Wolf v. MHW Global

Filing 76

ORDER granting 56 Defendant MWH Constructors, Inc.'s Dispositive Motion for Summary Judgment; denying as moot 62 Defendant MWH Constructors, Inc.'s Motion to Strike Any Plaintiff Claim for "Compensation Discrimination" ; denying as moot 71 Defendant MWH Constructors, Inc.'s Motion In Limine. Signed by Judge Sheri Polster Chappell on 7/25/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

LEIGH WOLF,
Plaintiff,
v.

Case No: 2:12-cv-318-FtM-38CM

MWH CONSTRUCTORS, INC.,
Defendant.
/
ORDER1
This matter comes before the Court on Defendant MWH Constructors, Inc.'s
Dispositive Motion for Summary Judgment (Doc. #56) filed on June 20, 2014. Plaintiff
Leigh Wolf filed an Opposition to Defendant's Motion for Summary Judgment (Doc. #60)
on July 3, 2014. Defendant also filed a Reply to Plaintiff's Opposition (Doc. #66) on July
18, 2014, and Plaintiff thereafter filed a Surreply to Defendant's Reply (Doc. #69) on July
23, 2014. Thus, this matter is ripe for review.
BACKGROUND
I.

Plaintiff's employment with Defendant
On April 17, 2000, MWH Americas, Inc. ("MWH Americas"), Defendant's sister

company, hired Plaintiff as an intern. (Pl.'s Dep. 8:24-9:3). When Plaintiff graduated from

1

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college in 2001, MWH Americas hired her full time as a project engineer. (Pl.'s Dep. 9:415). In late 2006, Plaintiff transferred to Defendant and became a senior project engineer.
(Pl.'s Dep. 9:23-10:5). At that time, Defendant was managing the construction of water
treatment plants, water reclamation facilities, and wells for the City of Cape Coral, Florida
(collectively referred to as "the Cape Coral projects"). (Doc. #56 at 2). Michael P. Holt
served as Defendant's Eastern Regional Manager for Municipal Construction Services
from February 2006 to February 2008, and his office was in Atlanta, Georgia. (Holt Decl.,
¶ 1). In this capacity, Holt headed the Cape Coral projects. (Id.). Larry Laws, the Division
Construction Manager for the Cape Coral projects, reported to Holt. (Laws Decl., ¶ 1).
The specific Cape Coral project for which Plaintiff worked was the North Cape RO
Water Treatment Plant (the "North Cape project"). (Pl.'s Dep. 11:18-20, 12:6-15). The
North Cape project entailed Defendant building a reverse osmosis water treatment plant
and ancillary wells. (Pl.'s Dep. 12:10-15). Defendant assigned approximately fifteen to
seventeen employees to this project. (Rowley Decl., ¶ 2). Pertinent to this action is Jack
Currie, who was the Senior Project Manager for the North Cape project until his discharge
on August 29, 2007. (Laws Decl., ¶ 6). Currie reported to both Holt and Laws. (Holt
Decl., ¶ 6). Also relevant is Shon Fandrich, a Project Manager for the North Cape project.
(Fandrich Decl., ¶ 1). Plaintiff principally reported to Currie, but, at times, she also
reported to Fandrich. (Holt Decl., ¶ 6; Fandrich Decl., ¶ 2).
Officially, Plaintiff worked as a senior project engineer on the North Cape project
until her resignation on June 11, 2008. (Pl.'s Dep. 14:3-10). Her primary duties consisted
of engineering tasks such as interfacing between the design and construction teams,
answering vendors' information requests, writing change orders, and coordinating other

2

communications between the subcontractors and the client. (Doc. #56 at 4-5). Plaintiff,
however, claims she was a senior project engineer in name only because she unofficially
managed projects from design through construction and supervised staff. (Doc. #60 at
10; Pl.'s Dep. 41:8-12).
Several specific instances of Plaintiff's employment are pertinent in this action,
which the Court will detail in turn.
A. The W-2C project
Shortly after Plaintiff started working for the North Cape project, Currie assigned
her to the ancillary W-2C project.2 (Pl.'s Dep. 70:20-25). The parties offer competing
narratives on Plaintiff's precise role in this project. Plaintiff maintains she acted as a
project manager until approximately July 2007, although she did not have that job title.
(Pl.'s Dep. 41:8-15, 72:16-20). According to Plaintiff, Holt, "[w]ithout warning, cause, or
provocation," ordered Currie to remove her from this managerial post and replaced her
with John Petrous, who had inferior credentials. (Doc. #60 at 3, 30; Pl.'s Dep. 68:1-25).
Plaintiff's compensation, benefits, and job title did not change when Petrous was assigned
to the W-2C project.

(Pl.'s Dep. 75:4-8).

