Juarez v. Verizon Services Corp.
Filing
27
ORDER denying 11 Motion for Summary Judgment. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 8/29/2012. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RACHELLE JUAREZ,
Plaintiff,
v.
CASE NO:
8:11-cv-1704-T-33MAP
VERIZON SERVICES CORP.,
Defendant.
___________________________/
ORDER
This cause comes before the Court pursuant to Defendant
Verizon Services Corp.'s Motion for Summary Judgment, which
was filed June 15, 2012. (Doc. # 11).
Plaintiff Rachelle
Juarez filed a Response in Opposition thereto on July 13, 2012
(Doc. # 18), and on July 26, 2012, Verizon filed a Reply to
Juarez's Response. (Doc. # 25).
For the reasons that follow,
the Motion is denied.
I.
Background
A.
Juarez’s Promotions and Compensation
On November 29, 1999, Verizon hired Juarez as a dispatch
clerk in Tampa, Florida. (Doc. # 15-8 at 2).
Over the next
seven years, Juarez transitioned in and out of various roles
at Verizon and, on May 15, 2007, Juarez became an Account
Manager with the “Verizon Enhanced Communities” West Division.
Id. at 1.
Juarez received favorable employee evaluations as
an Account Manager and, in December 2009, was promoted to
Interim Manager. (Elwell Dep. Doc. # 20 at 35; Juarez Dep.
Doc. # 15 at 48). As Interim Manager, Juarez oversaw all West
Division regional marketing campaigns and received positive
feedback in her performance evaluations.
Specifically, on January 16, 2010, Verizon’s National
Director of Marketing Services, Dennis Elwell stated that
Juarez “performed well in the ... [interim management] role
... exceeded her quota ... and drove top performance from
herself and other [Florida account managers].” (Elwell Dep.
Exhibit 5 Doc. # 20 at 44).
Juarez’s April 30, 2010,
evaluation likewise stated that Juarez had “strong drive to be
at
or
above
100%,”
was
“successful”
and
“pushed
[her
subordinates] to drive higher levels of activities.” (Elwell
Dep. Exhibit 6 Doc. # 20 at 45-46).
On July 24, 2010, Juarez
received additional positive feedback that she “adapted very
well to the new role, continued to execute strongly, and
reached or achieved the requirements of the job.” (Elwell Dep.
Exhibit 7 Doc. # 20 at 47-48).
During the summer of 2010, Verizon implemented various
marketing initiatives, such as waiving credit checks and
deposits, to introduce Verizon’s new FiOS telecommunications
product to the West Division sales market. (Aguayo Decl. Doc.
# 12 at ¶ 5).
As a result of the marketing initiatives, the
2
West Division’s regional sales figures increased and Juarez
significantly outperformed her peers. Id.
As Interim Manager, Juarez supervised twelve Account
Managers, earned $142,162 in 2010,1 and oversaw Verizon’s
marketing efforts for more than 20,000 properties across
Florida, California, Texas, Indiana, Oregon, and Washington.
(Doc. # 15-8 at 1, 7; Juarez Dep. Doc. # 15 at 51, 53, 55).
After Juarez operated as the West Division’s Interim
Manager for a period of seven months, Mary Aguayo was hired on
July 11, 2010, as the Verizon Enhanced Communities West Area
Sales Director. (Aguayo Dep. Doc. # 14 at 5).
Juarez’s
interim
title
and
enrolled
Juarez
Aguayo removed
as
the
West
Division’s permanent Regional Marketing Manager on September
19, 2010. (Juarez Dep. Doc. # 15 at 48; Aguayo Decl. Doc. # 12
at ¶ 6). At the time of Juarez’s promotion, she received both
a base salary and sales incentive bonus.
B.
(Doc. # 15-5 at 2).
Changes at Verizon and Negative Feedback for Juarez
After Juarez accepted the permanent Regional Marketing
Manager position, Verizon’s marketing business model began to
change. (Aguayo Dep. Doc. # 14 at 68).
1
As part of the shift,
According to Alfred DiCarlo, HR Business Partner for
Verizon, Juarez’s base salary equaled $64,500 in 2010. (Doc.
15-5 at 2). Therefore, Juarez earned $77,662 in incentive
based compensation in 2010. Id.
