Deeb v. Old Navy, LLC et al

Filing 54

ORDER granting 28 Motion for summary judgment. The Clerk of Court shall enter a final judgment in favor of Defendants Old Navy, LLC and The Gap, Inc., and against Plaintiff Zea Deeb, and close this case. Signed by Judge Elizabeth A. Kovachevich on 9/4/2009. (JM)

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UNITED STATES DISTRICT COURT MIDDLE ZEA DEEB, DISTRICT TAMPA OF FLORIDA DIVISION Plaintiff, v. OLD NAVY, THE GAP, CASE NO. LLC INC., 8:07-CV-2201-T-17EAJ and Defendants. ORDER This cause Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. Dkt. is 28 26 27 29 30 31 32 33 34 35 37 41 42 43 44 49 before the Court on: Motion for Summary Judgment Notice Notice Declaration Deposition Deposition Deposition Deposition Deposition Deposition Deposition Response Notice Notice Notice Reply This case includes Plaintiff's claim for unlawful discrimination on account of age under the Age Discrimination in Employment Act (Count II.). (Count I), and under the Florida Civil Rights Act Deeb also asserts a claim for Plaintiff Zea retaliation in violation of Title VII, seq. (Count III), 42 U.S.C. 760, Sec. 2000, et and in violation of Ch. Florida Statutes (Count IV). Florida Plaintiff Deeb also asserts a claim under the Ch. 448.102, Florida Private Whistleblower's Act, (Dkt. 20). Statutes. Case No. 8:07-CV-2201-T-17EAJ I. Standard of Review Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, show that that and any affidavits fact and law. there is no is genuine issue as judgment to as any material a matter of the movant entitled to Fed.R.Civ.P. 56(c). The plain language of Rule 56(c) mandates a the entry of party who to summary fails the judgment after to make a adequate time against sufficient element for discovery establish and upon motion, existence of showing an essential that trial." to that party's case, and of on which at party will bear the burden proof Celotex Corp. The of which v. Catrett, 477 U.S. 317 (1986). guide the determination appropriate facts substantive law will are material Lobby, and which Inc., 477 facts U.S. are...irrelevant. 248 (1986 All Anderson v. Liberty 242, reasonable are doubts in about of the the facts and all justifiable See inferences City resolved favor non-movant. Fitzpatrick v. of Atlanta, genuine return a "if 2 F.3d 1112, evidence for the 1115 is (11th Cir. a 1993). A dispute is jury could 477 the such that reasonable verdict non-moving party." See Anderson, U.S. not Id. at 248. But, "[i]f the evidence is merely colorable...or granted." is significantly probative...summary at 249-50. judgment may be Case II. No. 8:07-CV-2201-T-17EAJ of Facts Statement 1. as a Defendants hired at Plaintiff Zea Deeb on 5887 in September Clearwater, 3, 1999 Sales Associate Old Navy Store Florida. At that time Plaintiff Deeb was 45 years old. 2. to 14, Front 2001. Defendants promoted a Plaintiff Deeb from Sales on Associate October End Supervisor, On February 1, non-managerial 2004, Defendants position, promoted Plaintiff Deeb to Customer Service Supervisor, a non-managerial position. 3. During the relevant time period, a General Manager operated the Manager and a Clearwater Customer Store with the support The of a Logistics Manager, Service Manager. General are Logistics Manager and Customer Service Manager exempt salaried positions. position. The Customer Service Supervisor is an hourly 4. Plaintiff Deeb reviewed and signed Defendants' "Discrimination and Harassment 2002. Plaintiff Deeb testified Hotline on the Job" Policy on was aware and July of 17, Plaintiff Defendants' Open Employee telephone p. number 68). Defendants' Deeb Door policy. (Deeb Deposition, Plaintiff testified that personnel the employee handbook or policies online. are available (Deeb to employees p. 72). in Deposition, Plaintiff Deeb did not use Hotline to complain about the Open Door policy or the Employee age discrimination in connection with Plaintiff's claim. (Deeb failure-to-promote Deposition, p. claim or Plaintiff's termination 179). Case No. 8:07-CV-2201-T-17EAJ 5. In 2004, a male employee whom Plaintiff Deeb supervised used the Employee Hotline to lodge a complaint behavior when the employee's about Plaintiff's boyfriend attempted to purchase clothes at the Store. based on the the incident. Defendants conducted an and Plaintiff Deeb was investigation counseled as to complaint, (Dkt. 25). 6. In August, 2006, Plaintiff Deeb participated in the Talent Assessment employee's Program for ("TAP"). TAP is a program in which an is assessed. readiness a management position Plaintiff during told for a Deeb interviewed with After the the several Old Navy General Deeb's Managers the event. that event, Plaintiff that managers ready Plaintiff consensus was Plaintiff was promotion. 7. Manager General In October, of the 2006, Gynnifer Burnett became the District Store. that After district which includes District Clearwater Burnett pay. Manager Nash Deeb was notified Manager Plaintiff dissatisfied with Plaintiff's review, an District Manager Burnett decided to give Plaintiff Deeb increase in pay, in March, 2007. 8. Defendants do not post District job openings Manager has interview for positions below general manager. any job opening The the discretion to post applicants, or to externally and those select someone within his or her district to promote internally without holding interviews Deposition, that the or entertaining When intends competition. become (Thompson pp. 7, 19-21). Manager job openings to fill available those District internally, openings employees are placed on have access. a shared computer drive pp. to which 68-69). all (Burnett Deposition, Case No. 9. stores 8:07-CV-2201-T-17EAJ In 2007, Defendants low sales changed volume by the management eliminating structure of generating one assistant manager position. worked is not a low The Clearwater store, Store so where Plaintiff retained Deeb the volume that Store original management structure. 10. Defendants where transferred Maria she was Port Pianese from the to the Port Richey Store, Clearwater an Assistant Richey Store Manager, was a low Store. The volume store. District Manager Store or the Burnett offered Store. Pianese (Pianese a position at p. the Tyrone Clearwater Deposition, 16). 