Defendant, however, contends Plaintiff

temporarily assisted Currie on the W-2C project while Holt searched for an individual to
fill that position permanently. (Holt Decl., ¶ 14). Holt then internally hired Petrous to
manage the W-2C project, as he had significant experience in this area. (Id.).

2

The W-2C wells project entailed drilling raw water production wells that would serve as the water sources
for the North Cape RO Water Treatment Plant. (Pl.'s Dep. 69:3-24). When Plaintiff joined this project,
approximately seventy-five percent (75%) of the wells had been drilled. (Pl.'s Dep. 69:25-70:13).

3

B. Plaintiff's internal career development
Defendant has an internal personnel and job classification system, titled
"CareerTrack." (Rowley Decl., ¶ 7; Pl.'s Dep. 77:8-13). Under this system, employees
are classified based on objective criteria like job requirements, skills, education level, and
experience. (Rowley Decl., ¶ 7). CareerTrack allows Defendant to assign the appropriate
employees to projects so the projects' and clients' needs are met. It also provides
employees transparency on their job requirements and possible career advancements.
(Id.).
CareerTrack groups jobs with similar requirements into six "families." Within each
family there are "career levels" that represent the education, experience, and leadership
skills required of a job at that level. (Id.). Pertinent here, the "Technology family" is
composed of engineering, design, and technical support professionals; whereas the
"Project Management" family is composed of employees involved in construction
management and actual construction. (Id., ¶ 8). It is common for employees to move
between the families. (Doc. #56 at 3). Also, because Defendant's employees collaborate
on projects, it is common for a Technology family employee to assist with or perform
duties normally performed by a Project Management employee. (Id., ¶ 8).
When Plaintiff joined Defendant as a senior project engineer, she was assigned to
the Technology family. (Id., ¶ 9). Plaintiff, however, requested to be reclassified to the
Project Management family sometime in December 2006.

(Doc. #60 at 28).

On

December 15, 2006, Shon Fandrich emailed Plaintiff to discuss her request. (Doc. #60
at 28).

Defendant decided Plaintiff needed more onsite experience managing

4

construction projects before she qualified for a project manager position. (Rowley, ¶ 9;
Holt Decl., ¶¶ 7, 15).
On May 18, 2007, Holt emailed Dana Dorr, a member of Defendant's Human
Resources department, asking what he needed to do to transfer Plaintiff to the Project
Management family because it was "certainly appropriate that she be reclassified." (Doc.
#56-3 at 6). Plaintiff was carbon copied on this email. (Doc. #56-3 at 6). On June 1,
2007, Plaintiff followed-up with Holt about her reclassification because she had not
received a response from Dorr. (Doc. #56-3 at 5). Holt responded, "[d]ue to the myriad
of America's classifications I was having trouble flanging up your title with the appropriate
Constructor's title in the technical family. I will try to talk to Jack [Currie] and Dana [Dorr]
today to get this flattened out." (Doc. #56-3 at 5).
On June 13, 2007, Plaintiff met with Holt to discuss her career goals and her
request to transfer to the Project Management family. (Doc. #60 at 26). According to
Plaintiff, Holt denied her transfer request but encouraged her to pursue a career in project
management and participate in project management training. (Doc. #60 at 26; Holt Decl.,
¶ 7). Sometime after this meeting with Holt, Plaintiff apparently contacted Ed Hernandez
from Defendant's Human Resources department to inquire about transferring to the
Project Management family.

(Doc. #60 at 26).

According to Plaintiff, Hernandez

explained to her, because of her experience and qualifications, she should be part of the
Project Management family and manage projects. (Doc. #60 at 26).
C. Plaintiff's "Executive Risk Call" presentation
Sometime around June 2007, Plaintiff presented, for the first time, at an "Executive
Risk Call" with upper management. (Pl.'s Dep. 157:14-16). Some managers participated

5

remotely and others participated in-person at the Cape Coral, Florida location with
Plaintiff. Holt participated by telephone. (Holt Decl., ¶ 16). When Holt heard Plaintiff
begin to present, he telephoned Mike Kaner, who was participating in-person, and said
something to the effect of "[w]hat the hell is Leigh Wolf doing leading this presentation?
Get her off the call and get Jack Currie on the call." (Holt Dep. 63:19-18). Plaintiff and
the in-person participants heard Holt's comment. (Pl.'s Dep. 148:13-25). Holt was
surprised and upset that Plaintiff, and not Currie, was leading the call because Currie was
the assigned Senior Project Manager. (Holt Decl., ¶¶ 5, 16; Pl.'s Dep. 159:20-23).
Although embarrassed by Holt's statement, Plaintiff continued her presentation. (Pl.'s
Dep. 148:13-149:7). Holt later apologized for his unprofessional behavior but Plaintiff
does not recall the apology. (Pl.'s Dep. 159:4-7; Holt Dep. 65:15-66:9).
D. Plaintiff's training opportunities
In or around May 2007, Holt met with various male individuals from the Cape Coral
projects. (Pl.'s Dep. 145:18-25). Plaintiff and another female employee were not invited
to this meeting. (Pl.'s Dep. 51:15-24). Plaintiff does not know whether Holt held a meeting
or training session, but she considered Holt to have conducted training. (Pl.'s Dep.
145:18-25).
Additionally, around July 2007, Defendant released the fourth module of its internal
"Manage the Project" training program ("MTP"), which was a multi-day training session
intended for existing project managers. (Pl.'s Dep. 50:9-18, 52:14-20; Rowley Decl.,
¶¶ 10, 12; Holt Decl., ¶ 4). Although Defendant invited Plaintiff to attend the first three,
she was not invited to the fourth. (Pl.'s Dep. 51:10-14).

