Hite v. Hill Dermaceuticals, Inc.
Filing
38
ORDER granting 27 Defendant's Motion for Summary Judgment. The Clerk is directed to enter Judgment in favor of Defendant and against Plaintiff and thereafter to close this case. Signed by Judge Virginia M. Hernandez Covington on 2/25/2014. (CH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOEZETTE HITE,
Plaintiff,
v.
Case No. 8:12-cv-2277-T-33AEP
HILL DERMACEUTICALS, INC.,
Defendant.
_______________________________/
ORDER
This cause comes before the Court pursuant to Defendant
Hill Dermaceuticals, Inc.’s Motion for Summary Judgment (Doc.
# 27), filed on November 29, 2013.
Plaintiff Joezette Hite
filed a response in opposition to the Motion (Doc. # 36) on
January 17, 2014. Hill Dermaceuticals filed a reply to Hite’s
response on January 31, 2014.
(Doc. # 37).
For the reasons
that follow, the Motion is granted.
I.
Background
In February of 2004, Hill Dermaceuticals hired Hite to
work as a “dermatology sales representative.” (Offer Letter
Doc. # 27-1 at 1).
Hite attended a multi-day orientation as
a new employee with Hill Dermaceuticals, during which time
Hite received training from Maria Darnell, the executive
assistant
to
Hill
Dermaceuticals’
founder
and
president,
Jerry Roth.
(Hite Dep. Doc. # 31 at 4, 6; Roth Dep. Doc. #
29 at 2; Schmidt Dep. Doc. # 28 at 5).
Following her
orientation,
Hite
territory
Hill
on
the
Dermaceuticals
west
Brooksville to Naples.
coast
assigned
of
Florida
a
spanning
sales
from
(Hite Dep. Doc. # 31 at 7-8).
Hite’s work involved visiting customers, specifically
dermatology physicians, to offer prescription products for
the treatment of conditions such as psoriasis and eczema.
(Id. at 8).
According to Hite, Hill Dermaceuticals expected
her to call on “about 10 to 12 physicians a day.”
7). 1
Hite
primarily
sold
three
products
(Id. at
for
Hill
Dermaceuticals: (1) Derma-Smoothe Scalp, (2) Derma-Smoothe
Body, and (3) DermaOtic Ear Drops.
(Id. at 8).
In addition
to Hite’s fixed salary, Hill Dermaceuticals agreed to pay
Hite commissions based on the number of prescriptions written
by physicians.
(Id. at 5).
In Hite’s original offer letter dated February 6, 2004,
Hill Dermaceuticals provided general information regarding
Hite’s employment, including details relating to vacation
leave, health insurance, and the “proprietary and secret
1
According to Hite’s direct supervisor, however, the company
policy called for “40 to 45 doctors a week.” (Schmidt Dep.
Doc. # 28 at 11).
2
nature of Hill’s products and programs.”
# 27-1 at 1).
(Offer Letter Doc.
That letter contained the following provision:
“As a Hill Sales Representative, you agree to represent the
Hill product line exclusively and will never solicit business
for any similar product or program of any other company and
will not help or associate with any other distributor of
similar products.”
(Id. at 2).
During her employment with Hill Dermaceuticals, Hite
reported to regional sales manager Elizabeth Schmidt. 2
(Hite
Dep. Doc. # 31 at 9; Schmidt Dep. Doc. # 28 at 11).
Every
week by Saturday at noon, Hite was required to fax to Schmidt
a one-page weekly report containing information about her
interaction
with
physicians
in
the
field,
physician’s name, the date, and the location.
Doc. # 28 at 12).
including
the
(Schmidt Dep.
At least once per year, Schmidt would ride
along with Hite on her sales calls as a form of company
training and review.
(Hite Dep. Doc. # 31 at 9; Schmidt Dep.
Doc. # 28 at 14).
2
In Hite’s deposition, the parties refer to Schmidt as
“Elizabeth Mark.” (See Hite Dep. Doc. # 31 at 3). However,
Schmidt explains in her own deposition that Mark is her
husband’s last name, and that she never changed her name to
Mark after marriage. (Schmidt Dep. Doc. # 28 at 2).
3
On March 22, 2008, Hite gave birth to her first child,
Colin.
(Hite Dep. Doc. # 31 at 3).
Before Colin’s birth,
while Hite was still pregnant and working, Hite conferred
with Schmidt regarding Hite’s plans to take time off after
the baby was born.
(Id. at 12).
Schmidt never gave Hite a
“time limit” on the appropriate duration for maternity leave,
but expressed to Hite during the fourth or fifth week of her
maternity leave that Hite was “being missed in the field,”
and that Hite’s “numbers [were] falling as a result.”
at 13).
(Id.
Although Hite states that she never specified to
Schmidt how much time she wanted to take off, Hite ultimately
took “a little less than eight” weeks off from work after
Colin’s birth.
(Id. at 12-13).
During the time that Hite
was away from work, she did not receive her salary, but
received continued employee health care coverage as well as
commissions based on the sales from her territory.
(Id. at
14; Schmidt Dep. Doc. # 28 at 20).
After taking nearly eight weeks off, Hite returned to
work in the same sales territory she had as of March 21, 2008.
(Hite Dep. Doc. # 31 at 14).
least
one
employment.
ride-along
(Id.
at
Schmidt accompanied Hite on at
when
Hite
15-16).
resumed
Because
her
Hite
full-time
was
still
breastfeeding her infant, Hite took breaks while on the road
4
to stop and pump breast milk in her car.
(Id. at 24).
While
Hite did so, Schmidt would wait outside the car “on the cell
phone taking calls from employees,” or wait “in the lobby of
one of the physicians” in order to give Hite privacy.
(Id.).
During the summer of 2009, Hite learned that she was
pregnant with her second child.
(Id. at 23).
In October of
that year, Hite attended a company sales meeting in Orlando,
at which Schmidt approached Hite and asked whether Hite was
pregnant.
“after
(Id.).
being
Initially, Hite denied being pregnant, but
questioned”
by
Schmidt,
Hite
ultimately
confirmed that she was indeed pregnant. (Id. at 24). Schmidt
responded by asking: “Well, did you plan this?”
(Id.).
“told her no,” that the pregnancy was not planned.
Hite
(Id.).
On March 11, 2010, Hite gave birth to her second child,
Evan.
(Id. at 23).
Before Evan was born, Hite did not
discuss with Schmidt or anyone else at Hill Dermaceuticals
the amount of time she wanted to take off for maternity leave.