11. In her deposition, District Manager Gynnifer Burnett testified that Defendants did not solicit their applications intent was to for the laterally assistant manager position because transfer and "save" a current assistant manager whose position was being eliminated due this position. (Burnett to downsizing. Deposition, p. Defendants did not post 69). 12. Burnett Plaintiff by telephone Deeb spoke with 2007 District to Manager why Gynnifer Deeb in April, inquire Plaintiff did not get the position. At that time, (Deeb Plaintiff Deeb did not pp. 176- complain about 177) . age discrimination. Deposition, 13. after Plaintiff Deeb Deeb spoke with General Manager William Nash District Manager she was Burnett. not promoted to because of Plaintiff Deeb spoke with Plaintiff the stated she believed that assistant manager position held by Maria Pianese Plaintiff Deeb's age. (Deeb Deposition, Nash p. 167). made any Plaintiff negative Deeb testified that General Manager never Case No. comments 8:07-CV-2201-T-17EAJ about her age. (Deeb Deposition, p. 173). Plaintiff comments no adverse Deeb testified that about Plaintiff's Kathleen Casalini made in a joking way. negative age, Casalini made employment that decisions about Plaintiff. Plaintiff Deeb testified District Plaintiff was told that General Manager Nash told Manager Burnett discrimination Deposition, pp. about as to Plaintiff the failure Deeb's complaint of age (Deeb to promote claim. 166-168). 14. Defendants' Funeral Leave Policy provides: FUNERAL LEAVE All exempt and full-time non-exempt employees will be granted up to three days paid funeral due to the death of a parent, spouse, life-partner, sibling, child, grandparent, grandchild, in-law, stepparent, stepsibling or stepchild. (The Manager or Employee Relations must approve Exceptions to these relatives.) leave An employee may Off or for request funeral also be able to use of Paid Time an unpaid leave absence, leave. Procedures 1. The employee for is responsible for notifying his/her Manager of the death and initiate a request leave. 2. The Manager is responsible for keying funeral leave with FNL on the employee's time card. 3. Payroll will prepare checks as if is the not time has been worked. (This time counted for overtime purposes.) Case No. 8:07-CV-2201-T-17EAJ (Dkt. 25-2, p. 12). 15. Defendants' Timekeeping Policy states: Non-exempt Managers time punches modifications excessive may The non-exempt may not modify they are their own or unless that initiating projecting payroll. result Additions in all or to be own are determined corrective of the action. Manager modifying their punch must Notify complete following: of the your General Manager situation. Print Write the the exception reason for report. the modification and the date you on notified your General the exception report. Manager File the exception report with your final Summary of Employee Punches in your Operations file cabinet or in a designated Payroll binder. TIME CARD VIOLATIONS Examples of violations include: performed at home, after Failure to record hours for work (e.g. Including work done before clocking out). in, or clocking Moving hours from one day to another on time cards so overtime does not get recorded. Removing from a correctly recorded hours card. time Recording time worked in any other way than exactly as it occurred. Case No. 8:07-CV-2201-T-17EAJ Note: Willful violation of these laws by employees will result in termination. (Dkt. 25-2, p. 13) . 16. On April 25, 2007, Plaintiff Deeb asked General Manager Nash whether friend's Plaintiff could take two days off to attend a p. 120). funeral, which Nash approved. (Deeb Deposition, Plaintiff Deeb testified the she did not Leave ask Nash to take time off p. from work under Funeral policy. (Deeb Deposition, 119-121). present Plaintiff Deeb testified that Suzanne Marceau was during Plaintiff Deeb's discussion with Nash. 17. On April 26, 2007, Plaintiff Deeb called the Store and spoke to Logistics that off Manager Suzanne Marceau. Plaintiff Plaintiff Leave Deeb could take Policy, leave. alleges the time Plaintiff asked Marceau whether leave under the the from work as said Funeral time to and Marceau Plaintiff Plaintiff could take Plaintiff as funeral alleges asked Marceau code Plaintiff's time off from work as said she paid "funeral the leave" time into the as funeral time system, and Marceau would enter leave. 18. off was In her deposition, given under the Plaintiff Leave Deeb testified that time Funeral Policy when Plaintiff's Plaintiff Deeb father died and Plaintiff's father-in-law died. denied Policy. knowing (Deeb the specific provisions p. 128). of the Funeral Deeb Leave Deposition, look up was Plaintiff testified her funeral Plaintiff did not funeral leave time the policy provisions a manager who because knew approved by the was for a friend, not a family member. (Deeb Deposition, p. 127.) Case No. 8:07-CV-2201-T-17EAJ 19. Plaintiff was In her deposition, Suzanne Marceau testified that and told her that Plaintiff Deeb Deeb telephoned her, a traveling to "family member's'' Plaintiff funeral. for When Plaintiff leave pay, asked Marceau whether Marceau responded qualified funeral "yes." 20. On Thursday, April 26, 2007, when General Manager Nash arrived at was absent, the Store, Suzanne Marceau a funeral, informed him that responded he Plaintiff already attending and Nash knew Plaintiff Deeb was attending a friend's funeral. Marceau asked Nash whether "friend" and Nash the funeral was that it for a was "family member" for a friend. or a responded Marceau testified that system because she it did not did not key Plaintiff's funeral leave. leave into the qualify as paid 21. Plaintiff Deeb returned to work on Saturday, April 28, 2007, and as found paid that Plaintiff's leave leave the time was not coded in payroll funeral under Funeral Leave Policy. 22. Rivera to Plaintiff enter Deeb asked Assistant leave not as paid Manager funeral Jacqueline leave. leave time. Plaintiff's Rivera did Assistant Manager enter the funeral 23. enter Plaintiff asked Assistant Manager Maria as paid funeral leave. Pianese to Manager Plaintiff's leave Assistant Pianese did not enter the funeral leave time. 24. coded it Plaintiff as paid Deeb entered her leave. own time off from work and p. 126-127, funeral (Deeb Deposition, 133). Plaintiff as worked on Monday, April 30, (Deeb 2007, then took a pp. week off vacation, "Paid Time Off." Deposition, Case No. 8:07-CV-2201-T-17EAJ 141-142.) 