Wigfall et al v. Sodexo, Inc. et al
Filing
99
ORDER granting 64 Motion for summary judgment. The Clerk is directed to enter judgment in favor of Defendant Saint Leo University, Incorporated, and against Plaintiffs Melissa Wigfall, Connie Daniels, Genethel Danielle Pye, Anthony Mills, Malisa Butler, Virginia Larry, and Melissa Worley, and to close this case. Signed by Judge Susan C Bucklew on 3/6/2012. (LSC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MELISSA WIGFALL,
CONNIE DANIELS,
GENETHEL DANIELLE PYE,
ANTHONY MILLS,
MALISA BUTLER,
VIRGINIA LARRY, and
MELISSA WORLEY,
Plaintiffs,
v.
Case No.: 8:10-CV-02232-T-24-TGW
SAINT LEO UNIVERSITY, INCORPORATED,
Defendant.
__________________________________________/
ORDER
This cause comes before the Court on a motion for summary judgment filed by
Defendant Saint Leo University, Incorporated, (“Saint Leo”), and a response in opposition to the
motion, filed by Plaintiffs Melissa Wigfall, Connie Daniels, Genethel Danielle Pye, Anthony
Mills, Malisa Butler, Virginia Larry, and Melissa Worley. (Dkts. 64, 77, 78, 79, 80, 81, 82, 84,
85, 86, 88, 89, 90, 91.) With the Court’s permission, Saint Leo filed a reply, and Plaintiffs filed
a sur-reply. (Dkts. 95, 98.)
Plaintiffs allege that Saint Leo terminated their employment in retaliation for their
participation in an earlier lawsuit against Sodexo, Inc., (hereinafter, “the Sodexo Lawsuit”).
They assert that this retaliatory termination violated the Florida Whistleblower Act, the Florida
Civil Rights Act, the Fair Labor Standards Act, Section 1981, and Title VII. As explained
below, the undisputed evidence shows that Plaintiffs cannot prevail on their claim as a matter of
law, and therefore, Saint Leo’s motion must be granted.
I.
Background and Facts
The following material facts are undisputed in the record:
A.
Plaintiffs’ Employment as Food Service Workers
Saint Leo formerly had a contract with Sodexo, Inc. (“Sodexo”), whereby Sodexo would
provide food services on the Saint Leo campus. Plaintiffs were food service workers on the
Saint Leo campus under the contract between Saint Leo and Sodexo. Plaintiffs’ employment
began when they filled out a Sodexo employment application and were hired by Sodexo
personnel.
Plaintiffs concede that they were “supervised, directed, evaluated, and subject to
discipline by Sodexo’s personnel.” (Pls.’ Opposition Memo. at 2, n.1.) Plaintiffs testified that
they received a Sodexo Employment Manual, which contained Sodexo policies and procedures.
Such manual governed their conduct. Plaintiffs admit that their pay and their schedules were
determined by Sodexo. They further admit that they were assigned duties and supervised by
Sodexo personnel.
Plaintiffs furthermore concede that “Sodexo processed their payroll and disbursed their
payroll, and provided employee benefits to [them].” (Pls.’ Opposition Memo. at 2, n.1.) In
particular, Plaintiffs testified that their paychecks came from Sodexo, that their W-2s and payroll
came from Sodexo, and that Sodexo withheld payroll taxes. Vacation, sick pay, health, and
other employment benefits came from Sodexo.
Decisions regarding day-to-day operations, employment files, and the terms and
conditions of employment at Saint Leo were made by Sodexo’s District Manager, Rodney
Cruise, and Sodexo HR Manager, Tricia Crowley. Position descriptions and performance rating
2
documents for food service workers were authored by Sodexo on Sodexo forms and utilized by
Sodexo personnel.