3
Juarez’s sales territory was reduced from Florida, California,
Texas, Indiana, Oregon, and Washington to limited locations
within Florida. Id. at 37-38. According to Aguayo, Juarez was
expected to evolve with the shifting business, but Juarez “was
resistant and refused” to do so.
Id. at 68.
Aguayo further
testified that “[Juarez] was resistant to [the]... programs
that [Verizon] had in place; [specifically, Juarez] was unable
to guide a team [concerning business] report accuracy, and
also execution of the expectations of the business.
[after]
coaching,
mentoring,
and
training,
[Juarez]
Even
was
resistant to do as she was instructed.” Id. at 69-70.
Unsatisfied with Juarez’s performance, Aguayo emailed
Juarez on October 21, 2010, and October 26, 2010, concerning
Juarez’s (1) absence during a regional marketing meeting; (2)
failure to approve her employees’ timecards;(3) inability to
attend a department conference call; and (4) improper followthrough on a time sensitive marketing campaign. Id. at 9, 13.
Based on Aguayo’s mounting concern that Juarez was unable
to meet the needs of the management role, Aguayo requested
that Julie Loughridge, former West Division Regional Marketing
Manager, visit Verizon’s Tampa location to evaluate Juarez in
person. Id. at ¶¶ 11-12.
Loughridge reported on November 29,
2010, that Juarez lacked objectivity, could not separate
4
personal and professional relationships, and failed to possess
the necessary skillset to manage her team. (Doc. # 12-3 at 36).
On December 8, 2010, Aguayo documented her concerns with
Juarez’s performance in a “Counseling Discussion Worksheet”
and allegedly shared her feedback with Juarez.
Doc. # 12 at ¶ 14; Doc. # 15-4 at 32).
comments,
both
organizational
Juarez
and
performance
her
According to Aguayo’s
team
standards
(Aguayo Decl.
failed
and
failure
to
to
meet
show
acceptable improvement would result in Juarez’s placement on
a disciplinary Performance Improvement Plan.
32).
Although
Aguayo
contends
that
the
(Doc. # 15-4 at
details
of
the
worksheet were shared with Juarez on December 8, 2010, Juarez
does not recall the conversation; Juarez did not countersign
the worksheet as evidence that she reviewed the feedback; and
the
details
of
the
conversation
were
never
recorded
in
Verizon’s ePerformance HR system.2 (Juarez Dep. Doc. # 15 at
80; DiCarlo Dep. Doc. # 19 at 48-61; Aguayo Decl. Doc. # 12 at
¶ 14).
2
According to printed instructions on the Counseling
Discussion Worksheet, the form “should only be used by the
manager and/or HR Business Partner for purposes of drafting
Counseling Discussion content prior to finalizing it in
[Verizon’s] ePerformance [Human Resource] System.” (Doc. #
15-4 at 32).
5
C. Juarez’s Leave and Aguayo’s Reaction
Juarez was absent from work on December 9, 10 and 13,
2010. According to Juarez, she took properly accrued personal
days from December 9, 2010, through December 10, 2010, and
either took a sick day or bereavement day on December 11,
2010.
(Juarez Dep. Doc. # 15 at 83-84).
On the afternoon of
her return to work on December 14, 2010, Juarez informed
Aguayo that she needed to leave early due to a “bad migraine,”
and would need Wednesday, December 15, 2010, through Friday,
December 17, 2010, to mourn the death of her grandmother.
(Doc. # 15-4 at 38).
On Tuesday, December 14, 2010, Aguayo met with a Verizon
Security investigator to report her suspicion that Juarez
violated Verizon’s Code of Business Conduct. (Juarez Dep. Doc.
# 15 at 126-131; Aguayo Dep. Doc. # 14 at 80).
During this
discussion, Aguayo contended that Juarez (1) inappropriately
calculated mileage for employee expense reimbursement; (2)
engaged
in
inappropriate
social
relationships
subordinates;
(3)
disproportionately
contractors;
and
(4)
incorrectly
timesheets and expense reports. Id.
favored
tabulated
third
with
party
contractor
The record is not clear
as to whether Verizon security was able to substantiate any
improper action by Juarez.
6
On Friday, December 17, 2010, Dr. Robert L. Vollbract,
MD, endorsed a Family Medical Leave Act Certification Form
finding Juarez unable to work from Monday, December 20, 2010,
through Thursday, January 10, 2011.
(Doc. # 15-4 at 47).