25. In her deposition, Suzanne Marceau funeral testified that in the she noticed the entry of punches", was away, Plaintiff's leave "summary of Deeb for and telephoned and Marceau Plaintiff's a message residence. that it was Plaintiff important left Plaintiff Plaintiff punches Deeb to call Deeb did not to General her. call Suzanne Marceau testified that her. Marceau and turned the summary that of over Manager Nash, told Nash Plaintiff Deeb put it. in Plaintiff's funeral time, and only Nash could authorize 26. General Manager Nash reviewed the payroll Deeb's entry of funeral leave. documents, Nash and noted Plaintiff contacted District Manager Burnett. consulted with Regional District Manager Burnett Human Resources Manager Mindy Thompson. 27. employment Nash, Burnett and Thompson agreed that the her Plaintiff Funeral Deeb's Leave should be terminated for violating Policy. In Policy and the Time Modification District Manager Burnett deposition, Manager Nash testified that General first proposed the termination of for Plaintiff Deeb's employment as the appropriate discipline violations. (Burnett Plaintiff's pp. alleged policy Burnett agreed with Deposition, 82-84). the decision, Deposition, the time she and Thompson approved the 38-40). decision. (Thompson that at pp. HR Manager Thompson testified approved the Deeb's p. termination decision, complaint 45). Thompson did not know of Plaintiff of age discrimination. (Thompson Deposition, 10 Case No. 8:07-CV-2201-T-17EAJ 28. employment Nash General when Manager Nash terminated Deeb Plaintiff Deeb's 10, 2007. Plaintiff returned to work on May Plaintiff informed Plaintiff Deeb that had improperly inputted her own fact that leave time as paid funeral instructed leave, not despite the to do so. several managers Plaintiff 29. reflects behavior" The "Corrective Action Document'' dated 5/10/2007 which termination termination: Plaintiff Deeb's for Plaintiff's states the "unsatisfactory Violation Funeral to Policy and Procedure 5-2 - Leave -Funeral unless leave is only for immediate family otherwise approved by GM -Only the GM or Manager into the time card can enter FNL leave Violation to Timekeeping 6.1 -Failure to notify GM of situation -Print the exception report -Failure to write reason for modification and date you notified GM on the exception Zea asked her GM and the if she could take that Funeral this leave family the Leave GM notified her away. Zea is only to be used when an immediate passes explained member that death was that of a family friend so the GM told her she FNL could not use for FNL for this occasion. enter her Zea then asked another manager to her and that manager refused to enter it for the same reason. After being told two times that her situation did not warrant the use of Funeral Leave, Zea proceeded to enter her own Funeral Leave into the payroll system on Saturday 4/28/2007. Violation of these policies will termination from Old Navy. result in 11 Case No. 8:07-CV-2201-T-17EAJ {Dkt. 25-2, p. 14). 30. Plaintiff Deeb did not informed raise any claim of age of her termination. discrimination when Nash Plaintiff 31. Plaintiff Deeb filed her Charge of Discrimination for 13, 2007: age discrimination and retaliation on August "I The was employed at Old Navy (a division of GAP, Inc.) last Since 1999 as I a Sales Associate. Customer 2006, I position held was Experience Supervisor. In August completed a program that would allow me to be promoted to told the open would interview. a management management extended position be position and position for I I was came of next that an to me 2007, In April, became aware a management that was opening in my I this store due to the promotion allowed to of the current for was Customer requested position, Experience to be a younger Manager. female Although interview employee promoted to interview. the I Customer Experience Manager a chance to of other position without me being given am also aware management younger, those a positions the that were filled by without me for to was On Customer given in I age. less experienced persons, opportunity to When I learned being given Experience younger, April, being May 10, interview the positions. less I I Manager position announced (sic) was had been I to experienced employee that due my 2007, 2007, thought discriminated terminated. 32. In her deposition, Plaintiff Deeb testified that Plaintiff did not against Plaintiff, think that but General Manager Nash discriminated District Manager Burnett did think that discriminated against Plaintiff Deeb further Plaintiff. (Deeb Deposition, Plaintiff p. 96). testified that Deeb believed 12 Case No. 8:07-CV-2201-T-17EAJ that Plaintiff did not Deeb did not get the promotion based Defendants' on age, but Plaintiff know why terminated Plaintiff's Deeb further employment. (Deeb Deposition, Plaintiff's p. 174). Plaintiff testified that termination was discriminatory: "Because didn't funeral was (Deeb they were mad at me because against my age, as So about follow through in. to why I I said they put I they discriminated even time and they fired me because discrimination." complaining p. 175). Deposition, 33. November removed Plaintiff 6, on Deeb filed her Complaint in this Court. case This on case was 2007 in Pinellas County Circuit 4, 2007. December III. Discussion Plaintiff includes Zeeb's claim for employment discrimination alleged failure to promote termination based on Defendants' Plaintiff age. Deeb based on age, and wrongful The legal standards governing Title See VII are applied City of interchangeably to ADEA claims. Pennington v. Huntsville, 261 F.3d 1262, 1269 (11th Cir. 2001). A. Direct Evidence - Failure to Promote - Discrete Acts Direct evidence is evidence that reflects "a discriminatory or retaliatory attitude correlating by the to the discrimination or Carter v. Three retaliation complained of employee." 13 Case No. 8:07-CV-2201-T-17EAJ Springs Residential Treatment, 1998). Direct evidence, 132 F.3d 635, "proves 641 the (11th Cir. existence of a if believed, fact without inference or presumption." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004). In response that Defendants' to Defendants' (College Motion, Managers Plaintiff in Deeb argues CMIT Training) recruiting program and posting direct lack of a formal promotion procedure and taken or open position constitute system, evidence standing of age alone together, discrimination. Defendants discrimination lack of a respond involving that Plaintiff's CMIT or allegations recruiting of program and posting Defendants' formal promotion procedure open position system are barred because acts were not raised in these discrete of purported discriminatory in the the argue Charge that Discrimination or Deeb has above not Complaint. Defendants Plaintiff as to the exhausted administrative and the Court should not remedies consider allegations, them. Defendants to Defendants' further CMIT argue that Plaintiff Deeb never applied as a matter program. Defendants argue that of law the CMIT program is not evidence of discrimination. Grossman v. Cir. 1997); Dillard Dept. Hansard v. Stores, Inc., 109 F.3d 457, 459 (8th 865 Pepsi-Cola Metro. Bottling Co., Inc., F.2d 1461, 1466 n. 1 (5"h Cir. 1989). In a disparate the protected trait treatment (under claim, liability depends on whether the ADEA age) actually motivated the employer's 530 U.S. decision. 141 Reeves v. Sanderson context Plumbing of Prods, Inc., 133, (2000). In the an ADEA claim, 14 Case No. direct 8:07-CV-2201-T-17EAJ is "evidence of conduct or statements by persons evidence involved directly permit in the decision-making process reflecting the fact finder discriminatory to infer that that may be viewed as to attitude...sufficient attitude was more the the likely than not a motivating factor in the employer's decision." Walton v. McDonnell case, Douglas as to Corp., the 167 F.3d 423, to promote As to 426 (8ch Cir. the 1999). decision- In this failure claim, the maker was District claim, Manager the Burnett. wrongful Burnett and termination Thompson. decision-makers were Nash, In that the Charge of not Discrimination, allowed to Plaintiff for Deeb the complains next Plaintiff was interview management position that being told that an interview. knew came open in the Clearwater Store, after for the position would be In her that extended to Plaintiff deposition Plaintiff was Deeb testified that being promoted, and had Plaintiff Kathleen Casalini a discussion with Burnett said District Manager "The position is Burnett going in October, to be open, 2006 so you in just which need to train and prepare yourself, because Kathleen will not be here forever." (Deeb Deposition, p. 100). "Well, Plaintiff that's Deeb because testified that you know I Plaintiff responded in good, am interested a management position." Plaintiff made Deeb testified that comments about District Manager Burnett age. (Deeb never any negative p. Plaintiff's Deposition, Defendants job 172). District Manager Burnett in testified to that the did not advertise the position whose order in "save" Port of Assistant Manager Pianese, position the Richey Store testified she was had eliminated due a telephone to downsizing. in Plaintiff which Deeb conversation District 15 Case No. Manager 8:07-CV-2201-T-17EAJ Burnett was very angry that Plaintiff Deeb challenged the decision to promote positions. (Deeb two other supervisors pp. 152-157). into management Deposition, 1. Failure to Exhaust Defendants have the burden to establish by a preponderance of the evidence that remedies. Plaintiff did not exhaust administrative The Court notes that Plaintiff Deeb has not raised a hostile environment claim; Plaintiff's Charge of that Discrimination refers to discrete acts. The Court also notes Plaintiff Deeb does not Discrimination or the refer to the CMIT program in the Charge of Complaint, nor does Plaintiff Deeb complain about the absence of formal promotion standards or the absence of an open position posting system in the Charge of Discrimination or the Complaint. An ADEA action may be based "not complaints made by the employee's kind of discrimination like or only upon the but specific also upon any EEOC charge, the related to charge's allegations, that could limited only by the scope of grow the EEOC out of investigation initial reasonably be expected to the charges of discrimination." See Chanda v. Enaelhard/ICC, 234 F.3d 1219, judicial 1224 (llch Cir. 2000). Although the allegations in a EEOC charge of allow suit must bear some courts are relation to the discrimination, procedural VII,]" and "extremely reluctant to to bar claims brought technicalities "the scope of [under Title not be strictly an EEOC complaint should interpreted." Sanchez v. Standard Brands, Inc., 431 F.2d 460, 465 (5th Cir. 1970) . 16 Case No. 8:07-CV-2201-T-17EAJ An allegation that discrimination related to" an as a an employer of that engages in widespread is not "like or matter practice an and policy has allegation employer discriminated against the a specific employee that Plaintiff under particular seeks to circumstances. Plaintiff's To extent Deeb support individual discrimination and retaliation claims with evidence of a widespread pattern Defendants, beyond the the scope Court of and practice of discrimination by finds that a pattern of and practice claim is "The Plaintiff's Charge Discrimination. inquiry regarding an individual's claim is the reason for a particular employment a pattern-or-practice [] decisions but on a decision, trial the of while focus ^at will the not liability be on stage of individual pattern discriminatory decision- making. '" Cooper v. Federal Reserve Bank of Richmond, 467 US 867, 876 (1984). The EEOC investigation of a pattern or practice of discrimination would have been more complex than the investigation into allegations of discrimination against Plaintiff alone. The Court of notes or that Plaintiff Deeb did not include the amend her Charge above by means of Discrimination her Complaint to cannot time allegations. issues raised A plaintiff for the amend her in complaint for first a motion summary judgment. raised for The Court failure to cannot dismiss those claims claims. which have Pattern not been and practice exhaust evidence is admissible decision to demonstrate a that an employer's policy of employment conformed to general discrimination...and that employee's] rejection were the presumptively valid in fact a coverup for reasons for [an a...discriminatory decision, 792, 805 (1973). The Court McDonnell will Douglas v. Green, 411 U.S. in consider Plaintiff's argument 17 Case No. 8:07-CV-2201-T-17EAJ the current context, the pending Motion for Summary Judgment. 