Milazzo v. Title Cash of Huntsville
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/23/12. (CVA)
2012 Oct-23 AM 09:06
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JANICE LANE MILAZZO,
TITLE CASH OF
Civil Action Number
Before the court is Defendant Title Cash of Huntsville’s motion for
summary judgment on Plaintiff Janice Milazzo’s age and race discrimination
claims.1 Doc. 44. After considering the pleadings, evidentiary submissions, docs.
1, 51, 52, and the relevant law, Title Cash’s motion is due to be GRANTED.
I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “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.” To
support a summary judgment motion, the parties must cite to “particular parts of
The court dismissed Milazzo’s sex discrimination and tort of outrage claims on October
28, 2011 and July 10, 2012, respectively. Docs. 16, 43.
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materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations, admissions, interrogatory
answers, or other materials.” FED. R. CIV. P. 56(c). Moreover, “Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that
there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation
marks omitted). A dispute about a material fact is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the
evidence and all reasonable inferences arising from it in the light most favorable to
the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970);
see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party’s favor). However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
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England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Furthermore, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s
position will not suffice; there must be enough of a showing that the jury could
reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990) (citing Anderson, 477 U.S. at 252).
II. STATEMENT OF THE UNDISPUTED FACTS
On July 7, 2008, Title Cash2 hired Milazzo, a sixty-three year old white
female, as a customer service representative. Doc. 45-1 at 2, 4, 9. Milazzo’s
duties required her to assist customers, process payday loans, deposit and
withdraw money at a bank, perform vehicle inspections, and produce vehicle and
end-of-the-day reports. Id. at 5. Milazzo received training on customer service
and loan processing policies and procedures from Title Cash’s manager Mandi
Beams and scored 100% on her new hire training evaluations. Docs. 45-1 at 10;
45-2 at 18. As part of her training, Milazzo received and read the Title Cash
Employee Handbook. Doc. 45-1 at 11. Relevant to this lawsuit, the Handbook
has the following provisions: (1) “[f]ailure to obtain ‘clear’ titles on autos, or any
other required documents for a particular transaction” warrant “immediate
Milazzo worked for Car Title Loans of Boaz, Alabama, a subsidiary of Title Cash. Doc.
45-4 at 2.
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dismissal,” id.; 45-5 at 36; and (2) an equal employment opportunity section that
instructed employees to report incidents of alleged discrimination “in writing
(unless impracticable), to [their] supervisor or to the Human Resource Manager.”
Doc. 45-5 at 7. Title Cash also posted signs in its stores advising employees of
their rights under federal employment laws. Doc. 45-4 at 2.
During her employment, Milazzo’s supervisor Curt Golden reprimanded
and threatened to discipline Milazzo for leaving reports on the printer, wearing
sandals and sleeveless tops, and failing to timely file reports and record phone
calls. Doc. 45-1 at 7-8. Allegedly, Golden failed to reprimand younger employees
for the same infractions. Id. Further, Milazzo alleges that her manager Denise
Martinez informed Milazzo that Golden disliked Milazzo because she was “old,
fat, and ugly.” Id. at 7,12, 48. Despite this alleged mistreatment, Milazzo only
complained about Golden “within a month of getting let go.” Id. at 12.
During Milazzo’s employment, Hutcheson Enterprises, Inc. provided human
resources support for Title Cash. Doc. 45-2 at 2. At some point, Linda
Thompson, Hutcheson’s human resources coordinator, received documentation
from Martinez demonstrating Milazzo’s failure to follow company policy and
Thompson decided to discharge Milazzo for failing to (1) “get copies of
[identification]” from a customer in violation of the Title Pawn Act, and (2)
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acquire a potential customer’s pay stub to verify employment and place of
residence. Doc. 45-2 at 16-18. Presumably, Thompson in turn communicated her
decision to Title Cash because on September 12, 2008, Golden discharged
Milazzo.3 Docs. 45-1 at 15; 45-3. During the exit interview, Milazzo told Golden,
“You’re just doing this because you want to hire this Spanish girl that you want to
date,” and Golden allegedly responded, “You’re right, I do.” Id. at 13. Milazzo
signed an exit review record stating that she failed to “follow[ ] company policy,
nor State Lending Laws. Due to the nature of her infractions and the possible
fines imposed on her employer, immediate termination of employment is merited.”
