Pope et al v. Any Season Insulation, LLC et al

Filing 63

ORDER: Defendant Any Season Insulation, LLC d/b/a Bayside Installed Building Products' Motion for Summary Judgment 48 is GRANTED. The Clerk is directed to enter judgment in favor of Defendant, terminate all pending deadlines and motions, and, thereafter CLOSE THIS CASE. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 5/26/2015. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MARY JO POPE and JAMES M. POPE,
Plaintiffs,
v.

Case No. 8:14-cv-891-T-33AEP

ANY SEASON INSULATION, LLC,
Defendant.
______________________________/
ORDER
This cause comes before the Court pursuant to Defendant
Any Season Insulation, LLC d/b/a Bayside Installed Building
Products’

(Any

Season)

Motion

for

Summary

Judgment

and

Incorporated Memorandum of Law in Support Thereof (Doc. #
48), filed on February 9, 2015. Plaintiffs Mary Jo Pope and
James M. Pope filed a response in opposition to the Motion on
March 11, 2015. (Doc. # 56). Any Season filed a reply thereto
on March 25, 2015. (Doc. # 59). The Court conducted oral
argument on May 11, 2015. (Doc. # 62). For the reasons that
follow, the Motion is granted.
I.

Background

Any

Season1

“primarily

installs

insulation

in

homes

throughout the greater Tampa Bay area.” (Doc. # 48-1 at ¶ 4).
Although Any Season is its own legal entity, it is affiliated
with

Installed

[Installed

Building

Building

Products,

Products’]

LLC.

insulation

(Id.).

“While

companies

are

separate companies, they may draw upon resources, including
Human

Resources,

from

[Installed

Building

Products’]

Columbus, Ohio office.” (Id. at ¶ 5). Mr. Pope was the
regional manager of Bayside and, as such, he was responsible
for all branch operations, including hiring, firing, and
sales. (Doc. # 48-2 at 4). Mrs. Pope served as the office
administrator,

responsible

for

“job-costing,”

invoicing,

collections, payroll, filing, and benefits. (Doc. # 48-3 at
10).
Due to Any Season’s poor financial performance and “[i]n
a last effort to save the company,” the company “charged
[David] Vella with assessing Any Season and attempting to
turn it around.” (Doc. # 48-1 at ¶¶ 9-10). On October 10,
2012, Mr. Vella took the Popes out to lunch “in order to get
to know them on a personal level and to discuss [his] thoughts

1

Although Defendant refers to itself as “Any Season,” the
name of the company where Plaintiffs worked is “Bayside
Installed Building Products” (Bayside). (See Doc. # 48).

2

on the current state of the branch and how things could be
improved.” (Doc. # 48-4 at ¶ 3). During that lunch, Mr. Vella
“met a young man named Chris Carter, who [he] invited to join
[Mr.

Vella

employment

and

the

Popes]

opportunities

at

for

lunch.

[They]

the

branch,

and

discussed

[Mr.

Vella]

invited [Mr. Carter] to apply for a job, which he later did.
Mr. Carter began working at Bayside as a gutter installer on
November 1, 2012.” (Id. at ¶ 5).
On the evening of October 10, 2012, “out of the blue
[Mr.

Vella]

said

‘So

neighborhood?’”

(Doc.

“flabbergasted”

and

how
#

said

are
48-3

the
at

prostitutes
22).

“disgusting.”

Mrs.
(Id.).

in
Pope

Mr.

this
was
Vella

responded that Mrs. Pope was “not looking at the right
websites.” (Id.). Mrs. Pope indicated that she does not “agree
with that lifestyle,” to which Mr. Vella responded that “men
have needs” and “there’s no one woman that can satisfy one
man. If you think you can satisfy your man alone, not going
to happen. Men have needs. They need prostitutes. Should be
legal.” (Id.). Again, Mrs. Pope said she “disagreed.” (Id.).
Mr. Vella also told Mrs. Pope that she could not “satisfy”
her husband. (Id. at 28).
On October 11, 2012, Mr. Vella arrived at Bayside around
9:00 AM. (Id. at 30). Upon his arrival, Mr. Vella told several

3

individuals about what had occurred that morning when he was
waiting in a car for a real estate agent: “You’re never going
to believe what happened to me . . . I’m sitting there, with
my window down, my arm sitting there, and a prostitute walked
over, pulled up her shirt, flipped her boobs on my arms and
laid them there. . . .” (Id. at 30-31). Mr. Vella then asked
the woman, “What’s it going for these days? And she goes $48.”
(Id. at 31).
Mr. Vella similarly “told [several individuals] about
going to a gentlemen’s club the night before.” (Id. at 3132). Mrs. Pope recalls, “[Mr. Vella] told us that he had met
a really cute girl there, that she had been texting him all
night, that she was 23 . . . that she had been a nanny, and
that he would like to hire her here.” (Id.). Later that day,
Mr. Vella told Bayside employees that “[w]e’re going to hire
another girl for this office, a young one and pretty one too.”
(Doc. # 56-1 at ¶ 13).
Thereafter, Mr. Vella told Mrs. Pope “I see you out of
this office, I see you in sales.” (Doc. # 48-3 at 32).
However, Mr. Vella told Mrs. Pope that a position in sales is
“not a job for a woman.” (Doc. 56-1 at ¶ 21). Mrs. Pope
remembers Mr. Vella explaining:

