Deeb v. Old Navy, LLC et al, No. 8:2007cv02201 - Document 54 (M.D. Fla. 2009)
Court Description: ORDER granting 28 Motion for summary judgment. The Clerk of Court shall enter a final judgment in favor of Defendants Old Navy, LLC and The Gap, Inc., and against Plaintiff Zea Deeb, and close this case. Signed by Judge Elizabeth A. Kovachevich on 9/4/2009. (JM)
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Deeb v. Old Navy, LLC et al Doc. 54 UNITED MIDDLE STATES TAMPA ZEA DISTRICT DISTRICT OF COURT FLORIDA DIVISION DEEB, Plaintiff, v. CASE NO. OLD NAVY, THE GAP, LLC 8:07-CV-2201-T-17EAJ and INC., Defendants. ORDER This cause Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. This is 28 26 27 29 30 31 32 33 34 35 37 41 42 43 44 49 before the Court on: Motion for Summary Judgment Notice Notice Declaration Deposition Deposition Deposition Deposition Deposition Deposition Deposition Response Notice Notice Notice Reply case includes Plaintiff's claim for unlawful discrimination on account of age under the Age Discrimination in Employment Act (Count II.). (Count I), and under the Florida Civil Rights Act Plaintiff Zea Deeb also asserts retaliation in violation of Title VII, seq. (Count (Count IV). Florida III), claim for 42 U.S.C. and in violation of Ch. 760, Sec. Florida 2000, et Statutes Plaintiff Deeb also asserts a claim under the Private Whistleblower's Act, Statutes. a (Dkt. Ch. 448.102, Florida 20). Dockets.Justia.com Case No. I. 8:07-CV-2201-T-17EAJ Standard of Summary Review judgment should be rendered if the discovery and disclosure materials on file, show that that there is no the movant Fed.R.Civ.P. is genuine issue as entitled to to judgment pleadings, and any affidavits any material as the fact and a matter of law. 56(c). The plain entry of language summary for discovery party who to establish that to make the to Rule 56(c) after and upon motion, fails essential of judgment party's bear against showing existence that party will a mandates of an case, the burden the adequate time a sufficient element and of on which proof at trial." Celotex Corp. The of which facts reasonable doubts in of Atlanta, 2 genuine the U.S. at "if a Lobby, about favor of evidence for But, U.S. substantive F.3d 1112, verdict 248. 477 are material Liberty resolved return Catrett, appropriate Anderson v. are v. the "[i]f 317 law will and which Inc., the facts the 477 and that all a the evidence significantly probative...summary Id. at is the determination are...irrelevant. 242, 248 (1986 justifiable See All inferences Fitzpatrick v. 1993). City A dispute is reasonable non-moving party." not 249-50. U.S. (11th Cir. such guide facts non-movant. 1115 is (1986). jury could See Anderson, 477 merely colorable...or judgment may be granted." is Case No. 8:07-CV-2201-T-17EAJ II. Statement 1. as a hired Sales Associate At 2. that at time Defendants Front 14, Facts Defendants Florida. to of Old Navy promoted On February a 1, Deeb to Customer Service 3. During operated the Manager and Logistics the a Customer Manager Deeb was 2004, Deeb time Store period, years with the of Customer Service a are position. Manager Logistics General Service Manager October Plaintiff General support Associate on promoted The 1999 old. from Sales a 3, Clearwater, a non-managerial Service Manager. The September position, Defendants Supervisor, in 45 non-managerial and Customer salaried positions. Deeb on 5887 Plaintiff relevant Clearwater Zea Store Plaintiff End Supervisor, 2001. Plaintiff Manager, exempt Supervisor is an hourly position. 4. Plaintiff Deeb reviewed and "Discrimination and Harassment 2002. Plaintiff Defendants' Open Deeb testified Employee Door policy. on Hotline (Deeb signed the Job" Plaintiff telephone Deposition, p. Defendants' Policy on was number 68). aware and policies are available the online. (Deeb Plaintiff Deeb did not use Hotline to complain Plaintiff's claim. (Deeb about Defendants' to Deposition, Deeb employees p. in 72). the Open Door policy or the Employee age discrimination failure-to-promote Deposition, 17, of Plaintiff testified that personnel employee handbook or July p. claim or 179). in connection with Plaintiff's termination Case No. 8:07-CV-2201-T-17EAJ 5. In 2004, a male employee whom Plaintiff used the Employee Hotline to lodge a complaint behavior when the employee's clothes at the Store. based on the the incident. 6. (Dkt. employee's Plaintiff during told for a counseled as ("TAP"). for TAP a management After the that the In October, of General is event, a to is that the assessed. Old Navy General Plaintiff was in program in which an position several consensus Plaintiff review, the 2006, Manager Nash district Deeb was District increase 8. Deeb's Managers managers Plaintiff was Defendants select the notified District Manager Burnett in March, do ready The District externally and or without holding interviews the openings employees pp. 7, District 19-21). Manager are placed on have access. a Clearwater to Store. Burnett Plaintiff's decided District give that pay. After Plaintiff Deeb 2007. not post someone within his Deposition, Burnett became includes dissatisfied with in pay, job opening Gynnifer which Manager general manager. that Deeb was Deeb participated interviewed with Manager any investigation promotion. 7. an Plaintiff's to purchase Plaintiff Program the event. Plaintiff and Plaintiff 2006, readiness Deeb boyfriend attempted supervised 25). In August, Talent Assessment about Defendants conducted an complaint, Deeb job openings Manager has interview the those her district intends to fill shared computer (Burnett applicants, become internally, drive Deposition, pp. or to internally competition. job openings below discretion to post to promote or entertaining When for positions (Thompson available those to which 68-69). all Case No. 8:07-CV-2201-T-17EAJ 9. stores In 2007, generating Defendants low manager position. worked is not a The low Clearwater where Store. District Manager Store or the 11. she testified that so The Port 12. a Plaintiff Burnett Store did not get a (Pianese District the the to low their Port the volume position at store. the p. Tyrone 16). Gynnifer Burnett applications intent was to for the laterally assistant manager whose position spoke with in April, At a Manager solicit Deposition, position. from Deposition, to downsizing. Deeb by telephone Pianese Pianese did not current (Burnett complain about Deeb retained was deposition, "save" the Store of assistant Plaintiff Richey Store. Defendants position. that structure one Manager, offered was being eliminated due this where an Assistant assistant manager position because transfer and eliminating Store store, was Burnett her by transferred Maria Clearwater In the management structure. Defendants Richey Store, volume Clearwater volume original management 10. sales changed 2007 that age discrimination. p. Defendants did not post 69). District to Manager inquire why Gynnifer Plaintiff time, Plaintiff (Deeb Deposition, Deeb Deeb did not pp. 176- 177) . 