On
Sunday, December 19, 2010, Juarez emailed Aguayo to inform her
that “my bereavement time ended on [December 17, 2010];
however, due to my migraines, my doctor [is] taking me off
work [and] I will be on FMLA through [January 6, 2011].”
at 45.
Id.
Aguayo replied on Monday, December 20, 2010, that she
was “sorry to hear that Juarez was under the weather” and for
Juarez to let her know whether she needed Aguayo’s assistance
with filing the FMLA application. Id. at 45.
The following
afternoon, Juarez’s physician faxed her FMLA Certification
Form to Verizon’s Absence Reporting Center.
Id. at 46-50.
On Wednesday, January 5, 2011, at 11:19 p.m., Juarez
emailed Aguayo to inform her that “the doctor wants me off
until Monday, January 10, 2011.”
(Doc. # 15-4 at 51). Aguayo
acknowledged receipt of Juarez’s email on Thursday, January 6,
2011.
Id.
Shortly thereafter, Aguayo requested that Verizon
security hire a private investigator to examine whether Juarez
was fraudulently filing for FMLA leave. (Aguayo Dep. Doc. # 14
at 74-75; Aguayo Decl. Doc. # 12 at ¶ 16).
On Sunday, January 9, 2011, Aguayo emailed DiCarlo and
7
communicated “upon [Juarez’s] return on Monday (Jan 10),
unless FMLA extends her again, I will be moving her to a
special project. I will be removing her permanently [from her
management role, but] I am awaiting security to finalize their
investigation prior to making any announcements to her or the
team.” (Doc. # 15-5 at 6).
On that same date, Aguayo
requested that HR transition Juarez from the West Division
Regional Marketing Manager to a “special project” role.
On the evening of January 9, 2011, Aguayo sent an email
to
Juarez
to
inform
her
that
the
Verizon
Enhancement
Communities West Division “had quite a bit of change, [and]
... [to] plan on meeting with [Aguayo] early so [they could]
catch up on some changes in the business.”
6).
(Doc. # 15-5 at
On January 10, 2011, Aguayo informed Juarez that she was
assigned
to
Consultant.”
a
Id.
business
support
position
as
a
“Senior
As part of the transition, Juarez lost her
management privileges and was no longer eligible for the same
level of compensation earned in 2010. (Doc. # 15-6 at 11).
According to an email from DiCarlo, Juarez’s new 2011 total
compensation package was capped at $75,917. (Doc. # 15-5 at
2).
This downward departure equated to a 46% reduction from
Juarez’s 2010 take home pay of $142,162. (Doc. # 15-8 at 7).
In the months that followed, three additional Regional
8
Marketing Managers were removed from the Verizon Enhanced
Communities program and transitioned into similar business
support roles. (Elwell Dep. Doc. # 20 at 112-113). According
to Elwell, these transitions were part of a corporate-wide
transformation. Id.
Juarez remains employed by Verizon, and on August 1,
2011, she filed a two count Complaint against Verizon alleging
(1) FMLA Interference, and (2) FMLA Discrimination pursuant to
29 U.S.C. §§ 2612(a)(1), 2614(a)(1), 2615(a)(1), and 29 C.F.R.
§ 825.220(c).
Verizon seeks summary judgment as to both
counts.
II.
Legal Standard
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment.
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
9
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 919 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).
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. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged its
burden,
the
non-moving
party
pleadings,’ and by its own
must
then
‘go
beyond
the
affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for
trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 59394 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to be
true and all reasonable inferences must be drawn in the nonmoving party’s favor. Shotz v. City of Plantation, Fla., 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
10
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846 F.2d
1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel
Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856 (11th
Cir. 1988)).
of
nothing
However, if the non-movant’s response consists
“more
allegations,”
required.
than
summary
a
repetition
judgment
is
of
not
his
only
conclusional
proper,
but
Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.
1981).
III. Analysis
The FMLA provides that an eligible employee is authorized
to take up to twelve weeks of unpaid leave per year for a
“serious health condition that makes the employee unable to
perform the functions of the position of such employee.”
U.S.C. § 2612(a)(1)(D).
29
If the employee returns to work at
the end of the leave period, he or she is entitled "to be
restored by the employer to the position of employment held by
the employee when the leave commenced" or, if the previous
position is no longer available, "to be restored to an
equivalent position with equivalent employment benefits, pay,
and other terms and conditions of employment."
11
29 U.S.C. §
2614(a)(1) (Emphasis added).
