Jessica Alexander v. Sonny's Real Pit Bar-B-Q, et al

Filing

Opinion issued by court as to Appellant Jessica Alexander. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions. (Opinion corrected on 7/26/2017. Name spelled incorrectly in footnote 5, page 12.)--[Edited 07/26/2017 by JRP]

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Date Filed: 07/26/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15282
Non-Argument Calendar
________________________
D.C. Docket No. 3:16-cv-00117-HES-JRK
JESSICA ALEXANDER,
Plaintiff - Appellant,
versus
SONNY’S REAL PIT BAR-B-Q,
BAR-B-Q MANAGEMENT, INC.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 26, 2017)
Before JORDAN, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
When applying for a job at Sonny’s Real Pit Bar-B-Q, Jessica Alexander
said she had no criminal history. In fact, she had been convicted of manslaughter.

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Bar B-Q Management, Inc. (“BBQM”), which managed the Sonny’s location at
which Alexander worked, eventually learned the truth about her criminal history;
shortly thereafter, it discharged her. While investigating Alexander, BBQM
accessed public records of Alexander’s conviction and conducted a background
check. Alexander sued BBQM and Sonny’s for accessing her criminal records
without having received her permission; sex- and age-based employment
discrimination; and wrongful termination. The district court granted summary
judgment to BBQM and Sonny’s on all counts. After careful review, we affirm.
I.

FACTUAL BACKGROUND

In 1989, Alexander was charged with second-degree murder. She pled
guilty to a lesser manslaughter charge, a second-degree felony, and was sentenced
to serve six years in prison, of which she served 16 months. In 2005, Alexander
filed an application for restoration of her civil rights with the Florida Parole
Commission.1
In May 2008, Alexander applied for a job as a cook at Sonny’s, a restaurant
located on University Boulevard in Jacksonville, Florida. Alexander’s job
application asked: “Have you ever been convicted, pled guilty or no contest, or
had adjudication withheld on a felony or any crime involving dishonesty?”
1

The Florida Parole Commission was renamed the Florida Commission on Offender
Review in 2014. See 2014 Fla. Laws ch. 191, § 1.

2

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Alexander Application (Doc. 18-2 at 7).2 Alexander marked the box next to this
question signifying “No.” Id. The application also contained the following
statement:
I certify that the information provided in this Application, and that I
will provide in seeking employment, is true and complete and that I
will update any information that changes.
I understand that false or misleading information given in this
Application or during interviews may result in disqualification from
consideration for employment or discharge in the event of
employment. . . .
I understand and agree that if I am hired, my employment is “ATWILL,” which means that my employment is for no definite period of
time and either the Company or I may terminate the employment
relationship with or without cause at any time, with or without any
advance notice. I understand that only the Company President may
change the AT-WILL status of any applicant or employee and may
only do so in writing. . . .
I HEREBY ACKNOWLEDGE AND UNDERSTAND THE
NOTICE AS DESCRIBED ABOVE AND THAT IF I AM HIRED
I WILL BE AN AT-WILL EMPLOYEE.
Id. at 8. Alexander signed the application. At the time Alexander applied for the
job, BBQM did not conduct criminal background checks on applicants for nonmanagerial positions. As such, it did not conduct a criminal background check on
Alexander or otherwise confirm the accuracy of her answer regarding her criminal
history. BBQM hired Alexander as a cook in June 2008.
2

Citations to “Doc.” refer to the numbered entries in the district court record of the case.