4

You have a fight with your husband. You go to a job
site. You meet a super. He takes you to lunch. Then
it leads to dinner and a bottle of wine. And then
he explained how he had had affairs, numerous
affairs, and he knows how affairs work. And that’s
when he hugged himself like this and said, “If you
were my girl, I’d keep you right here.”
(Doc. # 48-3 at 33). In her affidavit, Mrs. Pope submits that
she responded to Mr. Vella’s remarks as follows: “I told Mr.
Vella that I had dealt with men all my life and that my being
a female would not be an issue. Mr. Vella, however, disagreed
and shut down any future conversations I attempted to have
with him about my desire for the promotion.” (Doc. # 56-1 at
¶ 22).
That same day, Mr. Vella told one of the installers: “I
want you to know where that dipstick is like you know where
your wee wee is when you go pee pee.” (Id. at 34). Later on,
Mrs. Pope suggested the production manager, Howard Maynard,
get a massage because he had been in an accident. Mrs. Pope
alleges that Mr. Vella, who was also present, stated “Quit
thinking about it Howard . . . I’ve been thinking about it
for 48 hours. It’s (Mrs. Pope giving Mr. Maynard a massage)
not going to happen.” (Id. at 35). Mr. Vella further made
comments suggesting that he “wanted [Mrs. Pope] outside of
the office.” (Id. at 7-8).

5

In addition, “Mr. Vella made it very clear to [Mrs. Pope]
and to others that he always carried a gun with him. He would
go around pointing his finger at people’s heads pretending to
pull the trigger on them.” (Doc. # 56-1 at ¶ 23). In her
deposition, Mrs. Pope stated that Mr. Vella told her that he
had a gun, but explained that she never saw the gun: “No, I
did not see the gun. He told me he kept his shirt untucked
because he had a gun back here.” (Doc. # 55-2 at 7).
On October 12, 2012, Mrs. Pope sent Alan Fermier – Vice
President of Human Resources – an email asking that he call
her that day. Mrs. Pope remembers telling Mr. Fermier “about
the harassment” and submits that she told Mr. Fermier that
she was “afraid.” (Doc. # 48-3 at 42). However, when Mrs.
Pope asked Mr. Fermier for a “plan” in the event of similar
incidents, Mr. Fermier responded that he could not give her
one. (Id. at 45). However, Mrs. Pope states that Mr. Fermier
explained that “if anything ever happened, that [she] would
call him directly, and if he didn’t respond, that [she] could
call [company CEO] Jeff Edwards.” (Id.).
When Mrs. Pope asked Mr. Fermier if he knew that Mr.
Vella “always carries a gun,” Mr. Fermier responded that “he
did not know this.” (Doc. # 56-1 at ¶ 33). After Mrs. Pope
explained that she feared Mr. Vella, Mr. Fermier allegedly

6

responded “in a very condescending tone and asked if [she]
had gotten strange packages delivered or if [she] had seen
any strange men lurking around [her] house.” (Id. at ¶¶ 3435).
On October 18, 2012, Mr. Pope emailed Mr. Fermier to ask
that Mr. Fermier call Mr. Pope. (Doc. # 56-2 at ¶ 12). On
October 22, 2012, Mr. Fermier – along with another member of
HR, Jason Lawson – called the Popes to discuss the same
allegations. (Id. at ¶ 13). Mrs. Pope submits that she “again
told Mr. Fermier and now Mr. Lawson that [she] was terrified
of Mr. Vella and that [she] felt he was a sexual predator.”
(Doc. # 56-1 at ¶ 41).
Thereafter, on October 29, 2012, the Popes attended a
meeting with Mr. Fermier and Mr. Vella. Mrs. Pope recalls Mr.
Vella shedding a tear and stating that he was sorry. (Doc. #
48-3 at 48). At this meeting, Mr. Vella commented to the
Popes: “what upsets me most is that you went over my head” in
reporting the conduct to HR.

(Doc. # 2 at ¶ 12; Doc. # 56-1

at ¶ 48). Mrs. Pope presently alleges that Mr. Vella “made it
clear that he would get back at us” for making the sexual
harassment claim. (Doc. # 56-1 at ¶ 49). At deposition,
however, Mrs. Pope testified: “I don’t even remember what

7

[Mr. Vella] even said” at the October 29, 2012, meeting. (Doc.
# 48-3 at 48).
Mr. Vella did not return to the Tampa office until
December 10, 2012, when he was accompanied by loss prevention
specialist Laura Kaiser. (Doc. # 56-1 at ¶ 51). Mrs. Pope
alleges that “[a]lthough Mr. Vella spent very little of his
time around me on December 10th . . . he made a point of
telling me that he knew exactly where I lived and where my
house was.” (Id. at ¶ 53).
On December 11, 2012, Mr. Vella returned to Any Season
and “called [Mr. Pope] into a separate area along with Ms.
Kaiser.” (Doc. # 56-2 at ¶ 28). A discussion ensued regarding
Mr. Pope’s failure to obtain a non-compete agreement from his
son,

who

was

a

salesperson

at

Any

Season.

