Burrows v. The College of Central Florida
Filing
51
ORDER: Defendant's Case Dispositive Motion for Summary Judgment (Doc. 43) is GRANTED. The Clerk is directed to enter final judgment in favor of Defendant, terminate any pending motions, and close the case. Signed by Judge James S. Moody, Jr on 7/13/2015. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
BARBARA BURROWS,
Plaintiff,
v.
Case No: 5:14-cv-197-Oc-30PRL
THE COLLEGE OF CENTRAL
FLORIDA,
Defendant.
________________________________/
ORDER
THIS CAUSE comes before the Court upon Defendant’s Case Dispositive Motion
for Summary Judgment (Doc. 43) and Plaintiff’s response in opposition thereto (Doc. 47).
The Court, having considered the motion, response, and record evidence, and being
otherwise fully advised in the premises, concludes that Defendant’s motion should be
granted and final judgment entered in favor of Defendant.
RELEVANT FACTS
1. Plaintiff’s Employment with Defendant
In July 2008, Defendant hired Plaintiff as the Vice President for Instructional Affairs
(“VPIA”) on an annual contract which was subject to renewal each academic year at
Defendant’s discretion. 1 The VPIA reported directly to President Charles Dassance.
1
During its search for a VPIA, Defendant also considered internal candidate, Dr. Mark Paugh, the
former Dean of Health Sciences. Although Dr. Paugh was not chosen as the VPIA, as a result of a
About a year into her tenure as VPIA, Plaintiff, a gay woman, legally married a woman in
the State of Iowa. Plaintiff told some of the staff about her marriage, and believed that Dr.
Dassance may have overheard her discussing it with staff at a meeting, but she never
specifically notified Dr. Dassance of her marriage. Although Dr. Dassance was aware that
Plaintiff was gay and had a partner, Dr. Dassance was not aware of Plaintiff’s marital status.
Plaintiff’s first two years as VPIA were otherwise uneventful with Plaintiff receiving above
average or meets expectations in her annual evaluations.
2. Issues Arise with Plaintiff’s Performance as VPIA
In fall 2010, Dr. Dassance met with Plaintiff to discuss several issues he observed
regarding her performance and complaints he received from faculty and staff with respect
to her management style. Namely, Dr. Dassance was concerned with Plaintiff’s tendency
to micromanage and lose sight of the “big picture,” her judgment and candor, and her
difficulty transitioning from a lower-level administrator to VPIA. Dr. Dassance was also
concerned that there appeared to be discord among Plaintiff’s subordinates and that she did
not have a good relationship with faculty.
Plaintiff’s recollection of events differs as she does not recall receiving complaints
from Dr. Dassance regarding her performance. Rather, according to Plaintiff, Dr. Dassance
informed her that two of her subordinates had expressed concerns to him regarding trust
with Plaintiff, and Dr. Dassance suggested that Plaintiff address the issues. Plaintiff
reorganization orchestrated in part by Plaintiff, Dr. Paugh was later promoted to a newly-created position,
Associate Vice President of Liberal Arts and Sciences, which reported to the VPIA. His former position as
Dean of Health Sciences was eliminated, and he assumed the duties of that position in his role as Associate
Vice President of Liberal Arts and Sciences.
2
subsequently met with both individuals and reported to Dr. Dassance that the meetings
appeared to go well. Plaintiff asserts that she was not notified of any other issues regarding
her performance; in fact, she recounts that Dr. Dassance assured her that her position was
secure.
3. Complaints from Faculty and Staff and Negative Anonymous Reviews Regarding
Plaintiff
In February 2011, Dr. Dassance received complaints from the Faculty Senate
President, Dr. Susan Bradshaw, about Plaintiff. Dr. Bradshaw reported that the faculty
members were generally unhappy with Plaintiff. During this conversation, Dr. Dassance
also became aware that Plaintiff had shared information with Dr. Bradshaw that Dr.
Dassance shared with Plaintiff in confidence. Dr. Dassance spoke with several other
faculty members and administrators, who similarly expressed concerns about Plaintiff’s
management style.
Additionally, as part of Defendant’s annual review process, Dr. Dassance solicited
anonymous reviews from faculty and others regarding the performance of several
administrators, including Plaintiff. Many of the anonymous evaluations about Plaintiff
were negative, describing Plaintiff as a micromanager for whom it was difficult to work.
Dr. Dassance shared these reviews with Plaintiff and asked to discuss them. Plaintiff was
upset by the reviews because she believed they were completed by only one or a few
individuals.
3
4. Plaintiff’s Contract as VPIA is Not Renewed
On March 18, 2011, Plaintiff met with Dr. Dassance to discuss the anonymous
evaluations and her performance, and Dr. Dassance informed Plaintiff that he was
considering not renewing her contract as VPIA for the 2011-2012 academic year. About a
week later, Dr. Dassance told Plaintiff that he was not going to renew her contract. Dr.