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II.

Plaintiff's sex discrimination complaint and the aftermath
On August 17, 2007, Plaintiff emailed Holt to discuss why she had not been invited

to participate in the fourth MTP module and removed from the W-2C project. (Doc. #60
at 26). Plaintiff wrote, in pertinent part:
I cannot help but feel I am being blatantly discriminated
against by being stripped of project management duties (on
the W-2C project which I had been successfully managing
since my transfer into Constructors, and from which I was
removed as project manager and a person with far less
qualifications was given responsibility for), as well as being
denied training opportunities on more than one occasion.
(Doc. #60 at 26). Plaintiff continued "in the nine months I have been with Constructors I
believe my opportunities for advancement and success are being limited by the fact that
my qualifications, skills and experience are being disregarded, and that my career goals
are not being taken seriously by you." (Doc. #60 at 26). This was the first time Plaintiff
complained of sex discrimination to Defendant. (Pl.'s Dep. 143:3-9). Shortly thereafter,
Plaintiff met with Dana Dorr and they spoke briefly about her email to Holt. (Pl.'s Dep.
108:15:20, 111:1-112:12).
On August 29, 2007, Plaintiff met with Dorr and Larry Laws, where they asked
Plaintiff about her personal relationship with Currie.3 (Pl.'s Dep. 113:20-25; 114:2-4, 1822). They warned her that answering dishonestly on the matter would result in her
discharge, as they had just discharged Currie for lying about their romantic involvement.
(Pl.'s Dep. 114:18-115:25). Plaintiff perceived this warning as an intimidation tactic so
she would not pursue her sex discrimination complaint. (Pl.'s Dep. 108:25-109:3).

3

Rumors had circulated around April 2007 that Currie and Plaintiff had a romantic relationship, which they
denied. (Doc. #60 at 27; Pl.'s Dep. 118:10-18; Holt Decl., ¶ 12; Fandrich Decl., ¶ 5). Sometime later,
Defendant obtained evidence confirming their relationship and they discharged Currie on August 29, 2007.
(Doc. #56 at 7).

7

After the meeting, Plaintiff called Dorr and asked if Currie's dismissal was
Defendant's response to her sex discrimination concerns. (Pl.'s Dep. 109:4-10; Doc. #60
at 11). Dorr explained that Currie's dismissal had nothing to do with her concerns and he
would contact her later to further discuss that matter. (Pl.'s Dep. 109:4-9). Dorr did not
follow up with Plaintiff. (Pl.'s Dep. 109:9-10).
Sometime after August 29, 2007, Fandrich did not give Plaintiff a performance
evaluation. (Pl.'s Dep. 138:14-21). After Plaintiff complained about not receiving the
evaluation, Roy Bumpass, the facilities manager on the North Cape project, evaluated
her. (Id. 135:22-23). According to Plaintiff, "Bumpass was unprepared for the evaluation,
did not review [her work], and indicated [she] was reputedly arrogant and unapproachable
in the review." (Doc. #60 at 9).
Also of note is that sometime after February 2008 Plaintiff was randomly selected
for a drug test. (Pl.'s Dep. 239:19-24; Doc. #56-2 at 6). Defendant has a substance
abuse policy that involves quarterly drug tests, and a third-party company randomly
selects and tests the employees. (Rowley Decl., ¶ 14; Doc. #56 at 4).
On June 11, 2008, Plaintiff resigned from her position with Defendant. (Doc. #562 at 5). Almost one month later, she joined Black and Veatch, a global engineering
consultant company, and began working in Afghanistan. (Pl.'s Dep. 146:24-147:1).
III.