(Id.).

That

conversation culminated with Mr. Vella firing Mr. Pope. (Id.
at ¶ 28). Any Season disputes that Mr. Pope was fired, but
Any Season assumes Mr. Pope was terminated for purposes of
the present analysis. (Doc. # 48 at 9 n.4). Thereafter, Mrs.
Pope “felt compelled to resign to get herself out of the
hostile situation.” (Doc. # 2 at ¶ 16).
The Popes initiated this action against Any Season on
March 20, 2014, in state court. (Doc. # 2). Any Season removed
the case to this Court on the basis of diversity jurisdiction.

8

(Doc. # 1). The Popes’ Complaint set forth the following six
counts, all brought under Florida law:2
Count I: Sexual Harassment (Mrs. Pope)
Count II: Sex Discrimination (Mrs. Pope)
Count III: Retaliation (Mrs. Pope)
Count IV: Discrimination (Mr. Pope)
Count V: Retaliation (Mr. Pope)
Count VI: Intentional Infliction
Distress (Mr. and Mrs. Pope)

of

Emotional

On May 14, 2015, the Court dismissed Count IV of the
Complaint. (Doc. # 15). Count VI – brought against the Estate
of David Vella – is also not before the Court. The Estate of
David Vella was named as a Defendant, because Mr. Vella was
deceased at the time the Popes filed the Complaint. (Doc. #
2 at ¶ 18). However, on July 17, 2014, the Estate was
dismissed from this action without prejudice (Doc. # 25),
because the Popes were “not able to discern whether there is
an estate established” for Mr. Vella (Doc. # 24).

2

The Florida Civil Rights Act is patterned after Title
VII. O'Loughlin v. Pinchback, 579 So. 2d 788, 791 (1st DCA
1991). “Pursuant to Florida's longstanding rule of statutory
construction that recognizes that state laws patterned after
federal statutes must be interpreted as if they were one, the
Florida law is accorded the same construction as Title VII.”
Greenfield v. City of Miami Beach, Fla., 844 F. Supp. 1519,
1524 (S.D. Fla. 1992) aff'd sub nom. Greenfield v. City of
Miami Beach, 20 F.3d 1174 (11th Cir. 1994).

9

Any Season filed the present Motion for Summary Judgment
and Incorporated Memorandum of Law in Support Thereof (Doc.
# 48) on February 9, 2015, which is ripe for this Court’s
review. This Court heard oral argument on the Motion on May
11, 2015. (Doc. # 62).
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.”

Fed.

R. Civ. P. 56(a). 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 showing
the court, by reference to materials on file, that there are

10

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. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)). However, if the non-movant’s response
consists

of

nothing

“more

than

11

a

repetition

of

his

conclusional

allegations,”

summary

judgment

is

not

only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982).
III. Analysis
A.

Count I: Sexual Harassment (Mrs. Pope)

To establish a prima facie case of sexual harassment, a
plaintiff must show that: (1) she was a member of a protected
group;

(2)

she

has

been

subject

to

unwelcome

sexual

harassment; (3) the harassment was based on her sex; (4) the
harassment was sufficiently severe or pervasive to alter the
terms and conditions of employment; and (5) there is a basis
to hold the employer liable. Chenault v. Ameripride Linen &
Apparel Servs., 188 F. App’x 974, 975 (11th Cir. 2006). In
the present matter, Any Season argues that the alleged sexual
harassment was not (1) based on Mrs. Pope’s sex, (2) severe
or pervasive, nor (3) unwelcome. (Doc. # 48 at 11-17). Any
Season

further

provides

that

the

alleged

harassment

was

promptly investigated. (Doc. # 59 at 6). Although Mrs. Pope’s
response

focuses

on

whether

the

conduct

was

severe

or

pervasive (Doc. # 56 at 9-11), the Court will address each of
Any Season’s arguments in turn.
1.

Based on Sex

12

The Court first considers whether Mr. Vella’s alleged
harassment

was

based

on

Mrs.

Pope’s

sex.

The

record

demonstrates that Mr. Vella’s statements regarding his own
exploits were not based on Mrs. Pope’s sex, because Mr. Vella
told

the

stories

to

both

men

and

women.

Likewise,

the

“dipstick” comment was directed to a male installer. Further,
as explained below, Mr. Vella’s gun-related conduct is also
gender-neutral.
Mrs. Pope recounts that “Mr. Vella made it very clear to
myself and to others that he always carried a gun with him.
He would go around pointing his finger at people’s heads
pretending to pull the trigger on them.” (Doc. # 56-1 at ¶
23). Although Mrs. Pope never saw Mr. Vella’s gun, Mrs. Pope
found

these

comments

particularly

troubling,

because

on

December 10, 2012, Mr. Vella “made a point of telling me that
he knew exactly where I lived and where my house was.” (Id.
at ¶ 53).
The Court understands how Mrs. Pope could have been made
uncomfortable by Mr. Vella’s gun-related gestures.