Dassance explained that his decision was due to the unresolved issues with Plaintiff’s
performance that he had discussed with her in fall 2010; namely, Plaintiff’s tendency to
micromanage and lose sight of the “big picture,” her judgment and candor, her difficulty
transitioning from a lower-level administrator to VPIA, and her general poor relationship
with faculty.
Dr. Dassance asserted that the decision not to renew Plaintiff’s contract was made
solely by him, was not influenced by anyone else, and was not based upon the anonymous
evaluations. Although Defendant has an employee improvement plan (“EIP”) policy, Dr.
Dassance did not deem the policy appropriate in Plaintiff’s situation given her position as
an upper-level administrator.
5. Plaintiff Transfers to Faculty
Plaintiff was given the option to resign as VPIA, and she requested and accepted a
transfer to a teaching position in the mathematics department.
Dr. Dassance then
announced his retirement as president, and Plaintiff asked that he reconsider his decision
not to renew her contract as VPIA. Dr. Dassance told Plaintiff that he did not believe she
was a good fit for the position under any president and he would not change his decision.
Dr. Paugh, who had previously been considered for the VPIA position alongside Plaintiff,
4
was appointed interim VPIA by Dr. Dassance and was eventually offered the position by
Dr. Dassance’s successor James Henningsen. 2 Unlike when Plaintiff was hired, Defendant
did not advertise the vacancy or conduct interviews.
6. Plaintiff’s Faculty Salary
When Plaintiff resigned as VPIA, her salary was $113,558. After considering the
Board of Trustee’s policy and the salary provided to other faculty in the mathematics
department, Dr. Dassance set Plaintiff’s annual salary at $52,000. Dr. Dassance also
provided Plaintiff (1) $5,000 for a supplemental duty contract for a special project in the
mathematics department, (2) $14,850 in bridge-the-gap pay to compensate for her
transition from VPIA to faculty, and (3) an additional financial supplement for Plaintiff’s
continuing contribution to the Southern Association of Colleges and Schools (“SACS”)
accreditation visit and Defendant’s baccalaureate programs application. Dr. Dassance did
not consult with anyone else in determining Plaintiff’s faculty salary.
Plaintiff contends that she was not provided the appropriate prorated salary for her
faculty position as delineated in Defendant’s salary schedule 3 nor was her salary equivalent
to that of similarly-situated individuals in heterosexual marriages who transferred from
administration to faculty. Specifically, Plaintiff asserts that if her salary were correctly
calculated in accordance with Defendant’s salary schedule, her salary would have been
$76,310.71. Plaintiff raised numerous grievances with Director of Human Resources Gilda
2
Dr. Henningsen explained that he appointed Dr. Paugh to VPIA full time without conducting a
search because Dr. Paugh’s performance as VPIA was satisfactory.
3
Defendant’s salary schedule provides: “When an individual’s contract is changed from faculty to
administrator or vice versa, the calculation of salary change shall normally be based on daily rate of pay,
unless the president approves an exception.”
5
Crocker, Dr. Paugh, Interim President James D. Harvey, and the newly appointed
president, Dr. Henningsen. Each of Plaintiff’s appeals for a higher salary were denied.
In denying Plaintiff’s appeal, Dr. Henningsen noted that Plaintiff was not a faculty
member prior to assuming her position as VPIA and she was not transferred during an
active contract (i.e., her contract as VPIA was nonrenewed). Therefore, Dr. Henningsen
concluded that Plaintiff’s transition to faculty was treated as a new appointment rather than
a transfer.
7. Plaintiff Files a Charge with the Florida Commission on Human Relations
(“FCHR”)
Despite her complaints regarding her salary, Plaintiff continued working as faculty
in the mathematics department from 2011 until 2013, receiving positive performance
reviews. On April 12, 2012, Plaintiff filed a claim of discrimination with the FCHR
alleging that her nonrenewal as VPIA was due to her gender, sexual orientation, marital
status, failure to conform to Defendant’s religious beliefs, and failure to conform to gender
stereotypes. For the same reasons, Plaintiff also alleged that her salary as faculty was not
calculated in accordance with Defendant’s salary schedule. Defendant was notified of
Plaintiff’s claim in July 2012.
In April 2013, Plaintiff received notification that her annual contract as faculty
would be renewed for a third year and that she was eligible to apply for continuing contract,
which is the community-college equivalent of tenure. Shortly thereafter, the FCHR issued
a “no cause” determination in favor of Defendant, and on June 26, 2013, it issued a notice
of dismissal.
6
8. Defendant Implements a Reduction in Force and Plaintiff’s Position is Eliminated
After reviewing the budget for the spring 2013 term and the following 2013-2014
academic year, Defendant projected a deficit for both periods based on decreased estimates
of student enrollment. Defendant began analyzing its budget and strategizing solutions to
mitigate the expected deficit. It eventually determined that a reduction in force would be
necessary. In determining which employees would be subject to the reduction in force,
Defendant consulted Policy 6.32, which provided, in relevant part:
In the event it becomes necessary for a reduction in force, the following
guidelines will apply: The first priority will be to protect the mission of the
College to provide access and quality instruction; thus reduction in force
decisions will be guided by what is determined to be most supportive of the
core mission (instructional program delivery) of the College.