(Id. at 26).
Once Hite had given birth, she informed Schmidt
that she intended to take eight weeks of maternity leave –
the same amount of time Hite had taken after her first
pregnancy.
(Id. at 48).
During the fourth or fifth week of
Hite’s leave, Schmidt called to inform Hite of an upcoming
sales meeting.
(Id.).
According to Hite:
5
[S]he called me to tell me that there was a sales
meeting coming up, and that I had two options – she
knows that I don’t like to fly being the fact that
I have a newborn – that my sales meeting was
scheduled for Atlanta, but if I chose to come back
early that she would pull some strings and I could
go to the managers meeting which would be in
Orlando.
(Id.).
Hite accepted Schmidt’s offer to attend the Orlando
meeting in lieu of the Atlanta meeting in April of 2010.
at 48-49).
(Id.
With the exception of attending this meeting,
Hite remained on leave until May of 2010, when she resumed
her duties as a full-time sales representative.
50).
(Id. at 49-
Upon Hite’s return to work, Schmidt again accompanied
Hite on a ride-along, during which Schmidt praised Hite’s
performance in the field.
(Id. at 25, 33).
On June 1, 2010, Hite signed an agreement containing
reminders
of
the
details
of
her
employment,
including
information relating to the “proprietary and secret nature of
Hill’s products and programs.”
(Doc. # 27-2 at 1-2).
That
agreement also contained the following provision: “As a Hill
sales representative, you agree to represent the Hill product
line exclusively and to never solicit business for any product
or
service
of
any
other
company.”
(Id.
at
2).
Hill
Dermaceuticals issued this document not only to Hite, but to
all employees at that time.
(Kaplan Dep. Doc. # 30 at 6).
6
On October 7-8, 2010, Hill Dermaceuticals held another
company sales meeting in Orlando, which Hite and Schmidt both
attended.
(Hite Dep. Doc. # 31 at 30).
Before the start of
the meeting, Hite encountered Schmidt at breakfast.
(Id.).
During that encounter, Schmidt suggested to Hite that she
should not leave during the meeting breaks to pump breast
milk because “the last time that you left during one of the
breaks you came back five minutes late.”
(Id.).
Schmidt
also said that Hite potentially could be “berated in front of
all the managers” if she left the meeting too many times.
(Id.).
Hite testified as follows regarding her response to
Schmidt’s warning:
A:
. . . I said, “Regardless, I’m still going to
get up.”
[Schmidt] said, “What’s going to
happen if you don’t get up?” I said, “ I’m
going to leak all over my dress, Elizabeth.”
She said, “Well, it’s a good thing you have
long hair, cover it up.” And after that you
could say during the meeting my disposition
was completely different than it usually is
because I was extremely upset.
Q:
When you say your disposition was completely
different, how was your disposition?
A:
I just sat there.
I didn’t engage in the
conversations. Toward the latter part I was in
pain.
When you’re breast feeding, and if
you’re
not
able
to
express
the
milk,
everything starts balling up inside your
breast and it was painful.
7
(Id. at 31).
Despite this experience, however, Hite did not
complain to “anybody else in authority at the company” about
the conversation she had with Schmidt.
(Id.).
At the conclusion of the October 2010 sales meeting,
Schmidt expressed concern to Hite that it appeared Hite had
not been paying attention during the meeting, and that Hite’s
eyes appeared to be “glazed over.”
(Id. at 32).
Schmidt
also commented that Hite’s sales numbers had dropped.
In
early
November
of
2010,
Schmidt
(Id.).
and
Hill
Dermaceuticals’ national sales manager Howard Kaplan called
Hite to discuss her future with the company.
(Id. at 37).
Due to Hite’s declining sales numbers, Schmidt and Kaplan
offered Hite the choice of either (1) agreeing to a sixty-day
probationary period or (2) resigning, signing a release, and
receiving six weeks of severance pay.
(Id.).
Hite requested
time to speak with her husband about these options, and
Schmidt
and
Kaplan
following Monday.
agreed
that
Hite
could
respond
the
(Id. at 38).
After speaking with her husband, Hite decided to seek
counsel.
(Id.).
On Monday, November 8, 2010, Hite left a
message with Schmidt explaining that she was ill and would
not be able to come in to work.
8
(Id.).
However, Hite admits
that she was not really sick; she used the day off to meet
with a lawyer.
(Id.).
Also in early November of 2010, Kaplan discovered that,
since October 5, 2010 (Hite Dep. Doc. # 31 at 56), Hite had
owned a business called “Crave Nail Spa.”
# 30 at 4-5).
(Kaplan Dep. Doc.
Kaplan informed Schmidt of the Crave website,
and on November 10, 2010, Schmidt had a telephone conversation
with Kaplan and counsel for Hill Dermaceuticals.
Dep. Doc. # 28 at 24).
(Schmidt
Kaplan also discussed his discovery
of the Crave website with Hill Dermaceuticals president Jerry
Roth, and during that discussion they jointly concluded that
the contents of the website constituted “solicitation for a
business that was being done in violation of [Hite’s employee]
agreement.
Also,
products
were
represented
which
were
competitive and there was disparaging or critical remarks
publicly
made
of
some
of
the
ingredients
in
the
Hill
Dermaceuticals products which Ms. Hite represented to her
physicians.”
(Kaplan Dep. Doc. # 30 at 8).
Hite acknowledges that her website for Crave Nail Spa
advertised
its
use
of
products
free
of
parabens
–
a
preservative found in products sold by Hill Dermaceuticals.
(Hite Dep. Doc. # 31 at 39).
Specifically, Hite confirms
that the website provided as follows: “Why say no to parabens?
9
Parabens are used frequently in personal care products to
increase shelf-life of a product.
According to scientific
research, parabens have been linked to breast cancer and
problems associated with reproductive issues.”
(Id. at 73).
Hite also admits that she was aware in November of 2010 that
Hill Dermaceuticals sold products containing parabens.
(Id.
at 39).
On Wednesday, November 10, 2010, Hite advised Schmidt
that she would prefer to continue her employment under the
terms of the sixty-day probationary period. (Hite Dep. Doc.
# at 39, 40). However, Schmidt informed Hite that this option
was no longer available, and that Hill Dermaceuticals was
instead terminating her employment immediately because Hite
owned a company offering products that competed with Hill
Dermaceuticals.
On
October
(Id. at 39; Schmidt Dep. Doc. # 28 at 32).
