaintiff also alleges that her title was changed due to CPC's racial animus and retaliatory motives. Pursuant to a memorandum, Plaintiff was assigned to the position of Alpha Program Coordinator on September 4, 2002. CPC characterizes the assignment as a promotion, but the Plaintiff disputes this claim. The position granted the Plaintiff a pay raise of 8.6%, to $45,000 annually.
Finally, the Plaintiff alleges that she was required to complete time sheets as a result of CPC's racial animus and retaliatory motives. The State of Florida's Department of Children and Families ("DCF") conducted an audit for the time sheets of Plaintiff's staff. CPC claims that, in response to the DCF report, employees of mixed races within the Alpha Program and the Pediatric Mobile Crisis Team were asked by CPC to fill out time sheets, sometimes on more than one occasion. The Plaintiff has not submitted any record evidence to dispute CPC's claim in this regard.
The parties agree that CPC had a written policy against discrimination in the workplace.
II. LEGAL STANDARD
Summary judgment is appropriate if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 417 U.S. 317, 322 (1986). An issue is "material" if it is a legal element of the claim under applicable substantive law which might affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Alien v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997). An issue is "genuine" if the record, taken as a whole, could lead a rational trier of fact to find for the non-moving party. Id. On a motion for summary judgment, the Court must view all the evidence and all factual inferences drawn therefrom in the light most favorable to the non-moving party, and determine whether that evidence could reasonably sustain a jury verdict. Celotex, 477 U.S. at 322-23; Allen, 121 F.3d at 646.
While the burden on the movant is great, the opposing party has a duty to present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 252. A mere "scintilla" of evidence in favor of the non-moving party, or evidence that is merely colorable or not significantly probative is not enough. Id.; see also Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (conclusory allegations and conjecture cannot be the basis for denying summary judgment).
In employment discrimination cases, the plaintiff must first produce sufficient evidence to support a prima facie case. Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000). A plaintiff may prove discrimination either directly or through circumstantial evidence. Arrington v. Cobb County, 139 F.3d 865, 873 (11th Cir. 1998). In order to prove a case using circumstantial evidence, the plaintiff must first show that he or she was subjected to less favorable treatment than similarly situated persons outside his or her protected classification. See, e.g., Holifleld v. Reno, 115 F.3d 1555 (11th Cir. 1997). If a plaintiff establishes a prima facie case, the employer then "must articulate a legitimate, nondiscriminatory reason for the challenged employment action." Chapman, 229 F.3d at 1024 (quoting from Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997), cert. denied, 522 U.S. 1045 (1998)). The Court emphasized that "the employer's burden is merely one of production; it need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id. The defendant's burden of production is "exceedingly light." Gaston v. Home Depot USA, 129 F. Supp.2d 1355, 1367-68 (11th Cir. 2001), aff'd, Gaston v. Home Depot USA, Inc., 265 F.3d 1066 (11th Cir. 2001) citing Ferryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir. 1983). If the defendant articulates a nondiscriminatory reason, the presumption of discrimination created by the prima facie case is eliminated, and the plaintiff must then produce 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." Id., quoting from Combs, 106 F.3d at 1528. "If the plaintiff does not proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer's articulated reasons is pretextual, the employer is entitled to summary judgment." Id. The Chapman Court emphasized that
[a] plaintiff is not allowed to recast an employer's proffered nondiscriminatory reasons or substitute his business judgment for that of the employer. Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.Id. at 1030.
The Court reiterated its previous admonitions that a plaintiff cannot avoid summary judgment merely by questioning the wisdom of an employer's decision: "We have repeatedly and emphatically held that the defendant may terminate an employee for good or bad reason without violating federal law. We are not in the business of adjudging whether employment decisions are prudent or fair." Id. at 1030 (quoting from Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999). Quoting from Elrod v. Sears Roebuck Co., the Court emphasized.
Federal courts do not sit as a super-personnel department that re-examines an entity's business decisions. No matter how medieval a firm's practices, no matter how highhanded its decisional process, no matter how mistaken the firm's managers, [Title VII] does not interfere. Rather, our inquiry is limited to whether the employer gave an honest explanation for its behavior.Id. at 1030 (citations omitted); see also Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187(11th Cir. 1984).
It is also important not to confuse " disagreement about the wisdom of an employer's reason with disbelief about the existence of that reason and its application in the circumstances." Combs, 106 F.3d at 1543 (emphasis in original); see Chapman, 229 F.3d at 1030. Reasonable people may disagree about whether an employer acted correctly or fairly, "but such potential disagreement does not, without more, create a basis to disbelieve an employer's explanation that it in fact based its decision" on its asserted nondiscriminatory reasons. Id. (emphasis in original). An employer's decision
may seem to some to be bad business judgment and to others to be good business judgment, but federal courts do not sit to second-guess the business judgment of employers. Stated somewhat differently, a plaintiff may not establish an employer's proffered reason as pretextual merely by questioning the wisdom of the employer's reason, at least not where . . . the reason is one that might motivate a reasonable employer. Id.
