Cheris Hubbard v. Meritage Homes of Florida, Inc

Filing

Opinion issued by court as to Appellant Cheris Hubbard. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15172
Non-Argument Calendar
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D.C. Docket No. 6:10-cv-01714-ACC-GJK

CHERIS HUBBARD,
Plaintiff-Appellant,
versus
MERITAGE HOMES OF FLORIDA, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 30, 2013)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:

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Plaintiff Cheris Hubbard appeals the district court’s grant of summary
judgment in favor of her former employer, Meritage Homes of Florida, Inc.
(“Meritage”), on her pregnancy discrimination claims under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2(a) and 2000e(k), and the
Florida Civil Rights Act of 1992 (“FCRA”), Fla. Stat. § 760.10. After review, we
affirm.
I. STANDARD OF REVIEW
At the outset, Defendant Meritage points out that Plaintiff Hubbard did not
file any opposition to Meritage’s summary judgment motion in the district court.
Defendant Meritage argues that Plaintiff Hubbard thus forfeited appellate review
of the district court’s entry of summary judgment on her pregnancy discrimination
claims.
That argument fails because when a summary judgment motion is
unopposed, the district court must still review the materials submitted in support of
the motion and determine whether they establish the absence of a genuine issue of
material fact. See United States v. One Piece of Real Prop. Located at 5800 SW
74th Ave., Miami, Fla., 363 F.3d 1099, 1101-02 (11th Cir. 2004); see also Fed. R.
Civ. P. 56(e)(3) (stating that when a party “fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . . grant summary
judgment if the motion and supporting materials—including the facts considered
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undisputed—show that the movant is entitled to it”). Accordingly, we review de
novo the district court’s grant of summary judgment on Plaintiff Hubbard’s
pregnancy discrimination claims, applying the same legal standards as the district
court and viewing the evidence in the light most favorable to the non-moving
party. Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). 1
II. HUBBARD’S EMPLOYMENT
A.

Hubbard’s Sales Associate Job
Defendant Meritage is a builder of planned residential communities. In late

October 2008, Plaintiff Hubbard began working for Defendant Meritage as a sales
associate at one of its communities, The Oaks at Brandy Lake. In June 2009,
Hubbard told Brian Kittle, her direct supervisor, that she might be pregnant. Soon
after, Hubbard learned she was not pregnant, but she told Kittle she intended to
start a family.
The next day, Kittle transferred Hubbard to the Live Oak Reserve
community, Defendant Meritage’s most desirable and bestselling community.

1

In her brief on appeal, Hubbard does not challenge the district court’s grant of summary
judgment on her claims of sex and gender discrimination and retaliation and thus she has
abandoned these claims. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir.
2003). We consider only Hubbard’s pregnancy discrimination claims.
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Hubbard took the place of another sales associate, Thomas Temmel, who was
transferred to Lake Roberts.
Kittle testified that he transferred Hubbard because she said she was starting
a family, and he wanted to give her a good start by selling lots in Live Oak. In his
deposition, Kittle explained, however, that because Live Oak was a high-demand
community in an otherwise bad economy, Meritage planned to cycle sales
associates in and out of Live Oak to give different employees the opportunity to
earn commissions.
Later that summer, Hubbard did in fact become pregnant. Hubbard
informed Kittle of her pregnancy on August 25, 2009. The next day, Hubbard was
transferred from Live Oak to Indian Lakes, a much slower selling community,
trading places with another sales associate, Candace Roberts. Kittle declined
Hubbard’s requests to be transferred back to Live Oak. Kittle repeatedly
questioned Hubbard about whether she planned to take maternity leave or was
going to “take the [commission] money and quit.”
B.

Hubbard’s Termination
In December 2009, Defendant Meritage terminated Hubbard’s employment

for insubordination relating to Hubbard’s handling of a particular sales contract.
The decisionmakers were James Bagley, Meritage’s president, and Doug
Bainbridge, Meritage’s regional vice president of human resources.
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Specifically, on November 30, 2009, Meritage discovered that some of their
buyers’ sales contracts at Live Oak violated the homeowner’s association
“monotony rules” prohibiting the same floor plans or elevations on adjacent lots.
Three Meritage employees—Plaintiff Hubbard, Thomas Temmel and Candace
Roberts—had sales contracts that were affected. Meritage advised all three sales
associates of the problem.
Employees Temmel and Roberts both testified that they were told to call
their buyers immediately to advise the buyers that they could either change their
floor plan or cancel their contract and get a refund. Both Temmel and Roberts
called their buyers, and each sent an email to Kittle on December 1 advising that
they had resolved the problem with their buyers.
Brian Kittle testified that President Jim Bagley gave instructions to all three
employees at the same time in a face-to-face meeting. Candace Roberts confirmed
that President Bagley gave her instructions at a division meeting. Hubbard,
however, testified that President Bagley contacted her separately by phone. For
summary judgment purposes, we accept Hubbard’s version. 2