Policy 6.32 also required that faculty on annual contract be terminated before faculty on
continuing contract.
Before Defendant could implement a reduction in force, it had to declare financial
exigency, which it did on May 28, 2013. Defendant first implemented its reduction in force
by closing low-revenue programs and through attrition, but eliminating these positions was
insufficient to cover the expected deficit. Defendant ultimately determined that it would
eliminate the most recently hired, annual-contract faculty in the departments with the
highest full-time to part-time faculty ratios because applying this criteria was consistent
with Defendant’s core mission. The science and mathematics departments had the highest
full-time to part-time faculty ratios. As the most recently hired faculty member in the
mathematics department on annual contract, Plaintiff’s position was eliminated. Plaintiff
was notified that her position was eliminated on May 29, 2013. Overall, the reduction in
7
force resulted in the closing of seventeen vacant positions and the elimination of eleven
full-time positions, including Plaintiff’s.
Plaintiff was scheduled to teach classes for summer and fall 2013. Other full-time
faculty were required to cover Plaintiff’s summer classes and Plaintiff’s fall classes were
either cancelled, covered by the remaining full-time faculty, or taught by adjuncts.
Plaintiff’s termination letter provided that she would be guaranteed an interview for
available positions but that she had to notify human resources of any positions in which
she was interested. Plaintiff asked James Roe, the mathematics department chair, to be
considered for a position as an adjunct, but he declined her request after speaking with Dr.
Paugh and Dr. Allan Danuff, Dean of Liberal Arts and Sciences.
SUMMARY JUDGMENT STANDARD
Motions for summary judgment should be granted only when “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any show there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(internal quotation marks omitted); Fed. R. Civ. P. 56(c). The existence of some factual
disputes between the litigants will not defeat an otherwise properly supported summary
judgment motion; “the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law applicable
to the claimed causes of action will identify which facts are material. Id. Throughout this
analysis, the court must examine the evidence in the light most favorable to the nonmovant
and draw all justifiable inferences in its favor. Id. at 255.
8
Once a party properly makes a summary judgment motion by demonstrating the
absence of a genuine issue of material fact, whether or not accompanied by affidavits, the
nonmoving party must go beyond the pleadings through the use of affidavits, depositions,
answers to interrogatories and admissions on file, and designate specific facts showing that
there is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be
significantly probative to support the claims. Anderson, 477 U.S. at 248-49.
This Court may not decide a genuine factual dispute at the summary judgment stage.
Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f factual
issues are present, the Court must deny the motion and proceed to trial.” Warrior
Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute
about a material fact is genuine and summary judgment is inappropriate if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477
U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir.1990). However,
there must exist a conflict in substantial evidence to pose a jury question. Verbraeken v.
Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
DISCUSSION
1. Gender Discrimination (Count I)
Plaintiff asserts a claim against Defendant for gender discrimination under Title VII
and the Florida Civil Rights Act (“FCRA”) related to her nonrenewal as VPIA and her
replacement with a male subordinate. 4 Title VII and the FCRA prohibit employment
4
Because federal law construing Title VII applies to the FCRA, the Court only discusses federal
law pertinent to Title VII, but notes that the law applies equally to Plaintiff’s FCRA claims. See Albra v.
9
discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C.
§ 2000e-2(a)(1); Fla. Stat. § 760.10(1). A plaintiff may establish a prima facie case of
discrimination through either direct or circumstantial evidence. See Jackson v. Rooms To
Go, Inc., No. 8:06-cv-01596-T-24EAJ, 2008 WL 2824814, at *5 (M.D. Fla. July 21, 2008)
(citing Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998)). Because
the record is clear that there is no direct evidence of discrimination, Plaintiff must prove
her claim through the McDonnell Douglas burden-shifting framework. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
A. McDonnell Douglas Burden-Shifting Framework
Under this framework, Plaintiff must first establish a prima facie case of
employment discrimination. See id. If Plaintiff establishes a prima facie case, the burden
then shifts to Defendant to articulate some legitimate, nondiscriminatory reason for the
employment action. Id. If Defendant meets this burden of production, the presumption of
discrimination raised by Plaintiff’s prima facie case is rebutted. See Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). Plaintiff must then show that Defendant’s
proffered legitimate, nondiscriminatory reason is pretextual. Id.
Plaintiff established a prima facie case of gender discrimination, which Defendant
does not dispute. Consequently, the burden shifted to Defendant to articulate a legitimate,
nondiscriminatory reason for its decision not to renew Plaintiff’s contract as VPIA. Dr.
Advan, Inc., 490 F.3d 826, 834 (11th Cir. 2007); City of Hollywood v. Hogan, 986 So. 2d 634, 641 (Fla.
4th DCA 2008).