Therefore, "the actual knowledge and actions" of the relevant decision-makers are the focus of the analysis, rather than "constructive knowledge and assumed intent." Walker v. Prudential Property Cas. Ins. Co., 286 F.3d 1270, 1274 (11th Cir. 2002) (internal citations omitted).
III. DISCUSSION
Plaintiff's Complaint alleges six separate counts against Defendant CPC. Counts I and II seek relief for race discrimination and retaliation, respectively, pursuant to the Civil Rights Act of 1866, 42 U.S.C. § 1981, et seq. Counts III and IV seek relief for race discrimination and retaliation, respectively, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Counts V and VI seek relief for race discrimination and retaliation, respectively, pursuant to the Florida Civil Rights Act of 1992, Florida Statutes § 760.01 et seq. Plaintiff's Title VII and § 1981 claims are discussed in depth infra. Her claims based on the Florida Civil Rights Act will not be discussed separately, but will be addressed as part of the Title VII analysis. See Mousa v. Lauda Air Luftfahrt, A.G., 258 F. Supp.2d 1329 (S.D.Fla. 2003); Vickers v. Federal Express Corp., 132 F. Supp.2d 1371 (S.D.Fla. 2000); see Dudley v. Metro-Dade County, 989 F. Supp. 1192, 1204 (S.D. Fla. 1997).
A. PROCEDURALLY BARRED CLAIMS
The Defendant argues that a number of Plaintiff's claims are procedurally barred. First, the Defendant argues that the Plaintiff's claims pursuant to § 1981 that accrued prior to February 19, 1999 are barred by the statute of limitations. The Plaintiff's only actionable claims under § 1981 are those whose underlying facts occurred within four years prior to the filing of the Complaint. See Gaston v. Home Depot USA, Inc., 129 F. Supp.2d 1355, 1366-67 (S.D.Fla. 2001). However, the Defendant has not specifically listed in its memoranda and pleadings, nor has the Court found through its review of the record, any claims which would be time-barred.
Second, the Defendant argues that any of Plaintiff's Title VII claims not included in the Plaintiff's First Charge are barred. Specifically, Defendant argues that the allegations in Plaintiff's Complaint that she was denied the North Dade Director position in August 2000, that her job title was changed to Alpha Program Coordinator, and that her job assignments were changed, are procedurally barred.
Plaintiff's allegations regarding the North Dade Director position were included in the First Charge but only as to a discrimination claim — no retaliation claim, on the same facts, was filed at that time. Plaintiff did include a retaliation claim in her Complaint, but it did not concern "a retaliation claim growing out of an earlier charge;" instead, it was an additional claim based on the same activity which the Plaintiff had not included in the First Charge. See Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988) ( citing Gupta v. East Texas State Univ., 654 F.2d 411 (5th Cir. 1981) ("the district court has ancillary jurisdiction to hear . . . a claim when it grows out of an administrative charge that is properly before the court"). Therefore, Plaintiff's claim that her failure to be promoted to the North Dade Unit Director was retaliatory is barred under Title VII. However, the Plaintiff may properly bring this claim under § 1981 and the FCRA. Because Plaintiff's allegations in the Complaint regarding her title and assignment changes are included in the Plaintiff's Second Charge, they will be discussed infra.
Defendant also claims that Plaintiff has not established that she was issued a Notice of Right to Sue by the EEOC as to her Second Charge, signed by her on September 27, 2002. Defendant argues that because Plaintiff failed to comply with administrative procedures, it is entitled to summary judgment. With respect to Plaintiff's claims referred to in the Second Charge, specifically that (1) she had duties taken away regarding the Allapattah CIX and Compass Programs, (2) she was assigned to the position of Alpha Program Coordinator, and (3)that she was required to fill out time sheets, the Court has jurisdiction to entertain these allegations as allegations based on race discrimination pursuant to § 1981 and under Title VII as retaliation allegations like or related to allegations contained in the First Charge. See Gupta v. East Texas State Univ., 654 F.2d 411 (5th Cir. 1981); Turner v. Orr, 804 F.2d 1223, 1226-7 (11th Cir. 1986); and Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988). However, any Title VII racial discrimination claims set forth by the Plaintiff in her Second Charge would be subject to the procedural bar because they are not like or similar to the claims set forth in the First Charge.