In her sworn declaration, Sodexo’s Vice President of Human Resources, Kysa
Minnifield, confirmed that Plaintiffs were solely employed by Sodexo, that they were not jointly
employed with Saint Leo, and that Sodexo alone made the determination to terminate Plaintiffs’
employment. (Minnifield Decl. at ¶¶ 5-11.) According to Minnifield, Saint Leo did not retain
for itself control over the terms and conditions of the employment of Sodexo employees,
including Plaintiffs. Furthermore, Saint Leo did not have any control over Sodexo’s hiring or
firing of the food service employees, including Plaintiffs; did not pay any of the plaintiffs in this
case; did not pay Social Security taxes or insurance for Plaintiffs; and did not pay operating
expenses for Sodexo, for which Sodexo was responsible under the contract between Sodexo and
Saint Leo.
B.
Plaintiffs’ Lawsuit Against Sodexo
On February 4, 2010, Plaintiffs and several others filed the Sodexo Lawsuit against
Sodexo, Rich Vogel, who managed the Saint Leo account for Sodexo, and another Sodexo
manager, Vickie Beavins. In that suit, Plaintiffs asserted claims for race discrimination and
retaliation, unpaid overtime wages, and battery. Saint Leo was not named as a defendant in the
Sodexo Lawsuit.
Plaintiffs’ claims in the Sodexo Lawsuit were settled as a result of a confidential
mediation that took place on June 17, 2010. Pursuant to the settlement, Sodexo agreed to change
certain working conditions of the plaintiffs, one of which was removal of Vogel as manager of
the Saint Leo account. Saint Leo did not participate in the mediation, and Sodexo did not confer
3
with Saint Leo before agreeing to the terms of the settlement, including Vogel’s removal.
C.
Saint Leo’s Termination of Contract with Sodexo
On or about June 24, 2010, Saint Leo learned that Sodexo planned to transfer Vogel off
the Saint Leo campus. Even though Vogel was an employee of Sodexo–not Saint Leo–the
students did not know that, and they thought so highly of Vogel that they voted him employee of
the year for two of the past three years. Because of the students’ positive opinion of Vogel, Saint
Leo wanted to keep Vogel on campus, and Saint Leo believed that the only way to do so was to
cancel its contract with Sodexo. Furthermore, Saint Leo was unhappy with Sodexo’s lack of
communication regarding the Sodexo Lawsuit and was troubled by Sodexo keeping Saint Leo
“totally in the dark.”
Because Saint Leo was unhappy with Sodexo’s communication about the Sodexo
Lawsuit, Saint Leo started looking into the costs of using Sodexo to provide food services. Saint
Leo estimated that there would be approximately $400,000 in savings by not having Sodexo
provide food services. These estimated savings were the result of lower food cost, avoiding the
8% profit that was paid to Sodexo under the contract, and the commissions that Saint Leo would
earn instead of paying to Sodexo.
Saint Leo therefore decided to terminate its contract with Sodexo and to hire Vogel as a
Saint Leo employee in the role of Director of Dining Services. On July 30, 2010, Saint Leo
notified Sodexo that it was terminating Sodexo’s contract, and that going forward, Saint Leo
would handle food services in-house.
C.
Sodexo’s Termination of Food Service Workers at Saint Leo Campus
On August 3, 2010, Sodexo sent to its food service workers at the Saint Leo campus,
4
including Plaintiffs, a letter stating that because of the cancellation of the contract, Sodexo would
“no longer be able to employ [them] at Saint Leo” after the transition. (Minnifield Decl. at Ex.
I.) In addition, the Sodexo employees, including Plaintiffs, were notified in the letter that they
could apply for employment at Saint Leo by contacting the Saint Leo Human Resources
Department.
On September 13, 2010, Sodexo issued its food service workers at the Saint Leo campus,
including Plaintiffs, a WARN Act notice advising that, effective October 1, 2010, Sodexo would
no longer be providing food services for Saint Leo, that it would close its operation at Saint Leo,
and that their employment would be discontinued. Sodexo also issued an Account Closure
document, which identified that its food service workers, including Plaintiffs, were being
separated from Sodexo on a job elimination/lay-off status, which meant that they were no longer
employed with Sodexo.