Charge of Discrimination and federal lawsuit
On December 22, 2008, Plaintiff filed a charge of discrimination with the United

States Equal Employment Opportunity Commission ("EEOC"), alleging sex discrimination
and retaliation. (Doc. #60 at 29-31). On March 12, 2012, the EEOC issued Plaintiff a
right to sue letter. (Doc. #12 at 17). Plaintiff thereafter commenced this employment

8

discrimination action on June 11, 2012. (Doc. #1). In the two-count complaint, Plaintiff
alleges Defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et.
seq. ("Title VII"), and the Florida Civil Rights Act of 1992, Ch. 760, Fla. Stat. ("FCRA")4
by discriminating against her based on sex and retaliating against her for complaining of
sex discrimination. (Doc. #12). Defendant now moves for summary judgment on both
claims. (Doc. #53
STANDARD OF REVIEW
"The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and [she] is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). An issue is genuine if there is sufficient evidence such that
a reasonable jury could return a verdict for either party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Similarly, an issue of fact is material if it may affect the
outcome of the suit under governing law. Id.
The moving party bears the burden of showing the absence of any genuine issue
of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding
whether the moving party has met this initial burden, courts must review the record and
draw all reasonable inferences from the record in a light most favorable to the non-moving
party. See Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999). Once the
court determines the moving party has met this burden, the burden shifts to the nonmoving party to present specific facts showing a genuine issue of fact exists to preclude

4

In the Amended Complaint, Plaintiff also alleges this action arises under 42 U.S.C. § 1981a. (Doc. #12
at 1). Section 1981a protects against race discrimination. See 42 U.S.C. § 1981a ("All persons within the
jurisdiction of the United States shall have the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed by white citizens, . . ."). Since Plaintiff has not alleged
race discrimination, she has no claim under 42 U.S.C. § 1981a.

9

summary judgment. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). "The evidence presented cannot consist of conclusory allegations, legal
conclusions or evidence which would be inadmissible at trial." Demyan v. Sun Life
Assurance Co. of Can., 148 F. Supp. 2d 1316, 1320 (S.D. Fla. 2001) (citing Avirgan v.
Hull, 932 F.2d 1572, 1577 (11th Cir. 1991)). Failure to show sufficient evidence of any
essential element is fatal to the claim and the court should grant the summary judgment.
See Celotex, 477 U.S. at 322-23. Conversely, if reasonable minds could find a genuine
issue of material fact then summary judgment should be denied. See Miranda v. B & B
Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir. 1992).
DISCUSSION
Defendant moves for summary judgment on the following grounds: (1) many of the
discriminatory and retaliatory acts on which Plaintiff brings this action are time-barred; (2)
Plaintiff cannot establish a prima facie case of sex discrimination; and (3) Plaintiff cannot
establish a prima facie case of retaliation. (Doc. #56 at 1-2). The Court will address each
argument in turn.
I.

Timeliness
Before commencing a Title VII action in federal court, a plaintiff in a deferral state

like Florida must file an administrative charge of discrimination within 300 days of the last
discriminatory act. See 42 U.S.C. § 2000e-5; E.E.O.C. v. Joe's Stone Crabs, Inc., 296
F.3d 1265, 1271 (11th Cir. 2002). Alternatively, a plaintiff may file an administrative
complaint with the Florida Civil Rights Commission within 365 days after the purported
discriminatory act. See Fla. Stat. § 760.11(1). Either way, a plaintiff cannot recover for
discrete acts of discrimination and retaliation that occur outside the applicable statutory

10

time period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002).
"[D]iscrete discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges. Each discrete discriminatory act starts a
new clock for filing charges alleging that act." Morgan, 536 U.S. at 113. Discrete acts
"are easy to identify" and include "termination, failure to promote, denial of transfer, or
refusal to hire." Morgan, 536 U.S. at 114
The continuing violation doctrine offers an exception to this limitation period and
allows a plaintiff to sue on otherwise time-barred claims where at least one violation
occurred within the period. See Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1221
(11th Cir. 2001).

"In determining whether a discriminatory employment practice

constitutes a continuing violation, '[the court]' must distinguish between the present
consequence of a one-time violation, which does not extend the limitations period, and
the continuation of the violation into the present, which does." Joe's Stone Crabs, 296
F.3d at 1271 (citation omitted). "[A] plaintiff may not circumvent the limitations period
merely by labeling an act a 'continuing' violation. Completed acts such as a termination .
. . are not acts of a 'continuing' nature. Rather, a plaintiff must maintain that a pattern of
discrimination or an employment practice presently exists to perpetuate the alleged
wrong." Jacobs v. Bd. of Regents, 473 F. Supp. 663, 669 (S.D. Fla. 1979) (internal
quotations and citation omitted). The continuing violation "doctrine does not apply to
discrete acts of discrimination, such as a promotion denial or refusal to hire." Brooks v.
CSX Transp., Inc., No. 13-12048, 2014 WL 480382, at *2 (11th Cir. Feb. 7, 2014) (citing
Morgan, 536 U.S. at 114). With these principals in mind, the Court will turn the timeliness
of Plaintiff's alleged discriminatory and retaliatory acts.