Finally, Defendant argues that any claims which accrued prior to 300 days before an EEOC charge was filed by Plaintiff are time-barred. See Robinson v. Caulkins Indiantown Citrus Co., 701 F. Supp. 208, 211 (S.D.Fla. 1988). Therefore, Defendant argues that it is entitled to summary judgment as to any aspects of Plaintiff's Title VII claim of race discrimination which accrued prior to November 6, 1999 (300 days prior to the First Charge) or Plaintiff's Title VII claim of retaliation which accrued prior to December 1, 2001 (300 days prior to the Second Charge).
In her First Charge, Plaintiff raises a claim that she was denied a raise in October of 1999. This claim accrued over 300 days before an EEOC charge was filed by Plaintiff. Therefore, Plaintiff's claims regarding her denial of a pay raise in October of 1999 are time-barred.
Plaintiff's Title VII retaliation claims regarding the conduct described in her First Charge are procedurally barred because the Plaintiff did not exhaust her administrative remedies. However, the Plaintiff's retaliation claims regarding her being denied a promotion to the North Dade Unit Director position pursuant to § 1981 and the Florida Civil Rights Act are not time-barred.
C. RACE DISCRIMINATION CLAIMS
Plaintiff alleges that she was discriminated against by CPC based on her race. Because the test for intentional discrimination under § 1981 is the same as the formulation used in Title VII disparate treatment actions, the Court will discuss both using the same analysis. See Vincent v. Wells Fargo Guard Services, Inc., 3 F. Supp.2d 1405, 1413 (S.D.Fla. 1998); Gaston v. Home Depot USA, Inc., 129 F. Supp.2d 1355, 1367 (S.D.Fla. 2001), aff'd, Gaston v. Home Depot USA, Inc., 265 F.3d 1066 (11th Cir. 2001), citing Peterson v. BMI Refractories, 132 F.3d 1405, 1412 n. 13 (11th Cir. 1998). 1. Direct Evidence Standard
Plaintiff claims that there is direct evidence of discrimination regarding CPC's failure to promote her, to exclude her from meetings, to reclassify her position under the FLSA and to deny her the use of a cellular telephone provided by CPC.
Summary judgment is not proper where there is direct evidence of discrimination. See Bums v. Gadsen State Community College, 908 F.2d 1512 (11th Cir. 1990); Merritt v. Dillard Paper Company, 120 F.3d 1181, 1189 (11th Or. 1997), reh'g denied, Merritt v. Dillard Paper Co., 130 F.3d 446 (11th Cir. 1997). However, "[t]he standard for offering direct evidence is a stringent one, and only the most blatant comments will serve to prove such intent." LeBlanc v. TJX Companies, Inc., 214 F. Supp.2d 1319, 1325 (S.D.Fla. 2002) (quoting Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990). Under Hinson v. Clinch County, Ga. Board of Ed., 231 F.3d 821 (11th Cir. 2000), "direct evidence is not inferential; it is `evidence which if believed, proves existence of fact in issue without inference or presumption.'" Id. citing Burrell v. Board of Trustees of Ga. Military College, 125 F.3d 1390, 1393 (11th Cir. 1997) (further citations omitted). Temporal proximity between the remark and the challenged decisions is also required. See Grant v. Delco. Oil, Inc., 259 B.R. 742, 750 (M.D.Fla. 2000).
Racially derogatory statements can be direct evidence of discrimination if the comments were (1) made by the decision maker responsible for the alleged discriminatory act and (2) made in the context of the challenged decision. Vickers v. Federal Express Corp., 132 F. Supp.2d 1371 (S.D.Fla. 2000) (emphasis in original). However, if an alleged statement fails either prong it is a non-actionable "stray remark." Id. Moreover,
[t]o the extent any affidavit or deposition testimony is hearsay, it may not be considered for summary judgment purposes unless it would be admissible at trial for some purpose, e.g., the statement might fall within an exception to the hearsay rule, might not actually constitute hearsay at all (because it is not offered to prove the truth of the matter asserted), or it might be used solely for impeachment purposes (and not as substantive evidence)."Gaston v. Home Depot USA, Inc., 129 F. Supp.2d 1355 (S.D.Fla. 2001) ( citing Macuba v. Deboer, 193 F.3d 1316, 1323-24 (11th Cir. 1999) (footnote omitted). Federal Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
If the Plaintiff makes a showing of direct evidence of discrimination, the burden shifts to the defendant where it must prove that it would have made the same decision anyway absent the discriminatory motive. See Wright v. Southland, 187 F.3d 1287 (11th Cir. 1999). Direct evidence is "evidence from which a trier of fact could find, more probably than not, a causal link between an adverse employment action and a protected personal characteristic." Wright v. Southland, 187 F.3d 1287 (11 th Cir. 1999). "A slur . . . made by a person in charge of making employee evaluations and suggestions for rehiring constitutes direct evidence of discrimination." Wilson v. Aliceville, 779 F.2d 631 (11th Cir. 1986).