5,
2012,
Hite
filed
the
instant
action
alleging gender discrimination in violation of Title VII, 42
U.S.C. § 2000e, et seq., and the Florida Civil Rights Act
(FCRA), Fla. Stat. § 760.01, et seq. (Count I); pregnancy
discrimination in violation of Title VII and the FCRA (Count
II); and violations of the Family and Medical Leave Act
(FMLA), 29 U.S.C. § 2601, et seq. (Count III).
On November
29, 2013, Hill Dermaceuticals filed the instant Motion for
10
Summary Judgment.
(Doc. # 27).
Hite filed a response in
opposition to the Motion (Doc. # 36) on January 17, 2014.
Hill Dermaceuticals filed a reply to Hite’s response on
January 31, 2014.
(Doc. # 37).
The Court has reviewed the
Motion, the response, the reply, and all relevant exhibits,
and is otherwise fully advised in the premises.
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.”
R. Civ. P. 56(a).
Fed.
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
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (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
11
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 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 that there is a
genuine issue for trial.”
Jeffery v. Sarasota White Sox,
Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (citing 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
non-moving 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 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. Employers Ins. of Wausau, 835 F.2d 855,
12
856 (11th Cir. 1988)).
However, if the non-movant’s response
consists
“more
of
conclusional
nothing
allegations,”
proper, but required.
than
summary
a
repetition
judgment
is
of
not
his
only
Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982).
III. Discussion
A. Gender and Pregnancy Discrimination (Counts I and II)
In
Count
I,
Hite
alleges
a
claim
for
gender
discrimination in violation of Title VII and the FCRA.
In
Count II, Hite alleges a claim for pregnancy discrimination
in violation of Title VII and the FCRA.
Pursuant to Title
VII, it is unlawful for an employer “to fail or refuse to
hire
or
to
discriminate
discharge
against
any
any
individual,
individual
or
with
otherwise
respect
to
to
his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national
origin.”
42
U.S.C.
§
2000e-2(a).
The
Pregnancy
Discrimination Act amended Title VII by providing that the
prohibition against employment-related discrimination “on the
basis of sex” includes discrimination based on pregnancy,
childbirth, or related medical conditions.
Armstrong v.
Flowers Hosp., Inc., 33 F.3d 1308, 1312 (11th Cir. 1994).
13
The analysis applied in pregnancy discrimination cases
is the same as the analysis applied in other Title VII sex
discrimination cases. Id. at 1312-13. Furthermore, “decisions
construing Title VII guide the analysis of claims under the
Florida Civil Rights Act.”
Slater v. Energy Servs. Grp.
Int’l, Inc., 441 F. App’x 637, 640 (11th Cir. 2011) (citing
Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1389 (11th
Cir. 1998)); see also Gamboa v. Am. Airlines, 170 F. App’x
610, 612 (11th Cir. 2006) (stating that claims under Title
VII and the FCRA are analyzed under the same framework).
Some courts have debated whether the FCRA provides a
cause
of
action
for
pregnancy
discrimination.
Compare
DuChateau v. Camp Dresser & McKee, Inc., 822 F. Supp. 2d 1325
(S.D. Fla. 2011) (finding that the FCRA does not prohibit
pregnancy discrimination), and Boone v. Total Renal Labs.,
Inc., 565 F. Supp. 2d 1323 (M.D. Fla. 2008) (finding that the
FCRA
does
not
provide
a
cause
of
action
for
pregnancy
discrimination), with Terry v. Real Talent, Inc., No. 8:09–
cv–1756–T–30TBM, 2009 WL 3494476 (M.D. Fla. Oct. 27, 2009)
(finding that the FCRA does provide a cause of action for
pregnancy discrimination), and Carsillo v. City of Lake Worth,
995 So. 2d 1118 (Fla. 4th DCA 2008) (finding that the FCRA’s
prohibition of sex discrimination includes discrimination
14
based on pregnancy). Without reaching the issue of whether
the FCRA does provide for such a cause of action, Hite’s FCRA
claims would be covered by the Court’s analysis of Hite’s
pregnancy
discrimination
claims
brought
under
Title
VII.
Accordingly, the Court’s analysis below applies to both Counts
I and II.
It
is
well
discrimination
settled
actionable
that
“there
under
treatment and disparate impact.
Title
are
two
VII”:
types
of
disparate
Armstrong, 33 F.3d at 1313.
In this case, Hite alleges only a disparate treatment claim.
A plaintiff may employ one of three means to establish a prima
facie case of disparate treatment employment discrimination:
(1) direct evidence of discriminatory intent, (2) statistical
analysis
evidencing
a
pattern
of
discrimination,
or
(3)
circumstantial evidence meeting the test established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973).
See Verbraecken v. Westinghouse Elec. Corp., 881
F.2d 1041, 1045 (11th Cir. 1989).
Hite has offered neither
statistical analysis evidencing a pattern of discrimination
nor direct evidence of discriminatory intent.
Therefore, the
Court will proceed to evaluate Hite’s claims pursuant to the
analytical framework established in McDonnell Douglas.
1.
Circumstantial Evidence
15
In analyzing allegations supported by circumstantial
evidence under Title VII, the Court follows the burdenshifting analysis established in McDonnell Douglas and its
progeny. See Gamboa v. Am. Airlines, 170 F. App’x 610, 612
(11th Cir. 2006)(citing Harper, 139 F.3d at 1387). Under the
McDonnell Douglas framework, a plaintiff bears the initial
burden of establishing a prima facie case of discrimination
against the defendant.
McDonnell Douglas, 411 U.S. at 802.
If the plaintiff successfully establishes a prima facie case,
a rebuttable presumption of discrimination is created and the
burden of proof then shifts to the defendant. Id. at 802-03;
Dickinson v. Springhill Hosps., Inc., 187 F. App’x 937, 939
(11th Cir. 2006)(citing EEOC v. Joe’s Stone Crab, Inc., 220
F.3d 1263, 1272 (11th Cir. 2000)).
To rebut the presumption created by a plaintiff’s prima
facie
case,
the
defendant
must
provide
“legitimate,
nondiscriminatory reason[s]” for the employment action taken
against
the
plaintiff.
Tex.
Dep’t
of
Cmty.
Affairs
v.
Burdine, 450 U.S. 248, 254 (1981); Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1331 (11th Cir. 1998).
However,
“[t]his is a burden of production, not persuasion.” Standard,
161
F.3d
at
1331.