On October 1, 2010, Saint Leo officially terminated its contract with Sodexo. All Sodexo
food service workers, including Plaintiffs, were terminated at that time. Thereafter, the plaintiffs
who filed for unemployment were paid unemployment benefits, which were charged to
Sodexo–not Saint Leo.
D.
Plaintiffs’ Lawsuit Against Saint Leo
On October 5, 2010, Plaintiffs filed the instant case, alleging discrimination and
retaliation under Section 1981, the Florida Whistleblower Statute, and the Fair Labor Standards
Act. Plaintiffs initially named Sodexo, Saint Leo, and Rich Vogel as defendants, but later filed a
First Amended Complaint dropping Sodexo and Rich Vogel as defendants. Following the
Court’s Orders of October 18, 2011 on Saint Leo’s Motion for Judgment on the Pleadings and on
5
Saint Leo’s Motion to Consolidate, Plaintiffs filed their Second Amended Complaint, in which
they asserted a singular claim that Saint Leo terminated their employment in retaliation for their
participation in the Sodexo Lawsuit. (Dkts. 38, 39, 46.)
Plaintiffs have alleged one claim against Saint Leo–that on or about October 1, 2010,
Saint Leo wrongfully terminated their employment in retaliation for their participation in the
Sodexo Lawsuit. They allege that they participated in the Sodexo Lawsuit, that Saint Leo was
aware of their participation, and that Saint Leo retaliated against them for their participation by
terminating their employment. They assert that this retaliatory termination violated the Florida
Whistleblower Statute, the Florida Civil Rights Act, the Fair Labor Standards Act, Section 1981,
and Title VII.
On December 13, 2011, the Court ruled that Plaintiffs would be judicially estopped from
asserting any claim other than their retaliatory termination claim. (Dkt. 60.) The Court made
this ruling after assurances from Plaintiffs that they were not attempting to allege an additional
failure to hire claim, despite the fact that their Second Amended Complaint contained allegations
that Saint Leo required them to re-apply for employment after the cancellation of the Sodexo
contract, and that the application and rehire process were casually related to their participation in
the Sodexo Lawsuit. Plaintiffs represented to the Court that such facts merely served to
demonstrate that Sodexo and Saint Leo shared control over certain aspects of Plaintiffs’
employment, and therefore, supported their contention that Saint Leo was a joint employer.
Plaintiffs nevertheless confirmed their position that they were offering no other basis for their
retaliation claim other than their alleged wrongful termination.
6
E.
Plaintiffs’ Evidence of Retaliation
In support of their opposition to Saint Leo’s summary judgment motion, Plaintiffs
flooded the Court with an enormous number of documents. Most of these documents are
irrelevant to the question at hand, namely whether there is a genuine issue of material fact
concerning Plaintiffs’ retaliatory termination claim.1 Nevertheless, the Court has satisfied its
duty to examine the entire record to determine whether a factual issue remains for trial. In doing
so, the Court has discerned the following additional facts from Plaintiffs’ depositions, as well as
from other documents, which are relevant and which the Court views in the light most favorable
to Plaintiffs:
While working in food services, pursuant to the Sodexo Handbook, Plaintiffs were
required to wear a uniform and an ID badge. That ID badge identified Plaintiffs as Saint Leo
“employees.” Furthermore, Plaintiffs were required to attend an annual orientation that was held
for Saint Leo’s faculty and staff, during which the President of the University addressed them.