However,

Mrs. Pope herself explained that Mr. Vella “would go around
pointing his finger at people’s heads pretending to pull the
trigger on them.” (Id. at ¶ 23). Again, Mr. Vella was an
“equal opportunity harasser,” Holman v. Indiana, 211 F.3d

13

399, 403 (7th Cir. 2000), in that he also made those gestures
to males in the office (Id.; see Henson v. City of Dundee,
682 F.2d 897, 904 (11th Cir. 1982) (“[T]here may be cases in
which a supervisor makes sexual overtures to workers of both
sexes or where the conduct complained of is equally offensive
to

male

and

female

workers.

In

such

cases,

the

sexual

harassment would not be based upon sex because men and women
are accorded like treatment.”)). There is also no indication
of

gender

bias

in

Mr.

Vella’s

exchange

with

Mrs.

Pope

regarding where she lived. In particular, Mrs. Pope described
the interaction as follows:
Q

And did you have any interaction with Mr. Vella on
the 10th?

A

Yes.

Q

And what interaction was that?

A

That was when they were in the deposition meetings
[on an unrelated matter], and he sat at my desk for
two hours.

Q

And that’s the conversation about him wanting you
to buy the house that was the subject of the
litigation.

A

Yes. And him knowing where I lived. And wanting –
then he wanted me to try to run reports that I
didn’t have access to.
***

14

Q

And Mr. Vella never said he knew where you lived.
Correct?

A

He – I said, “Do you know where I live?” And he
laughed, like, yeah.

Q

But he never said yeah?

A

No, he never said it.

(Doc. # 55-2 at 29-30).
Upon review, there is nothing to suggest that, but for
Mrs. Pope’s sex, Mr. Vella would not have engaged in this
exchange. Title VII only “prohibits discrimination, including
harassment that discriminates based on a protected category
such as sex.” Baldwin v. Blue Cross/Blue Shield of Ala., 480
F.3d 1287, 1301–02 (11th Cir. 2007). Even if Mr. Vella was
offensive and intimidating, if the conduct was not based upon
gender, then Title VII provides no redress. See Coutu v.
Martin Cnty Bd. of County Comm'rs, 47 F.3d 1068, 1074 (11th
Cir. 1995) (“Unfair treatment, absent discrimination based on
race, sex, or national origin, is not an unlawful employment
practice under Title VII.”).
In

comparison

to

the

comments

discussed

above,

the

following remarks appear to be gender-related, drawing all
inferences in favor of Mrs. Pope. Specifically, Mr. Vella
told Mrs. Pope that she could not “satisfy” her husband. (Doc.

15

# 48-3 at 28). In another interaction, Mrs. Pope suggested
that the production manager, Howard Maynard, get a massage
because he had been in an accident. Mr. Vella, who was also
present, responded “Quit thinking about it Howard . . . I’ve
been thinking about it for 48 hours. It’s not going to
happen.” (Id. at 35). Finally, Mr. Vella said that he could
“see [Mrs. Pope] in sales,” but Mr. Vella determined that a
position in sales is “not a job for a woman.” (Doc. 56-1 at
¶ 21). Ultimately, Mr. Vella concluded “If you were my girl,
I’d keep you right here.” (Doc. # 48-3 at 32-33). Upon
consideration of the substance of these comments, the Court
concludes that “but for the fact of her sex, [Mrs. Pope] would
not have been subject to harassment” by way of these comments.
Hensen v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982).
Therefore, the Court concludes that this subset of Mr. Vella’s
conduct was based on Mrs. Pope’s gender.
2.

Severe or Pervasive

Upon consideration of the gender-related activity, the
Court finds that Mr. Vella’s conduct does not rise to the
level of severe or pervasive necessary to support a prima
facie

case.

Whether

the

conduct

complained

of

was

“sufficiently severe or pervasive to alter the conditions of

16

employment and create an abusive working environment,” is
crucial in determining whether a plaintiff has proven a
hostile work environment claim. Gupta v. Fla. Bd. of Regents,
212 F.3d 571, 583 (11th Cir. 2000). A hostile work environment
exists only where the work environment is “permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of
the

victim’s

employment

and

create

an

abusive

working

environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (internal citations omitted). Even if the plaintiff is
able to prove one factor in the prima facie case, this “does
not compensate for the absence of the other factors.” Mendoza
v. Borden, Inc., 195 F.3d 1238, 1248 (11th Cir. 1999) (en
banc), cert. denied, 531 U.S. 1076 (2001).
To establish the threshold of severity or pervasiveness,
both an objective and subjective component must be present.
Mendoza,

195

component,

F.3d

four

at

1246.

factors

In

should

assessing
be

the

considered:

objective
(1)

the

frequency of the conduct, (2) the severity of the conduct,
(3)

whether

the

conduct

is

physically

threatening

or

humiliating, or a mere offensive utterance, and (4) whether
the conduct unreasonably interferes with the employee’s job
performance.

Id.