13. after Plaintiff Plaintiff the Plaintiff Deeb assistant Plaintiff Deeb spoke with General Manager William Nash spoke with District Manager stated she believed that she was manager position held by Maria Deeb's testified that Deeb age. General (Deeb Deposition, Manager Nash p. never Burnett. not promoted to Pianese 167). made any because Plaintiff negative of Deeb Case No. 8:07-CV-2201-T-17EAJ comments about her age. Deeb testified that about Plaintiff's employment that decisions Manager Burnett discrimination Deposition, 14. pp. in a about joking to p. 173). Plaintiff negative Casalini comments made Plaintiff Deeb's failure complaint to promote of FUNERAL Funeral Leave Policy claim. (Deeb provides: LEAVE All exempt and full-time non-exempt employees will be granted up to three days paid funeral leave due to the death of a parent, spouse, life-partner, sibling, child, grandparent, grandchild, in-law, stepparent, stepsibling or stepchild. (The Manager or Employee Relations must approve Exceptions to these relatives.) An employee may Off or for request funeral also be an able to unpaid leave use of Paid Time absence, leave. Procedures 1. The employee is responsible for notifying his/her Manager of the death and initiate a request for leave. 2. The Manager is responsible for keying funeral leave with FNL on the employee's time card. 3. Payroll will prepare checks as time has been worked. (This time counted for overtime purposes.) if is adverse the not District age 166-168). Defendants' no Deeb testified General Manager Nash told Plaintiff the way. Plaintiff. told that about as Deposition, Kathleen Casalini made age, Plaintiff was (Deeb Case (Dkt. No. 8:07-CV-2201-T-17EAJ 25-2, 15. p. 12). Defendants' Timekeeping Policy states: Non-exempt Managers may not modify time punches they are unless projecting payroll. Additions modifications that excessive may result The non-exempt punch must Notify to corrective Manager modifying complete all of your General the be action. their own following: Manager of the situation. Print the exception Write the reason modification report. for the and the date notified your General the exception report. you Manager on File the exception report with your final Summary of Employee Punches in your Operations file cabinet or in a designated Payroll binder. TIME CARD VIOLATIONS Examples of violations include: Failure to record hours for work (e.g. Including work done performed at home, after before clocking clocking in, or out). Moving hours from one day to another on time cards so overtime does not get recorded. Removing from a correctly recorded hours time own or or are determined in their initiating card. Recording time worked in any other way than exactly as it occurred. Case No. 8:07-CV-2201-T-17EAJ Note: laws Willful violation by employees will of these result in termination. (Dkt. 25-2, 16. p. 13) . On April Nash whether friend's 119-121). spoke On April that the time 26, and Marceau Plaintiff time off off was said given under denied knowing Policy. (Deeb paid leave was a Plaintiff the time friend, "funeral Deeb the time Leave take p. time 120). off Deposition, called p. p. 128). and Deeb Plaintiff could take time funeral to as code as leave. system, leave. testified that the Plaintiff Deeb who time Plaintiff's Funeral the policy provisions (Deeb time funeral Policy when a manager Policy, Plaintiff's into the Plaintiff family member. Store Leave Deeb of the Plaintiff father-in-law died. approved by a attend a Funeral leave" Plaintiff Funeral look up not Manager Suzanne Marceau was the specific provisions was to (Deeb asked Marceau would enter Deposition, Plaintiff did not funeral policy. to Deposition, ask Nash leave under the Plaintiff's the (Deeb asked Marceau whether Plaintiff she off Suzanne Marceau. In her deposition, father died and for Manager from work as 18. did not Plaintiff could take alleges and Marceau approved. asked General Deeb's discussion with Nash. from work as said two days Leave 2007, Plaintiff off Deeb Deeb testified that Plaintiff to Logistics alleges she Funeral Plaintiff during 17. which Nash the Plaintiff could take Deeb testified from work under present 2007, Plaintiff funeral, Plaintiff 25, Deeb Leave testified because knew her the Deposition, funeral p. 127.) Case No. 8:07-CV-2201-T-17EAJ 19. In her deposition, Plaintiff was Deeb telephoned her, traveling to a responded 20. On arrived at was absent, knew Store, and Nash system because it payroll 22. Rivera to 23. enter 24. coded it paid Plaintiff week off as Deeb Plaintiff funeral leave pay, was to not a friend. funeral work on enter the Deeb funeral worked vacation, paid time was Funeral leave. "Paid Time the in Policy. leave. leave time. Pianese to Assistant time off Deposition, April Off." 28, Manager time. own (Deeb April Jacqueline funeral leave. leave on Monday, into coded Leave funeral the funeral entered her leave not Manager paid enter funeral Marceau Saturday, asked Assistant Manager Maria as or a leave. asked Assistant did Marceau "family member" for the as Plaintiff already funeral. paid leave under Manager Nash responded he Plaintiff's leave General informed him that for a qualify as leave Deeb leave Plaintiff as key when friend's it returned Rivera Plaintiff did not that Plaintiff's Manager Plaintiff When for and Nash Plaintiff's funeral Plaintiff's Pianese 133). paid 2007, funeral was Deeb that 26, attending a did not Plaintiff Assistant enter found qualified funeral, did not Plaintiff as a the she and funeral. Suzanne Marceau responded testified that 2007, April Deeb was asked Nash whether 21. that "yes." attending Plaintiff "friend" Plaintiff Thursday, the and told her "family member's'' asked Marceau whether Marceau Suzanne Marceau testified that 30, (Deeb 2007, from work and p. 126-127, then took a Deposition, pp. Case No. 8:07-CV-2201-T-17EAJ 141-142.) 