In this case, Plaintiff alleges that she heard Steven Marin, a former Director of Human Resources and of Operations at CPC, attribute the following remark to Duran-Harvey: "that black bitch [referring to Plaintiff] is not bodily able to work those hours." Both Marin and Duran-Harvey have denied either remark ( i.e., Duran-Harvey making a remark to Marin, Marin making a remark to Plaintiff) was ever made. For the purposes of summary judgment, the Court will assume the remarks were made. However, the Court must decide whether the Plaintiff's proffered remark is admissible.
CPC claims that this is double hearsay, impermissible under the evidence rules and under Zaben v. Air Products Chemicals, Inc., 129 F.3d 1453, 1455 (11th Cir. 1997). This Court agrees that the Zaben analysis is binding precedent in the instant case. Under Zaben, Plaintiff's asserted statement qualifies as a stray remark and is inadmissible as hearsay.
Moreover, even if it were admissible, Plaintiff's assertion lacks temporal and substantive context. The stray remark cannot, standing alone, support Plaintiff's complaints of discrimination without projecting multiple inferences about its context and its impact on any or all of the challenged employment decisions of CPC. The direct evidence framework cannot be utilized by Plaintiff for these reasons.
Plaintiff's reliance on Clermont v. Frenchman's Creek Country Club, Inc., 2001 U.S. Dist. WL 273144, 14 Fla. L. Weekly Fed. D168 (S.D. Fla. Jan. 18, 2001), while an accurate statement of the law of the case, is distinguishable from this action, as the decision-maker accused of discrimination made a litany of racial slurs, profanities and insensitive statements towards Plaintiff directly, as opposed to the present action, in which a single remark was attributed to Duran-Harvey, a fellow black employee, through a second declarant and was not temporally or substantively tied to any employment decisions.
Therefore, Plaintiff has failed to substantiate her claim that there is direct evidence of discrimination relating to CPC's failure to promote her. However, Plaintiff need not rely on direct evidence of discrimination in order to defeat CPC's Motion for Summary Judgment.
2. Circumstantial Evidence Standard
A. Denial of Promotion to North Dade Unit Director
Under the circumstantial evidence standard of McDonnell Douglas, in order "to establish a prima facie case of discriminatory failure to promote, a plaintiff must prove: (1) that he is a member of a protected class; (2) that he was qualified for and applied for the promotion; (3) that he was rejected; and (4) that other equally or less qualified employees who were not members of the protected class were promoted." Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001), quoting from Combs, 105 F.3d at 1539 n. 11. Accord Lee v. GTE Florida, Inc., 226 F.3d 1249 (11th Cir. 2000), reh'g denied, 239 F.3d 371 (11th Cir. 2000), cert. denied, 532 U.S. 958 (2001); Taylor v. Runyon, 175 F.3d 861, 866 (11 th Cir. 1999); St. Hilaire v. The Pep Boys — Manny Moe and Jack, 73 F. Supp.2d 1350, 1359 (S.D.Fla. 1999).
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Plaintiff alleges that CPC discriminated against her by failing to promote her to the North Dade Unit Director position. In June 2000, Plaintiff applied for the position of North Dade Unit Director. Tami Lentin (White female) was ultimately selected for the position.
In establishing her prima facie case, Plaintiff argues that her qualifications far exceeded those of Lentin. Plaintiff also argues that Lentin was not qualified for the North Dade Unit Director position because she did not meet the five year experience in administrative duties requirement. Plaintiff submits that, due to her managerial, budgetary and administrative experience as "Alpha Program Director," she was more qualified than Lentin for the position. In addition, Plaintiff argues that she had a stronger supervisory and leadership background than Lentin.
CPC disputes that the Plaintiff was qualified for the position of North Dade Unit Director, even though it concedes that the Plaintiff has met the other prongs of her prima facie case. CPC argues that the Plaintiff was not qualified for the position because she lacked the requisite administrative and supervisory experience, although she did have the requisite degree, licensing and oral skills for the position. CPC cites to the affidavits of Duran-Harvey and Nolan, the two decision-makers for the promotion at issue, as support for its contention.
In addition, CPC argues that Plaintiff did not have the title of "Alpha Program Director," but instead of "Alpha Program Supervisor." Although Plaintiff does not concede this point, Plaintiff did submit, as part of the record, her employee evaluations which clearly show her title to be "Alpha Program Supervisor." Therefore, the record reflects that Plaintiff's title was that of "Supervisor," and not "Director."
Moreover, CPC argues that Lentin did meet the qualifications for the position of North Dade Unit Director, and was, in fact, more qualified than Plaintiff. The parties agreed that the position description included the requirement "five years experience in administrative and direct clinical duties." Plaintiff argues that Lentin was not qualified for the position because the requirement should be read as five years experience in administrative and five years experience in direct clinical duties, and not as CPC interpreted it to mean a combination of the two yielding a total of at least five years of experience.