2. CMIT Program Defendants have a "College Manager In Training'' program in which college at graduates fairs. are recruited at to be management pp. 2006 109-112). at USF. trainees Plaintiff job (Deeb a Deposition, job fair in Deeb recruited at There limited to other is no record evidence that the the CMIT Program was class. In college graduates courts have held outside that protected cases, recruiting recent college graduates is not evidence Grossman that v. a company Dept. discriminates Stores, Inc., against 109 F.3d older workers. Dillard 457, Co., 459 (8th Cir. 1997); Hansard v. 1466 n. 1 Pepsi-Cola Metro. (5th Cir. 1989). Bottling Inc., 865 F.2d 1461, After the consideration, either the alone Court or in finds as a matter with of an law that absence CMIT program, combination of formal promotion standards does and procedures, not constitute and the absence of of an open posting age system, direct evidence discrimination. 3. Formal Promotion Standards/Procedures Plaintiff formal Deeb to argues post that notice an of employer's available failure to use or for procedures promotions determining who discrimination. would be In offered a v. promotion Super fosters and enables Inc., 151 Joseph Publix Markets, Fed. said: Appx. 760, 767-768 (llch Cir. 2005), the Eleventh Circuit 18 Case No. 8:07-CV-2201-T-17EAJ "We are persuaded that the principles announced promotions adequate available in this Court's Title hiring VII and to post are that jurisprudence concerning requires of vacant also for for employers positions notice lateral an transfer to to better paying her jobs, and to promulgate employer and ranking in objective his or order to standards determine eligibility provide Because volume an employee with access a discriminatory failed to post Mr. Joseph was to facts of that may demonstrate Publix stores, animus. notice vacancies for produce managers that he asked for a in not higher required to demonstrate "when was no he transfer there did not know about and when formal mechanism for expressing his interest." In Joseph, supra, of the a Eleventh Circuit 50 motion Court a of Appeals The ruled on the appeal Rule after jury trial. Eleventh Circuit to Plaintiff viewed the and evidence in the the light most favorable Joseph, found that record Publix showed that supervisors, to the next Plaintiff orally, Joseph repeatedly informed his that he wanted a and in writing, transfer available position as vacant positions, transfer to a a produce manager. an objective criteria store, it was not "Without notice of or for eligibility for a possible for Mr. Category A Joseph to apply for a was filled." Joseph, transfer to a at 765. specific location before it In Joseph, supra the Eleventh Circuit Court of Appeals explains that merits, is in a disparate treatment the validity of a question whether case fully tried on the as a matter of law review of the judgment the limited to plaintiff presented sufficient evidence to prove each element end of a trial, the question of whether a of his claim. At the out plaintiff has made 19 Case No. 8:07-CV-2201-T-17EAJ a prima facie case no under the McDonnell-Douglas As the burden-shifting Circuit points framework is longer relevant. Eleventh out, that there is creates a difference between the circumstantial evidence a rebuttable presumption of discriminatory motive and the elements of a Title VII claim. under McDonnell-Douglas In Joseph, supra, the Eleventh Circuit Court of Appeals relies on Carmichael v. Birmingham Saw Works, Inc., 738 F.2d 1126 (11th Cir. 1984), in which the Eleventh Circuit carved out an "applied for" element framework. exception to the of a prima facie case a case under the McDonnell-Douglas In Carmichael, involving a Title VII failure-to-promote claim, the Eleventh Circuit held that when a company employs an informal method of advertising a vacancy, such as by "word of mouth," which is ineffective in conveying notice to a plaintiff of the job opening, the plaintiff may establish a prima for facie case without the position. The demonstrating that the plaintiff applied plaintiff must demonstrate only that reason or duty to consider him or her see also Vessel v. Atlanta Indep. the employer "had some 1133; for the post." Id at System, 408 School F.3d 763, 768 (11th Cir. 2005){[W]here an employer does not formally rather uses informal and subjective announce a position but procedures to identify a under the second rprima candidate, faciel a plaintiff need not show he applied for the prong that position, only that the employer had some reason to consider him for the post.") The Court does not view Joseph as binding precedent which establishes standards that the failure to publish formal promotion direct evidence of and promotion procedures constitutes 20 Case No. 8:07-CV-2201-T-17EAJ That case is an appeal of a case that was discrimination. decided under the McDonnell-Douglas framework, which is applied to cases decided on circumstantial evidence. The as Eleventh Circuit and has held that subjective are practices capable of such interviews supervisory to recommendations but are the not operating as has barriers advancement, criteria Eleventh Circuit per se improper also held that subjective and cannot be used to show pretext absent evidence that subjective...criteria were used as a mask for discrimination. See Dennev v. Chapman v. AI City of Albany, Transport, Inc., it a 247 229 F.3d 1172 (ll-h Cir. (11th Cir. 2001). 