To preserve the availability of these rights, and to
enforce them, the FMLA provides for two types of claims:
interference and retaliation claims.
See Russell v. N.
Broward Hosp., 346 F.3d 1335, 1340 (11th Cir. 2003)(citing
Strickland v. Water Works & Sewer Bd., 239 F.3d 1199, 1206
(11th Cir. 2001)); see 29 U.S.C. § 2615(a)(1)-(2).
Juarez
asserts both retaliation and interference claims.
A. FMLA Retaliation Claim
In a retaliation claim, “an employee asserts that his
employer discriminated against him because he engaged in
activity protected by the Act.”
Strickland, 239 F.3d at 1206
(citing 29 U.S.C. § 2615(a)(1)-(2); 29 C.F.R. § 825.220(c)).
A prima facie case of discrimination under the FMLA requires
a
showing
protected
that
(1)
conduct;
the
(2)
employee
the
engaged
employee
in
suffered
statutorily
an
adverse
employment action; and (3) there is a causal connection
between the two. Krutzig v. Pulte Home Corp., 602 F.3d 1231,
1234 (11th Cir. 2010). “This can be shown through either
direct or indirect evidence, the latter of which requires the
burden-shifting framework” of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
Connor v. Sun Trust Bank, 546 F.
Supp. 2d 1360, 1372 (N.D. Ga. 2008). Juarez submits that she
12
has proffered indirect evidence of retaliation.
“Under [the McDonnell Douglas] framework, the plaintiff
has the initial burden of establishing a prima facie case of
discrimination.” Combs v. Plantation Patterns, 106 F.3d 1519,
1527-28 (11th Cir. 1997).
defendant,
who
must
The burden then shifts to the
articulate
a
legitimate
and
retaliatory reason for its action. Id. at 1528.
non-
If the
defendant satisfies its burden of production, the burden
shifts back to the plaintiff, who must then prove that the
defendant’s reason is a pretext for retaliation. Id.
Here, Defendant does not dispute that Juarez engaged in
protected activity when she utilized FMLA leave.
Defendant
asserts that Juarez cannot meet her prima facie burden because
Juarez cannot establish an adverse employment action.
addition,
assuming
that
Juarez
can
establish
an
In
adverse
employment action, Defendant asserts that there was no causal
relationship
between
Juarez’s
protected
Verizon’s adverse employment action.
FMLA
leave
and
The Court will address
each argument below.
1.
Adverse Employment Action
Verizon asserts that “Plaintiff’s interference claim ...
fails as she was reinstated to an equivalent position.” (Doc.
# 11 at 17).
Verizon maintains that Juarez, in her new
13
support position, “performed some of the same duties” as her
prior position and that “she continued to work with the same
organization.” Id. at 18. In addition, Verizon contends that
her compensation was “comparable” to her prior position.
These arguments are not supported by the record.
Juarez has come forward with evidence to support her
contention that, immediately upon her return from protected
FMLA leave, her salary was significantly reduced, along with
her
responsibilities
organization.
and
managerial
status
within
the
Aguayo testified that the new position was
entirely different from Juarez’s former managerial position.
(Aguayo Dep. Doc. # 14 at 64).
Elwell confirmed during his
deposition that Juarez’s new position was a “straight salary”
position with no opportunities for commissions. (Elwell Dep.
Doc. # 20 at 67).
Dicarlo confirmed that, in her new
position,
not
Juarez
did
supervise
(Dicarlo Dep. Doc. # 19 at 20).
any
other
employees.
Juarez’s argument that her
new position was not equivalent to her former position have
not been rebutted by Verizon. Thus, the Court determines that
Juarez has established that she suffered an adverse employment
action.
2.
Causal Connection
To demonstrate a causal connection, an employee must show
14
that the protected activity and the adverse employment action
were not completely unconnected.
One way to do so is to show
that the decision maker was aware of the protected activity at
the time he or she decided to take the adverse employment
action
and
that
the
protected
activity
and
the
adverse
employment action were "very close" in temporal proximity.
See, e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268,
273 (2001). As explained in Brungart v. Bellsouth Telecomms.,
Inc., 231 F.3d 791, 799 (11th Cir. 2000), “[t]he general rule
is
that
protected
close
temporal
conduct
and
proximity
the
adverse
between
the
employee’s
employment
action
is
sufficient circumstantial evidence to create a genuine issue
of material fact of a causal connection.”