While this Court may interpret the position description differently than Plaintiff, under the standards of summary judgment the Court will accept Plaintiff's interpretation of the administrative skills requirement, as well as her assertions that she was qualified for the position of North Dade Unit Director. Therefore, Plaintiff has satisfied her prima facie case by showing (1) that she is a member of a protected class; (2) that she was qualified for and applied for the position; (3) that she was rejected; (4) and that other equally or less qualified employees who were not members of a protected class were promoted.
The burden then shifts to CPC to articulate a legitimate, non-discriminatory reason for its failure to promote Plaintiff to North Dade Unit Director. CPC states that Plaintiff failed to be selected for the second round of interviews, whereas Lentin and Alvaro Domenech (Hispanic male), both Program Coordinators, did. CPC sets forth a number of legitimate, non-discriminatory reasons for its selection of Lentin. Lentin, a Program Coordinator, was responsible for the supervision of over 50 persons, as opposed to Plaintiff's supervision of five. In addition, Lentin had established and expanded the CIX for the North Dade Unit to serve approximately 40 schools, whereas Plaintiff only administered the Alpha Program in one school. Furthermore, CPC asserted that Plaintiff exhibited poor judgment in her supervisory duties and a vague understanding of what the position of North Dade Unit Director would entail. CPC claims that Lentin was far more qualified than the Plaintiff, who was supervised by Lentin regarding the CIX work.
Based on the foregoing, CPC has met its burden in offering several legitimate, non-discriminatory reasons for its failure to promote Plaintiff. The presumption in favor of Plaintiff vanishes and Plaintiff must show that CPC's offered nondiscriminatory reasons for not promoting her were a mere pretext for racial discrimination. However, the Plaintiff has failed to meet this burden. Plaintiff argues that the Defendant's legitimate, non-discriminatory reasons for not promoting Plaintiff are a pretext for discrimination. Plaintiff argues that (1) she is more qualified than Lentin for the position; (2) Harvey's racial animus is displayed in her remark, "that black bitch is not bodily able to work those hours;" and (3) the fact that Lentin is white and the Plaintiff is Black.
In Lee, the Eleventh Circuit has described what a plaintiff must do to prove pretext in connection with a promotion decision:
In a failure to promote case, a plaintiff cannot prove pretext by simply showing that she was better qualified than the individual who receive the position she wanted. A plaintiff must show not merely that the defendant's employment decisions were mistaken but that they were in fact motivated by sex. We have explained that a plaintiff may not establish that an employer's proffered reason is pretextual merely by questioning the wisdom of the employer's reasons, at least not where . . . the reason is one that might motivate a reasonable employer. Nevertheless, evidence showing an employer hired a less qualified applicant over the plaintiff may be probative of whether the employer's proffered reason for not promoting the plaintiff was pretextual.
A plaintiff must meet his or her evidentiary burden in proving pretext by showing he or she was substantially more qualified than the person promoted. The disparity in qualifications must be one that "jumps off the page and slap[s] [you] in the face," meaning that
disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question. This evidentiary standard does not alter the plaintiff's evidentiary burden to prove the fact of intentional discrimination by a preponderance of the evidence. Instead, the standard only describes the character of this particular type of evidence that will be probative of that ultimate fact.Lee, 226 F.3d at 1253-54 (citations and quotations omitted in part). The court affirmed summary judgment for the employer because the plaintiff failed to establish that "she was more qualified than Hines [the person promoted], let alone so clearly more qualified for the position than Hines that a reasonable juror could infer discriminatory intent from the comparison." Id. at 1255. See also Cofield v. Goldkist, 267 F.3d 1264, 1268 (11th Cir. 2001); Walker v. Prudential Property Casualty Ins. Co., 286 F.3d 1270, 1278 (11th Cir. 2002), reh'd denied, ___ F.3d ___, 2002 WL 1396865 (11th Cir. 2002). Furthermore,
The analysis of pretext . . . must be focused on the employer's beliefs, and not the employee's own perceptions of her performance. Thus, where the employer has acted based on a belief that the performance of one candidate was superior to the performance of the other, an employee's assertions of his own superior performance is insufficient to defeat summary judgment in the absence of other evidence.Rogers-Libert v. Miami-Dade County, 184 F. Supp.2d 1273, 1282 (S.D.Fla.2001) (citations omitted). Accord, LeBlanc v. TJX Companies, Inc., 214 F. Supp.2d 1319 (S.D.Fla. 2002) (Plaintiffs assertion that there was "no way someone with [his] level of experience and education could receive such a low score" on a promotion evaluation was insufficient to show that he had been discriminated against.); Norrell v. Waste Away Group, Inc., 2003 WL 681968 (M.D.Ala. 2003) ("Although the plaintiff produced some evidence of her advantageous qualities — a graduate degree, positive remarks from superiors, and training new employees on the computer software — she has not established that her qualifications were so superior to those of [the employees promoted] that a reasonable juror could infer discriminatory intent from a comparison of their respective credentials."). See also, Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997) ("The inquiry into pretext centers upon the employer's beliefs, and not the employee's own perceptions of his performance.")