11

Plaintiff filed her EEOC charge on December 22, 2008. Consequently, all discrete
discriminatory and retaliatory acts that occurred before March 3, 2008, for Title VII
purposes, and December 22, 2007, for FCRA purposes are untimely filed, no longer
actionable, and outside the scope of the action. See Joe's Stone Crabs, 296 F.3d at
1271. Based on the undisputed record evidence, the following discrete acts cannot form
the basis of Plaintiff's sex discrimination and retaliation claims: (1) Holt did not invite
Plaintiff to attend his April 2007 training or the MTP training in June/July 2007; (2) Holt
embarrassed Plaintiff during the "Executive Risk Call" in or around June 2007; (3) Holt
supplanted Plaintiff's unofficial managerial duties on the W-2C when he hired John
Petrous in or around June/July 2007; (4) Defendant did not transfer Plaintiff to the Project
Management family in June 2007; and (5) Defendant denied her objective job progression
criteria and formal job descriptions through August 2007. At most, these acts may provide
relevant background and overall context to Plaintiff's claims.
Plaintiff turns to the continuing violation doctrine in an attempt to rescue the above
alleged discriminatory and retaliatory acts. (Doc. #56 at 17). The Court finds Plaintiff's
attempt unpersuasive because she simply labels those acts as "continuing violations" and
declares victory. See Jacobs, 473 F. Supp. at 669. For example, she maintains that the
"instances leading up to the charge all flow out of the same series of events and
occurrences." (Doc. #60 at 7). However, conspicuously absent from Plaintiff's papers is
a minimum assertion that Defendant engaged in a pattern of discrimination or had an
employment practice that perpetuated the alleged wrong. At this stage in the litigation,
Plaintiff needs more than mere allegations to salvage her otherwise time-barred
discriminatory or retaliatory acts.

12

Accordingly, in assessing whether Plaintiff's sex discrimination and retaliation
claims survive summary judgment, the Court will only consider those alleged acts that fall
within the actionable periods set forth above.
II.

Sex discrimination under Title VII and FCRA
In Count I of the Amended Complaint, Plaintiff alleges Defendant intentionally

discriminated against her on the basis of her sex in violation of Title VII and the FCRA. 5
Title VII prohibits employment discrimination on the basis of sex. See 42 U.S.C. § 2000e2(a)(1). In cases involving circumstantial evidence of discrimination, as here, the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), typically
applies.6 See Blom v. WellStar Health Sys., 560 F. App'x 950 (11th Cir. 2014).
Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a
prima facie case of discrimination. See Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir.
2012). This requires her to present sufficient evidence that (1) she is a member of a
protected class; (2) she was qualified to do the job; (3) she was subject to an adverse
employment action; and (4) similarly situated employees outside of her protected class
were treated more favorably. See Johnson v. Sec., U.S. Dep't of Veterans Affairs, 517
F. App'x 933, 935 (11th Cir. 2013) (citing McDonnell Douglas, 411 U.S. at 802).
If the plaintiff establishes a prima facie case, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for its actions. See Holland, 677 F.3d at

5

The Court's analysis of Plaintiff's sex discrimination claim under Title VII applies equally to her claim under
the FCRA. See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010) (stating
discrimination claims under the FCRA are generally subject to the same legal standards as claims based
on Title VII); Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) ("The Florida courts
have held that decisions construing Title VII are applicable when considering claims under the [FCRA],
because the Florida act was patterned after Title VII." (citations omitted)).
6

Plaintiff has neither offered direct evidence of sex discrimination nor argued that such evidence exists.

13

1055. The defendant's burden is one of production, not of persuasion. See Wilson v.
B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) (stating the defendant "need
not persuade the [finder of fact] that it was actually motivated by the proffered reasons").
Once the defendant articulates a legitimate, nondiscriminatory reason, the presumption
of discrimination disappears, and the burden shifts back to the plaintiff "to demonstrate
that the proffered reason was not the true reason for the employment decision." Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); see also Combs v. Plantation
Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (stating rebuttal evidence must reveal
"such weaknesses, 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").
In this case, Defendant argues Plaintiff cannot meet the last two elements of her
prima facie case, i.e., she did not suffer an adverse employment action and she was not
treated less favorably than a similarly situated employee outside her protected class.
A. Adverse employment action
For purposes of Title VII discrimination, an adverse employment action occurs
when an employer's action affects the compensation, terms, conditions, or privileges of
the plaintiff's employment in a real and demonstrable way. See 42 U.S.C. § 2000e2(a)(1); Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir. 2001). Since
Title VII is not "a general civility code" for the workplace, Gupta v. Fla. Bd. of Regents,
212 F.3d 571, 587 (11th Cir. 2000), only "materially" adverse conduct is actionable. See
Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 69 (2006); Davis, 245 F.3d at
1238. Thus, a plaintiff must show "a significant change in employment status, such as