2000), reason In F.3d 1012 a the Eleventh Circuit makes an employment decision is if clear that subjective nona for legally sufficient, discriminatory reason the defendant articulates clear, reasonably specific opinion. The cases factual basis cited above framework, on which to base the its subjective element of involve "pretext" involve of the McDonnell-Douglas and do not issues direct evidence. The undisputed evidence does secrecy about promotion standards. not It establish the presence of is undisputed that the District Manager exercises Plaintiff Deeb's discretion in promotion decisions. Plaintiff performance was reviewed annually. Deeb testified about the TAP process in which Plaintiff participated in 2006. required to do an year. (Deeb Plaintiff Deeb testified that plan" she was every to "individual p. development ("IDO") Deposition, 157). Plaintiff Deeb testified as Manager a meeting with General Manager Nash and Assistant Casalini (Deeb in which sixteen pp. "managerial qualities" were addressed. Deposition, 167-171). 21 Case No. 8:07-CV-2201-T-17EAJ After consideration, formal promotion standards the Court finds that the absence alone or of in and procedures, either combination with the CMIT program and the absence posting system, does not constitute direct of an open evidence of discrimination. 4. Open Posting System The discussion above as to formal promotion standards applies system. equally to the issue of the absence of an open posting It fill is undisputed that the District Manager has discretion Manager to positions internally or externally. District Burnett to which she testified that employees have in open positions access. 2006 with are put on a shared drive that in Plaintiff District Deeb testified Manager Burnett in had a discussion Deeb which Plaintiff communicated Deeb also Plaintiff s interest advancement. Plaintiff communicated with District Manager Burnett General Manager via e-mail and telephone. Managers were The District of Manager, and Assistant aware Plaintiff Deeb's Deeb interest in career advancement was and of higher the any pay. Plaintiff Policy of age testified that Employee Plaintiff but aware Open Door and the Hotline, did not make complaints discrimination. After consideration, system, the alone the as Court well of finds as in that the absence with of the and an open posting CMIT combination program and absence formal promotion standards policies, does not constitute direct evidence of discrimination. 22 Case No. 8:07-CV-2201-T-17EAJ B. Circumstantial Evidence A claim showing: 1) for that failure the to promote based to on the age may be proved age by plaintiff belongs protected class of ages between forty and seventy; 2) that the plaintiff was qualified and applied fill; others for a position the employer was position; age trying to and 4) that 3) that the plaintiff was members of denied the the who were not protected class were hired, or the employer continued to seek applicants with Corp. case the Green, age- plaintiff's 411 U.S. 792 qualifications. (1973). To McDonnell-Douglas a prima v. establish facie for based termination, employee who to do the job a plaintiff must prove of she that age the class discharged was a is a member the was protected qualified from which discharged, and that substantially younger plaintiff's burden of heavy. Turlington v. person filled her position. facie 135 The case F.3d is not 1432 establishing a prima Atlanta Gas Light Co., 1428, (llrh Cir. 1998) . Once the a prima to facie case a is established, the burden shifts or to employer articulate legitimate, non-discriminatory non-retaliatory reason U.S. at 802. Once the for its actions. McDonnell-Douglas, a legitimate of 411 employer for its articulates the non- discriminatory reason actions, presumption discrimination disappears, with evidence to show that and the plaintiff must the employer's come forward are proffered reasons pretextual. either Plaintiff may overcome court that or a summary judgment motion by "persuading the a discriminatory motive more showing that Even non- likely motivated the employer's Plaintiff proffered employer, indirectly by unworthy of the if explanation that the credence. demonstrates employer's articulated 23 Case No. 8:07-CV-2201-T-17EAJ discriminatory reason is false, Plaintiff must still prove that her adverse employment action was truly based upon unlawful discrimination. (1993) . St. Mary's Honor Center v. Hicks. 509 U.S. 502 1. Prima Facie Case A. Failure to Promote Defendants have raised various challenges to the elements of Plaintiff's prima facie case. For the purposes assumes that of this Motion Deeb has for Summary Judgment, the Court Plaintiff established a prima claim. facie case for Plaintiff's failure-to-promote B. Termination For the purpose of this Motion for Summary Judgment, the Court case assumes for that Plaintiff wrongful Deeb has established a prima claim. facie Plaintiff's termination 2. Pretext A. Failure to Promote District Manager Gynnifer Burnett told Plaintiff Deeb that due to restructuring Port Richey since Burnett Store Maria to laterally transferred Maria Store. the Port Pianese from the the Clearwater job at Burnett Richey store testified that Pianese's was eliminated due Maria to restructuring, out, or to the choice was her either to severance Pianese transfer laterally. 24 Case No. 8:07-CV-2201-T-17EAJ Burnett future testified that, growth, p. Burnett 70). the in order a to prepare for Defendants' (Burnett additional chose lateral transfer open Deposition, Defendants expected to stores within immediate area. Plaintiff explained the Plaintiff to age Deeb testified that transfer due that District to Manager Burnett but promoted due experience lateral restructuring, Deeb was relies Deeb Deeb believes Plaintiff Deeb not her discrimination. to show Plaintiff that on and performance Plaintiff had qualifications superior to those of Maria Pianese, who was a CMIT with limited experience. In this case, Defendants did not evaluate two individual candidates, and then decide one a candidate should be promoted. to transfer a Defendants made strategic business decision manager who does not otherwise would have been terminated. that Defendants were in fact Plaintiff Deeb their dispute restructuring operations. "A plaintiff is not allowed or to recast an employer's business 229 proffered nondiscriminatory judgment for that of the reasons substitute v. AI [her] employer." Chapman Transport, F.3d 1012, of an age 1030 (11th Cir. 2000). coverup Plaintiff's is not subjective belief to establish not discrimination reason