Additionally, some of the plaintiffs testified that they received a wage increase that they were
told came directly from Saint Leo. Some of the plaintiffs also testified that they received
instructions directly from Saint Leo officials concerning dining services and catering events on
campus. Plaintiff Mills testified that the president of Saint Leo told him that “if Sodexo ever
1
For example, Plaintiffs filed copies of affidavits of service of process, subpoenas,
correspondence between counsel, and other discovery-related documents that serve no purpose
but to inundate the Court with useless information. (Dkt. 77, Ex. 4.) Plaintiffs also filed, for
example, the affidavit of non-party A.J. Edmonds. (Dkt. 80.) This affidavit primarily concerns
the process by which Edmonds was interviewed and hired by Saint Leo to work in food services
in August of 2011. The Court presumes that this affidavit was filed to illustrate discrepancies in
the manner in which Saint Leo hired food services workers after it began handling food services
in-house. It is irrelevant because Plaintiffs have not asserted–and, in fact, are judicially estopped
from asserting–a failure to hire claim.
7
goes away,” Mills would “always have a job at Saint Leo.” (Mills depo. at 103.) Mills also
stated in his declaration that the president “personally stopped Sodexo from transferring [him] to
another Sodexo account.” (Mills decl. at ¶ 4.)
Also in support of their opposition to Saint Leo’s summary judgment motion, Plaintiffs
introduced purported evidence in the form of charts authored by their counsel, titled
“Inconsistencies in Interview and Continuation Process” and “Sample of Inconsistencies in
Background Check Process.” (Dkt. 77, Exs. B, C.) The Court presumes that these charts were
filed in an attempt to show alleged inconsistencies in interviews and background checks
conducted by Saint Leo during its process of hiring in-house food service employees.
Putting aside the fact that these charts are not evidence, but rather, qualify as
inadmissible hearsay offered for the truth of the matter asserted, see Fed. R. Evid. 802, they are
irrelevant. As stated previously, Plaintiffs are judicially estopped from asserting a failure to hire
claim. The adverse employment action that forms the basis of Plaintiffs’ claim is their
termination in October of 2010. Purported inconsistencies in the process by which Saint Leo
interviewed and hired in-house food service employees after it terminated its contract with
Sodexo, and after Plaintiffs were terminated in October of 2010 by Sodexo, are beyond the scope
of this case. Moreover, Plaintiffs have not explained, and the Court cannot speculate, how these
charts show that Saint Leo and Sodexo were joint employers of Plaintiffs.
Together with these charts, Plaintiffs also filed a request that the Court take judicial
notice of public records from various Florida state courts and from a state court in Maryland.
(Dkt. 78.) These appear to be criminal records of various non-parties that Plaintiffs’ counsel
printed from the state courts’ websites. Plaintiffs did not explain why these records were filed.
8
The Court can only speculate that they were filed to illustrate discrepancies in Saint Leo’s hiring
process–perhaps that these non-parties who have criminal histories were hired by Saint Leo to
work in-house, when Plaintiffs were not hired. Nevertheless, the documents are irrelevant
because Plaintiffs have not asserted a failure to hire claim. The Court therefore declines to take
judicial notice of the records because Plaintiffs did not supply the Court with the necessary
information to discern their relevance, and because there is no failure to hire claim before the
Court. Fed. R. Evid. 201(c) (stating that the Court “must take judicial notice if a party requests it
and the court is supplied with the necessary information”) (emphasis added).
Finally, Plaintiffs request that the Court take judicial notice of documents they received
from the National Labor Relations Board (“NLRB”) in response to their request for records
under the Freedom of Information Act. (Dkt. 79.) Federal Rule of Evidence 201(b) provides
that the Court may take judicial notice of a fact that “(1) is generally known within the trial
court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.”
These records are not documents generated by the NLRB. Instead, they are documents
generated by Saint Leo and by Sodexo, which appear to have been sent to the NLRB as a part of
its investigation, such as letters written by Saint Leo’s counsel and Sodexo’s counsel to the
NLRB. These documents were not authored or authenticated by the NLRB, or by any
government agency, and are not self-authenticating simply because the NLRB received them and
kept them in its files. Additionally, there appears to be nothing in the records that raises a
factual issue concerning Plaintiffs’ retaliatory termination claim. The Court therefore declines to
take judicial notice of them.
9
II.