Thereafter, Milazzo filed a charge of discrimination with the Equal
Employment Opportunity Commission that she signed and mailed on March 9,
2009, 178 days after her termination.4 Doc. 26-1 at 2. The EEOC received the
charge on March 16, 2012, id., i.e. five days after the 180 day deadline to file a
timely charge of discrimination.
Milazzo does not challenge Title Cash’s contention that Thompson made the decision to
discharge her. See doc. 51.
Milazzo raised claims for age and race discrimination under the Age Discrimination in
Employment Act (“ADEA”) and Title VII of the Civil Rights Act of 1964, respectively.
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Milazzo’s EEOC charge is untimely
The court addresses first the timeliness of Milazzo’s claim which Title Cash
raised initially in a motion to dismiss. Doc. 7. The court denied the motion to
afford Milazzo the opportunity to present evidence that would demonstrate that the
EEOC led her “into reasonably believing” that she submitted her charge on a
timely basis and perhaps create a basis for the court to equitably toll the deadline.
Doc. 43 at 5 n.2; see Lawrence v. Cooper Cmtys, Inc., 132 F.3d 447, 451 (8th Cir.
1998). Unfortunately, Milazzo failed to do so, or to rebut the established case law
on when a charge is deemed filed with the EEOC. See, e.g., Taylor v. Gen. Tel.
Co., 759 F.2d 437, 440 (5th Cir. 1985) (“Our review of cases construing Title VII
filing provisions leads inescapably to the conclusion that ‘mailing’ may not be
construed as ‘filing’ for purposes of Title VII.”). Therefore, the court finds that
Milazzo’s Title VII and ADEA claims are barred by her failure to timely exhaust
her administrative remedies and GRANTS Title Cash’s motion for summary
judgment on this basis. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1).
Alternatively, as shown below, even if a basis exists to toll the statute,
summary judgment is still due because Milazzo failed to rebut Title Cash’s
articulated reasons for her discharge.
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Title Cash contends that Milazzo failed to establish a prima facie case of
age discrimination and to rebut its legitimate, non-discriminatory reason for her
termination. Doc. 44 at 8-11. Indeed, Milazzo’s opposition brief is silent as to her
age claim. Nonetheless, because “summary judgment, even when unopposed, can
only be entered when ‘appropriate,’” U.S. v. One Piece of Real Property Located
at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004), the
court has considered the merits and finds that summary judgment is appropriate
here. Specifically, even if Milazzo can establish a prima facie case,5 she failed to
rebut Title Cash’s legitimate, non-discriminatory reason for her termination, i.e.
that Milazzo violated state lending laws and company policy regarding lending
procedures. Docs. 44 at 11-13. In fact, Milazzo offered no rebuttal to Title Cash’s
contention and presented no argument regarding whether Title Cash’s reasons for
her termination are pretextual. Moreover, Milazzo faces a difficult burden
Title Cash contends that Milazzo failed to establish a prima facie case of age
discrimination based on her allegations that Golden “pick[ed] on” her, pursuant to the
requirement in Davis v. Town of Lake Park, Fla, 245 F.3d 1232, 1238 (11th Cir. 2001), that a
plaintiff show “a serious and material change in the terms, conditions, or privileges of
employment,” and based on Martinez’s statements about Golden’s comments, which are “bald
conclusions, opinions, and hearsay without supporting specific facts are not admissible and do
not create a genuine issue of material fact,” Williams v. Hager Hinge Co., 916 F. Supp. 1163,
1168 (M.D. Ala. 1995), citing Evers v. Gen. Motors. Corp, 7780 F.2d 984, 986 (11th Cir. 1985).