“[The
defendant]
16
must
merely
produce
evidence that could allow a rational fact finder to conclude”
its actions were not motivated by discriminatory animus. Id.
If the defendant produces such evidence, the burden
shifts back to the plaintiff.
802-03.
forward
McDonnell Douglas, 411 U.S. at
The plaintiff then “has the opportunity to come
with
evidence,
including
the
previously
produced
evidence establishing her prima facie case, sufficient to
permit a reasonable factfinder to conclude that the reasons
given by the employer were not the real reasons for the
adverse employment decision.” Combs v. Plantation Patterns,
106 F.3d 1519, 1528 (11th Cir. 1997) (citations omitted).
However, “[a] legitimate nondiscriminatory reason proffered
by the employer is not a pretext for prohibited conduct unless
it is shown that the reason was false and that the real reason
was impermissible retaliation or discrimination.”
Worley v.
City of Lilburn, 408 F. App’x 248, 251 (11th Cir. 2011).
a.
Prima Facie Case
In its Motion for Summary Judgment, Hill Dermaceuticals
argues that Hite cannot establish a prima facie case of
discrimination.
In so arguing, Hill Dermaceuticals relies on
the prima facie elements enumerated in Crawford v. Carroll,
529 F.3d 961, 970 (11th Cir. 2008), a case involving claims
17
of racial discrimination and retaliation under Title VII. 3
According to Crawford, “[t]o make out a prima facie case of
racial discrimination a plaintiff must show (1) she belongs
to a protected class; (2) she was qualified to do the job;
(3) she was subjected to adverse employment action; and (4)
her employer treated similarly situated employees outside her
class
more
favorably.”
Crawford,
529
F.3d
at
970.
Accordingly, although Hill Dermaceuticals “does not contest
that Plaintiff satisfies the first three elements,” Hill
Dermaceuticals contends that Hite cannot establish a prima
facie case because “she cannot establish the existence of any
similarly situated employees outside of [her] protected class
whom Defendant treated more favorably.”
(Doc. # 27 at 12).
In response, Hite argues that, “[i]n discharge cases, a
plaintiff can establish a prima facie case without comparator
evidence,” and cites to Cooper-Houston v. Southern Ry. Co.,
37 F.3d 603 (11th Cir. 1994), another racial discrimination
action
under
Specifically,
Title
Hite
VII,
directs
to
the
3
support
Court’s
this
proposition.
attention
to
the
More specifically, Hill Dermaceuticals relies on Spence v.
BHTT Entm’t, Inc., No. 8:12-cv-694-T-33MAP, 2013 WL 3714016,
at *5 (M.D. Fla. July 15, 2013), another case involving racial
discrimination claims, in which this Court relied upon the
prima facie elements enumerated in Crawford, 529 F.3d at 970.
18
portion
of
the
Cooper-Houston
opinion
finding
that
the
plaintiff had established a prima facie case of discrimination
“by setting forth evidence that she is black, that she was
qualified for the job, that she was terminated and that she
was replaced by a white person.”
605.
Cooper-Houston, 37 F.3d at
In so finding, the Eleventh Circuit explained:
Southern argues that Cooper-Houston failed to make
out a prima facie case. It contends that she had
to demonstrate either she did not violate the work
rule, or that employees outside of the protected
class that engaged in similar misconduct were
treated with less severity, citing Jones v.
Gerwens, 874 F.2d 1534, 1539-40 (11th Cir. 1989).
The holding in Jones, however, applies only to Title
VII cases in which a plaintiff has not been
terminated and therefore cannot show that he or she
was replaced by a person outside of the protected
class.
Id. at 605 n.4.
unhelpful,
The Court finds this explanation largely
however,
because
Hite
does
not
attempt
to
demonstrate that she was “replaced by a person outside of the
protected class.”
Hite additionally argues:
Because a “prima facie case is not wholly
dependent upon meeting the fourth requirement of
the McDonnell Douglas test,” Edwards v. Wallace
Community College, 49 F.3d 1517, 1521 (11th Cir.
1995), the fourth element may be met with proof
that “a person outside of the class with equal or
lesser qualifications was retained.”
See Lee v.
Russell County Board of Education, 684 F.2d 769,
773 (11th Cir. 1982).
19
The Supreme Court has stated that a prima facie
case of sex discrimination requires the following:
(1)
membership
in
a
protected
group;
(2)
qualification for the job in question; (3) an
adverse employment action; and, (4) the position
remained open or was filled by a person with similar
qualifications. See Swierkiewicz v. Sorema, N.A.,
534 U.S. 506, 510 (2002).
(Doc. # 36 at 8).
However, despite Hite’s urging that the
fourth element of her prima facie case should be based on the
characteristics of the person hired to replace Hite after her
termination, Hite has not directed the Court to any evidence
in the record showing that this alternate fourth element was
indeed satisfied in this case.
Absent a citation to specific
record evidence, “[t]his court is under no obligation to plumb
the record in order to find a genuine issue of material fact.”
Bender v. City of Clearwater, No. 8:04-cv-1929-T23EAJ, 2006
WL 1046944, at *17 (M.D. Fla. Apr. 19, 2006).
Thus,
even
if
the
Court
agreed
that
Hite
need
not
identify a comparator to establish her prima facie case of
discrimination, the Court nonetheless finds that Hite has
failed to establish a prima facie case under Hite’s own
proposed alternate theory that Hite’s position was filled by
a person with lesser or similar qualifications.
Furthermore, the Court notes that – curiously – neither
party
attempts
to
utilize
the
20
fourth
element
frequently
applied by the Eleventh Circuit in pregnancy discrimination
cases. For example, in Sampath v. Immucor, Inc., 271 F. App’x
955 (11th Cir. 2008), a case involving a plaintiff’s claim of
pregnancy
discrimination
under
Title
VII,
the
Eleventh
Circuit explained that, in order to establish a prima facie
case, the plaintiff must show that she “(1) was a member of
a protected class, (2) was qualified for the job she held,
(3) suffered an adverse employment action, and (4) suffered
from a different application of work or disciplinary rules.”
Sampath, 271 F. App’x at 960 n.5 (citing Spivey v. Beverly
Enterps., Inc., 196 F.3d 1309, 1312 (11th Cir. 1999) (applying
the same elements in a pregnancy discrimination case)); see
also Hubbard v. Meritage Homes of Fla., Inc., 520 F. App’x
859, 863 (11th Cir. 2013) (enumerating the same four factors
for
establishing
a
prima
facie
case
of
pregnancy
discrimination, but additionally explaining that “when [a]
plaintiff alleges discriminatory discipline, the plaintiff
must
show
employees
that
not
the
of
employer
the
treated
protected
class
similarly
more
situated
favorably”).