14

hiring, firing, failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits." Burlington Indus. v. Ellerth, 524
U.S. 742, 760 (1998). Importantly, not everything that makes an employee unhappy is
an actionable adverse action, Davis, 245 F.3d at 1238, and district courts do not "sit as a
super-personnel department that reexamines an entity's business decisions," Denney v.
City of Albany, 247 F.3d 1172, 1188 (11th Cir. 2001).
As discussed previously, Plaintiff has alleged a myriad of ways in which Defendant
adversely treated her because of her sex: (1) denied her training opportunities; (2)
stripped of her unofficial managerial duties for the W-2C project; (3) denied her objective
job progression criteria and formal job descriptions; and (4) constructively discharged her.
(Pl.'s Dep. 46:16-47:20, 76:23-77:4, 85:24-86:6, 95:5-15, 198:16-23).

Except for

constructive discharge, these alleged adverse employment actions are untimely for the
reasons stated above and cannot form the basis for a sex discrimination claim. 7 The
Court, therefore, turns to whether Plaintiff has established that her constructive
discharged constitutes an adverse employment action.
For a plaintiff to demonstrate constructive discharge, she must show "the work
environment and conditions of employment were so unbearable that a reasonable person
in that person's position would be compelled to resign." Johnson v. Woodruff, 28 F. Supp.

7

Even if the Court were to ignore Title VII's limitations period, which it will not, Plaintiff concedes Defendant
never decreased her compensation and benefits, she never applied for a promotion, and Holt encouraged
her to pursue a career in project management. (Pl.'s Dep. 219:7-24; Doc. #60 at 26). Defendant also never
reassigned or demoted Plaintiff to a position with significantly different responsibilities, as she remained a
senior project engineer throughout her career with Defendant. (Pl.'s Dep. 14:3-10). Moreover, Plaintiff
cannot rely on Currie's statements to her about what Holt had allegedly said to him to argue Holt was bias
against female employees. (Pl.'s Dep. 181:7-183:15, 186:20-187:9). Such anecdotal evidence of
discrimination is based upon inadmissible hearsay and/or a lack of personal knowledge that the Court
cannot consider in determining a motion for summary judgment. See Fed. R. Civ. P. 56(c); Avirgan v. Hull,
932 F.2d 1572, 1577 (11th Cir. 1991).

15

2d 1248, 1250 (M.D. Fla. 1998) (citing Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350,
1363 (11th Cir. 1994)). "Constructive discharge occurs when an employer deliberately
makes an employee's working conditions intolerable and thereby forces him to quit his
job." Bryant v. Jones, 575 F.3d 1281, 1298 (11th Cir. 2009) (citations omitted).
According to Plaintiff, "leaving the United States for the war zone that was and still
is Afghanistan was preferable to the intolerable working conditions at [Defendant]." (Doc.
#60 at 19). The record evidence, however, directly contradicts this inciting declaration.
First, in response to Defendant's interrogatories, Plaintiff stated she "[l]eft MWH
Constructors voluntarily to pursue career with another company with advancement
opportunities." (Def.'s Ex. F at 9) (emphasis added). Her response is consistent with her
letter of resignation in which she wrote, in pertinent part,
[m]y eight years of experience with [Defendant] has been
extremely rewarding and challenging both personally and
professionally. There are many people I have worked closely
with over the years that I have come to regard as a second
family. I sincerely appreciate the effort, experience and
knowledge that you [her supervisor] have brought to our team
. . . and regret that my opportunity to work with and learn from
you will be cut short. I wish all of the project team and MWH
great success.
(Doc. #56-2 at 5). Such evidence refutes the involuntariness of her resignation.
Second, Plaintiff made an informed and calculated decision to leave Defendant
and begin working for Black & Veatch in Afghanistan. In or around November 2007,
Plaintiff and Currie began a romantic relationship. (Pl.'s Dep. 124:9-12). As a result, she
vacationed to Afghanistan from mid-December 2007 to early January 2008 to visit Currie
who was working there at that time. (Id.). The purpose of her trip was to understand
whether their "relationship was going to be viable" because "[i]t's an awful long distance