17

For support, Mrs. Pope relies on Freytes-Torres v. City
of Sanford, 270 F. App’x 885 (11th Cir. 2008). In that case,
the Eleventh Circuit reversed the district court’s grant of
summary judgment in favor of defendant as to the plaintiff’s
harassment

count

where

the

plaintiff

alleged

that

her

supervisor’s harassment:
included daily stops by her desk to leer at her
breasts; daily phone calls in which [plaintiff’s
supervisor]
called
chiefly
to
comment
on
[plaintiff’s] sexy voice; asking [plaintiff] out on
dates;
making
masturbatory
gestures
with
[plaintiff] in the room; meeting privately with her
to explain his attraction, and when rebuffed,
grabbing her hand and threatening her not to tell
anyone; and blocking [plaintiff] in a stairwell
when she was 7–months pregnant, leaning into her
body and deliberately smelling one breast.
Id. Mr. Vella’s conduct does not rise to this level.
To

begin,

the

entirety

of

Mr.

Vella’s

harassment

occurred over a two-day period, and there is no evidence that
Mr. Vella’s actions interfered with Mrs. Pope’s employment.
Specifically, the Court notes that the harassment occurred in
October and Mrs. Pope did not resign from Any Season until
two months later on December 11, 2012. Furthermore, although
offensive, the Court does not find that Mr. Vella’s alleged
conduct rises to the level required by Mendoza and its
progeny.

18

“Title VII is not a civility code, and not all profane
or sexual language or conduct will constitute discrimination
in the terms and conditions of employment.” Reeves v. C.H.
Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010).
Conduct far more severe or pervasive than what Mrs. Pope has
alleged has failed to meet the high threshold of proof
required in the Eleventh Circuit. See e.g., Lockett v. Choice
Hotels Int’l, Inc., 315 F. App’x 862, 863-64 (11th Cir. 2009)
(affirming summary judgment in favor of the defendant where
the alleged harasser purportedly engaged in sexual banter,
discussed

oral

sex

with

plaintiff,

touched

plaintiff’s

buttocks on one occasion, referred to plaintiff as a “ho” and
“bitch,” and “jumped in [plaintiff’s] face and acted like he
was going to hit [her]”).
Finally, the Court acknowledges Any Season’s contentions
that it took prompt remedial action and that the harassment
was not unwelcome. However, the Court’s analysis need not
reach these arguments, because Mrs. Pope has not demonstrated
that the harassment was severe or pervasive. Therefore, Mrs.
Pope has failed to present a prima facie case of sexual
harassment. Accordingly, Any Season’s Motion is granted as to
Count I.
B.

Count II: Sex Discrimination (Mrs. Pope)

19

“In
plaintiff

order
may

discriminatory

to
use

establish
three

intent:

a

case

different
direct

under

kinds

evidence,

evidence, or statistical evidence.”

Title

of

VII,

evidence

presents

no

statistical

of

circumstantial

Standard v. A.B.E.L.

Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
Pope

a

evidence

of

Mrs.

discriminatory

intent; the Court will evaluate the existence of direct and
circumstantial evidence below.
1.

Direct Evidence

“Direct evidence of discrimination is evidence which, if
believed, would prove the existence of a fact in issue without
inference or presumption.

Only the most blatant remarks,

whose intent could be nothing other than to discriminate on
the basis of [a protected characteristic] constitute direct
evidence of discrimination.”

Tippie v. Spacelabs Med., Inc.,

180 F. App’x 51, 54 (11th Cir. 2006) (quoting Bass v. Bd. of
Cnty. Comm’rs, Orange Cnty., Fla., 256 F.3d 1095, 1105 (11th
Cir. 2001)).
In the instant case, Mrs. Pope argues that she “has
presented direct evidence of discrimination as Mr. Vella
specifically told her that her being a woman is what precluded
her from a promotion to a sales position.” (Doc. # 56 at 11).
In particular, Mrs. Pope points to Mr. Vella’s comment: “I

20

see you out of this office, I see you in sales.” (Doc. # 483 at 32-33). Mrs. Pope contends, however, that she was denied
the promotion to a sales position, because Mr. Vella suggested
that she would be unfaithful to her husband. (Id. at 32-33).
Mrs. Pope recalls Mr. Vella saying:
[Y]ou have a fight with your husband. You go to a
job site. You meet a super. He takes you to lunch.
Then it leads to dinner and a bottle of wine. And
then he explained how he had had affairs, numerous
affairs, and he knows how affairs work. And that’s
when he hugged himself like this and said, “If you
were my girl, I’d keep you right here.”
(Id.). Mr. Vella told Mrs. Pope that a sales position is “not
a job for a woman.” (Doc. 56-1 at ¶ 21).
The Court notes that, “[t]o amount to direct evidence,
a

statement

must:

(1)

be

made

by

a

decisionmaker;

(2)

specifically relate to the challenged employment decision;
and (3) reveal blatantly discriminatory animus.”

Chambers v.

Walt Disney Co., 132 F. Supp. 2d 1356, 1364 (M.D. Fla. 2001).
“[D]irect evidence can mean nothing other than evidence from
which a trier of fact could conclude, more probably than not,
that the defendant discriminated against the plaintiff in
regard to the contested employment decision on the basis of
a protected personal characteristic.” Wright v. Southland
Corp., 187 F.3d 1287, 1306 (11th Cir. 1999). At oral argument,
Any Season contended that Mr. Vella was not a decisionmaker.