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In February 2013, Donni Weaver, BBQM’s Human Resources Director,
received a request for verification of Alexander’s employment from the Florida
Parole Commission in connection with Alexander’s application for restoration of
her civil rights. Weaver testified in her declaration that she was unable to review
the request immediately. The Commission made a second inquiry in March.
Suspecting that Alexander may have given BBQM false information about her
criminal history, Weaver accessed Duval County’s publicly available criminal
court records on March 18. She discovered Alexander’s manslaughter conviction
and prison sentence.
Two days later, Alexander met with BBQM’s Area Director, John Raineri,
who asked her about her criminal history. At this meeting, Alexander authorized
BBQM to conduct a background check. Raineri suspended Alexander, effective
immediately, pending a review of her employment application. Later that day,
Alexander provided Raineri with records in her possession regarding the details of
her conviction. Alexander testified by deposition that in the weeks before her
suspension, David Sneed, her direct supervisor and general manager, began to push
her out of his way, tell her that she moved too slowly, sling food around, and call
her a criminal.
With Alexander’s authorization, Weaver ordered a third-party background
check on Alexander, which revealed no additional information. Weaver asked
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Alexander whether she had truthfully described her criminal history on the
application. After Weaver read Alexander the application question, Alexander
asked Weaver whether BBQM would have hired her had she told them of her
criminal background. Soon thereafter, BBQM discharged Alexander. Weaver
testified by declaration that she and BBQM’s Chief Executive Officer, Chip Dixon,
based their decision to discharge Alexander solely on her false statement in her job
application, not on her criminal background itself. Weaver also testified that
Sneed played no role, advisory or otherwise, in the decision to discharge
Alexander.
Alexander filed a charge of discrimination against BBQM and Sonny’s with
the Equal Employment Opportunity Commission (EEOC). 3 The EEOC, unable to
conclude that Sonny’s or BBQM had violated the law, dismissed Alexander’s
charge. It informed Alexander in its notice of dismissal that she could sue Sonny’s
and BBQM.
Alexander, proceeding pro se, filed a complaint against BBQM and Sonny’s
in Florida state court, and the defendants removed the lawsuit to the district court.
She later amended her complaint to state claims for sex and age discrimination in
violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and the
3

Though Alexander identified only Sonny’s as respondent in her charge form, the EEOC
appears to have understood Alexander to have brought charges against both Sonny’s and BBQM.

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Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.;
violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq.; and
wrongful termination under Florida law. The district court granted BBQM’s
motion for summary judgment on all counts. Alexander timely appealed.
II.

STANDARD OF REVIEW

The district court must grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). This court reviews de novo a
district court’s grant of summary judgment, applying the same legal standards as
the district court. Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000)
(en banc). In reviewing a district court’s grant of summary judgment, we consider
all the facts and reasonable inferences in the light most favorable to the nonmoving party. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009).
“Pro se pleadings are held to a less stringent standard than pleadings drafted
by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998). “[L]iberal construction,” however,
“is not the same thing as wholesale redrafting.” Gilmore v. Hodges, 738 F.3d 266,
281 (11th Cir. 2013).

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III.
A.

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ANALYSIS

The District Court Did Not Err in Granting Summary Judgment to the
Defendants on the Race and Age Discrimination Claims Because
Alexander Failed to Show that Their Stated Reason for Terminating
Her Was Pretextual.
Alexander argues that the district court erred in granting summary judgment