16

to be apart from each other and . . . to be trying to hav[e] a long distance relationship if
it's not going to be viable." (Pl.'s Dep. 124:12-18). Approximately two months later,
Plaintiff returned to Afghanistan in hopes of deciding whether she wanted to move there
and work for Black & Veatch. (Pl.'s Dep. 125:2-23). As a result, the general manner in
which Plaintiff discards Defendant's argument that she voluntarily quit to join Currie in
Afghanistan is unpersuasive and certainly insufficient to overcome summary judgment.
See Lewis v. Aaron's Sales & Lease Ownership, Inc., No. 8:12-cv-01005, 2013 WL
5741780, at *4 (M.D. Fla. Oct. 22, 2013) ("A mere scintilla of evidence in the form of
conclusory allegations, legal conclusions, or evidence that is merely colorable or not
significantly probative of a disputed fact cannot satisfy a [non-moving] party's burden."
(citations omitted)).
Finally, Plaintiff portrays Holt as the principal offender. Interestingly, however, Holt
ceased working for Defendant in February 2008, nearly five months prior to Plaintiff's
resignation. (Doc. #56-3 at 1). The only evidence Plaintiff has presented is that Holt may
have been guilty of poor management, which is not the same as him treating her
differently than her male counterparts. See generally Douglas-Slade v. LaHood, 793 F.
Supp. 2d 82, 101 (D.D.C. June 22, 2011) (finding plaintiff's grievances pertained to her
supervisor's management style, which could not support a hostile work environment
claim). Although Plaintiff may have felt resistance from Holt, she has not raised any issue
of fact that such resistance was discriminatorily motivated.
In sum, even viewing the evidence in a light most favorable to Plaintiff, she has
failed to adduce any facts that her work environment had become so unbearable a
reasonable person in her position would have been compelled to resign. Since Plaintiff

17

has failed to demonstrate a constructive discharged, she has not, as a matter of law,
suffered an adverse employment action. Accordingly, Plaintiff has not met the third
element of her prima facie case of sex discrimination. See Celotex, 477 U.S. at 322-23
("The moving party is 'entitled to a judgment as a matter of law' because the nonmoving
party has failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof." (citation omitted)).
B. Similarly-situated employee
Even if Plaintiff suffered an adverse employment action, Defendant is still entitled
to summary judgment because she has failed to adduce any evidence Defendant treated
similarly situated male employees more favorably. When a plaintiff alleges discrimination,
she must show the employer treated similarly situated employees who are not in the
protected class more favorably. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999). To establish a comparator was similarly situated, the plaintiff must show "the
quantity and quality" of the comparator's misconduct was "nearly identical" to her own.
See Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1280 (11th Cir. 2008). Here, Plaintiff
points to no male employee who was constructively discharged. Without any comparator,
Plaintiff has not raised evidence sufficient to allow a reasonable fact finder to conclude
she can prove a prima facie case of sex discrimination.
In conclusion, Plaintiff was required, but ultimately failed, to offer specific evidence
showing a genuine issue of material fact that warrants trial on her claim. Stating in
conclusory fashion Defendant discriminated against her on the basis of sex, without more,

18

does not simply make it so.

Accordingly, the Court grants Defendant's Motion for

Summary Judgment as to Count I of the Amended Complaint.8
III.

Retaliation
In Count II of the Amended Complaint, Plaintiff alleges Defendant retaliated

against her after she emailed Holt on August 17, 2007, complaining of sex discrimination
(Doc. #60 at 26).9 Title VII prohibits an employer from "discriminat[ing] against any
individual . . . because [s]he has opposed any practice made an unlawful employment
practice by this subchapter." 42 U.S.C. § 2000e-3(a). The McDonnell Douglas burdenshifting framework discussed above also applies to retaliation claims supported by
circumstantial evidence.10 See Dockens v. Dekalb Cnty. Sch. Sys., 441 F. App'x 704,
708 (11th Cir. 2011) (per curiam).
A prima facie case of retaliation under Title VII requires the plaintiff to show that
(1) she engaged in an activity protected under Title VII; (2) she suffered an adverse
employment action; and (3) there was a causal connection between the protected activity
and the adverse employment action. See Crawford v. Carroll, 529 F.3d 961, 970 (11th
Cir. 2008). For an action to be adverse in the context of retaliation, it "must be harmful to
the point that [it] could well dissuade a reasonable worker from making or supporting a

8

On July 11, 2014, Defendant moved to strike any "compensation discrimination" claim Plaintiff attempted
to raise, for the first time, in her opposition to summary judgment. (Doc. #62). Defendant argues any claim
Defendant compensated her differently because of her sex is improper because Plaintiff neither alleged it
in the Amended Complaint nor in the EEOC Charge. (Doc. #62). In response, Plaintiff clarifies she "is not
seeking to add any cause of action for Equal Pay or otherwise to the Amended Complaint." (Doc. #68 at
2-3). The Court, therefore, will deny Defendant's Motion to Strike Any Plaintiff Claim for "Compensation
Discrimination" (Doc. #62) as moot.
9

The Court's analysis of Plaintiff's retaliation claim under Title VII applies equally to her claim under the
FCRA. See Harper, 139 F.3d at 1387.
10

Plaintiff has neither offered direct evidence of retaliation nor argued that such evidence exists.