21

However,

in

the

Eleventh

Circuit,

a

“decisionmaker”

is

broadly defined as “a person involved in the challenged
decision.” Trotter v. Bd. of Trustees, 91 F.3d 1449, 1453-54
(11th Cir. 1996).
Due to Any Season’s poor financial performance and “[i]n
a last effort to save the company,” Mr. Vella was charged
“with assessing Any Season and attempting to turn it around.”
(Doc. # 48-1 at ¶¶ 9-10). Mr. Fermier explained that Mr. Vella
was assigned “oversight responsibilities.” (Id. at ¶ 12). Mr.
Vella stated that his title was Divisional President of the
Southeast Region and explained: “As part of my job duties, I
am responsible for regional oversight of several [Installed
Building Products] branches located in the Southeast region.”
(Doc. # 48-4 at ¶¶ 1-2). Mr. Vella’s region included Bayside,
where Mr. Pope served as branch manager. (Id.).

These facts

support the conclusion that Mr. Vella was a decisionmaker.
The Court next examines whether Mr. Vella’s comments
relate to the challenged employment decision. The Eleventh
Circuit has held that “‘direct evidence,’ in the context of
employment discrimination law, means evidence from which a
reasonable trier of fact could find, more probably than not,
a causal link between an adverse employment action and a
protected

personal

characteristic.”

22

Wright

v.

Southland

Corp., 187 F.3d 1287, 1293 (11th Cir. 1999) (emphasis added).
In the present matter, Mrs. Pope cannot demonstrate – and the
record does not suggest – that there is a causal link between
Mr. Vella’s statements and an adverse employment action.
Mrs. Pope states that Mr. Vella denied her a promotional
opportunity because she is a woman. (Doc. # 56-1 at ¶ 21). In
her affidavit, Mrs. Pope alleges that she responded to Mr.
Vella’s remarks as follows: “I told Mr. Vella that I had dealt
with men all my life and that my being a female would not be
an issue. Mr. Vella, however, disagreed and shut down any
future conversations I attempted to have with him about my
desire for the promotion.” (Id. at ¶ 22). This conclusory
statement is not supported in the record.
Even assuming that Mrs. Pope did attempt to address Mr.
Vella’s alleged discriminatory remarks, Mrs. Pope’s claim
fails as she cannot demonstrate an adverse employment action.
Namely, there is no evidence in the record to suggest that
there was a sales position open to which Mrs. Pope could have
been promoted.
job.

In addition, she did not apply for a sales

Indeed, the only evidence of a sales position in the

record shows Don Alongi was hired as a salesperson, days prior
to Mrs. Pope’s complaint and before she even met Mr. Vella.
(Doc.

#

48-3

at

16-18).

Therefore,

23

Mrs.

Pope

has

not

demonstrated that she suffered an adverse employment action
– let alone that Mr. Vella’s statements related to such
action. Thus, Mrs. Pope’s discrimination claim fails to the
extent that it relies on direct evidence.
2.

Circumstantial Evidence

The Court next evaluates whether Mrs. Pope has supplied
circumstantial evidence of sex discrimination. In analyzing
allegations supported by circumstantial evidence under Title
VII,

the

Court

follows

the

burden-shifting

analysis

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and its progeny. Harper v. Blockbuster Entm’t Corp.,
139 F.3d 1385, 1387 (11th Cir. 1998). Under the McDonnell
Douglas framework, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination, which
creates a rebuttable presumption that the employer acted
illegally. McDonnell Douglas, 411 U.S. at 802-03. Once the
plaintiff has established a prima facie case, the burden of
proof shifts to the defendant. Id.; Dickinson v. Springhill
Hosps., Inc., 187 F. App’x 937, 939 (11th Cir. 2006).
To rebut the presumption of discrimination 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.

24

Affairs v. Burdine, 450 U.S. 248, 254 (1981); Standard, 161
F.3d at 1331.

However, “[t]his is a burden of production,

not persuasion.” Standard, 161 F.3d at 1331.

A defendant

“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 again to the plaintiff. McDonnell Douglas, 411 U.S. at
802-03.

The plaintiff then “has the opportunity to come

forward with evidence, including the previously produced
evidence establishing [her] prima facie case, sufficient to
permit a reasonable fact-finder 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).
“To make out a prima facie case of [sex] 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

similarly
favorably.”

situated

action;

and

employees

her

outside

employer
her

treated

class

more

Crawford v. Carroll, 529 F.3d 961, 970 (11th

Cir. 2008).