to BBQM on her claims of sex- and age-based discriminatory discharge under Title
VII and the ADEA. She fails, however, to identify evidence sufficient to create a
genuine issue of material fact as to whether the stated reason for discharging her—
that is, her false statement on her job application—was pretextual. The district
court thus did not err in granting the defendants summary judgment.
Absent direct evidence, we apply McDonnell Douglas Corp. v. Green’s
burden-shifting framework in reviewing discriminatory discharge claims under
Title VII and the ADEA. 411 U.S. 792, 802-04 (1973); Sims v. MVM, Inc.,
704 F.3d 1327, 1332-33 (11th Cir. 2013). The plaintiff must first establish a prima
facie case of discriminatory discharge. Cuddeback v. Fla. Bd. of Educ., 381 F.3d
1230, 1235 (11th Cir. 2004). To make a prima facie case of sex discrimination, a
plaintiff must show: “(1) she belongs to a protected class; (2) she was subjected to
adverse employment action; (3) her employer treated similarly situated employees
outside her classification more favorably; and (4) she was qualified to do the job.”
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). “To make a
prima facie case of age discrimination, the employee must show: (1) [s]he was a
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member of the protected group between the age of forty and seventy; (2) [s]he was
subject to an adverse employment action; (3) a substantially younger person filled
the position from which [s]he was discharged; and (4) [s]he was qualified to do the
job from which [s]he was discharged.” Liebman v. Metro. Life Ins. Co., 808 F.3d
1294, 1298 (11th Cir. 2015).
Once a plaintiff establishes the prima facie case, an employer can rebut the
presumption of discrimination by stating “a nondiscriminatory legitimate reason”
for the discharge. Cuddeback, 381 F.3d at 1235. “The employer may fire an
employee for a good reason, a bad reason, a reason based on erroneous facts, or for
no reason at all, as long as its action is not for a discriminatory reason.” Nix v.
WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984). Moreover,
the employer “need not persuade the court that it was actually motivated by the
proffered reasons,” but must only offer evidence that “raises a genuine issue of fact
as to whether it discriminated against the plaintiff.” Perryman v. Johnson Prod.
Co., 698 F.2d 1138, 1142 (11th Cir. 1983) (internal quotation marks omitted).
If the employer rebuts the plaintiff’s prima facie case, “[t]he burden then
shifts back to the plaintiff to show that the employer’s stated reason was a pretext
for discrimination.” Cuddeback, 381 F.3d at 1235. “The plaintiff [must] cast
doubt on the defendant’s proffered nondiscriminatory reasons sufficient to allow a
reasonable factfinder to determine that the defendant’s proffered legitimate reasons
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were not what actually motivated its conduct.” Silvera v. Orange Cty. Sch. Bd.,
244 F.3d 1253, 1258 (11th Cir. 2001) (internal quotation marks omitted).
Assuming Alexander stated a prima facie case of discriminatory discharge,
the defendants met their burden of stating a legitimate, nondiscriminatory reason
for discharging Alexander based on her false statement regarding her criminal
history in her job application. Alexander acknowledged during her deposition that
she had falsely stated on her job application that she had never been convicted of a
felony, and the application itself warned Alexander that she could be discharged
for providing false answers.
Alexander has offered no evidence that would allow a trier of fact to find
that the defendant’s stated reason for discharging her was pretextual. She asserts
that Sneed harassed her prior to her discharge, but she alleged that this harassment
was due to her criminal history, not her membership in any protected class. She
also asserts she was the only cook to be singled out for a criminal background
check, yet she identifies no other employee about whom the Florida Parole
Commission contacted the defendants. Alexander has failed to show the existence
of a genuine issue of material fact as to whether the defendants discharged her for
any reason other than her falsified job application. Accordingly, the district court

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properly granted summary judgment to BBQM on Alexander’s Title VII and
ADEA discriminatory discharge claims. 4
B.

The District Court Properly Concluded that Alexander’s FCRA Claim
Is Time-Barred.
Alexander argues that the district court erred in granting the defendants

summary judgment on her claim that they violated the FCRA by accessing her
criminal record. She did not, however, raise her claim within two years of
discovering the alleged violation, as the FCRA requires, and so her claim was
untimely. The district court thus properly granted summary judgment to the
defendants.
The FCRA prohibits any entity from procuring a consumer report for
employment purposes without first (1) disclosing to the consumer its intent to
procure the report and (2) receiving the consumer’s authorization to do so. 15
U.S.C. § 1681b(b)(2). A consumer must bring an action under the FRCA “not
later than the earlier of — (1) 2 years after the date of discovery by the plaintiff of
the violation that is the basis for such liability; or (2) 5 years after the date on
which the violation that is the basis for such liability occurs.” Id. § 1681p. “[T]he
discovery rule . . . allow[s] a claim to accrue when the litigant first knows or with

4

Because we conclude that Alexander cannot show that the defendants’ stated reason for
discharging her was pretextual, we need not decide whether Alexander exhausted her
administrative remedies before bringing her Title VII and ADEA claims in federal court.