Standard of Review
Summary judgment is appropriate if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court
must draw all inferences from the evidence in the light most favorable to the non-movant and
resolve all reasonable doubts in that party’s favor. Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir.
2006). The moving party bears the initial burden of showing the Court, by reference to materials
on file, that there are no genuine issues of material fact that should be decided at trial. Id.
When a moving party has discharged its burden, the non-moving party must then go
beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories,
and admissions on file, designate specific facts showing there is a genuine issue for trial. Id. In
determining whether there is a “genuine” issue, the inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
III.
Discussion
Plaintiffs allege that Saint Leo terminated their employment in retaliation for their
participation in the Sodexo Lawsuit. Saint Leo contends that it is entitled to summary judgment
on this claim because: (1) Saint Leo was not Plaintiffs’ employer; (2) Sodexo–not Saint
Leo–terminated Plaintiffs; and (3) even if Plaintiffs were able to show both that they were
employed by Saint Leo and that Saint Leo took an adverse employment action against them,
Saint Leo had legitimate, non-retaliatory business reasons for terminating its contract with
Sodexo that Plaintiffs cannot prove were pretextual.
10
A.
Saint Leo Was Not an Employer of Plaintiffs and Did Not Terminate
Plaintiffs.
Saint Leo first contends that Plaintiffs’ retaliatory termination claim fails as a matter of
law because Sodexo–not Saint Leo–employed Plaintiffs. It argues that it did not have control
over Plaintiffs, and cannot be deemed to be a joint employer of Plaintiffs. Because Plaintiffs
were never employed by, or terminated by, Saint Leo, it follows that, as a matter of law, Saint
Leo cannot be liable for retaliatory termination. The Court agrees.
To determine whether a joint employment relationship exists, the Court must consider
whether, while contracting with a third party, the putative “joint employer” retained for itself
sufficient control over the terms and conditions of the plaintiff’s employment. Morrison v.
Magic Carpet Aviation, 383 F.3d 1253, 1255-58 (11th Cir. 2004). In Morrison, the plaintiff was
a pilot employed by Magic Carpet Aviation. Id. at 1254. The defendant, RDV Sports, Inc.
(“RDV”), was the owner of Orlando Magic, Ltd., who contracted with Magic Carpet Aviation to
fly players and staff around the country. Id. When the plaintiff was terminated, he sued Magic
Carpet Aviation and RDV, arguing that RDV was an employer, an “integrated employer,” or a
“joint employer.” Id.
In holding that RDV was merely a client or customer of Magic Carpet Aviation, the
Eleventh Circuit recognized that, although RDV provided the plaintiff with gifts, discounts, and
invitations to events, that did not mean that RDV had control over the plaintiff. Id. at 1256.
Furthermore, even though the plaintiff was required to wear RDV’s identification badge and
apparel, this failed to show that RDV had any control over the plaintiff beyond the “indirect
control over a service provider’s employees that a customer may obtain by contracting with that
11
service provider.” Id. “Such indirect control does not amount to an employment relationship
because the customer [RDV] is in privity of contract with the service provider [Magic Carpet
Aviation] . . . , and not the service provider’s employees.” Id. Significantly, while RDV, as a
major client of Magic Carpet Aviation, could exert influence over the employer’s employment
decisions, RDV did not actually have the power to hire and fire individuals directly. Id. at 1255.
Therefore, the Eleventh Circuit concluded that the client, RDV, was not the plaintiff’s employer.
Here, Plaintiffs “concede” that “they were supervised, directed, evaluated, and subject to
discipline by Sodexo’s personnel; and that Sodexo processed their payroll and disbursed their
payroll, and provided employee benefits to Plaintiffs.” (Pls.’ Opposition Memo. at 2, n.1.) This
concession alone refutes their assertion that Saint Leo was a joint employer. Nothing in the
record shows that Saint Leo exercised the necessary control over Sodexo’s employees to be
deemed a joint employer. Saint Leo did not control the hiring and firing of the food service
workers, did not pay them, and did not direct, supervise, or discipline them.