sufficient Plaintiff that that Defendants' forth is pretextual. establishes failure is age Deeb has brought evidence which for Defendants' Plaintiff is legitimate explanation false, and that the the to promote real reason discrimination. B. Termination 25 Case No. 8:07-CV-2201-T-17EAJ The "Corrective Action Document" states of that Plaintiff's leave states that the employment was terminated due of to violation funeral The CAD policy and violation timekeeping policy. that her after being told two times use of Funeral Leave, situation did not to enter her warrant own Plaintiff proceeded Funeral Leave into the Payroll System on Saturday, 4/28/2007. Plaintiff said that Deeb testified that "they were mad my age at me because I they discriminated against and they didn't follow through as because I was p. to why I put about funeral time in. So they (Deeb fired me complaining 175). discrimination." Deposition, The basic termination Deeb admits of facts of the incident employment that are resulted in the Plaintiff friend, Plaintiff's undisputed. of a family Plaintiff attended the that leave funeral and Plaintiff Manager Nash Plaintiff funeral Deeb admits for funeral Plaintiff did not for Plaintiff's Deeb ask General absence. own time as Deeb admits in the that Plaintiff records, entered her leave payroll after other managers refused to enter the funeral leave time. Plaintiff establishes termination Deeb has not brought forth any evidence for that that the it is that of Defendants' legitimate is explanation false, or Plaintiff's employment more likely that intentional discrimination motivated Plaintiff's termination. After Summary consideration, as to the I Court (ADEA grants Defendants' Motion Count for II Judgment Count Discrimination) and 26 Case No. 8:07-CV-2201-T-17EAJ (FCRA Age Discrimination). C. Retaliation - Title VII Plaintiff's Complaint includes a claim for retaliation under Title VII, religion, which sex or forbids national discrimination based on origin. Plaintiff's race, color, of Charge Discrimination under the Age includes only Plaintiff s in claim of Act of discrimination 1967. Plaintiff did Discrimination for entry Employment judgment Defendants move summary because not exhaust administrative remedies as to Plaintiff's Title VII claim. Plaintiff Judgment Deeb concedes granted. that After Defendants' Motion the for Summary should be consideration, Court grants Defendants' Motion for Summary Judgment as to Count III. D. Retaliation - FCRA In an ADEA case, established by an adverse a prima 1) a facie case of retaliation is 2) showing: statutorily protected and 3) a causal expression; employment action; connection between the protected expression a plaintiff has and a the adverse facie employment case of action. Once established prima retaliation, the burden shifts to the defendant a to rebut reason the for a presumption the adverse of retaliation by producing employment action. If legitimate the defendant is proffers legitimate drops a reason the presumption of case. The burden retaliation shifts to the rebutted and to from the genuine plaintiff raise factual a issue whether action. the proffered reasons is a pretext to mask retaliatory 27 Case No. 8:07-CV-2201-T-17EAJ To establish that a plaintiff engaged in a statutorily she has in protected expression, faith, reasonable a plaintiff must that the show that was a good belief employer engaged unlawful objective employment component. practices. This burden has a subjective she and A plaintiff must show that subjectively believed that her employer was engaged in unlawful employment practices, light of and also that facts her belief was objectively Weeks v. reasonable Harden Mfg. in the and record presented. Corp., 291 F.3d 1307 (11th Cir. 2002). In April, Nash that of 2007, Plaintiff Deeb complained to General Manager Defendants Plaintiff discriminated against was not interviewed Plaintiff for on the basis age when Kathleen Casalini's position, Store. and Maria Pianese was transferred to the file a formal Charge Clearwater of Plaintiff Deeb did not Discrimination until employment. The after Defendants' terminated Plaintiff Plaintiff's subjectively record establishes that believed that practices. As Defendants to whether engaged in unlawful employment objectively Plaintiff's belief was reasonable in light considered the of the facts and the record, the Court has following undisputed facts. The Court Defendants for notes eight that Plaintiff Deeb was Deeb employed by knew where to find years. Plaintiff Defendants' policies and procedures. There is no record evidence that Defendants' policies and procedures as to funeral 2007. leave and timekeeping were recently amended before May, she never requested that time off to Plaintiff Deeb testified that approve "funeral General Manager Nash a funeral. leave"--paid attend Plaintiff absence, Deeb requested General but never asked Nash Manager Nash being paid to approve her her about for absence. 28 Case No. 8:07-CV-2201-T-17EAJ Plaintiff Deeb did in Plaintiff but Deeb fact attend the funeral of a family friend. leave" asked Suzanne Marceau to enter the approve "funeral in Suzanne Marceau did not system. Plaintiff for funeral leave the to payroll enter Deeb asked two Assistant they did not Managers enter it. funeral leave Plaintiff but Plaintiff leave or Deeb admitted that Plaintiff Plaintiff entered her General Deeb own funeral time. Deeb did not contact Plaintiff Manager Nash District Manager Burnett before leave time in the payroll entered her own Manager Nash funeral system. General did not approve Deeb's Plaintiff's action, to decide funeral leave; upon discovering contacted District District and Plaintiff Manager Manager General Manager Nash the appropriate Burnett Burnett discipline. contacted Regional HR Manager Mindy Thompson, they investigated the interviewed Plaintiff facts. Deeb, While the neither Burnett nor Thompson in the other employees involved incident were approval Regional facts of interviewed. District Manager Plaintiff's There is Burnett sought from to the interview for the termination of employment as an HR Manager Thompson. what occurred, and the no dispute that only element with Plaintiff Deeb would have own added is an explanation The for why itself Plaintiff makes it Deeb entered her clear that funeral regard a leave. policy of the the Defendants a violation Timekeeping Policy to be terminable offense. Given factual situation, the failure to interview Plaintiff Deeb does not render the personnel decision suspect. The Court also notes In that Defendants when were have a formal anti discrimination issue of policy. the past Plaintiff responsive raised an to discrimination, Defendants Plaintiff's investigate complaints; and resolve Defendants Plaintiff's contacted Plaintiff When a to complaint complaint. 