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due diligence should know facts that will form the basis for an action.” Merck &
Co. v. Reynolds, 559 U.S. 633, 646 (2010) (internal quotation marks omitted).
During her deposition, Alexander acknowledged that she discovered the
defendants had accessed her criminal record on March 20, 2013, when she met
with Raineri. She did not raise her FCRA claim, however, until she filed her
amended complaint on October 2, 2015. Alexander argues that § 1681p allowed
her to raise her claim within either (1) two years of discovering the defendants’
alleged FCRA violation or (2) five years of the alleged violation’s occurrence, but
a consumer must raise her FCRA claim “not later than the earlier of” these dates.
15 U.S.C. § 1681p. She also asserts she could not have raised her claim within two
years of discovering BBQM’s alleged violation because the EEOC had not yet
authorized her to sue. Although “a private plaintiff must . . . receive statutory
notice from the EEOC of his or her right to sue” to “institute[e] a Title VII action,”
Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir.
1996), no such notice is required to file a claim under the FCRA. Compare 42
U.S.C. § 2000e-5(f)(1) with 15 U.S.C. § 1681p. Because Alexander did not raise
her FCRA claim within two years of discovering the alleged violation, her claim

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was untimely; the district court did not err in granting summary judgment to the
defendants. 5
C. The District Court Properly Granted Summary Judgment on
Alexander’s Wrongful Employment Claim Because Her Employment
Was at Will.
Alexander argues that the district court erred in granting summary judgment
to the defendants on her Florida law claim for wrongful termination. “The
established rule in Florida is that when the term of employment is discretionary or
indefinite, either party may terminate the employment at any time for any reason or
no reason without assuming any liability.” Hartley v. Ocean Reef Club, Inc., 476
So. 2d 1327, 1328 (Fla. Dist. Ct. App. 1985). “[A]n ‘at will’ employee . . . can be
terminated for any or no reason and, thus, as a matter of law c[an] not state a cause
of action for wrongful termination.” Walton v. Health Care Dist. of Palm Beach
Cty., 862 So. 2d 852, 855 (Fla. Dist. Ct. App. 2003). Alexander asserts that she
5

Had Alexander timely brought her FCRA claim, she would still fail to identify a
genuine issue of material fact supporting an FCRA violation. The FCRA prohibits an employer
from accessing any “consumer report” without receiving a consumer’s authorization. 15 U.S.C.
§ 1681b(b)(2)(A). A “written, oral, or other communication of any information” does not
qualify as a “consumer report” unless it was communicated “by a consumer reporting agency.”
Id. § 1681a(d)(1). An entity is not a “consumer reporting agency” unless it “assembl[es] or
evaluat[es] consumer credit information or other information on consumers” either “for
monetary fees” or “dues,” or “on a cooperative nonprofit basis.” Id. § 1681a(f). The defendants
could not have violated the FCRA by accessing Duval County’s website; because the County is
not a “consumer reporting agency” within the FRCA’s meaning, information regarding
Alexander’s criminal record made available on its website cannot qualify as a “consumer report.”
Id. § 1681a(d)(1), (f). Moreover, the undisputed facts show that Alexander consented to the
third-party background check that the defendants ordered. For these reasons, the district court’s
grant of summary judgment to the defendants on Alexander’s FCRA claim would have been
proper even had she timely brought it.

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was not an at-will employee because her lengthy tenure of employment, regular job
promotions, and history of positive performance reviews established an implied
contract with the defendants for non-at-will employment. She identifies no
evidence of a non-at-will employment contract, however. Indeed, Alexander’s job
application expressly stated that her employment would be at-will, and that only
BBQM’s president could change her at-will status, and only in writing. See
Hartley, 476 So. 2d at 1328. She thus has no wrongful termination claim under
Florida law. Walton, 862 So. 2d at 855. The district court did not err in granting
the defendants summary judgment on this claim.
IV.

CONCLUSION

For these reasons, we affirm the district court’s grant of summary judgment
in all respects.
AFFIRMED.

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