Doc. 44 at 8-10. The court agrees and finds further that such purported comments by Golden, a
non-decision maker, are insufficient to establish evidence of age discrimination. Doc. 45-2 at 17;
Wallace v. O.C. Tanner Recognition, Co., 299 F.3d 96, 100 (1st Cir. 2002) (“brief, stray remarks
unrelated to the termination decisional process” lack probative value).
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because the primary player behind her termination, Thompson, was 66 years old
and within the class of persons protected by the ADEA. Doc. 45-4 at 2. As such,
she is “more likely to be the victim[ ] of age discrimination than its perpetrator[ ].”
Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1471 (11th Cir. 1991); see also
Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 572 (7th Cir. 1998) (“While
persons of any age are capable of age discrimination, that the decision maker is
older than the terminated employee is certainly significant in evaluating the
evidence of discrimination.”).
In short, Milazzo’s evidence is insufficient to establish that age-related
animus motivated Title Cash’s decision or that material issues of disputed fact
exist. Therefore, the court GRANTS Title Cash’s motion on Milazzo’s age
Title VII Claim
The McDonnell Douglas framework applies here also since Milazzo is using
circumstantial evidence to prove her race discrimination claim.6 Burke-Fowler v.
“Direct evidence is ‘evidence, that, if believed, proves [the] existence of [a] fact without
inference or presumption.”’ Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11 Cir. 2004)
(citation omitted). “‘[O]nly the most blatant remarks whose intent could mean nothing other
than to discriminate on the basis of’ some impermissible factor constitute direct evidence of
discrimination.” Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir. 2002) (citations and
quotation marks omitted). Therefore, Golden’s alleged statement confirming that he “want[ed]
to hire this young Spanish girl that you want to date” fails to rise to the level of direct evidence
because it suggests a selfish sexual motive at best and can only constitute racial discrimination if
such as intent is inferred or presumed. In other words, it cannot constitute direct evidence.
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Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (citation omitted). To
establish a prima facie case of disparate treatment, Milazzo must show: (1)
membership in a protected class; (2) that she is qualified for the position; (3) that
she suffered an adverse employment action; and (4) that Title Cash treated her less
favorably than a similarly-situated individual outside her protected class.
Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). “To show that
employees are similarly situated, the plaintiff must show the ‘employees are
similarly situated in all relevant respects.’” Knight v. Baptist Hosp. of Miami, Inc.,
330 F.3d 1313, 1316 (11th Cir. 2003) (citation omitted). The law is clear that
“[t]he comparators must perform jobs similar to the plaintiff’s; thus, the plaintiff
must show that, in her job, she ‘shared the same type of tasks’ as the comparators.”
Cooper v. So. Co., 390 F.3d 695, 725 (11th Cir. 2004) (overruled on other
grounds) (citation omitted). Furthermore, the “quantity and quality of the
comparator’s misconduct [must] be nearly identical to prevent courts from
second-guessing employers’ reasonable decisions and confusing apples with
oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (citation
Furthermore, statements by non-decision makers do not rise to the inference of discrimination.
See Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989).
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Milazzo failed to identify similarly situated comparators
Milazzo alleges that Title Cash treated her “unfairly” because “other people
did the same things that they’re saying that I did.” Doc. 45-1 at 22. Milazzo
identified the “other people” as Denise Martinez, Mandi Beams, and “Jamie.”