2

Defendant Meritage vigorously disputes Hubbard’s version of events. President Bagley
averred that he clearly told Hubbard, as he had Temmel and Roberts, that she needed to call her
buyer immediately and offer him the option of either picking a new floor plan or cancelling his
contract. Kittle testified that when Hubbard came to him for help, he told her to do what Bagley
had instructed her to do. In reviewing summary judgment, however, we accept Hubbard’s
version of the facts as true, even though the “true facts may prove to be otherwise.” See
Mangieri v. DCH Healthcare Auth., 304 F.3d 1072, 1073 n.2 (11th Cir. 2002).
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According to Hubbard, she did not get such explicit instructions. When
President Bagley called Hubbard, he told her that one of her sales contracts
violated the monotony rules and stated, “We may need to cancel [the contract].”
Hubbard found Bagley’s instructions “vague,” and “didn’t know exactly how to
approach the buyer with it and what the options were.” After the call, Hubbard
called Kittle to ask him “for assistance on calling the buyer to go over some
options.” According to Hubbard, Kittle told her not to contact her buyer until after
management discussed the situation the next morning.
The next day, December 1, Hubbard did not contact her buyer, Minish Patel.
On December 2, Patel had an appointment with a design consultant at Meritage’s
design center to select finishes for his home. That morning, Hubbard told the
design consultant to cancel Patel’s appointment. Patel arrived at the design center
anyway and learned of the problem with his contract.
Meritage’s Vice President of Sales, Jack Johanessmeyer, went to the design
center to try to salvage the sale to Patel. Johanessmeyer then called President
Bagley and advised him of the situation. Bagley believed that Hubbard had tried to
circumvent his instructions by going to Kittle for an alternate solution. Bagley
contacted Hubbard and told her that her failure to notify Patel “had placed
Meritage in a difficult situation and that she had circumvented a directive that
[Bagley] personally gave her.”
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That evening, President Bagley reviewed the situation with Bainbridge, the
Vice President of Human Resources, and recommended that Hubbard be
terminated. Bainbridge agreed that Hubbard had engaged in serious misconduct.
Bainbridge stated that Hubbard’s failure to contact Patel and advise him of the
problem with the sales contract and her failure to advise Patel not to come to the
design center for his appointment constituted insubordination. Bainbridge further
stated that Hubbard’s not following Bagley’s directions and her attempts to
circumvent them by contacting a subordinate employee (Kittle) to get a different
opinion “had [a] serious impact upon Meritage, including potential loss of a
sizeable home sale, negative impact on Meritage’s reputation and loss of
credibility and trust with Meritage’s customers.” Accordingly, Bainbridge
approved Bagley’s recommendation to terminate Hubbard. Hubbard was advised
of her termination the next day.
III. PREGNANCY DISCRIMINATION — GENERAL PRINCIPLES
Title VII and the FCRA prohibit certain employers from discriminating
“against any individual with respect to [her] compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . sex.” 42 U.S.C.
§ 2000e-2(a)(1); Fla. Stat. § 760.10(1)(a). The phrase “because of sex” or “on the

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basis of sex” in Title VII includes “because of or on the basis of pregnancy,
childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). 3
Under Title VII, a plaintiff bears “the ultimate burden of proving
discriminatory treatment by a preponderance of the evidence,” whether that
evidence is direct or circumstantial. Crawford v. Carroll, 529 F.3d 961, 975-76
(11th Cir. 2008) (quotation marks omitted). Where, as here, the plaintiff seeks to
prove pregnancy discrimination through circumstantial evidence, the claim may be
evaluated under the burden-shifting framework established in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Armstrong v. Flowers
Hosp., Inc., 33 F.3d 1308, 1314 (11th Cir. 1994). Under McDonnell Douglas, the
plaintiff bears the initial burden of establishing a prima facie case of
discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. 4
A plaintiff may establish a prima facie case of pregnancy discrimination by
showing that: (1) she is a member of a group protected by Title VII; (2) she was
qualified for her position; (3) she suffered an adverse employment action; and (4)
3

It is an open question whether the FCRA, like Title VII, recognizes claims of pregnancy
discrimination. See DuChateau v. Camp, Dresser & McKee, Inc., ___ F.3d ___, No. 12-10838,
2013 WL 1405166, at *3 (11th Cir. Apr. 9, 2013). Assuming, however, that the FCRA provides
for a pregnancy discrimination claim, “it would be construed in the same manner as a cause of
action for pregnancy discrimination under Title VII.” See id. Thus, the district court’s grant of
summary judgment as to any FCRA pregnancy discrimination claim was proper for the reasons
discussed above with respect to Hubbard’s Title VII pregnancy discrimination claim.
4