A comparison of Plaintiff's qualifications as Alpha Program Supervisor with those of Lentin's as a Program Coordinator shows that Lentin's managerial responsibilities and clinical qualifications were greater than those of Plaintiff. Moreover, Plaintiff's arguments regarding her superior qualifications as a director, in comparison to Lentin's qualifications as a coordinator, are unpersuasive. The record reflects that Plaintiff held the title of supervisor, not director. This Court holds that the Plaintiff has not met her evidentiary burden in proving pretext by showing she was substantially more qualified than the person promoted.
Lentin was responsible for the supervision of over 50 persons, whereas Plaintiff supervised five.
Lentin had established and expanded the CIX program for the North Dade Unit to serve approximately 40 schools, whereas Plaintiff only administered the CIX program in one school.
However, Plaintiff also refers to the statement of Duran-Harvey as evidence of pretext. "[S]tatements need not constitute direct evidence of discrimination. . . . to be admissible." Zaben v. Air Products Chemicals, Inc., 129 F.3d 1453, 1456 (11th Cir. 1997). A racially charged statement, even if not sufficient to show direct evidence of discrimination, may show a particular supervisor's attitude or general intent regarding promoting members of a protected class. However, in the instant case, the statement on which Plaintiff relies presents a classic "double hearsay" problem, and is not admissible pursuant to the rules of evidence. See id.
When the record evidence is taken as a whole and considered in the light most favorable to the Plaintiff, it does not support Plaintiff's claims that she was substantially more qualified than Lentin, or that CPC's decision was based on race. Plaintiff has failed to prove that CPC's nondiscriminatory reasons are a mere pretext for discrimination.
B. Discrimination in Terms and Conditions of Employment
1. Exclusion from Meetings
Plaintiff alleges that she "had repeatedly been excluded from Director/Supervisor or Council on Accreditation (COA) meetings," based on her race. Plaintiff has not included in the record any specific dates for the meetings from which she was excluded. However, Plaintiff has identified that the meetings were for directors and for the Council on Accreditation.
Exclusion from staff meetings is usually not in and of itself an adverse employment action for Title VII purposes. See, e.g., Bryant v. Begin Manage Program, 281 F. Supp.2d 561 (E.D.N.Y. 2003). CPC claims that Plaintiff was not made a part of the director/supervisor meetings because she was not a director or an upper management executive, particularly prior to 2000. CPC claims that the Plaintiff was never intentionally excluded from meetings, and any information discussed at the meetings which she did not attend was available through the Plaintiffs supervisor.
Moreover, as discussed supra, Plaintiff's title of "supervisor," and not "director," would not entitle her to be present at strictly "director's" meetings. As a result, the Plaintiff has not established that she had the requisite experience to warrant attendance at meetings, and that, therefore, she was excluded because of her race. See, e.g., Nguyen-Trong v. International Rehab. Assoc., Inc., No. 98-2213, 175 F.3d 1015, 1999 WL 140745 (4th Cir. March 16, 1999).
2. Rectification under the Fair Labor Standards Act
Plaintiff alleges that her reclassification as an "exempt" employee under the FLSA was racially discriminatory. Plaintiff asserts that she was the only "director" who was affected by this reclassification. Plaintiff conceded in her deposition that she was aware of no oral or written statements of any kind attributing or alluding to the fact that this decision was based on her race.
As discussed supra, the record reflects that Plaintiff's title was not one of "director." Therefore, Plaintiff has failed to establish her evidentiary burden with respect to this claim.
3. Denial of Cellular Telephone Use
The Plaintiff also claims that she was denied a request for a cellular telephone based on her race. This claim is not supported by the record. According to Duran-Harvey, not all of CPC's employees were provided cellular telephones. Moreover, the Plaintiff admitted in her deposition that she did not formally request a cellular telephone from CPC, nor did she seek reimbursement for any charges made in conjunction with her employment to her personal cellular account. The parties agreed that the Plaintiff was provided with a beeper.
A claim of discrimination based on an employer's failure to provide a cellular telephone to an employee (especially when the employer provides a beeper) is a dubious proposition, but for the purposes of the instant motion, the Court will assume Plaintiff's allegation reaches the level of an adverse employment action.