25. In her deposition, noticed the entry of Plaintiff's punches", and telephoned was and Marceau away, Suzanne Marceau Plaintiff's left a Plaintiff Deeb to call Plaintiff Deeb did not call over Plaintiff to General Deeb put could authorize 26. in her. Burnett District Manager know of she the summary of told Nash that time, only Nash funeral and Policy. testified that for approved the Deeb's p. In documents, Nash Manager Burnett Plaintiff pp. her 82-84). 45). 10 Leave deposition, Manager Nash employment Burnett decision. age Deeb's as alleged policy agreed with (Thompson testified termination decision, of Funeral Deeb's HR Manager Thompson complaint Plaintiff the General Plaintiff's Deposition, 38-40). Deposition, leave. District and Thompson approved the Plaintiff (Thompson and turned terminated for violating termination of (Burnett pp. was and Thompson agreed that the appropriate discipline time for it Human Resources Manager Mindy Thompson. Burnett first proposed the the important funeral entry of Policy and the Time Modification Deposition, Deeb Marceau Manager Nash, Deeb's should be the decision, Plaintiff Suzanne Marceau testified that Plaintiff's consulted with Regional violations. "summary of that contacted District Manager Burnett. employment the Manager Nash reviewed the payroll and noted Plaintiff Nash, in it. General 27. leave she residence. message her. punches funeral testified that that at Thompson did not discrimination. Case No. 8:07-CV-2201-T-17EAJ 28. General employment Nash when informed Plaintiff Plaintiff inputted her own fact Manager Nash terminated Deeb 29. The behavior" instructed Funeral leave, despite the not to to states the termination: Policy and Procedure leave is otherwise 5-2 - only for immediate family approved by GM -Only the GM or Manager into the time card can enter FNL leave Violation to Timekeeping 6.1 -Failure to notify GM of situation -Print the exception report -Failure to write reason for modification and date you notified GM on the exception asked her GM Leave and the if she could take GM notified her that Funeral this only to be used when an immediate member passes death was told her enter away. that she occasion. her of a Zea explained family could not use Zea FNL refused to friend FNL that so for leave family the the GM this then asked another manager to for enter her and that manager it for the same reason. After being told two times that her situation did not warrant the use of Funeral Leave, Zea proceeded the do so. "unsatisfactory Leave -Funeral unless is 2007. had improperly Plaintiff termination Plaintiff's Violation Zea 10, "Corrective Action Document'' dated 5/10/2007 which Plaintiff Deeb's for Plaintiff leave time as paid funeral several managers Deeb's returned to work on May Deeb that that reflects Plaintiff to payroll enter her own Funeral system on Saturday Violation of these policies will termination from Old Navy. 11 Leave into 4/28/2007. result in Case {Dkt. No. 8:07-CV-2201-T-17EAJ 25-2, 30. p. 14). Plaintiff Deeb did not discrimination when Nash 31. Plaintiff raise informed Deeb any claim of age Plaintiff filed her Charge of of "I was The employed at Inc.) last Since position Experience Old Navy 1999 as I a (a 13, 2007: division of Sales Associate. held was Supervisor. termination. Discrimination for age discrimination and retaliation on August GAP, her Customer In August 2006, I completed a program that would allow me to be promoted to a management position and was told the next open would management be interview. extended In April, a management store the 2007, position due Customer to to be position, a allowed the for I of to management younger, I positions less being given those am also the When I a less being May 32. In 2007, her 2007, Plaintiff, discriminated against Plaintiff Deeb I was think that but further chance without me interview the (sic) due I given my to in thought to for Customer had been that to filled by experienced employee announced deposition, Plaintiff did not against I discriminated 10, a learned Manager position younger, this was other were Experience April, of opportunity to positions. I for Experience Manager experienced persons, the of in my current employee aware that aware Although position without me being given interview. came opening interview female Customer that an became was Manager. younger promoted to that promotion Experience requested position to me I age. I was On terminated. Plaintiff Deeb testified that General Manager Nash discriminated did think that Plaintiff. District Manager (Deeb Deposition, testified that 12 Plaintiff p. Burnett 96). Deeb believed Case No. that 8:07-CV-2201-T-17EAJ Plaintiff did not Plaintiff Deeb did not Plaintiff's Deeb get know why employment. further the promotion based Defendants' (Deeb Deposition, testified that Plaintiff's on age, but terminated p. 174). Plaintiff termination was discriminatory: "Because they were mad at me they discriminated didn't even funeral was (Deeb Deposition, 33. November removed III. time p. Plaintiff 6, on follow through in. complaining 2007 in December So to why they fired me about said they I put because I discrimination." 175). Deeb filed her Complaint Pinellas County Circuit 4, Zeeb's includes Defendants' based on age, The in this Court. case This on case was 2007. claim for employment discrimination alleged failure to promote and wrongful legal standards termination based governing Title interchangeably to ADEA claims. Huntsville, Direct Direct or as I and Discussion Plaintiff A. because against my age, 261 F.3d 1262, Evidence evidence - retaliatory attitude retaliation 1269 Failure is See to Promote that correlating by the to Deeb age. are applied City of 2001). - Discrete Acts reflects the employee." 