29 Case No. 8:07-CV-2201-T-17EAJ of discrimination was made about also Plaintiff's conduct, Defendants anti the investigated and resolved that also provides complaint. additional Defendants' avenues for discrimination policy reporting of complaints complaints to the local to the corporate office, besides Deeb verbal General Manager. Plaintiff testified that she was aware of those avenues. Given the the belief that above undisputed facts, the Court concludes that Defendants retaliated against Plaintiff Deeb by terminating about Court Plaintiff's employment is not after Plaintiff complained reasonable. established a age discrimination that objectively Deeb has not The prima concludes Plaintiff facie case of retaliation. In order retaliation to satisfy the the causal link prong at of a prima facie case, plaintiff must, a minimum, generally establish that expression. In defendant a case was actually aware a corporate agent of the protected the adverse and involving the defendant, who took plaintiff must action was show of that corporate the aware the the plaintiff's of his or her protected expression, taking acted within scope agency when the action. Cir. Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th 1993). In this internal case, General Manager Nash of age knew of Plaintiff's Court is not aware knew complaint that discrimination. that District of age The of evidence of establishes Manager Burnett Plaintiff's internal complaint discrimination. she did not know Regional HR Manager Thompson testified that Plaintiff Deeb had complained about age discrimination. 30 Case No. 8:07-CV-2201-T-17EAJ The causal link may be established by direct evidence or circumstantial evidence. not sufficient of In this case, if the direct evidence is to establish the causal termination of age link, the 2007 circumstantial after in April, 2007 evidence Plaintiff's verbal in May, Plaintiff's complaint discrimination is sufficient to establish the causal link. Even if the Court assumes that Plaintiff Deeb established a prima facie a case of retaliation, explanation facts set Defendants for meet the burden of showing legitimate Plaintiff s above. termination Deeb has through the undisputed forth Plaintiff not shown that Defendants' explanation is false, or that it is more likely that a discriminatory motive was Defendants years the real reason for Plaintiff's Plaintiff Plaintiff termination. hired old, Plaintiff when Defendants promoted Deeb was during forty-five eight and the years Plaintiff was employed by Defendants. Plaintiff Deeb has not established that Defendants action in enforcing age Defendants' policies is a subterfuge for intentional discrimination. After Summary consideration, as to the Court IV. grants Defendants' Motion for Judgment Count E. Florida Private Whistleblower's Act - Retaliation Claims analyzed in brought the under the as Florida Title Whistleblower's VII retaliation Act are same manner claims. Sierminski v. 2000). Transouth Financial Corp., 216 F.3d 945 (11th Cir. To be protected under the Florida Whistleblower's Act, an 31 Case No. 8:07-CV-2201-T-17EAJ employee must demonstrate that she: 1) disclosed or threatened to disclose to an agency under oath of the and in writing; 3) that was 2) in an activity, of policy or practice employer; violation law, rule or regulation; 4) that the employer retaliated against her because of disclosure gave written notice to the or threat employer to disclose; of its and 5) that she activity, policy or practice, and 6) thereby giving the employer the activity, Systems, a reasonable practice. 752 See opportunity to Tavlor v. correct policy or 770 Memorial Health Inc., So.2d (2000) In this case, there notice is to no record evidence of that Plaintiff claim for Deeb gave written Defendants Plaintiff's age discrimination retaliation employment. for failure to promote Defendants Plaintiff, in Plaintiff's told General promoted for which allegedly terminated she Plaintiff Deeb testified only that Plaintiff Deeb's Manager Nash that due to age Plaintiff believed Plaintiff was not of discrimination. Charge Discrimination was terminated. filed after Plaintiff's employment was The violation White v. Fla. FWA requires of a law, Plaintiff or Deeb to actually in order 1335, prove to a See rule regulation 369 F. succeed. Purdue The Pharma, Court Inc., has Supp. 1337-39 for (M.D. Summary 2005). granted Defendants' Motion Judgment as to Plaintiff's ADEA and that Plaintiff's FCRA claims. The Court succeed. therefore concludes FWA claim cannot The Court incorporates the the analysis FCRA above, of and Plaintiff's finds that Plaintiff retaliation claim under cannot FWA. establish Plaintiff's a prima belief facie that claim for retaliation retaliated under against the Defendants 32 Case No. 8:07-CV-2201-T-17EAJ Plaintiff was not objectively reasonable. Assuming that Plaintiff Deeb could establish a prima facie case, reason Defendants for the articulated a of legitimate Plaintiff's nondiscriminatory employment, and termination Plaintiff that it Deeb has not shown that Defendants' reason is false or is more likely that action. age discrimination motivated the adverse employment After Summary consideration, as to the Court V. grants Defendants' it is Motion for Judgment Count Accordingly, ORDERED that Defendants' Motion for Summary Judgment (Dkt. 28) in is granted. favor of The Clerk of Court and against shall enter a final close judgment this Defendants Plaintiff, and case. ONE and ORDERED y of September, in Chambers, in Tampa, Florida on this 2009. United States Di Copies to: All parties and counsel of record 33

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