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)

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