13 on Pennington v. (11th Cir. evidence complained of VII Plaintiff "a discriminatory discrimination or Carter v. Three Case No. 8:07-CV-2201-T-17EAJ Springs Residential Treatment, 1998). Direct fact without Inc., evidence, inference 376 F.3d 1079, that to Defendants' CMIT program and posting direct system, of lack of a a formal age were not Complaint. Motion, in of a B/E Aerospace, Deeb Training) argues recruiting or open position together, Plaintiff's promotion procedure raised Plaintiff and taken Defendants' system are barred because acts existence Wilson v. promotion procedure that involving formal the 2004). Managers alone (11th Cir. constitute discrimination. respond Defendants discrimination (College standing evidence (11th Cir. 641 "proves or presumption." Defendants' lack of F.3d 635, if believed, 1086 In response 132 in these CMIT or the Charge that of of recruiting program and open position discrete argue Defendants allegations posting purported discriminatory Discrimination or Plaintiff Deeb has above exhausted administrative remedies as and consider should not Defendants to Defendants' of law the further CMIT argue that program. CMIT program is Grossman v. Dillard Dept. Cir. Hansard v. 1997); F.2d 1461, 1466 n. 1 In a disparate the protected employer's 530 U.S. trait decision. 133, 141 the the not them. the Court to in Plaintiff Defendants not evidence Stores, Inc., argue claim, that as a matter 109 F.3d 457, Bottling Co., 459 (8th Inc., 865 1989). treatment never applied of discrimination. Pepsi-Cola Metro. (5"h Cir. Deeb allegations, (under the ADEA age) Reeves (2000). liability depends In v. Sanderson the 14 context on whether actually motivated the Plumbing of Prods, Inc., an ADEA claim, Case No. direct 8:07-CV-2201-T-17EAJ evidence is "evidence of conduct involved in the decision-making process directly reflecting the or permit the than not v. fact a motivating McDonnell In this finder Douglas case, maker was as to District termination discriminatory to infer factor Corp., the the Charge of in the 167 that may be the attitude employer's 426 to promote Burnett. by persons viewed as attitude...sufficient F.3d 423, failure Manager claim, that statements As decision-makers was (8ch Cir. the were likely decision." claim, to more the to Walton 1999). decision- wrongful Nash, Burnett and Thompson. In that the Plaintiff was Discrimination, not allowed to management position that being told that an interview. Plaintiff a knew that discussion with which Burnett here forever." know I Deposition, job p. she yourself, p. responded comments 172). was had Manager going telephone in to because 100). to Store, Plaintiff promoted, October, be open, after for and 2006 so had in you Kathleen will that's just not be Deeb good, because position." District Manager Burnett age. Burnett in order downsizing. in never (Deeb testified position conversation 15 next Plaintiff "Well, whose complains Deeb testified that Plaintiff's Pianese, the being the position eliminated due a was District Manager advertise for extended to a management about Deeb Clearwater Burnett is Deeb testified that did not Richey Store Casalini position in the Plaintiff Deposition, Plaintiff of Assistant testified "The (Deeb any negative Defendants Kathleen am interested Plaintiff made deposition and prepare testified that you came open in District Manager said need to train interview the position would be In her Plaintiff in to that "save" the Port Plaintiff which the Deeb District Case No. Manager 8:07-CV-2201-T-17EAJ Burnett was very decision to promote positions. 1. (Deeb Failure to two angry that other Deposition, Plaintiff supervisors pp. Deeb challenged the into management 152-157). Exhaust Defendants have the of the evidence that burden to establish by a preponderance Plaintiff did not exhaust administrative remedies. The Court environment notes claim; discrete acts. The that Plaintiff Plaintiff's Court nor does formal promotion standards not raised a hostile Discrimination refers that the Charge Plaintiff has Charge of also notes refer to the CMIT program in Complaint, Deeb to Plaintiff Deeb does not of Discrimination or the Deeb complain about or the absence of the absence of an open position posting system in the Charge of Discrimination or the Complaint. An ADEA action may be based "not complaints made by the employee's kind of discrimination allegations, that could charges like or judicial 1224 (llch Cir. courts are procedural technicalities VII,]" "the and interpreted." (5th Cir. 2000). the but grow out charge's of investigation the initial Enaelhard/ICC, 234 Although the allegations in a relation to the EEOC charge of "extremely reluctant to to bar claims brought EEOC specific also upon any the EEOC See Chanda v. suit must bear some discrimination, the scope of expected to of discrimination." F.3d 1219, EEOC charge, related to limited only by the reasonably be only upon scope of an complaint Sanchez v. Standard Brands, 1970) . 16 [under Title should Inc., allow not 431 be F.2d strictly 460, 465 Case No. An 8:07-CV-2201-T-17EAJ allegation that discrimination as related to" allegation against a the an a an employer matter of extent that individual Plaintiff discrimination a widespread pattern Defendants, beyond the the of inquiry regarding an and policy employer has under particular Deeb seeks to finds that Plaintiff's an a pattern Charge individual's of claim a pattern-or-practice trial focus the will making. '" 876 a Cooper v. (1984). The or To Plaintiff's with evidence of and practice is ^at on "like the pattern Federal EEOC of the reason not be of of pattern a on "The a stage of individual decision- Bank investigation for liability discriminatory Reserve claim is Discrimination. while but not circumstances. and retaliation claims decision, decisions is discriminated support particular employment [] in widespread and practice of discrimination by Court scope practice that specific employee engages Richmond, 467 US or practice 867, of discrimination would have been more complex than the investigation into allegations of discrimination against Plaintiff alone. The Court of notes Discrimination that or A plaintiff issues for the judgment. The Court raised for failure evidence is employment time cannot admissible 805 (1973). The claims a general for in Court fact a will 17 not been and practice policy of reasons for [an for Douglas