10
Dassance explained that he decided not to renew Plaintiff’s VPIA contract due to issues
with her performance: specifically, Plaintiff had a tendency to micromanage and lose sight
of the “big picture,” she was distrusted by faculty, and she was unable to adapt to her role
as VPIA. As such, Defendant has offered a legitimate, nondiscriminatory reason for
Plaintiff’s nonrenewal as VPIA, and the burden shifts back to Plaintiff to establish that
Defendant’s nondiscriminatory reason was pretext for discriminatory animus.
B. Pretext
To establish pretext, Plaintiff must show that Defendant’s “‘explanation is unworthy
of credence.’” Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005)
(quoting Tex. Dep’t of Cmty. Affairs, 450 U.S. at 256). This requires showing “both that
the reason was false, and that discrimination was the real reason” for the adverse action.
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (internal quotation marks
omitted).
Plaintiff may show pretext by pointing to “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in Defendant’s proffered reason. Brooks
v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006) (internal
quotation marks omitted). Plaintiff may also produce other evidence “which permits the
jury to reasonably disbelieve the employer’s proffered reason.” Steger v. Gen. Elec. Co.,
318 F.3d 1066, 1079 (11th Cir. 2003) (internal quotation marks omitted).
To establish that Defendant’s proffered reason for the nonrenewal of her contract as
VPIA was pretext, Plaintiff points to three facts which she asserts establishes “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in Defendant’s
proffered reason: (i) Plaintiff was replaced with a male subordinate who was previously
11
rejected as VPIA; (ii) Defendant did not follow its internal procedures by placing Plaintiff
on an EIP prior to her nonrenewal; and (iii) Defendant requested that Plaintiff continue
several of her duties as VPIA after her contract was nonrenewed.
i. Plaintiff’s Replacement as VPIA with a Male Subordinate
In asserting that Defendant’s proffered reason for her nonrenewal was pretext for
discrimination, Plaintiff first highlights that her replacement, Dr. Paugh, was originally her
runner-up for VPIA when she was selected in 2008 and that his appointment as her
successor violated Defendant’s hiring policies. Plaintiff does not argue that Dr. Paugh was
unqualified to perform the role and fails to otherwise articulate the significance that he was
not ultimately selected for the position in 2008. As Plaintiff emphasizes, Dr. Paugh
previously underwent the very same vetting process for VPIA as Plaintiff. Accordingly,
Plaintiff’s argument that the circumstances of Dr. Paugh’s appointment establish pretext is
unpersuasive.
Plaintiff next alleges in a conclusory fashion that Dr. Paugh’s appointment as VPIA
was in violation of Defendant’s hiring policy which required a search and selection process
to fill an administrative vacancy. No evidence exists that Defendant had a formal policy
that required a search and selection process to fill an administrative vacancy. 5 Rather,
Plaintiff argues that such process was Defendant’s general practice.
5
Plaintiff references Defendant’s employee handbook, which states that Defendant may advertise
job vacancies in various outlets, but does not mandate advertisement of job vacancies. Tellingly, the
handbook does not provide that Defendant is required to conduct a search and selection process to fill a
vacancy.
12
In support of her position, Plaintiff highlights several administrative vacancies that
were filled by a search and selection process, including the positions of Vice President of
Student Affairs and Vice President of Administration and Finance. Plaintiff contends that
Lynn Powel, who was appointed Interim Vice President for Student Affairs, was required
to apply for the position and participate in a search and selection process. Although
evidence exists that Defendant utilizes a search and selection process to fill vacancies,
evidence also exists that this process was not followed in all instances. As Plaintiff herself
points out, Dr. Paugh’s previous appointment as Associate Vice President for Liberal Arts
and Sciences was done without a search and selection process.
Even assuming that Defendant’s general hiring practice was to conduct a search and
selection process to fill an administrative vacancy, Dr. Paugh’s appointment does not
appear to violate the general intent and spirit of that policy. Although Dr. Paugh did not
undergo a search and selection process when he was appointed as VPIA in 2011, Dr. Paugh
did undergo that process in 2008. Plaintiff has not presented evidence of a candidate
similarly situated to Dr. Paugh who was required to undergo a second time the search and
selection process to be considered for the same position.
Plaintiff has failed to present sufficient evidence from which it can be determined
that Defendant employed either a formal or informal policy and failed to follow it with
regard to the appointment of Dr. Paugh. And, even if the Court assumes that Defendant
adhered to a search and selection process for the appointment of administrators, Plaintiff
has not demonstrated that Plaintiff failed to follow that procedure in this case. Also,
assuming, arguendo, that Defendant failed to adhere to its policy in appointing Dr. Paugh
13
to VPIA, Plaintiff has not established how this departure demonstrates discriminatory
animus. See Mitchell v. USBI Co., 186 F.3d 1352, 1355-56 (11th Cir. 1999) (“Standing
alone, deviation from a company policy does not demonstrate discriminatory animus.”);
see also Tori v. Marist Coll., 344 F. App’x 697, 701 (2d Cir. 2009) (“While departures
from tenure procedures can raise a question as to the good faith of the process where the
departure may reasonably affect the decision, summary judgment is appropriate where
there is no evidence that discrimination played a role in any alleged procedural
irregularities.” (internal quotation marks omitted)).