25

(4)

Any Season contends that Mrs. Pope cannot establish a
prima facie case of sex discrimination, because she cannot
demonstrate that she suffered an adverse employment action or
that other employees were treated differently. (Doc. # 48 at
18). In response, Mrs. Pope contends that she has presented
evidence that “Mr. Vella specifically told her that her being
a woman is what precluded her from a promotion to a sales
position.” (Doc. # 56 at 11-12).
In the failure-to-promote context, the prima facie case
consists of showing these elements: “(1) that the plaintiff
belongs to a protected class; (2) that she applied for and
was qualified for a promotion; (3) that she was rejected
despite her qualifications; and (4) that other equally or
less-qualified employees outside her class were promoted.”
Brown v. Alabama Dep't of Transp., 597 F.3d 1160, 1174 (11th
Cir. 2010).
Any Season contends that there is no evidence in the
record to demonstrate that there was an open sales position
available. (Doc. # 59 at 6-7); see Duffy v. Lowe’s Home
Centers, Inc., 414 F. Supp. 2d 1133, 1143 (M.D. Fla. 2006)
(plaintiff cannot establish a prima facie case if an open
position does not exist); Crawford v. Johnson, 133 F. App’x
674, 675 (11th Cir. 2005) (employer entitled to summary

26

judgment because plaintiff could not have been promoted to a
position that did not exist). Any Season alleges that the
only evidence of a sales position in the record shows Mr.
Alongi was hired as a salesperson, days prior to Mrs. Pope’s
complaint and before she even met Mr. Vella. (Doc. # 48-3 at
16-18).
Even assuming there was a sales opening, Any Season
argues that there is similarly no evidence in the record to
suggest that Mrs. Pope was qualified for a position in sales.
(Doc. # 59 at 5-6). During her deposition, Mrs. Pope explained
that she had “done sales before” when she “sold photography
in Indiana.” (Doc. # 48-3 at 32). In order to be qualified
for

a

promotion,

Mrs.

Pope

must

demonstrate

that

“she

satisfied an employer’s objective qualifications.” Kidd v.
Mando American Corp., 731 F.3d 1196, 1204 (11th Cir. 2013)
(citing Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763,
769

(11th

Cir.

2005).

Although

Any

Season’s

objective

qualifications are not before the Court, the record contains
evidence upon which a reasonable juror could rely to find
that Mrs. Pope would be qualified to serve as a salesperson.
In addition to her previous experience in sales, Mrs. Pope
spent approximately 8 years in the installation industry.
(Doc. # 48-3 at 4-5).

27

Despite Mrs. Pope’s qualifications, however, the record
does not suggest that Mrs. Pope applied for a position in
sales. More importantly, there is also no evidence in the
record to demonstrate “that other equally or less-qualified
employees outside her class were promoted” or that Any Season
otherwise treated male employees more favorably. Brown, 597
F.3d at 1174. Mrs. Pope has not established a prima facie
case of sex discrimination based on circumstantial evidence.
Therefore, Mrs. Pope’s claim of sex discrimination fails and,
thus, Any Season’s Motion is granted as to Count II.
C.

Counts III and V: Retaliation (Mrs. Pope and Mr.
Pope)

“Under Title VII, it is an unlawful employment practice
for an employer to discriminate against an employee ‘because
he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an
investigation,

proceeding,

or

hearing

under

this

subchapter.’” Little v. United Techs., Carrier Transicold
Div., 103 F.3d 956, 959 (11th Cir. 1997) (quoting 42 U.S.C.
§ 2000e-3(a)). “A prima facie case of retaliation under Title
VII requires the plaintiff to show that: (1) she engaged in
an activity protected under Title VII; (2) she suffered an

28

adverse

employment

action;

and

(3)

there

was

a

causal

connection between the protected activity and the adverse
employment action.” Crawford v. Carroll, 529 F.3d 961, 970
(11th Cir. 2008). “The causal link element is construed
broadly so that a plaintiff merely has to prove that the
protected activity and the negative employment action are not
completely unrelated.”
F.3d

1262,

1266

Pennington v. City of Huntsville, 261

(11th

Cir.

2001)

(internal

quotation

omitted).
When a plaintiff-employee establishes a prima facie case
of retaliation, the burden shifts to the defendant-employer
to

present

evidence

of

a

legitimate,

non-discriminatory

reason for the challenged employment action. Connor, 546 F.
Supp. 2d at 1372. The employer’s burden is “exceedingly light”
Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th
Cir. 1994), and “easily fulfilled” Howard v. BP Oil Co., Inc.,
32 F.3d 520, 524 (11th Cir. 1994). The employer “need not
persuade the court that it was actually motivated by the
proffered reasons.” Burdine, 450 U.S. at 254-55. Rather, as
long as the employer “articulates a clear and reasonably
specific non-discriminatory basis for its actions,” it has
met its burden of production. Vessels, 408 F.3d at 770 (per
curium) (internal quotation marks omitted).

29

1.

Count III: Mrs. Pope’s Retaliation Claim

As to Mrs. Pope’s retaliation claim, the Court finds
that Mrs. Pope is unable to demonstrate an adverse employment
action.

Namely,

resigned

from

the
her

record

demonstrates

employment

with

Any

that

Mrs.

Season.

In

Pope
her

affidavit, Mrs. Pope states: “As I was so thoroughly retired
(sic) of working with Mr. Vella in the office without my
husband there for protection, I felt compelled to resign.”
(Doc. # 56-1 at ¶ 57). To the extent that she argues that she
was

constructively

discharged,

Mrs.