19

charge of discrimination." Burlington, 548 U.S. at 57. Additionally, "Title VII retaliation
claims require proof that the [employer's] desire to retaliate was the but-for cause of the
challenged employment action." Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570
U.S., ___, 133 S. Ct. 2517, 2533 (2013). Again, summary judgment is appropriate if the
plaintiff fails to satisfy any of the elements of a prima facie case. See Turlington v. Atlanta
Gas Light Co., 135 F.3d 1428, 1433 (11th Cir. 1998).
Here, the undisputed record evidence, viewed in the light most favorable to
Plaintiff, does not establish a prima facie case for retaliation. The instances of alleged
retaliatory conduct Plaintiff points to, most of which are untimely, are nothing more than
a series of ordinary workplace tribulations and do not raise to the level of an adverse
employment action. For example, at some point, Fandrich instructed Plaintiff that a
certain amount of rock had to be installed every day in order to meet the project's design
and told her "this is how much progress you need to get, you're not managing the
contractor."

(Pl.'s Dep. 133:14-134:15).

Although Plaintiff interrupted Fandrich's

instructions as him overriding her decisions and purposely embarrassing her, a
reasonable jury would not. Also, Plaintiff contends Fandrich refused to give her an annual
performance evaluation at the end of 2007.

(Pl.'s Dep. 135:11-21). Although Roy

Bumpass ultimately gave her an in-person review, Plaintiff remained unsatisfied because
he was apparently unprepared and called her "arrogant and unapproachable." (Pl.'s Dep.
135:21-136:4). Plaintiff's mere dissatisfaction with the performance evaluation does not
translate to an adverse action.
Plaintiff's best argument in favor of unlawful retaliation is being subjected to a drug
test. Her position, however, is attenuated at best. Defendant presented evidence that an

20

independent third-party company selects employees at random and administers drug
tests on a quarterly basis. (Rowley Decl., ¶ 14; Doc. #56-2 at 6). At the same time Plaintiff
was selected for the drug test, nine other employees were randomly selected. (Doc. #56
at 19). Plaintiff also testified that she had no knowledge of the drug testing protocols or
who even selected the employees to be tested. (Pl's. Dep. 241:7-22). Plaintiff has
unconvincingly attempted to link the drug test and the discrimination complaint she had
made more than five (5) months earlier. See Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007) (affirming summary judgment where the plaintiff "failed to
present evidence from which a reasonable jury could find any causal connection between
her April 2005 complaint(s) of sexual harassment and the termination of her employment
three (3) months later"). Simply, Plaintiff falls far short of showing that her selection for
the drug test was so harmful that it would dissuade a reasonable employee from
complaining of sex discrimination. See Burlington Northern, 548 U.S. at 68.
In any event, Plaintiff has not established that any "unlawful retaliation would not
have occurred in the absence of the alleged wrongful action or action of the [Defendant]."
Nassar, 133 S.Ct. at 2533. Under the "but-for" causation standard, a plaintiff making a
Title VII retaliation claim "must establish that his or her protected activity was a but-for
cause of the alleged adverse action by the employer." Id. at 2534. The plaintiff always
has the burden of persuasion "to proffer evidence sufficient to permit a reasonable fact
finder to conclude that discriminatory animus was the 'but-for' cause of the adverse
employment action."

Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013)

(reconciling "but-for" causation and the McDonnell Douglas framework in ADEA case,
and affirming summary judgment where appellant could not establish that discriminatory

21

animus was the but-for cause of his termination). Here, to find in Plaintiff's favor, a jury
would have to conclude but for her discrimination complaint in August 2007 she would
not have been drug tested. No reasonable juror could reach such a conclusion.
Accordingly, for the reasons stated, summary judgment in favor of Defendant is
appropriate on Count II of the Amended Complaint.
IV.

Backpay damages
Finally, Defendant argues Plaintiff is not entitled to backpay damages, as she was

immediately employed after she resigned from her position with Defendant. (Doc. #56 at
2). Since the Court dismisses Plaintiff's discrimination and retaliation claims as a matter
of law, it need not address the merits of Plaintiff's claim for backpay.
Accordingly, it is now ORDERED:
(1) Defendant MWH Constructors, Inc.'s Dispositive Motion for Summary
Judgment (Doc. #56) is GRANTED.
(2) Defendant MWH Constructors, Inc.'s Motion to Strike Any Plaintiff Claim for
"Compensation Discrimination" (Doc. #62) is DENIED as moot.
(3) Defendant MWH Constructors, Inc.'s Motion In Limine (Doc. #71) is DENIED
as moot.
(4) The Clerk of Court is directed to enter judgment accordingly, terminate any
pending motions, and close the file.
DONE and ORDERED in Fort Myers, Florida this 25th day of July, 2014.

Copies: All parties of record
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