As such, Plaintiff has not established pretext in this regard.
ii. Plaintiff was Not Provided the Benefit of an EIP
Next, Plaintiff contends that Defendant’s failure to follow its established
employment policies in deciding not to renew Plaintiff’s contract as VPIA demonstrates
that Defendant’s explanation for Plaintiff’s nonrenewal is pretext for discrimination.
Plaintiff argues that pursuant to Defendant’s own policies as incorporated into her
administrative contract, she should have had the benefit of an EIP, which Dr. Dassance
readily admits that he did not apply in Plaintiff’s case. Plaintiff asserts that the EIP was
mandatory, but has provided no evidence, for example, a copy of the relevant policy, to
support her claim beyond her own allegations. On the other hand, Dr. Dassance asserts
that implementation of an EIP is not mandatory and he did not consider it necessary in
Plaintiff’s case. 6 See Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990)
6
Dr. Paugh also admitted that Defendant had an EIP policy in place, but that it was not mandatory.
Plaintiff asserts that Dr. Paugh testified that the EIP policy was not followed only in extreme circumstances.
14
(noting that conclusory allegations will not suffice to defeat a motion for summary
judgment).
Plaintiff served as VPIA on an annual contract subject to renewal each year. She
was not guaranteed employment beyond that period, and the overwhelming evidence of
record is that the administrators served at the discretion of the president. Plaintiff has not
provided any evidence of an upper-level administrator who was provided the benefit of an
EIP in the context of nonrenewal nor has she provided any evidence beyond her own
assertion that an EIP was mandatory.
Plaintiff has therefore not demonstrated that
Defendant departed from an established policy or procedure. Furthermore, even assuming
that Plaintiff was entitled to an EIP, she has presented no evidence showing that
discrimination played a role in Dr. Dassance’s decision not to apply an EIP in Plaintiff’s
case. See Mitchell, 186 F.3d at 1355-56.
Accordingly, Defendant’s failure to provide Plaintiff the benefit of an EIP does not
establish pretext.
iii. Plaintiff Continued to Perform Duties as VPIA After Her Contract
was Nonrenewed
Finally, Plaintiff argues that allowing her to continue to perform her duties as VPIA
after her contract was nonrenewed casts doubt upon Dr. Dassance’s characterization of her
performance and establishes that the complaints regarding her performance were pretext.
However, Dr. Paugh discussed the inapplicability of an EIP in the context of immediate termination and
not in the context of nonrenewal of a contract. Dr. Paugh also clarified that the VPIA serves at the
president’s discretion. Similarly, Dr. Danuff testified that it was his belief that administrators “serve at the
pleasure of the President.”
15
After Plaintiff’s contract as VPIA was nonrenewed, Dr. Dassance allowed Plaintiff
to continue to assist with the SACS interim report and baccalaureate program review, for
which Plaintiff was compensated. Plaintiff’s continued work on the SACS accreditation
and baccalaureate program review is not inconsistent with Dr. Dassance’s reason for her
nonrenewal. Dr. Dassance’s complaints with Plaintiff’s performance primarily focused on
her managerial, leadership, and interpersonal skills, not the substantive quality of the work
she performed. Plaintiff has not alleged that her continued work on the SACS process
involved supervision of other administrators or faculty. Thus, Plaintiff’s assertion does not
demonstrate that Dr. Dassance’s explanation is “unworthy of credence.” Jackson, 405 F.3d
at 1289.
Because Plaintiff failed to meet her burden in demonstrating that Defendant’s
explanation for nonrenewal of her contract as VPIA was pretext, Defendant is entitled to
summary judgment on Plaintiff’s claim for gender discrimination.
2. Marital Status Discrimination (Count III)
Plaintiff also asserts a claim for marital status discrimination under the FCRA based
upon Defendant’s failure to properly compensate Plaintiff when she was transferred to a
faculty position. Plaintiff alleges that she was not compensated at a rate comparable to
similarly-situated individuals who were in opposite-sex marriages.
Unlike Title VII, the FCRA prohibits discrimination based upon marital status in
employment. Fla. Stat. § 760.10(1)(a). The Florida Supreme Court held that “marital
status” under the FCRA “means the state of being married, single, divorced, widowed or
separated, and does not include the specific identity or actions of an individual’s spouse.”
16
Donato v. Am. Tel. & Tel. Co., 767 So. 2d 1146, 1155 (Fla. 2000). Plaintiff’s claim for
marital status discrimination fails.
First, Plaintiff failed to establish a prima facie case of marital status discrimination.
To state a prima facie case for marital status discrimination, Plaintiff must produce some
evidence to suggest that her marital status played a role in the determination of her salary.
Cf. Hunter v. United Parcel Serv., Inc., 697 F.3d 697, 703 (8th Cir. 2012) (“As a general
matter, an employee must produce some evidence of a connection between the protected
status and the adverse employment action. For protected classes that are not readily
apparent, showing the needed connection would typically require showing that the
employer was aware.”). Dr. Dassance was not aware of Plaintiff’s same-sex marriage.