Of particular significance is the fact that Saint Leo had no control over the employment
decision that forms the basis of this lawsuit—the termination of Plaintiffs by Sodexo. The
undisputed record shows that Sodexo–not Saint Leo–terminated them. Saint Leo only
terminated its contract with Sodexo. Nothing in the record indicates that Sodexo was required to
terminate Plaintiffs’ employment, once Saint Leo terminated its contract with Sodexo.
Presumably, Sodexo could have continued to employ Plaintiffs at another location.
To the extent that Plaintiffs contend that Saint Leo was a joint employer because they
were required to wear a uniform and an ID badge that identified them as Saint Leo “employees,”
such evidence is insufficient to establish that Saint Leo was a joint employer. As in Morrison,
12
Saint Leo contracted with its service provider, Sodexo, and Sodexo, in turn, compelled its
employees to wear certain identification badges and uniforms so that Sodexo could satisfy its
obligations to Saint Leo. Thus, as in Morrison, the fact that Sodexo compelled its employees to
adhere to certain rules so that Sodexo could fulfill its contract with Saint Leo does not make
Saint Leo a joint employer. Instead, these facts show only that Sodexo imposed certain
requirements on its employees to ensure compliance with its contract. Furthermore, the facts
that Plaintiffs were required to attend an annual orientation at Saint Leo, and that they received
instructions directly from Saint Leo officials concerning dining services, are insufficient to
establish Saint Leo as a joint employer. As in Morrison, these facts merely show that Saint Leo
had some “indirect control over [Sodexo’s] employees that [Saint Leo] obtained by contracting
with [Sodexo].” 383 F.3d at 1256.
Having admitted that Sodexo–not Saint Leo–controlled the terms and conditions of their
employment, Plaintiffs attempt to show that Saint Leo was a joint employer by mischaracterizing testimony and by asserting self-serving statements concerning their subjective
beliefs that they were employed by Saint Leo. Plaintiffs may have believed that Saint Leo was
their employer, but the record shows that Sodexo–not Saint Leo–controlled their employment.
Accordingly, because Saint Leo lacked authority over the terms and conditions of Plaintiffs’
employment, particularly the decision to terminate them when the Sodexo contract was
terminated, Saint Leo was not a joint employer, and Plaintiffs’ retaliatory termination claim fails
as a matter of law.
13
B.
Plaintiffs Cannot Establish a Prima Facie Case of Retaliation.
Saint Leo next argues that even if it were a joint employer, Plaintiffs’ retaliatory
termination claim still fails because Plaintiffs cannot establish a prima face case of retaliation,
and because Saint Leo terminated its contract with Sodexo for legitimate business reasons that
Plaintiffs cannot show were pretextual.
To establish a prima facie case of retaliation, Plaintiffs must show that: (1) they engaged
in a protected activity; (2) they suffered an adverse employment action; and (3) there is a causal
connection between the two. Collado v. United Parcel Serv. Co., 419 F.3d 1143, 1158 (11th Cir.
2005). Saint Leo contends that Plaintiffs cannot show an adverse employment action by Saint
Leo, and have failed to demonstrate a causal relationship between the purported adverse action
and their participation in the Sodexo Lawsuit. The Court agrees.
Plaintiffs allege that Saint Leo terminated their employment as a result of their lawsuit
against Sodexo. However, as stated previously, there is no evidence that Saint Leo terminated
Plaintiffs’ employment. Rather, the record reflects that Sodexo terminated Plaintiffs’
employment when it received notice that Saint Leo had terminated Sodexo’s contract. Thus,
there is simply no adverse employment action by Saint Leo against Plaintiffs. Furthermore,
Saint Leo’s termination of the Sodexo contract does not constitute an adverse employment action
because it was not an action by Plaintiffs’ employer. See 42 U.S.C. § 2000e-3(a) (stating that
“[i]t shall be an unlawful employment practice for an employer to discriminate against any of
[its] employees . . .”) (emphasis added).