However, even if the Court were to apply this alternate fourth
element in the present action, the Court finds that Hite would
still fail to establish a prima facie case, as Hite has
offered no argument or authority to support the proposition
21
that Hite “suffered from a different application of work or
disciplinary rules” while employed by Hill Dermaceuticals.
Thus, because Hite has failed to establish a prima facie
case by demonstrating either (1) that her employer treated
similarly
situated
employees
outside
her
class
more
favorably, (2) that a person outside her class with equal or
lesser qualifications was retained for the position after
Hite’s termination, or (3) that she suffered from a different
application of work or disciplinary rules, the Court finds
that Hite has failed to demonstrate a prima facie case of
gender or pregnancy discrimination.
b.
Legitimate,
Nondiscriminatory
for Termination; Pretext
Reasons
For the sake of thoroughness, the Court will address
Hill Dermaceuticals’ proffered legitimate, nondiscriminatory
reasons for terminating Hite just as if Hite had successfully
established her prima facie case.
the
following
legitimate,
Hill Dermaceuticals offers
nondiscriminatory
reasons
for
Hite’s termination: “Plaintiff’s operation of a side business
with
potentially
disparaging
competitive
accusations
about
products,
the
her
ingredients
website’s
in
Hill’s
products, and Plaintiff’s promotion of her business on local
news shows during what should have been her regular work day
22
for [Hill Dermaceuticals] . . . .” (Doc. # 27 at 15). Indeed,
Schmidt, Kaplan, and Roth each testified that these were the
reasons behind Hite’s termination.
(Schmidt Dep. Doc. # 28
at 32; Kaplan Dep. Doc. # 30 at 10; Roth Dep. Doc. # 29 at
9).
Furthermore, Hite confirmed that these were the reasons
given for her termination.
(Hite Dep. Doc. # 31 at 42, 56,
59).
Hite additionally testified that she owned a nail salon,
that she “was the face of it,” that she “refer[s] to [her]self
as a manager” of it, and that she promoted the salon in an
interview with a local television station on October 15, 2010
– a regular workday for Hill Dermaceuticals.
# 31 at 29, 69-70, 72).
(Hite Dep. Doc.
Furthermore, Hite confirmed that the
Crave Nail Spa website contained information critical of
“parabens,”
an
ingredient
she
knew
existed
in
Hill
Dermaceuticals’ products, and that Hite herself approved that
language for use on the website.
(Id. at 39, 73).
Thus,
Hite does not dispute the truth of the facts underlying Hill
Dermaceuticals’ reasons for her termination.
However, even if Hite did dispute these facts, “[t]he
law is clear that, even if a Title VII claimant did not in
fact
commit
the
violation
with
which
he
is
charged,
an
employer successfully rebuts any prima facie case of disparate
23
treatment by showing that it honestly believed the employee
committed the violation.”
1540 (11th Cir. 1989).
Jones v. Gerwens, 874 F.2d 1534,
The law does not require a defendant
to go to all possible lengths to rule out misconduct prior to
terminating an employee for such conduct; rather, a defendant
must have undertaken only sufficient efforts to form an honest
belief
that
the
plaintiff
engaged
in
the
conduct.
A
termination based on a good faith belief of misconduct is
legitimate, even if it is later determined that no misconduct
occurred.
See Damon v. Fleming Supermarkets of Fla., Inc.,
196 F.3d 1354, 1363 n.3 (11th Cir. 1999) (“An employer who
fires an employee under the mistaken but honest impression
that the employee violated a work rule is not liable for
discriminatory conduct.”).
In
keeping
with
this
principle,
therefore,
Hill
Dermaceuticals need not prove that its interpretation of
Hite’s
agreement
superiors
–
is
Schmidt,
correct;
Kaplan,
it
is
and
enough
Roth
–
that
Hite’s
collectively
determined in good faith that Hite’s operation of Crave Nail
Spa constituted a violation of her agreement “to never solicit
business for any product or service of any other company.”
(Doc. # 27-2 at 2).
24
“Federal
courts
do
not
sit
as
a
super-personnel
department that reexamines an entity’s business decisions.
No matter how medieval a firm’s practices, no matter how highhanded its decisional process, no matter how mistaken the
firm’s managers, [Title VII] does not interfere.
Rather, our
inquiry is limited to whether the employer gave an honest
explanation of its behavior.”
Elrod v. Sears, Roebuck and
Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (evaluating a
discrimination
claim
under
the
Age
Discrimination
in
Employment Act) (internal quotation marks omitted).
Hite
has
offered
no
evidence
to
show
that
Hill
Dermaceuticals’ justification for her termination is unworthy
of credence.
Hill Dermaceuticals perceived Hite’s ownership
of a nail salon to be a violation of her agreement.
Not only
did Hite solicit business for the products and services of
another company – Crave – but she did so by participating in
a television interview during a regular workday for Hill
Dermaceuticals.
Furthermore, Crave’s website, the content of
which Hite admittedly approved (Hite Dep. Doc. # 31 at 73),
contained information which Hite’s superiors perceived to
disparage Hill Dermaceuticals’ products.
Hite does not dispute the truth of this information, but
instead urges the Court to find that the “clear intent” of
25
the
language
of
the
2004
offer
reaffirmation
letter
“was
to
recommending
products
from
other
letter
preclude
and
the
2010
Plaintiff
from
companies
to
the
same
physicians she saw in her capacity as a sales representative
for Defendant.”
(Doc. # 36 at 11).
In this action, however,
the Court is not tasked with definitively interpreting the
meaning of the relevant agreement; rather, as explained above,
the Court’s inquiry is limited to whether Hill Dermaceuticals
gave an honest explanation of its behavior.
Thus, Hite’s
argument that “[c]learly, Plaintiff’s nail salon sells a
service to different customers,” is misplaced.
11).
(Doc. # 36 at
The Court need not determine the intent of the parties
in entering this agreement, but need only find that the
interpretation offered by Hill Dermaceuticals is consistent
with a good faith belief that Hite’s actions constituted a
violation of the work rule.
The Court finds so here.
Similarly, Hite’s argument that “a jury can find that
Defendant
was
really
credible
reason
to
grasping
at
terminate
straws
a
in
long-term
search
of
a
successful
employee,” (Doc. # 36 at 13) is immaterial to the Court’s
present analysis.