And Plaintiff has presented no evidence that he was aware of it. It logically follows that if
Dr. Dassance, the sole decisionmaker as to Plaintiff’s faculty salary, was unaware that
Plaintiff was married, and Plaintiff presented no evidence to the contrary, then Plaintiff’s
marital status could not have factored into Dr. Dassance’s decision.
Second, even if Plaintiff could establish a prima facie case for marital status
discrimination, Defendant has articulated a legitimate, nondiscriminatory reason for
Plaintiff’s differential treatment regarding her salary as faculty. Dr. Dassance explained
that Plaintiff’s salary was determined by reviewing board policy and the salary of other
faculty in the mathematics department. Plaintiff alleges that she should have been entitled
to calculation of her salary based upon her status as a transfer. Dr. Henningsen clarified
that Plaintiff was not treated as a transfer because her contract was in nonrenewal status.
Rather, in determining Plaintiff’s rate of pay as faculty, Plaintiff was treated as a new hire.
17
Plaintiff has not provided any evidence, beyond her own conclusory allegations, that rebuts
Dr. Dassance’s authority to treat Plaintiff as a new hire.
Even if Dr. Dassance was required to adhere to the policy articulated in the salary
schedule for transfers from administration to faculty, the policy allowed Dr. Dassance
discretion, as Plaintiff admitted. 7 Namely, the policy provided: “When an individual’s
contract is changed from faculty to administrator or vice versa, the calculation of salary
change shall normally be based on daily rate of pay, unless the president approves an
exception.” (Emphasis added). By the explicit terms of the policy on which Plaintiff relies,
Dr. Dassance was entitled to make an exception and it was within Dr. Dassance’s authority
to depart from the salary schedule. Dr. Dassance explained that he set Plaintiff’s faculty
salary commensurate with other salaries in the mathematics department. The evidence
does not suggest otherwise, and Plaintiff has provided no evidence which impugns this
explanation.
Defendant is entitled to summary judgment on this claim.
3. Gender Stereotype Discrimination (Count IV)
Next, Plaintiff asserts a claim for gender stereotype discrimination under Title VII
and the FCRA based upon Plaintiff’s assertion that Defendant failed to appropriately
compensate Plaintiff as faculty because of Plaintiff’s failure to conform to gender norms.
Plaintiff argues that Defendant believed that having a relationship with a man is an essential
7
In fact, in Plaintiff’s complaints to both Board Member Cory Pool and Ms. Crocker in human
resources, Plaintiff admits that Dr. Dassance was within his authority under the “exception” clause to
determine Plaintiff’s salary outside the standard provided for in the salary schedule.
18
part of being a woman and that since Plaintiff was in a relationship with a woman, she
failed to conform to this gender norm. As articulated in Price Waterhouse v. Hopkins, 490
U.S. 228, 251 (1989), an employee who is subjected to adverse employment action because
of his or her employer’s animus toward an exhibition of gender-nonconforming behavior
may have a claim under Title VII.
Plaintiff has failed to establish a prima facie claim of gender stereotype
discrimination.
Plaintiff’s claim, although cast as a claim for gender stereotype
discrimination, is merely a repackaged claim for discrimination based on sexual
orientation, which is not cognizable under Title VII or the FCRA. 8 See, e.g., Anderson v.
Napolitano, No. 09-60744-CIV, 2010 WL 431898, at *4 (S.D. Fla. Feb. 8, 2010) (“The
law is clear that Title VII does not prohibit discrimination based on sexual orientation.”);
Mowery v. Escambia Cnty. Utils. Auth., No. 3:04CV382-RS-EMT, 2006 WL 327965, at
*9 (N.D. Fla. Feb. 10, 2006) (“[C]ase law throughout the circuits consistently holds that
Title VII provides no protection for discrimination based on sexual orientation.”).
Plaintiff’s theory of gender stereotyping is misplaced.
Generally, gender
stereotyping is concerned with characteristics “readily demonstrable in the workplace,”
8
Plaintiff also describes several comments allegedly made by Joan Stearns regarding Plaintiff’s
style of dress. For example, Plaintiff recounted that Ms. Stearns made comments about Plaintiff’s lack of
style and that she did not dress professionally. But Plaintiff does not address Ms. Stearns’ comments in her
response to Defendant’s motion for summary judgment and instead relies on her contention that her gender
stereotyping claim arises from Defendant’s belief that Plaintiff was not feminine because she was in a
same-sex relationship with a woman. Regardless, Ms. Stearns was not Plaintiff’s superior and not in a
position to take adverse employment action against Plaintiff on the basis of whatever beliefs she might have
held. See Barsorian v. Grossman Roth, P.A., 572 F. App’x 864, 870 (11th Cir. 2014) (noting that a
discriminatory comment made by a nondecisionmaker was not sufficient to create a genuine issue of
material fact precluding summary judgment).
19
such as behaviors, mannerisms, and appearances. See Vickers v. Fairfield Med. Ctr., 453
F.3d 757, 763 (6th Cir. 2006).