Therefore, based on the record evidence, Plaintiff has failed to meet her evidentiary burden with respect to this claim.
4. Requirement of Time Sheet Completion
Lastly, Plaintiff alleges that the Alpha Program, of which she was supervisor, was the only program required to fill out three time sheets per week. CPC claims that these time sheets were required to correct a problem raised by DCF, and not CPC, as a result of its findings in a compliance audit. In implementing DCF's findings, time sheets were then required of all Alpha Program employees. Plaintiff concedes that DCF did indeed audit the Alpha Program. Moreover, Plaintiff concedes that her pay was not reduced, nor were her duties modified in any way as a result of completing time sheets. Therefore, Plaintiff has failed to meet her evidentiary with respect to this claim.
The record evidence fails to show that CPC discriminated against Plaintiff by failing to promote her and by changing the terms and conditions of her employment. Accordingly, this Court grants CPC's Motion for Summary Judgment as to Counts I, III and V of the Complaint.
D. RETALIATION
In addition to raising racial discrimination claims, Plaintiff alleges a number of retaliation claims. First, the Plaintiff alleges that she was denied the promotion to North Dade Unit Director as retaliation for her having internally complained regarding CPC's discriminatory practices. Second, Plaintiff alleges that, as a result of engaging in the protected activity of filing claims in this Court pursuant to state and federal civil rights statutes, her duties with respect to the Allapattah CIX and Compass Programs were taken away. Third, Plaintiff claims that CPC retaliated against her by changing her position title to Alpha Program Coordinator. Finally, Plaintiff alleges that CPC retaliated against her by requiring her to complete time sheets for her work.
As describe supra, Plaintiffs remaining retaliation claims regarding this failure to promote are made pursuant to § 1981 and the Florida Civil Rights Act.
According to the Plaintiff, her protected activities include her internal complaints about racial discrimination and her filing of EEOC charges.
Title VII and § 1981 provide redress for retaliatory conduct. See Collins v. Executive Airlines, Inc., 934 F. Supp. 1378 (S.D.Fla. 1996); Civil Rights Act of 1964, § 701 et seq. In order to prove a prima facie case of retaliation under Title VII, Plaintiff must show (1) that she engaged in statutorily protected activity; (2) that she suffered an adverse employment action; and (3) that a causal connection exists between the two. Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir. 2002). Moreover, the statutorily protected activity may not include internal complaints. Azoy v. Miami-Dade County, — F. Supp.2d —, 2003 WL 22135963, 16 Fla. L. Weekly Fed D609 (S.D.Fla. June 10, 2003); EEOC v. Total System Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000). In order to show an adverse employment action, Plaintiff must show "a serious and material change in the terms, conditions or privileges of employment." Davis v. Town of LakePark, 245 F.3d 1232, 1239 (11th Cir. 2001). "A materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Hartsfield v. Miami-Dade County, 90 F. Supp.2d 1363 (S.D.Fla. 2000), aff'd, 248 F.3d 1179 (11th Cir. 2001) (quoting from Crady v. Liberty National Bank, 993 F.2d 132, 136 (7th Cir. 1993). "In the vast majority of instances, . . . an employee alleging a loss of prestige on account of a change in work assignments, without any tangible harm, will be outside the protection afforded by Congress in Title VII's anti-discrimination clause — especially where . . . the work assignment at issue is only by definition temporary and does not affect the employee's permanent job title or classification." Davis v. Town of Lake Park, 245 F.3d 1232, 1245 (11th Cir. 2001). Plaintiff must then show that the employer was actually aware of the protected expression at the time the allegedly adverse employment action was taken. Gaston v. Home Depot USA, 129 F. Supp.2d 1355, 1376 (S.D.Fla. 2001). The burden-shifting framework of McDonnell Douglas is applicable in a retaliation context. See, e.g., EEOC v. Total Sys. Services, Inc., 221 F.3d 1171 (11th Cir. 2000).
The record does not support Plaintiff claims of retaliation. First, Plaintiff alleges in her Complaint that the denial of the promotion to North Dade Unit Director was retaliatory. Plaintiff asserts that she was retaliated against based on her internal complaints to Harvey regarding her exclusion from meetings. However, as discussed supra, an internal complaint may not form the basis of a protected activity. Therefore, Plaintiff cannot meet the first prong of her prima facie case of retaliation with respect to her denial of the North Dade Unit Director position. Even if Plaintiff had set forth a prima facie case of retaliation, Plaintiff has failed to show that CPC's legitimate, non-discriminatory reasons for failing to promote her were a pretext for retaliation.
Plaintiff argues that CPC's reliance on EEOC v. Total Systems is misplaced, because the activity complained of related to the opposition, and not the participation, clause of Title VII. However, Plaintiff has cited no pertinent case law on the matter, and the record reflects that Plaintiffs asserted protected activity was included in her First Charge.