consider of an employer's coverup McDonnell by means summary Pattern the presumptively valid were above which have claims. that the amend her Charge complaint a motion to demonstrate a...discriminatory decision, 792, in those conformed to rejection include amend her dismiss exhaust discrimination...and that employee's] cannot first to decision Deeb did not her Complaint to allegations. raised Plaintiff v. Green, Plaintiff's 411 U.S. argument in Case No. 8:07-CV-2201-T-17EAJ the current 2. CMIT context, college trainees at Plaintiff limited to job is a fairs. are recruited (Deeb recruited at no Judgment. is not have Grossman (8th Cir. at the CMIT Program was that outside that a company Dillard Co., Inc., 865 F.2d 1461, 1466 n. After consideration, the formal promotion an open posting standards system, age Formal college discriminates Stores, a 109 F.3d Bottling 1989). finds in against Inc., (5th Cir. as matter combination and procedures, not recent In constitute with and the direct of law that an absence absence of evidence of discrimination. 3. does class. Pepsi-Cola Metro. 1 or USF. protected Dept. Court alone the 109-112). recruiting Hansard v. either to be management 2006 459 CMIT program, 1997); program in in that v. at Training'' job fair a held evidence In pp. 457, of Summary Deposition, record evidence courts older workers. the for "College Manager college graduates cases, graduates have graduates Deeb There other pending Motion Program Defendants which the Promotion Plaintiff formal procedures determining who discrimination. Fed. Deeb Appx. 760, to Standards/Procedures argues that post notice would be In v. employer's of offered a Joseph 767-768 an available promotion Publix (llch Cir. said: 18 Super 2005), failure to promotions fosters Markets, use or for and enables Inc., 151 the Eleventh Circuit Case No. 8:07-CV-2201-T-17EAJ "We are persuaded announced in this jurisprudence promotions adequate for standards her also jobs, of lateral an Because volume "when Publix he a transfer to promulgate to ranking order did not to asked know about in a or facts that animus. of higher not for his to notice Joseph was he are better determine discriminatory Mr. post that objective in failed to post that to positions for produce managers stores, no and employers employee with access demonstrate was VII employer and may demonstrate vacancies Title hiring vacant and to for an Court's requires eligibility provide the principles concerning notice available paying that required to transfer and when there formal mechanism for expressing his interest." In Joseph, ruled on the supra, appeal Eleventh Circuit to Plaintiff Plaintiff orally, of Joseph, 50 motion evidence found that vacant positions, or that store, it was was at Joseph, explains that merits, is Joseph, supra in limited to the the of Appeals jury favorable Publix supervisors, transfer to "Without the next notice of for eligibility for a not possible for Mr. location before it 765. the Eleventh Circuit validity of question whether a Court case judgment the of Appeals fully tried on as plaintiff plaintiff 19 the of law presented end of a question of whether a his a matter of the The showed that sufficient evidence to prove each element trial, trial. light most specific a disparate treatment review of a record an objective criteria transfer to a In the he wanted a Joseph to apply for a filled." in the a produce manager. Category A Court after repeatedly informed his in writing, a Rule and available position as transfer to a Eleventh Circuit viewed the Joseph and the claim. At has made the out Case No. a prima 8:07-CV-2201-T-17EAJ facie framework is case no out, there is that creates under longer relevant. As the burden-shifting Eleventh Circuit points a difference between the circumstantial a evidence rebuttable presumption of discriminatory motive under McDonnell-Douglas In Joseph, supra, and the the relies on Carmichael v. (11th Cir. the McDonnell-Douglas 1984), exception to the elements of a Eleventh Circuit Title Court Birmingham Saw Works, VII claim. of Appeals Inc., 738 F.2d 1126 in which the Eleventh Circuit carved out an "applied for" element under the McDonnell-Douglas involving a Title VII of a prima framework. In facie case Carmichael, failure-to-promote claim, a case the Eleventh Circuit held that when a company employs an informal method of advertising a vacancy, such as by "word of mouth," which is ineffective in conveying notice to a plaintiff of the job opening, the plaintiff may establish a prima demonstrating that the plaintiff applied plaintiff must demonstrate only that reason or duty to 768 (11th Cir. announce Atlanta Indep. the position. the employer consider him or her see also Vessel v. for facie case without "had some for the post." Id at School System, The 408 1133; F.3d 763, 2005){[W]here an employer does not formally a position but procedures to identify a rprima rather uses candidate, faciel informal and subjective a plaintiff need not show under the second prong that position, only that the employer had some he applied for the reason to consider him for the post.") The Court establishes standards does that the not view failure and promotion Joseph as to publish procedures 20 binding precedent which formal constitutes promotion direct evidence of Case No. 8:07-CV-2201-T-17EAJ discrimination. decided under to cases The as case and has supervisory barriers also held that and cannot be an appeal circumstantial Eleventh Circuit interviews is the McDonnell-Douglas decided on operating as has That to a case framework, that which was is applied evidence. held that subjective recommendations advancement, subjective of but criteria are the are practices capable such of Eleventh Circuit not per se improper used to show pretext absent evidence subjective...criteria were used as a mask for discrimination. See Dennev v. City of Albany, Chapman v. Transport, AI Inc., the Eleventh Circuit makes an employment decision discriminatory reason 247 is if it a F.3d 229 the defendant opinion. cited above the McDonnell-Douglas direct the and do not In 2000), reason for non- articulates involve framework, a clear, its "pretext" involve subjective element issues of of evidence. secrecy about promotion Plaintiff Deeb's required to do an (Deeb "individual Deposition, a meeting with General Casalini Plaintiff in which Deposition, p. undisputed that in which development plan" Plaintiff "managerial 167-171). 