Pope

must

show

that

“working conditions were so intolerable that a reasonable
person in her position would have been compelled to resign.”
Menzie v. Ann Taylor Retail Inc., 549 F. App'x 891, 894-95
(11th Cir. 2013) (quoting Poole v. Country Club of Columbus,
Inc., 129 F.3d 551, 553 (11th Cir. 1997)). The Eleventh
Circuit has noted that “this objective standard sets a high
threshold; it requires a plaintiff to show harassment that is
more severe or pervasive than the minimum level required to
establish a hostile working environment.” Id.

The threshold

“is quite high.” Beltrami v. Special Counsel, Inc., 170 F.
App'x 61, 62-63 (11th Cir. 2006) (collecting constructive
discharge cases).

30

As

the

Court

concluded

above,

Mrs.

Pope

has

not

demonstrated the requisite frequency or severity to sustain
a hostile work environment claim – let alone a claim of
constructive discharge. Furthermore, the Court notes that
Mrs.

Pope

resigned

immediately

after

Mr.

Pope’s

firing.

Therefore, Mrs. Pope did not provide Any Season a chance to
address her concerns regarding working in the office with Mr.
Vella without Mr. Pope being present. “Part of an employee's
obligation to be reasonable is an obligation not to assume
the worst, and not to jump to conclusions too fast.” Garner
v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987)
(emphasis in original). Because Mrs. Pope has failed to set
forth a prima facie case of retaliation, Any Season’s Motion
is granted as to Count III.
2.

Count V: Mr. Pope’s Retaliation Claim

As to Mr. Pope’s retaliation claim, Any Season disputes
Mr. Pope’s claim that he was fired. (Doc. # 48 at 9 n.4).
“However, for purposes of this motion only, Any Season will
assume Mr. Pope was terminated for failing to obtain Jim Jr.’s
signature on the non-compete agreement.” (Id.). Assuming
arguendo

that

Mr.

Pope

has

set

forth

a

prima

case

of

retaliation, the burden shifts to Any Season to present
evidence of a legitimate, non-discriminatory reason for the

31

challenged employment action. Connor, 546 F. Supp. 2d at 1372.
In the present matter, Any Season submits that Mr. Pope was
terminated for his failure to secure a non-compete agreement
from his son, who was the only salesperson at Any Season
without a non-compete agreement. (Doc. # 48-1 at ¶ 23).
Mr. Vella states in his affidavit that he “sought to
enforce [the company’s] policy that all salespersons sign
non[-]compete

agreements.”

(Doc.

#

48-4

at

¶

11).

In

furtherance of that goal, on November 28, 2012, Mr. Vella
emailed Mr. Pope a non-compete agreement to have Mr. Pope’s
son execute. (Doc. # 48-1). At one point in the conversation,
on November 29, 2015, Mr. Vella remarked: “[Jim Jr.] should
[have] had it before he ever received a paycheck which would
fall right back on you.” (Id.). In his affidavit, Mr. Vella
stated that the last time he confronted Mr. Pope regarding
the issue with the non-compete agreement was on December 11,
2012. (Doc. # 48-4 at ¶ 12). Mr. Vella explained:
In Bayside’s warehouse, I again asked [Mr. Pope]
why a non-compete agreement has not been secured
from Jim Pope, Jr. . . . Once again, [Mr. Pope]
refused to cooperate, and I explained that if Jim
Pope, Jr. did not sign the non-compete agreement
then Jim Pope, Jr. would no longer be able to work
for Bayside given the company policy to have noncompete agreements from salespersons.

32

(Id.). Assuming that Mr. Pope was fired, Any Season has
supplied a legitimate, non-discriminatory reason for his
termination.

Again,

the

Court

notes

that

the

employer’s

burden is “exceedingly light” Meeks, 15 F.3d at 1021, and
“easily fulfilled” Howard, 32 F.3d at 524.
If the defendant offers legitimate, non-discriminatory
reasons, the plaintiff must respond by showing that the
employer's reasons are a pretext for retaliation. Tucker v.
Talladega City Sch., 171 F. App'x 289, 296 (11th Cir. 2006).
However, the Court notes that:
A plaintiff is not allowed to recast an employer's
proffered nondiscriminatory reasons or substitute
his business judgment for that of 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. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000).
Mr. Pope cannot show that Any Season’s justification for
the termination is pretext for retaliation. “Federal courts
do not sit as a super-personnel department that reexamines an
entity's business decisions. No matter how . . . mistaken the
firm's managers, [the Court] does not interfere. Rather our
inquiry is limited to whether the employer gave an honest
explanation of its behavior.” Id. (internal quotations and

33

citations omitted). Thus, Mr. Pope’s retaliation claim fails
and Any Season’s Motion is granted as to Count V.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant

Any

Season

Insulation,

LLC

d/b/a

Bayside

Installed Building Products’ Motion for Summary Judgment
and Incorporated Memorandum of Law in Support Thereof
(Doc. # 48) is GRANTED.
(2)

The Clerk is directed to enter judgment in favor of
Defendant, terminate all pending deadlines and motions,
and, thereafter CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this

26th day of May, 2015.

Copies:

All Counsel and Parties of Record 

34