“recast[ing]
an
A plaintiff cannot establish pretext by
employer’s
proffered
nondiscriminatory
reasons or substitut[ing] [her] business judgment for that of
26
the employer.
Provided that the proffered reason is one that
might motivate a reasonable employer, an employee must meet
that reason head on and rebut it, and the employee cannot
succeed by simply quarreling with the wisdom of that reason.”
Chapman v. Al Transport, 229 F.3d 1012, 1030 (11th Cir. 2000).
Hite also attempts to demonstrate pretext by arguing
that “Defendant knew of the Plaintiff’s nail salon on November
2, 2010, two full days before November 4, 2010, when Plaintiff
was asked to resign based on her numbers.
The jury may find
the side business rationale [ ] to be a strategic afterthought
once Plaintiff did not immediately resign on November 4,
2010.”
(Doc. # 36 at 13).
Again, this argument fails to
demonstrate that Hill Dermaceuticals’ proffered reasons for
Hite’s termination were false, and that discrimination was
the true reason.
not
deny
that
As Hill Dermaceuticals argues, “Hill does
it
had
concerns
about
Plaintiff’s
job
performance around the same time that it discovered her
competing side business.”
Schmidt
testified
that
(Doc. # 37 at 6).
Schmidt
had
Both Hite and
expressed
concern
in
October of 2010 about Hite’s sales figures. (Hite Dep. Doc.
# 31 at 32; Schmidt Dep. Doc. # 28 at 24).
However, the decline in Hite’s sales figures, which led
Hill Dermaceuticals to offer Hite a choice between placement
27
on a sixty-day probationary period or resignation in return
for severance pay, was never the reason cited for Hite’s
termination. The Court notes that, even if Hill Dermaceuticals
had offered the declining sales figures as a reason for Hite’s
termination, this would not constitute evidence tending to
show that discrimination was the real reason for Hite’s
termination,
but
instead
would
constitute
yet
another
legitimate, nondiscriminatory reason for terminating Hite. 4
Both
Schmidt
and
Kaplan
testified
that,
after
discovering Hite’s side business, they took the time to seek
the advice of counsel and to consult with Roth about what
action they should take on behalf of the company.
(Schmidt
Dep. Doc. # 28 at 24; Kaplan Dep. Doc. # 30 at 8).
After
this collaborative discussion, Hill Dermaceuticals opted to
terminate Hite immediately.
overlapped
probationary
with
the
status
The fact that this process
company’s
or
offer
resignation
4
to
due
to
Hite
her
regarding
poor
job
The Court acknowledges Hite’s argument that “[a] jury can
find that Defendant’s shifting reasons for desiring to
separate Plaintiff from employment are pretextual.” (Doc. #
36 at 14). However, the Court finds this argument inapposite
here, where the evidence reflects that Hill Dermaceuticals
has consistently given a single explanation for Hite’s
termination – her operation of Crave Nail Spa. (Schmidt Dep.
Doc. # 28 at 32; Kaplan Dep. Doc. # 30 at 10; Roth Dep. Doc.
# 29 at 9; Hite Dep. Doc. # 31 at 42, 56, 59).
28
performance
does
not
diminish
the
legitimacy
of
Hill
Dermaceuticals’ reasoning for Hite’s ultimate termination.
Importantly, this case is marked with a lack of evidence
demonstrating that Hill Dermaceuticals discriminated against
Hite on the basis of her gender or her pregnancy.
Negative
comments by a supervisor regarding pregnant celebrities (Hite
Dep. Doc. # 31 at 43-44) or comments expressing one’s personal
aversion
to
becoming
pregnant
(id.
at
43)
may
be
unprofessional, insensitive, or perhaps even rude, but such
comments,
without
more,
do
not
constitute
illegal
discrimination under Title VII.
The Court is mindful that, in addition to these comments,
Hite felt that Schmidt had discriminated against her in
October of 2010 when Schmidt and Hite discussed Hite’s need
to pump breast milk during the sales meeting.
However, the
Court finds that this encounter too falls short of prohibited
discrimination.
Even in Hite’s version of the events, Hite
claims that Schmidt “suggested” that Hite not leave during
the breaks, and that Schmidt compared Hite’s condition to an
employee who “had stomach issues and had to keep on going up
to use the restroom,” which resulted in that employee being
“berated in front of all the managers.”
at 30).
(Hite Dep. Doc. # 31
Even if Schmidt indeed responded to Hite’s concern
29
that she would “leak all over [her] dress” with the callous
remark: “Well, it’s a good thing you have long hair, cover it
up,”
(id.
at
31)
–
an
occurrence
that
Schmidt
denies
altogether (Schmidt Dep. Doc. # 28 at 23) - such insensitivity
falls short of precluding the entry of summary judgment for
Hill Dermaceuticals in this case.
The Court finds that the reasons enumerated by Hill
Dermaceuticals for terminating Hite constitute legitimate,
nondiscriminatory reasons for termination.
Court
finds
demonstrating
that
that
Hite
has
these
not
carried
reasons
are
Furthermore, the
her
false
burden
and
of
that
discrimination is the true cause of her termination.
B.
Family and Medical Leave Act (Count III)
In Count III of the Complaint, Hite alleged that Hill
Dermaceuticals violated the FMLA by “harass[ing] Plaintiff to
shorten her maternity leave in early 2010, threatening her
position,” and by “terminat[ing] Plaintiff on November 11,
2010.”
(Doc. # 1 at 5).
The FMLA provides, in relevant part:
(1) Exercise of rights
It shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this
subchapter.
(2) Discrimination
30
It shall be unlawful for any employer to discharge
or in any other manner discriminate against any
individual for opposing any practice made unlawful
by this subchapter.
29 U.S.C. § 2615(a)(1)-(2).
Generally, claims based on
violations of the FMLA “may be brought . . . no later than 2
years after the date of the last event constituting the
alleged violation for which the action is brought.” 29 U.S.C.
§
2617(c)(1).
This
two-year
statute
of
limitations
is
extended to three years for claims brought “for a willful
violation.”
Id. § 2617(c)(2).
On January 8, 2013, this Court entered an Order denying
Hill Dermaceuticals’ partial motion to dismiss as untimely
Hite’s FMLA claim.
(Doc. # 9).