21 Plaintiff Plaintiff Deeb testified that 157). the in promotion decisions. she was ("IDO") every Deeb testified as Manager Nash and Assistant sixteen pp. is reviewed annually. the TAP process participated in 2006. establish the presence of It discretion performance was Deeb testified about not standards. District Manager exercises (Deeb subjective on which to base The undisputed evidence does year. a 2001). (11th Cir. legally sufficient, factual basis cases (ll-h Cir. F.3d 1012 clear that reasonably specific The 1172 that qualities" to Manager were addressed. Case No. 8:07-CV-2201-T-17EAJ After consideration, formal promotion the Court standards finds that and procedures, the combination with the CMIT program and the absence posting system, does not constitute direct of alone or either absence in of an open evidence of discrimination. 4. Open Posting The applies System discussion equally to above the as to formal issue of the promotion absence of standards an open posting system. It fill is positions Burnett have discussion Plaintiff advancement. the internally or employees had a which that testified that to which she undisputed Deeb in open positions access. 2006 Deeb Manager Burnett via General and Assistant Deeb's Deeb interest in e-mail career testified that and the Employee also discretion put are shared drive on a Deeb testified District Manager Plaintiff s advancement were and aware Hotline, but interest the Court District District aware higher in in of Manager, Plaintiff pay. Plaintiff of the Open make did not consideration, The that Burnett communicated with Managers to Manager telephone. was has District Plaintiff with and Plaintiff Manager externally. communicated Plaintiff Manager District Door any Policy complaints of age discrimination. After open posting CMIT system, program and policies, does the not alone as absence well of finds as in formal constitute direct 22 that the absence combination promotion evidence with standards of an the and of discrimination. Case No. B. 8:07-CV-2201-T-17EAJ Circumstantial A claim showing: of ages 1) for failure that the to promote plaintiff and seventy; qualified and applied for a 3) that others who hired, or were the plaintiff's 411 U.S. the 792 (1973). employee who do the of is job a the To from which a she was establishing a heavy. Atlanta Gas the a prima to facie case 4) that prima Light v. case the Green, for was that facie the age- discharged class and that were qualified a The case is 1428, Co., 135 F.3d established, articulate is a the burden legitimate, for U.S. employer 802. discriminatory not 1432 Once the reason for its its 411 articulates the a legitimate presumption and the plaintiff must with the evidence pretextual. to show that employer's Plaintiff may overcome "persuading the court that likely motivated the employer, employer's explanation proffered demonstrates that the a or a come non- of forward proffered reasons summary are judgment motion by discriminatory motive more indirectly by unworthy employer's 23 to or McDonnell-Douglas, actions. actions, shifts non-discriminatory discrimination disappears, Plaintiff and Corp. filled her position. non-retaliatory reason either trying to class facie age class 1998) . employer at age discharged, plaintiff's burden of Once age by plaintiff was position; prima protected person Turlington v. the employer was plaintiff must prove the proved protected McDonnell-Douglas of be seek applicants with substantially younger (llrh Cir. that protected establish a member age may the denied the continued to qualifications. based termination, to members employer 2) on to position the plaintiff was not based belongs forty fill; between Evidence of showing credence. articulated that the Even if non- Case No. 8:07-CV-2201-T-17EAJ discriminatory reason is false, Plaintiff must still prove that her adverse employment action was truly based upon unlawful discrimination. St. Mary's Honor Center v. Hicks. 509 U.S. 502 (1993) . 1. Prima Facie A. Failure to Promote Defendants Plaintiff's Case have prima raised various facie for Summary Judgment, established a prima case. For the Court facie case challenges to the purposes assumes that the of elements this Plaintiff for Plaintiff's of Motion Deeb has failure-to-promote claim. B. Termination For the Court case purpose assumes for that Failure for Deeb has wrongful Summary Judgment, established a termination the prima facie claim. Pretext A. this Motion Plaintiff Plaintiff's 2. of to District due to Promote Manager restructuring from the Port laterally Plaintiff since Maria Pianese's job at restructuring, the choice was Maria Pianese out, or to 24 Deeb transferred Maria to to the told Store eliminated due severance Burnett Burnett Richey testified that was Gynnifer Clearwater transfer Store. the her Port that Pianese Burnett Richey store either to laterally. Case No. Burnett future 8:07-CV-2201-T-17EAJ testified that, growth, Deposition, Burnett p. stores within 70). the Plaintiff explained the Plaintiff to age in chose immediate Deeb believes to those lateral of District to (Burnett open additional that Deeb was Deeb relies Plaintiff Pianese, Manager Burnett restructuring, Plaintiff Plaintiff Maria Defendants' area. that show for transfer expected to transfer due discrimination. superior to prepare testified that lateral to a Defendants Deeb and performance order Deeb who was not on had a but promoted due her experience qualifications CMIT with limited experience. In this candidates, case, manager who not a operations. of an that Defendants "A plaintiff for that age that 1030 of the is forth reason evidence legitimate explanation false, B. and that the reasons coverup or reason to recast failure is Termination 25 age v. AI Plaintiff an Deeb their employer's [her] business Transport, 229 subjective belief Plaintiff that a restructuring sufficient establishes the fact Chapman not individual transfer substitute pretextual. which for in Plaintiff's is to terminated. allowed 2000). is real not two should be promoted. decision were employer." (11th