See discussion Section III.C.2.A supra.
Second, Plaintiff alleges that her duties with respect to the Allapattah CIX and Compass Programs were taken away from her as retaliation for her filing her First Charge. Plaintiff has failed to show that the assignment of the Allapattah CIX and Compass Programs constitutes an adverse action. The record reflects that Plaintiff's salary, title, and benefits were not altered by the changes made to the Allapattah and Compass Programs. CPC argues that the Allapattah CIX program was created at Plaintiff's request and was to be administered by one of her subordinates. The record does not reflect that CPC's structuring of the Allapattah CIX and Compass Programs resulted in materially adverse actions against Plaintiff. Even if Plaintiff were to prove a prima facie case regarding these allegations, she has conceded that there is no oral or written support in the record for her claims of retaliatory intent on the part of CPC regarding the Allapattah CIX or Compass Program duties claimed to have been denied her. Therefore, the Plaintiff has not satisfied her burden with respect to these retaliation claims.
CPC argues two legitimate, nondiscriminatory reasons for any alleged "restructuring" of the programs: (1) CPC simply refused to expand the Allapattah CIX program despite Plaintiff's attempts to do so, and reorganized it with the other CIX programs in North Dade; and (2) Plaintiff was never assigned any duties with respect to the Compass Program, so that it would have been impossible to "take away" such duties.
Third, Plaintiff alleges that her assignment to the position of Alpha Program Coordinator on September 4, 2002 was an adverse action. Plaintiff has satisfied the first prong of her prima facie case, because she filed her initial EEOC charge on September 1, 2000, which qualifies as a protected activity. However, Plaintiff cannot show that she has suffered an adverse employment action. As is discussed supra, contrary to the Plaintiff's assertions, the record reflects that the Plaintiff did not hold the position of Alpha Program Director. Instead, the Plaintiff held the position of Alpha Program Supervisor. With her assignment to Alpha Program Coordinator, Plaintiff received a substantial pay raise. Even assuming that the Plaintiff can successfully characterize a pay raise as an adverse employment action, the Plaintiff fails, as a matter of law, to prove a causal connection between two actions taken over two years apart. See, e.g., Wascura v. City of South Miami, 257 F.3d 1238, 1247 (11th Cir. 2001) (three and one-half month gap insufficient to establish causal connection due to temporal proximity).
Plaintiff claims that her assignment to the position of Alpha Program Coordinator resulted in a loss of prestige, which is disputed by Defendant. The parties agree that the Plaintiff was given a pay raise of 8.6% of her salary.
Finally, Plaintiff claims that CPC retaliated against her by requiring her to complete time sheets. Plaintiff alleges that this is an adverse employment action because the Alpha Program was the only program required to complete three time sheets per week. However, "[n]ot everything that makes an employee unhappy is an actionable adverse employment action." Shannon v. BellSouth Telecommunications, Inc., 292 F.3d 712, 716 (11th Cir. 2002). Plaintiff's salary, title and benefits were not altered as a result of CPC's time sheet requirement. Plaintiff's allegation regarding the completion of time sheets does not rise to the level of a serious and material change in the terms, conditions, or privileges of her employment. See Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001). Even if Plaintiff were to have satisfied her prima facie burden, CPC has offered a legitimate, nondiscriminatory reason for the requirement: it instituted the time sheet requirement based on an external DCF audit. Plaintiff has not submitted any record evidence that would show CPC's actions were a mere pretext for retaliation. Therefore, based on the record evidence, Plaintiff has failed to show that she has been a victim of retaliation.
Plaintiff argues that the Court should consider all of CPC's alleged retaliatory actions, in their totality, to be adverse under Doe v. DeKalb County, 145 F.3d 1441 (11th Cir. 1998). Even if the Court were to consider CPC's actions to be adverse under Doe, the Court notes that CPC has offered legitimate, non-discriminatory reasons for each of its actions: CPC chose a more qualified candidate for the position of North Dade Unit Director; CPC conducted a reorganization of the Allapattah CIX and Compass Programs; CPC promoted the Plaintiff to a salary and responsibility increase which she accepted; and the time sheet requirements were imposed pursuant to a external DCF audit. Plaintiff has failed to set forth record evidence showing that CPC's offered reasons were a mere pretext for retaliation, or for discrimination under § 1981 and the Florida Civil Rights Act.
IV. CONCLUSION
Based on the foregoing, Plaintiff has failed to meet her evidentiary burden in summary judgment with respect to her claims of racial discrimination and retaliation pursuant to Title VII, § 981 and the Florida Civil Rights Act.For the reasons stated above, Defendant's Motion for Summary Judgment is GRANTED.