Furthermore, although Sodexo’s termination of its food service workers was related to
Saint Leo’s termination of the contract, Plaintiffs have not put forth any evidence whatsoever to
14
show a casual connection between the Sodexo Lawsuit (their protected activity) and Saint Leo’s
termination of its contract (the only action by Saint Leo) with Sodexo. Plaintiffs simply infer
that the two must be connected. Plaintiffs, however, cannot establish a casual link simply by
inference. See Novella v. Wal-Mart Stores, Inc., 459 F. Supp. 2d 1231, 1235 (M.D. Fla. 2006)
(rejecting employee’s argument that the casual connection between the protected activity and the
adverse action was “a reasonable inference” and nothing more was required).
The argument that Sodexo’s decision to terminate Plaintiffs was related to Saint Leo’s
decision to terminate its contract with Sodexo, and that Saint Leo’s decision to terminate its
contract was related to Plaintiffs’ participation in the Sodexo Lawsuit is too tenuous to satisfy the
causal link element of the prima facie case. See Sierminski v. Transouth Fin. Corp., 216 F.3d
945, 950-51 (11th Cir. 2000) (affirming summary judgment against employee’s retaliation claim
because the casual chain “took too long to develop and [was] too indirect”). Again, nothing in
the record shows that Sodexo was forced to terminate Plaintiffs when the Saint Leo-Sodexo
contract ended. Presumably, Sodexo could have continued to employ Plaintiffs at another
location. Plaintiffs cannot establish a causal link between their termination and their
participation in the Sodexo Lawsuit, and as a result, their retaliation claim must fail.
C.
Plaintiffs Cannot Establish Pretext.
Next, Saint Leo argues that, even if Plaintiffs could establish a prima facie case of
retaliation, their claims still must fail because Saint Leo has proffered legitimate, non-retaliatory
reasons for terminating its contract with Sodexo, which Plaintiffs have failed to show were
pretextual. If a plaintiff is able to make a prima facie case, “the burden shifts to the defendant to
rebut the presumption of retaliation by producing legitimate reasons for the adverse employment
15
action.” Sullivan v. Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999)
(quotations omitted). The defendant’s burden of production is “exceedingly light.” Holifield v.
Reno, 115 F.3d 1555, 1564 (11th Cir. 1997). “As long as the evidence could allow a rational
fact finder to conclude that the termination was not based on a discriminatory motive, the court
must accept the employer’s explanation.” Ferrell v. Masland Carpets, Inc., 97 F. Supp. 2d 1114,
1125 (S.D. Ala. 2000) (quotations omitted).
Here, Saint Leo has proffered three separate reasons for terminating its contract with
Sodexo: (1) Saint Leo wanted Vogel to remain on the campus as Director of Dining Services; (2)
Saint Leo could save hundreds of thousands of dollars by operating its own food service
program; and (3) Saint Leo did not believe that Sodexo properly communicated with it as
Sodexo’s client regarding what was going on in the Sodexo Lawsuit. These reasons are more
than sufficient to satisfy Saint Leo’s burden of production.
Once a defendant meets this burden, to survive summary judgment, the plaintiff must
show that each of the defendant’s proffered reasons for taking the adverse employment action
were actually a pretext for retaliation. Chapman v. A1 Transport, 229 F.3d 1012, 1024-25 (11th
Cir. 2000) (en banc). “[A plaintiff] may demonstrate that [the employer’s] reasons were
pretextual by revealing such weaknesses, implausibilities, inconsistencies, incoherencies or
contradictions in [the employer’s] proffered legitimate reasons for its actions that a reasonable
factfinder could find them unworthy of credence.” Springer v. Convergys Customer Mgmt.