Cir. discrimination Defendants' brought evaluate candidate strategic business proffered nondiscriminatory F.3d 1012, not otherwise would have been dispute judgment did and then decide one Defendants made does Defendants to establish Deeb has not Defendants' to promote Plaintiff discrimination. is Case No. 8:07-CV-2201-T-17EAJ The "Corrective Action employment was terminated due policy and violation of of Funeral Leave, said that Deeb because I was Deposition, p. testified that to why facts of of Deeb admits Plaintiff Manager Nash Plaintiff for CAD enter leave states time that warrant her Saturday, the own 4/28/2007. at me because I and they didn't in. So they discrimination." the incident employment attended the funeral that fired me (Deeb that leave that for Deeb records, enter the funeral leave that termination of Plaintiff's likely that of a Plaintiff family after friend, ask General absence. entered her forth legitimate employment intentional the own time as other managers time. brought Defendants' in undisputed. Plaintiff's Plaintiff not are Plaintiff did not payroll Deeb has resulted funeral the establishes more The to my age funeral about funeral "they were mad in Plaintiff of Plaintiff's situation did not against put Plaintiff's Deeb admits refused to I Deeb admits leave that 175). termination and Plaintiff her Payroll System on complaining The basic funeral that they discriminated follow through as to violation Plaintiff proceeded Funeral Leave into the Plaintiff states timekeeping policy. after being told two times use Document" is any evidence explanation false, or that for the that discrimination motivated it is Plaintiff's termination. After Summary consideration, Judgment as to the Count Court I (ADEA 26 grants Defendants' Discrimination) Motion and Count for II Case No. 8:07-CV-2201-T-17EAJ (FCRA Age C. Discrimination). Retaliation - Plaintiff's Title VII, religion, under the Age includes origin. only claim for entry Plaintiff's Plaintiff s Discrimination for a retaliation under discrimination based on national includes Defendants move exhaust forbids or Discrimination not Complaint which sex Title VII in administrative Act judgment remedies as to Charge claim of Employment summary race, color, of discrimination of 1967. because Plaintiff Plaintiff's did Title VII claim. Plaintiff Judgment grants D. Deeb should be Defendants' Retaliation - concedes granted. Motion an adverse plaintiff showing: employment the burden has 1) to action. the presumption of case. factual a The burden If Judgment for the as to and and the a 3) prima to of Summary Court Count retaliation the causal facie to III. is 27 of action. Once retaliation, the presumption reason for the a to reasons drops a a of adverse legitimate raise is 2) between rebut plaintiff action. employment rebutted and the proffered expression; connection case is proffers legitimate the defendant shifts a adverse the defendant a case statutorily protected retaliation issue whether retaliatory a facie action; retaliation by producing employment Motion consideration, for Summary established shifts After a prima the protected expression a Defendants' FCRA In an ADEA case, established by that reason from the genuine pretext to mask Case No. 8:07-CV-2201-T-17EAJ To establish that protected expression, faith, reasonable unlawful believed that practices, light of Corp., her 291 of Defendants position, Store. and Maria Plaintiff employment. The believed that practices. to The Court for Defendants' that after interviewed and subjectively employment v. reasonable in Harden Mfg. file a Defendants' for formal facts and the Deeb was eight years. subjectively employment record, that of Plaintiff's Plaintiff in unlawful on the basis Clearwater Charge terminated that Manager Kathleen Casalini's Plaintiff's belief was of the General Plaintiff notes policies "funeral Plaintiff Plaintiff and procedures. policies Deeb There and procedures objectively the Court has as employed by knew where is no to funeral recently amended before May, she never requested that leave"—paid time Deeb requested General but she transferred to the engaged whether Deeb testified that absence, in facts. timekeeping were Plaintiff Weeks following undisputed Defendants' approve that good subjective complained to record establishes reasonable in light considered the not Deeb did not Defendants As Defendants was Pianese was Discrimination until a objectively discriminated against Plaintiff engaged a 2002). Deeb she has in unlawful her belief was Plaintiff 2007, statutorily has show engaged (11th Cir. a was burden and record presented. F.3d 1307 age when employer This employer was facts In April, the in show that A plaintiff must and also that the Nash that that practices. component. engaged a plaintiff must belief employment objective a plaintiff never asked Nash off to 28 being record 2007. find evidence leave and Plaintiff General Manager Nash attend Manager Nash about to paid to a funeral. approve for her her absence. Case No. 8:07-CV-2201-T-17EAJ Plaintiff Deeb did in Plaintiff but Deeb attend the enter system. funeral Plaintiff leave Plaintiff leave for enter the Plaintiff leave time did not approve Plaintiff in the payroll action, Burnett to Manager Burnett the they investigated the facts. interviewed Deeb, system. interviewed. appropriate the Regional HR Manager Thompson. facts what with Plaintiff it clear Timekeeping situation, that Court discrimination issue of Defendants Policy to be the failure also own a to interview notes policy. discrimination, that In the funeral Manager Nash Manager Nash District District nor Thompson involved as an violation offense. Plaintiff the from to the interview explanation The in sought employment that and for why policy of itself the Given the Deeb does factual not suspect. Defendants have a formal past when Plaintiff Defendants were responsive Plaintiff's complaints; Defendants investigate and Plaintiff's resolve it. Mindy Thompson, leave. regard a terminable decision an to entered her own no dispute is funeral own Burnett element added enter Burnett Plaintiff's only Managers contacted employees is the discipline. neither There the Deeb would have render the personnel The and Deeb entered her Plaintiff makes termination