Doc. 45-1 at 33. However, Martinez and Beams are not proper comparators
because Milazzo acknowledged that both were store managers and, significantly,
Milazzo failed to meet her burden of showing that Title Cash “subjected them to
different employment policies.” Lathem v. Dept. of Children and Youth Servs.,
172 F.3d 786, 793 (11th Cir. 1999); see also Rioux v. City of Atlanta Ga, 520 F.3d
1269, 1281 (11th Cir. 2008) (finding that a battalion chief was not a “valid
comparator” for a deputy fire chief because of the “material differences in the
men’s respective ranks and job responsibilities”).7 Indeed, Milazzo never
specified any incidents where Martinez or Beams failed to, or Title Cash alleged
that they failed to, follow loan procedures. Doc. 45-1 at 27, 28. Absent such
evidence, Milazzo’s contentions are conclusory and are insufficient to defeat
summary judgment. Ellis, 432 F.3d at 1326. Likewise, as to “Jamie,” Milazzo’s
contentions are also conclusory. According to Milazzo, she could not “tell [ ]
Milazzo testified that Martinez and Beams trained her, that Milazzo was Martinez’s
assistant, and that Martinez “did the same things I did, and some things she did that I couldn’t do
because she was the manager.” Doc. 45-1 at 5-6, 27.
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specifically” what Jamie did, and instead asserts that “all [Milazzo] can recall” is
that “Mandi did most of [Jamie’s] work for her” and that Jamie “always would
start something and never finish it.” Doc. 45-1 at 33. Because “mere conclusions
and unsupported factual allegations are legally insufficient to defeat a summary
judgment motion,” Ellis, 432 F.3d at 1326, Milazzo’s allegations fall woefully
short of meeting her burden of proof for her prima facie case.
Title Cash’s alleged discriminatory discharge
As an alternative basis for discrimination, Milazzo alleges that Title Cash
discharged her because she could not speak Spanish. Doc. 45-1 at 13, 22, and 25.
Unfortunately for Milazzo, not being able to speak Spanish is not a protected
class, see 42 U.S.C. § 2000e-2(a)(1) and (2), and, accordingly, summary judgment
is due on this basis. Moreover, Milazzo’s prima facie case fails because her
contention that Title Cash replaced her with a Hispanic is based on unfounded
speculation: “[t]here was a Spanish girl working there right after I left;” “[s]he
was dark and she had black hair and could speak Spanish.” Doc. 45-1 at 22.
Milazzo presents no payroll records and relies solely on her testimony instead to
prove that Title Cash replaced her with a Hispanic person. In contrast, Thompson
provided evidence that the next person Title Cash hired after Milazzo’s
termination was Amberly Foster, a white cashier, on December 15, 2008. Doc.
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45-2 at 24. Milazzo’s bald assertions are insufficient to meet her burden. See
Ellis, 432 F.3d at 1326.
Plaintiff failed to produce evidence of pretext
Finally, even if Milazzo can establish a prima facie case on either of her
race discrimination theories, her claim still fails because she cannot show that
Title Cash’s articulated reason for her termination is pretextual. To establish
pretext, Milazzo “must demonstrate ‘such weakness, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.’” Sampath v. Immucor, Inc., 271 F. App’x 955, 960 (11th
Cir. 2008) (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.
1997)). As stated previously, Milazzo never addressed Title Cash’s articulated
reasons for her discharge. Moreover, Title Cash also presented unrebutted
evidence that it discharged Milazzo for repeatedly “fail[ing] to follow company
policy and procedures and proper lending procedures.” Docs. 45-2 at 17, 18; 45-3.
Milazzo does not challenge this assertion and, in fact, acknowledged it in her exit
interview. Doc. 45-3. When, as here, Milazzo failed to establish that Title Cash
failed to hold non-protected class employees to the same rules or to rebut Title
Cash’s articulated reasons, the court grants Title Cash’s motion on Milazzo’s race
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Based on the record before it, Milazzo’s ADEA and Title VII claims are
untimely. Alternatively, no evidentiary basis exists for the court to find that
Milazzo can establish a prima facie case or show that Title Cash’s proffered
reasons for termination are pretextual. Therefore, Title Cash’s motion for
summary judgment is due to be GRANTED. The court will issue a separate order
granting the motion and dismissing this case.
Done the 23rd day of October, 2012.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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