In the instant case, Aguayo’s December 1, 2010, email to
Juarez offering to assist her with Juarez’s FMLA application
as well as Aguayo’s January 9, 2011, email to DiCarlo that
“upon [Juarez’s] return [from FMLA leave], ... [Aguayo] would
be
permanently
Manager]”
removing
confirms
Juarez
both
as
Aguayo’s
a
[Regional
knowledge
of
Marketing
Juarez’s
protected activity as well as the close temporal proximity of
the adverse employment action. (Doc. # 15-4 at 45; Doc. # 155 at 6; Doc. # 15-6 at 15).
However, Verizon asserts that such causation cannot be
15
established
because
Verizon
intended
to
demote
Juarez
regardless of her FMLA leave: “prior to her leave, Verizon
management had discussed and contemplated changes to the
responsibilities, positions, and assignments within the ...
organization to meet the needs of the business.
Thus, it
cannot be disputed that Plaintiff would have been transferred
regardless of whether she requested a leave of absence.” (Doc.
# 11 at 14).
Verizon also argues that Juarez’s performance
issues justify its decision to demote Juarez.
The Court determines that there is a genuine issue of
material fact as to whether Verizon demoted Juarez for a
prohibited retaliatory reason–-her utilization of FMLA leave,
or whether Verizon demoted her based on a non-retaliatory
motivation, such as corporate restructure or due to Juarez’s
performance issues.
Because
Verizon’s
supervisor
launched
internal
investigations against Juarez upon Juarez’s requests for leave
and because her supervisor demoted her on her first day back
from leave, a reasonable juror could determine that a causal
connection existed between Juarez’s demotion and her protected
FMLA activities.
On the other hand, a reasonable juror could
also credit Verizon’s argument that Juarez was selected for
the support role prior to, and regardless of, her protected
16
FMLA leave.
Verizon’s position is supported by Juarez’s
documented performance issues as well as by the fact that
three other Regional Marketing Managers were also transitioned
into business support roles in February and March of 2011.
(Elwell Dep. Doc. # 20 at 112-113).
The Court will not invade the province of the jury by
making a credibility determination between the conflicting
evidence and testimony offered by the parties on the issue of
causation. This factual dispute warrants denial of the Motion
for Summary Judgment as to Juarez’s FMLA retaliation claim.
B. FMLA Interference Claim
“To state a claim of interference with a substantive
right, an employee need only demonstrate by a preponderance of
the evidence that he was entitled to the benefit denied.”
Strickland, 239 F.3d at 1206-07. “Alternatively, an employee
may demonstrate that the employer interfered with the FMLA
benefit.” Lowery v. Strength, 356 F. App’x 332, 334 (11th Cir.
2009). Interference with the exercise of an employee's rights
under
the
FMLA
would
include,
for
example,
refusing
to
authorize FMLA leave or discouraging an employee from using
FMLA leave.
29 C.F.R. § 825.220(b).
While a retaliation
claim requires the plaintiff to show that the employer’s
actions “were motivated by an impermissible retaliatory or
17
discriminatory animus,” the employer’s intent is immaterial in
an interference claim. Strickland, 239 F.3d at 1207.
In the instant case, Verizon argues that Juarez has not
presented any evidence that Verizon denied any of Juarez’s
FMLA rights.
However, Juarez alleges that Verizon interfered
with her rights under the FMLA by launching frivolous and
unwarranted investigations against her upon her use of FMLA
leave and by removing her management responsibilities and
incentive-based compensation structure, preventing her from
returning to the same or a comparable position after she
returned from FMLA leave.
The record do so reflect that
Verizon did not reinstate Juarez into her lucrative sales
position upon her return from leave, but instead demoted her
to a support position on the same day that she returned from
FMLA leave.
That position limited Juarez’s responsibilities
and reduced Juarez’s potential compensation.
A reasonable juror could find that Verizon launched a
formal internal investigation against Juarez for taking FMLA
protected leave.
that
Verizon’s
Such juror could also reasonably determine
actions,
including
demoting
Juarez,
designed to discourage Juarez from taking FMLA leave.
were
Thus,
the Court finds that Juarez's interference claim survives
Verizon's motion for summary judgment.
18
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant Verizon’s Motion for Summary Judgment (Doc. #
11) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 29th
day of August, 2012.
Copies:
All Counsel of Record
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?