of leave" upon discovering District Manager for the occurred, Deeb HR Manager other not General leave; While approval of in General Plaintiff contacted Regional incident were "funeral entered her General Manager Nash decide family friend. leave did contact funeral Manager Plaintiff they Plaintiff Deeb did not Plaintiff's Deeb's approve funeral Plaintiff but District Manager Burnett before funeral of a Deeb asked two Assistant Deeb admitted that time. funeral asked Suzanne Marceau to Suzanne Marceau did not payroll or fact 29 contacted raised When an to Plaintiff complaint. anti a to complaint Case No. 8:07-CV-2201-T-17EAJ of discrimination was made about also Plaintiff's investigated and resolved that discrimination policy complaint. also provides to the complaints General Manager. the testified that she Given the the belief age Court facie case to establish that besides Plaintiff the Court against after the verbal Deeb Deeb has concludes Plaintiff that Deeb by Plaintiff complained objectively show the of causal reasonable. not established link prong plaintiff must, case was the a of his a corporate of The a prima prima the agent who facie 996 generally protected took the the expression, agency when City of Atmore, a defendant, protected or her of minimum, corporate the plaintiff's scope at actually aware involving that Goldsmith v. taking F.2d 1155, adverse and the 1163 (11th 1993). In this internal case, complaint of evidence of a aware acted within the the defendant In plaintiff must action was Plaintiff satisfy case, expression. not office, for retaliation. In order retaliation that retaliated is avenues anti avenues. facts, employment discrimination of of those undisputed Defendants concludes Cir. aware Plaintiff's about action. was above that terminating local corporate Defendants Defendants' additional reporting of complaints to conduct, that Plaintiff's Regional Plaintiff General Manager Nash of age discrimination. establishes internal knew that complaint HR Manager Thompson Deeb had complained age testified about 30 The District of age of Plaintiff's Court Manager is not Burnett aware knew discrimination. that she did not discrimination. know Case No. 8:07-CV-2201-T-17EAJ The causal link may be circumstantial evidence. not sufficient evidence of verbal sufficient Even prima if facie showing a more the case establish Court of Plaintiff's a Plaintiff Deeb was Plaintiff during action After Summary E. Claims analyzed in set the eight years Deeb has forth Defendants' after in April, 2007 meet is old, the the a burden of termination Plaintiff false, or Deeb that real it has is reason for Plaintiff when and Plaintiff Defendants was is a promoted employed by established policies established that Defendants subterfuge for as to the Count Court grants under Transouth Motion protected as Florida Title - Retaliation Whistleblower's VII Financial Corp., under for IV. the same manner Defendants' retaliation 216 Act are claims. F.3d 945 (11th Cir. 2000). To be is circumstantial Deeb above. hired not evidence discrimination. brought Sierminski v. 2007 Plaintiff s Private Whistleblower's Act the the Plaintiff for years direct link. explanation forty-five evidence or discrimination Defendants consideration, Judgment Florida facts May, Defendants explanation Plaintiff age that the discriminatory motive was in enforcing intentional age if link, in causal assumes termination. Defendants. the Defendants' likely that of retaliation, undisputed shown that case, termination complaint legitimate through the not to In this establish the causal Plaintiff's Plaintiff's is to established by direct the Florida 31 Whistleblower's Act, an Case No. 8:07-CV-2201-T-17EAJ employee must disclose to demonstrate an agency under policy or practice law, rule or that of the regulation; practice, notice and 6) opportunity to Tavlor v. In 4) Deeb gave correct to age activity, Systems, its Inc., record to Defendants Defendants in filed after 5) practice. 752 that she (2000) claim Plaintiff's told General not Charge for in she was See Plaintiff Plaintiff, Plaintiff's that policy or Plaintiff's Deeb's of reasonable So.2d Plaintiff Plaintiff activity, violation and Deeb testified only that discrimination. an allegedly terminated Plaintiff believed Discrimination was a evidence failure to promote Plaintiff 2) activity, 770 of threatened to retaliated against policy or no for which was employer notice Manager Nash that due of is for or to disclose; there age discrimination employment. that the employer employer the Health case, written retaliation that 3) or threat the disclosed and in writing; thereby giving the Memorial this to oath 1) employer; her because of disclosure gave written she: promoted of employment was terminated. The violation White v. Fla. FWA requires of law, Purdue 2005). Judgment a as Court Court retaliation cannot FWA. or that 369 F. granted claim under establish Plaintiff's a prima belief the actually in Supp. that for Defendants 32 to 1335, of and a succeed. 1337-39 Motion The See (M.D. for Summary Court FWA claim cannot FCRA above, claim prove FCRA claims. the analysis facie order Defendants' Plaintiff's incorporates to regulation Inc., has Deeb Plaintiff's ADEA and therefore concludes The rule Pharma, The to Plaintiff succeed. Plaintiff's finds that retaliation retaliated Plaintiff under against the Case No. 8:07-CV-2201-T-17EAJ Plaintiff was not Assuming case, for Plaintiff that it the not Judgment is granted. favor of establish legitimate a prima facie nondiscriminatory Plaintiff's employment, Defendants' reason and is false age discrimination motivated the to the Count Defendants' The Court V. and Defendants' Accordingly, Motion Clerk of Court Defendants grants against it for enter Plaintiff, y and ORDERED of in September, Chambers, in Tampa, Judgment (Dkt. a final judgment and close this Copies to: All parties and counsel Florida 2009. United of record 33 for is Summary shall Motion case. ONE or action. as that could shown that consideration, ORDERED Deeb of likely that employment Summary reasonable. articulated a Deeb has After in Plaintiff termination is more adverse 28) that Defendants reason objectively States Di on this
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