Plaintiff’s relationship with a woman was not a
characteristic readily demonstrable in the workplace, and Plaintiff provides no other
evidence of discrimination based on her failure to conform to a feminine stereotype. See,
e.g., Pagan v. Gonzalez, 430 F. App’x 170, 171-72 (3d Cir. 2011) (finding that a gender
stereotyping claim was really a claim based on sexual orientation because Plaintiff failed
to provide any evidence that the discrimination she suffered was based on her acting in a
masculine manner); Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005)
(recognizing that “a gender stereotyping claim should not be used to bootstrap protection
for sexual orientation into Title VII” (internal quotation marks omitted)); Jantz v. Emblem
Health, No. 10 Civ. 6076(PKC), 2012 WL 370297, at *7 (S.D.N.Y. Feb. 6, 2012)
(concluding that the plaintiff failed to establish a claim of discrimination based on a failure
to conform to gender stereotype where the plaintiff asserted that she was “discriminated
against due to the fact that she was a woman who was attracted to and/or sought
relationships with other women”).
Additionally, even assuming Plaintiff could establish a prima facie case of gender
stereotype discrimination, Plaintiff’s claim fails for the same reasons as her claim for
marital status discrimination, i.e., Plaintiff failed to demonstrate that Defendant’s proffered
reason for setting her faculty salary was pretext for gender stereotype discrimination.
Because Plaintiff’s gender stereotyping claim is truly a claim for discrimination
based on Plaintiff’s sexual orientation, Defendant is entitled to summary judgment on this
claim.
20
4. Retaliation (Count V)
Finally, Plaintiff asserts that her termination was motivated by the filing of her
FCHR complaint. Both Title VII and the FCRA prohibit retaliation against an employee
for opposing a discriminatory employment practice or for participating in an investigation
or proceeding concerning employment discrimination. 42 U.S.C. § 2000e-3(a); Fla. Stat.
§ 760.10(7). Where there is no direct evidence of retaliation, as in this case, a court must
apply the McDonnell Douglas burden-shifting framework. See Brown v. Ala. Dep’t of
Transp., 597 F.3d 1160, 1181 (11th Cir. 2010) (citing McDonnell Douglas, 411 U.S. 792,
802-04).
A. McDonnell Douglas Burden-Shifting Framework
First, the employee must establish a prima facie case of retaliation by showing that
(1) she engaged in statutorily protected activity, (2) she suffered a materially adverse
employment action, and (3) there is a causal relationship between the protected activity
and the adverse employment action. Id. A plaintiff must also demonstrate “that his or her
protected activity was a but-for cause of the alleged adverse action by the employer.” Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013); see also Smith v. City of
Fort Pierce, 565 F. App’x 774, 778 (11th Cir. 2014). Once a plaintiff establishes a prima
facie case of retaliation, the employer has an opportunity to articulate a nonretaliatory
reason for its action, which can then be rebutted by the employee by evidence of pretext.
See Brown, 597 F.3d at 1181-82.
Plaintiff has established that she engaged in a protected activity—the filing of her
FCHR complaint—and suffered an adverse employment action—termination. At issue,
21
however, is whether Plaintiff has adequately established a causal connection between the
filing of her FCHR complaint and her termination.
B. Causal Connection
A plaintiff can establish a causal connection by showing that the defendant was
“aware of the protected conduct, and that the protected activity and the adverse actions
were not wholly unrelated.” Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 716
(11th Cir. 2002) (internal quotation marks omitted). Generally, in the absence of other
evidence, an employee can establish a causal connection by showing a “very close”
temporal proximity between the protected activity and the adverse action. Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
More than a year elapsed between when Plaintiff filed her FCHR complaint and her
termination, which is insufficient, standing alone, to establish a causal connection. See
Webb-Edwards v. Orange Cnty. Sheriff’s Office, 525 F.3d 1013, 1029 (11th Cir. 2008)
(holding that an almost six-month gap between a complaint and a failure to transfer was
insufficient to establish a causal connection); Thomas, 506 F.3d at 1364 (holding that a
“three to four month disparity between the statutorily protected expression and the adverse
employment action is not enough”). 9 Because Plaintiff cannot rely on temporal proximity,
Plaintiff highlights other evidence that she believes establishes a causal connection
between her FCHR complaint and her termination, including that (i) Defendant did not
9
Plaintiff implies that the temporal proximity between her receipt of the FCHR’s no-cause
determination and her termination is significant, but Plaintiff’s contention is without merit. Cf. Clark Cnty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (indicating that the receipt of a right-to-sue letter is not a
protected activity); Curtis v. Broward Cnty., 292 F. App’x 882, 885 (11th Cir. 2008) (measuring the
temporal gap from the filing of a complaint and not from receipt of the right-to-sue letter).