Group, Inc., 509 F.3d 1344, 1348-49 (11th Cir. 2007) (citations omitted). A plaintiff’s mere
subjective beliefs, speculation, or conclusory assertions of pretext are insufficient to meet this
test. Coutu v. Martin Cnty. Bd. of Cnty. Comm’rs., 47 F.3d 1068, 1073-74 (11th Cir. 1995).
16
Here, Plaintiffs have failed to put forth any evidence that would create an issue of fact as
to whether Saint Leo’s three legitimate business reasons for terminating its contract with Sodexo
were pretextual. Plaintiffs argue that the $400,000 in cost savings could not have been a reason
for Saint Leo’s decision to terminate its contract with Sodexo and must have been pretextual
because Saint Leo did not learn about the per meal cost savings until after the decision was
made. However, the record reveals that, although Saint Leo was unaware of the exact per meal
cost it would save by bringing the food operations in-house, Saint Leo estimated it would save
$400,000. Whether that estimate proved accurate is wholly irrelevant; rather, the relevant
inquiry is whether this reason is unworthy of credence. A plaintiff cannot establish pretext
merely by establishing that a defendant’s employment decision was mistaken, but instead must
show that the decision was motivated by discriminatory animus. Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999). Plaintiffs have not done so.
Moreover, Plaintiffs have presented no evidence or argument whatsoever that Saint Leo’s
other two proffered reasons (the desire to keep Vogel and the dissatisfaction with Sodexo) were
unworthy of credence. Plaintiffs argue that the fact that the managerial food service workers,
such as Vogel, were retained, while the non-managerial workers, such as Plaintiffs, were
terminated, is evidence of pretext. This argument, however, fails because it misstates the record.
The undisputed record shows that Sodexo terminated all of its food service workers once the
Sodexo-Saint Leo contract ended. Saint Leo then decided to hire Vogel to work in-house. Saint
Leo’s decisions regarding whether to hire each of the Plaintiffs to work in-house are not properly
before this Court, and cannot be used to show that Saint Leo’s decision to terminate the contract
was pretextual. Therefore, because Plaintiffs failed to show that each of Saint Leo’s legitimate
17
business reasons were pretextual, their retaliation claim must fail.
D.
Plaintiff Butler’s FCRA and Title VII Claims are Barred.
Finally, Plaintiff Butler’s retaliation claim under the FCRA and Title VII is barred for the
additional reason that she never filed a charge of discrimination. Pursuant to Florida Statute
Section 760.11(1), in order to state a case of action under the FCRA, a plaintiff must first file a
charge of discrimination with the Florida Commission on Human Relations within 365 days of
the alleged violation. Likewise, pursuant to 42 U.S.C. § 2000e-5(e)(1) and 2000e-5(f)(1), in
order to state a cause of action under Title VII, a plaintiff must first file a charge of
discrimination with the Equal Employment Opportunity Community Commission (“EEOC”)
within 300 days of the alleged unlawful employment practice and then may only file a lawsuit
within 90 days after receiving a Notice of Right to Sue from the EEOC. It is undisputed that
Plaintiff Butler did not file a charge of discrimination, and thus, did not satisfy the jurisdictional
prerequisites to maintaining her claim under the FCRA or Title VII.
IV.
Conclusion
In conclusion, viewing the entirety of the record in the light most favorable to Plaintiffs,
there are no genuine issues of material fact as to Plaintiffs’ retaliatory termination claim.
Accordingly, Saint Leo’s Motion for Summary Judgment (Dkt. 64) is GRANTED. The Clerk is
directed to enter judgment in favor of Defendant Saint Leo University, Incorporated, and against
Plaintiffs Melissa Wigfall, Connie Daniels, Genethel Danielle Pye, Anthony Mills, Malisa
Butler, Virginia Larry, and Melissa Worley, and to close this case. The pretrial conference
previously scheduled in this case for April 12, 2012 is hereby cancelled, and this case is removed
from the Court’s May 2012 trial calendar.
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DONE AND ORDERED at Tampa, Florida, this 6th day of March, 2012.
Copies to:
Counsel of Record
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