Within that Order, the Court
determined that the two-year limitations period applied to
this action, and further reasoned as follows:
To
support
its
statute-of-limitations
argument, Defendant refers to the incidents alleged
in Hite’s Complaint that purportedly occurred
before October 5, 2010 – exactly two years before
Hite filed this action. Although Hite’s Complaint
indicates that some of Defendant’s alleged actions,
including pressuring Hite to return to work early
during her maternity leave . . . occurred before
October
5,
2010,
Hite
maintains
that
her
termination
date
falls
within
the
two-year
limitations period, and thus that her FMLA claim
should survive the motion to dismiss . . . . The
Court agrees.
*
*
31
*
Accordingly, Hite’s opportunity to state a
claim for any violation of the FMLA based entirely
on independent events occurring before October 5,
2010, has expired.
However, accepting as true all factual
allegations in the Complaint and construing the
facts in the light most favorable to Hite, the Court
concludes at this juncture that the “last event”
for purposes of interpreting the FMLA’s statute of
limitations was Hite’s termination on November 11,
2010 . . . .
While the Court acknowledges
Defendant’s argument that “Plaintiff does not
allege that her termination was related to conduct
protected by the FMLA,” a more in-depth inquiry
relating to the causal link between Hite’s
termination and her protected activity under the
FMLA is reserved for the summary judgment stage .
. . .
(Doc. # 9 at 7-8).
Hill Dermaceuticals now moves for summary
judgment on Hite’s FMLA claims, once again arguing that, based
on the factual allegations within the Complaint, “it is clear
that any such violation of the FMLA would have occurred, at
the very latest, in April or May of 2010,” more than two years
before Hite initiated this action.
(Doc. # 27 at 20).
In response to Hill Dermaceuticals’ Motion for Summary
Judgment, Hite argues that “willful violations are at issue.”
(Doc. # 36 at 15).
To the extent Hite intends to argue at
this juncture that the three-year rather than the two-year
statute of limitations should apply in this case, the Court
finds this argument ill-timed.
its January 8, 2013, Order:
32
Indeed, the Court noted in
The Court agrees that Hite has not attempted to
allege that Defendant’s violations were willful;
Hite’s Complaint is devoid of any allegation that
Defendant knew or showed reckless disregard for the
matter of whether its conduct was prohibited by
statute. . . . Furthermore, in her response to
Defendant’s motion to dismiss, Hite did not dispute
the lack of any allegation in the Complaint
pertaining to Defendant’s willfulness or otherwise
indicate that anything but the two-year limitations
period should apply.
(Doc. # 9 at 6).
Furthermore, Hite’s response to the present Motion does
not clearly argue that the three-year statute of limitations
period
should
apply.
Rather,
it
arrays
a
scattershot
collection of Hill Dermaceuticals’ alleged violations of the
FMLA, some of which lack citation to the record for support.
(Doc.
#
36
at
15).
These
violations
include
Hill
Dermaceuticals’ purported failure to include an “FMLA policy
in
its
Information
Handbook
published
in
2008,”
Hill
Dermaceuticals’ “blatantly illegal” maternity leave policy
which
allowed
“only
up
to
6
weeks
of
leave,”
and
the
allegation that Hite “was incorrectly told by Schmidt that
Defendant did not offer maternity leave.”
(Id.).
With regard to these arguments concerning the notice of
FMLA
policies
provided
by
Hill
Dermaceuticals
to
its
employees, Hill Dermaceuticals argues: “[I]t is well settled
that
an
employee
has
no
private
33
right
of
action
for
a
violation of FMLA’s notice requirement found at 29 U.S.C. §
2619.”
(Doc. # 37 at 8-9) (quoting Deily v. Waste Mgmt. of
Allentown, 118 F. Supp. 2d 539, 544 (E.D. Pa. 2000)).
Without
analyzing
whether
Hill
Dermaceuticals
has
complied with the FMLA notice requirement, the Court finds
that, even if such a private right of action did exist, any
new cause of action Hite may intend to raise at this juncture
as
a
result
of
these
perceived
violations
would
be
inappropriate, as Hite neglected to allege any such violation
in her Complaint.
See Gilmour v. Gates, McDonald and Co.,
382 F.3d 1312, 1314 (11th Cir. 2004) (“[T]he Supreme Court
has mandated a liberal pleading standard for civil complaints
under Federal Rule of Civil Procedure 8(a).
This standard
however does not afford plaintiffs with an opportunity to
raise
new
claims
at
the
summary
judgment
stage.”).
Accordingly, the Court will proceed to evaluate the FMLA
claims
properly
grounded
in
the
allegations
of
Hite’s
Complaint.
1.
Regardless
FMLA Interference
of
whether
the
three-year
or
two-year
limitations period applies in this case, the Court finds that
summary judgment for Hill Dermaceuticals is appropriate on
Hite’s FMLA interference claim, to the extent Hite may have
34
intended to raise one.
In response to the Summary Judgment
Motion, Hite, who is represented by counsel, does not attempt
to demonstrate a case of FMLA interference, failing to cite
any authority whatsoever to support such a claim.
To prove FMLA interference, a plaintiff must demonstrate
that she was “denied a benefit to which [she] was entitled
under the FMLA.”
Martin v. Brevard Cnty. Pub. Sch., 543 F.3d
1261, 1266-67 (11th Cir. 2008).
To the extent Hite argues
that Hill Dermaceuticals denied her the benefit of maternity
leave in 2010, Hite’s own testimony belies such a claim.
In
response to questioning regarding Hite’s experience with Hill
Dermaceuticals during the relevant period, Hite testified as
follows:
Q:
When your second son was born, did you inform
the company that you were going to take eight
weeks of leave?
A:
Yes, that I was – I said I was going to take
about the same amount of time I took off with
Colin.
Q:
Your recollection was eight weeks?
A:
Correct.
Q:
Who did you tell that you wanted to take the
same amount of time?
A:
To Elizabeth.
Q:
What was her response?
35
A:
Initially she was fine with it.
Q:
Okay.
And at some point in time did that
change?
A:
Yes. . . . When she called me to tell me that
there was a sales meeting coming up, and that
I had two options – she knows that I don’t
like to fly being the fact that I have a
newborn – that my sales meeting was scheduled
for Atlanta, but if I chose to come back early
that she would pull some strings and I could
go to the managers meeting which would be in
Orlando.
Q:
Okay. And when was that meeting scheduled to
occur?
A:
Four or five weeks – I believe I came out of
maternity leave with him after four or five
weeks.
Q:
Your
that
that
that
your
A:
Yes.
Q:
You accepted?