22
comply with its reduction-in-force policy when deciding to eliminate Plaintiff’s position
and (ii) Defendant would not hire Plaintiff as an adjunct for the summer or fall 2013
semesters.
i. Defendant Failed to Comply with its Reduction-in-Force Policy
As to Plaintiff’s first contention, Policy 6.32 provided, in relevant part, that in the
event a reduction of force was necessary,
[t]he first priority will be to protect the mission of the College to provide
access and quality instruction; thus, reduction in force decisions will be
guided by what is determined to be most supportive of the core mission
(instructional program delivery) of the College.
Defendant determined that eliminating the most recently-hired faculty on annual contract
in the departments with the highest ratio of full-time to part-time faculty was most
supportive of the College’s mission.
Plaintiff disagrees and alleges that this criteria does not fall within Policy 6.32 and
that Defendant deviated from its policy in eliminating Plaintiff’s position. Plaintiff’s
argument is not persuasive. The first tenet of Policy 6.32 is broad and could encompass
any variety of factors or criteria. 10 Rather, the first guideline seems to be one of discretion.
It is not for this Court to second-guess the decisions of Defendant regarding what is most
supportive of Defendant’s “core mission.” See Alvarez v. Royal Atl. Developers, Inc., 610
F.3d 1253, 1266 (11th Cir. 2010) (“We do not sit as a ‘super-personnel department,’ and it
10
Plaintiff points to the depositions of Dr. Paugh and Dr. Danuff, arguing that Dr. Paugh and Dr.
Danuff admitted that the criteria applied by Defendant was not contained in the reduction of force policy.
Plaintiff’s characterization of their testimony is misleading. Dr. Paugh testified that the exact criteria, the
full-time to part-time faculty ratio, was not in the policy, but he did not state that it was his belief that the
criteria was violative of the policy. Similarly, Dr. Danuff admitted that the criteria was not precisely
contained in the policy.
23
is not our role to second-guess the wisdom of an employer’s business decisions—indeed
the wisdom of them is irrelevant—as long as those decisions were not made with a
discriminatory motive.”). More important, Plaintiff has not provided any evidence that this
decision was motivated by Plaintiff’s filing of a complaint with the FCHR. See Tori v.
Marist Coll., 344 F. App’x 697, 701 (2d Cir. 2009) (holding that “summary judgment is
appropriate where there is no evidence that discrimination played a role in any alleged
procedural irregularities”). Thus, Plaintiff’s allegation that Defendant did not adhere to its
reduction-in-force policy does not support a causal connection between her termination
and protected activity.
ii. Defendant Would Not Provide Plaintiff an Adjunct Position for the
Summer or Spring 2013 Semesters
Plaintiff next asserts that Defendant’s decision to terminate her position was
motivated by the filing of her FCHR complaint because Defendant would not hire Plaintiff
for an adjunct position for the summer or fall semesters in 2013. As to the summer 2013
semester, Defendant did not hire any adjunct faculty. Rather, full-time faculty were
utilized to cover Plaintiff’s summer classes. Accordingly, whether Defendant would or
would not have hired Plaintiff as an adjunct for summer 2013 is irrelevant as there were no
adjunct positions available. Plaintiff further argues that it would have been more cost
effective to hire her as an adjunct rather than have her classes covered by full-time faculty.
But it is not for this Court to second-guess Defendant’s business decisions and to determine
whether they were wise or effective. See Godby v. Marsh USA, Inc., 346 F. App’x 491,
24
494 (11th Cir. 2009) (noting that a court should not second-guess the business judgment of
employers).
As to the fall 2013 semester, Dr. Paugh testified that Defendant hired adjuncts in
the mathematics department. But according to Mr. Roe, those adjuncts would have been
hired prior to May 2013 when the fall schedule was completed and before Plaintiff’s
position was terminated. No evidence exists that Defendant posted a vacancy for an
adjunct position after Plaintiff was terminated to which she applied and did not receive
consideration. 11 Although Mr. Roe testified that he did not believe he could interview
Plaintiff for an open adjunct position if one had existed, his belief is irrelevant as there is
no evidence that an opening was available. Because there was no open adjunct position
available for fall 2013, Defendant’s decision not to hire Plaintiff as an adjunct for that
semester is not probative of Defendant’s retaliatory intent and does not establish a causal
connection between her FCHR complaint and the elimination of her position.
Because Plaintiff has failed to establish that her FCHR complaint was the but-for
cause of her termination, Defendant is entitled to summary judgment on this claim.
CONCLUSION
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1. Defendant’s Case Dispositive Motion for Summary Judgment (Doc. 43) is
GRANTED.
11
Even if a vacancy were available, no evidence exists that Plaintiff formally applied for a position
as an adjunct. Although Plaintiff testified that she applied to be considered for an adjunct position for the
fall 2013 semester, Mr. Roe testified that he did not believe Plaintiff formally applied. Moreover, pursuant
to Plaintiff’s termination letter, Plaintiff was required to notify human resources that she was interested in
an available position. Plaintiff has presented no evidence that she complied with this requirement.
25
2. The Clerk is directed to enter final judgment in favor of Defendant, terminate
any pending motions, and close the case.
DONE and ORDERED in Tampa, Florida, this 13th day of July, 2015.
Copies furnished to:
Counsel/Parties of Record
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?