As an alternative basis for summary judgment, the district court concluded that Hubbard
failed to show that Meritage’s legitimate, nondiscriminatory reason for terminating her
employment was pretext for pregnancy discrimination. Because we affirm the district court’s
first ground for summary judgment, we do not reach the district court’s alternative ground.
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she “suffered from a differential application of work or disciplinary rules.” Spivey
v. Beverly Enters., Inc., 196 F.3d 1309, 1312 (11th Cir. 1999). Generally, when
the plaintiff alleges discriminatory discipline, the plaintiff must show that the
employer treated similarly situated employees not of the protected class more
favorably. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). To
make this showing, the plaintiff and her comparators must have engaged in the
same or nearly identical misconduct. Burke-Fowler v. Orange Cnty., Fla., 447
F.3d 1319, 1323 & n.2 (11th Cir. 2006).
However, a plaintiff alleging pregnancy discrimination “need not identify
specific non-pregnant individuals treated differently from her, if the employer
violated its own policy in terminating her.” Armindo v. Padlocker, Inc., 209 F.3d
1319, 1321 (11th Cir. 2000) (noting that the plaintiff fired for poor attendance
during her probationary period did not present evidence that her employer violated
company policy regarding sick leave). In addition, if the plaintiff cannot show a
non-pregnant comparator who was treated differently, she alternatively can survive
summary judgment by presenting circumstantial evidence “that creates a triable
issue concerning the employer’s discriminatory intent.” See Smith v. LockheedMartin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011); Hamilton v. Southland
Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. Cir. 2012) (explaining that the
plaintiff does not have to show a non-pregnant comparator who was treated
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differently “if she can show enough non-comparison circumstantial evidence to
raise a reasonable inference of intentional discrimination”). “A triable issue of fact
exists if the record, viewed in the light most favorable to the plaintiff, presents a
convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.” Smith, 644 F.3d at 1328
(footnote and quotation marks omitted).
IV. HUBBARD’S PREGNANCY DISCRIMINATION CLAIMS
On appeal, the parties do not dispute that Plaintiff Hubbard met the first
three prongs of her prima facia case—that is, as a pregnant woman, Hubbard was a
member of a protected group, she was qualified for her sales associate job at
Defendant Meritage, and she suffered an adverse employment action when she was
terminated. The parties disagree, however, as to whether Hubbard satisfied the
fourth prong—that she was treated differently than other non-pregnant employees.
Hubbard contends that she presented evidence of two other sales associates,
Candace Roberts and Thomas Temmel, who were not pregnant and were treated
more favorably. However, it is undisputed that neither of these sales associates
engaged in the misconduct for which Hubbard was terminated. After receiving
instructions, both Roberts and Temmel understood what they needed to do and
promptly called their buyers and informed them of the problems with their sales

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contracts. Both had resolved the problem with their buyers and had notified their
supervisor of this fact by December 1.
In contrast, it is undisputed that Hubbard did not call her buyer, Patel. Patel
then showed up at the design center on December 2, where he learned of the
problem for the first time and one of Meritage’s vice presidents had to intervene to
try to save the sale. In other words, neither Roberts nor Temmel was similarly
situated to Hubbard and thus is not a sufficient comparator. Therefore, Hubbard
cannot make out the fourth prong of a prima facie case of pregnancy discrimination
using the McDonnell Douglas approach.
Hubbard argues that she presented other evidence that she was treated
differently after announcing she was “pregnant or potentially pregnant” but before
she was terminated, which constituted circumstantial evidence that her pregnancy
played a significant role in her termination. For example, Hubbard claims that she,
unlike Candace Roberts, was not told her assignment at Live Oak was temporary.
However, the record shows that neither Hubbard nor Roberts was told anything
about the duration of their assignments at Live Oak. Indeed, Roberts testified that
it was the nature of the home sales business to be moved as new communities and
new selling opportunities opened up.
Hubbard also did not present any evidence that non-pregnant employees
were moved around less frequently than Hubbard was. To the contrary, Temmel
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was transferred from Live Oak after only a few weeks, and Roberts stayed for only
three months before being transferred to another Meritage community and being
replaced at Live Oak by another sales associate.
Hubbard contends that Temmel, but not Hubbard, was allowed to sell in
more than one community in violation of company policy. However, the record
does not support this proposition. Rather, both Temmel and Hubbard were
allowed to continue pursuing leads for Live Oak after they had been transferred. In
fact, Hubbard was still working on the Patel sales contract in Live Oak in
November 2009, long after she was transferred to Indian Lakes in late August.
Hubbard also points to the higher quota she was required to meet to win a
Las Vegas trip. However, it is undisputed that, at the time, Hubbard was assigned
to Meritage’s highest selling community. Both Kittle and Roberts testified that
quotas were set based on the particular community the sales associate was assigned
to. Specifically, the baseline of two sales per month was adjusted based on the
sales volume of the community. Hubbard presented no evidence that Meritage
unequally applied this method of establishing the sales quotas.
Finally, Hubbard notes that although Bagley gave her some instructions,
they were not the same clear instructions given to Roberts and Temmel about how
to handle the problem with Patel’s sales contract. While this fact must be accepted
as true, it does not present “a convincing mosaic of circumstantial evidence that
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would allow a jury to infer” that Meritage engaged in intentional pregnancy
discrimination. See Smith, 644 F.3d at 1328 (quotation marks omitted).
For all these reasons, the district court properly granted summary judgment
on Hubbard’s pregnancy discrimination claims.
AFFIRMED.

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