A:
Yes.
Q:
Did you appreciate at all that she had pulled
some strings so you could go to a meeting where
you wouldn’t have to fly?
A:
No, because to be honest, I was doing more of
the favor. I was coming back early regardless
of the eight-week mark. To throw that on me
– I was basically told that I had to go to
Atlanta one, which I didn’t really have to go
anywhere. I wasn’t appreciative of it, no. I
felt forced.
understanding is that this sales meeting
was now going to be a managers meeting
would be in Orlando, so you could drive,
was going to be five weeks after you had
second baby?
36
Q:
I want us to try to be precise in our language.
You just said I was kind of told that I had to
be there. Were you told that you had to be
there?
A:
I wasn’t told I had to be there, I was given
two options.
*
*
*
Q:
You didn’t tell her, “I’m still on leave”?
A:
No.
Q:
You didn’t tell her, “Remember, we discussed
and agreed that I would have eight weeks”?
A:
Well, that was the understanding, if I came
out of the eight weeks it would be Atlanta.
Q:
Okay, so the meeting, if you had gone at eight
weeks, would have been in Atlanta?
A:
Correct.
*
*
*
Q:
Well, let me ask you this: If you knew that
you were coming back in eight weeks and the
meeting was in Atlanta, would you have gone?
A:
Probably not.
Q:
So you would have asked for more time?
A:
Correct.
Q:
But you never asked for more time?
A:
No.
(Hite Dep. Doc. # 31 at 48-49). Accordingly, Hite’s testimony
does not establish that Hite was denied a right to which she
37
was
entitled
under
the
FMLA.
Hite
testified
that
she
requested eight weeks of leave, and that she would have
experienced an uninterrupted eight weeks of leave had she
opted to attend the company meeting in Atlanta.
Indeed, Hite
testified that she could have taken her full eight weeks of
leave and then, upon returning, she presumes she could have
taken additional time off instead of attending the Atlanta
meeting.
instead
However, Hite never asked for more time off, and
accepted
Schmidt’s
offer
to
attend
the
Orlando
conference even though it occurred less than eight weeks after
Hite had given birth.
Under these circumstances, the Court
finds that Hite has failed to demonstrate that she was denied
a benefit to which she was entitled under the FMLA, even if
the Court were to consider this claim to be timely filed.
2.
FMLA Retaliation
Hite separately argues that she has established a prima
facie case of FMLA retaliation.
(Doc. # 36 at 16).
Where,
as here, a plaintiff alleges an FMLA retaliation claim without
direct evidence of the employer’s retaliatory intent, the
Court must once again apply the burden shifting framework
established by the Supreme Court in McDonnell Douglas.
See
Hurlbert v. St. Mary’s Health Care Syst., Inc., 439 F.3d 1286,
1297 (11th Cir. 2006).
In order to prove a prima facie case
38
of FMLA retaliation, a plaintiff must show that (1) she
engaged
in
a
statutorily
protected
activity,
(2)
she
experienced an adverse employment action, and (3) there is a
causal connection between the protected activity and the
adverse action.
Id.
“The causal connection element is
satisfied if a plaintiff shows that the protected activity
and adverse action were ‘not wholly unrelated.’”
Krutzig v.
Pulte Home Corp., 602 F.3d 1231, 1234 (11th Cir. 2010).
“If
the plaintiff makes out a prima facie case, the burden then
shifts to the defendant to articulate a legitimate reason for
the adverse action.”
Hurlbert, 439 F.3d at 1297.
“If the
defendant does so, the plaintiff must then show that the
defendant’s
proffered
pretextual.”
Id.
reason
for
the
adverse
action
is
In this action, Hite cannot establish a
prima facie case because she has failed to provide evidence
demonstrating the third element – causation.
The
time
between
Hite’s
maternity
leave
from
March
through May of 2010 and her termination in November of 2010
amounts to more than six months.
“Although close temporal
proximity can indicate causation, the cases that accept mere
temporal
proximity
protected
activity
between
and
an
an
employer’s
adverse
knowledge
employment
action
of
as
sufficient evidence of causality to establish a prima facie
39
case uniformly hold that the temporal proximity must be ‘very
close.’”
Nichols v. CSG Sys., Inc., 245 F. App’x 937, 941
(11th Cir. 2007) (internal quotations omitted).
The Eleventh
Circuit has held that “in the absence of any other evidence
of causation, a three-month proximity between a protected
activity and an adverse employment action is insufficient to
create a jury issue on causation.” Id. (internal quotations
omitted).
Hite argues that “[c]ourts have routinely held that a
causal connection exists even as to retaliatory acts occurring
long after the protected activity, where those events are
temporally linked by a chain of intervening retaliatory acts.”
(Doc. # 36 at 17).
However, Hite does not proceed to support
this argument with evidence showing a chain of retaliatory
acts linking her FMLA leave from March through May of 2010
with
her
subsequent
termination
in
November
of
2010.
Accordingly, because the Court finds that the span of more
than six months between Hite’s protected maternity leave and
her
subsequent
termination
does
not
alone
demonstrate
causation by temporal proximity, and because the Court finds
no
“chain
of
intervening
retaliatory
acts”
linking
the
protected activity and the adverse employment action alleged
40
in
this
case,
the
Court
finds
that
Hite
has
failed
to
establish a prima facie case of FMLA retaliation.
However, even if this Court were to presume for the
purpose of the present analysis that Hite had demonstrated a
prima
facie
case
of
retaliation,
the
burden
under
the
McDonnell Douglas analysis would shift to Hill Dermaceuticals
to articulate a legitimate reason for Hite’s termination.
As
discussed previously, this Court finds Hill Dermaceuticals’
articulated reason for Hite’s termination, namely, that Hite
operated and solicited business for the products and services
of
another
company
–
Crave
Nail
Spa
–
to
constitute
a
legitimate, non-retaliatory reason for Hite’s termination,
and that Hite has failed to demonstrate that this reason is
pretextual.
Thus, the Court grants Hill Dermaceuticals’
Motion for Summary Judgment as to Hite’s FMLA claims.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Defendant Hill Dermaceuticals, Inc.’s Motion for Summary
Judgment (Doc. # 27) is GRANTED.
(2)
The Clerk is directed to enter Judgment in favor of
Defendant and against Plaintiff and thereafter to CLOSE
THIS CASE.
41
DONE and ORDERED in Chambers in Tampa, Florida, this
25th day of February, 2014.
Copies: All Counsel of Record
42
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