Bylicki v. McGee Tire Stores, Inc.
Filing
53
ORDER denying 51 Motion for Leave to File reply; denying 27 Motion for summary judgment. The parties' joint pretrial statement must be filed by September 29, 2016. The parties must file all pretrial motions, including motions in limine, by September 12, 2016. Responses thereto must be filed by September 26, 2016. Signed by Judge Susan C Bucklew on 8/15/2016. (JD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GREG BYLICKI,
Plaintiff,
v.
Case No. 8:15-cv-1177-T-24 MAP
MCGEE TIRE STORES, INC.,
Defendant.
______________________________/
ORDER
This cause comes before the Court on Defendant’s Motion for Summary Judgment.
(Doc. No. 27). Plaintiff opposes the motion. (Doc. No. 32). As explained below, the motion is
denied.
I. Standard of Review
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). The Court must draw all inferences from the evidence in the light most favorable to the
non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d
1315, 1320 (11th Cir. 2006)(citation omitted). The moving party bears the initial burden of
showing the Court, by reference to materials on file, that there are no genuine issues of material
fact that should be decided at trial. See id. (citation omitted). When a moving party has
discharged its burden, the non-moving party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories, and admissions on file, designate
specific facts showing there is a genuine issue for trial. See id. (citation omitted).
II. Background
Plaintiff Greg Bylicki is a white male who is married to an African-American woman.
He was re-hired by Defendant McGee Tire Stores, Inc. in October of 2011 as a Service
Manager.1 (Doc. No. 33-1, depo p. 24). Plaintiff was later transferred to Defendant’s South
Florida store in Lakeland, and he reported to David Pierson, the store manager. Pierson reported
to Kevin McGee, who was the district manager.
In April or May of 2012, Plaintiff heard Pierson use the “N-word” to refer to a customer.
(Doc. No. 33-1, depo p. 50-51). This offended Plaintiff and made him uncomfortable. Plaintiff
knew that Pierson did not know that he was married to an African-American woman, so Plaintiff
brought his wife to the store in hopes that Pierson would not make further racially offensive
comments. (Doc. No. 33-1, depo p. 52-53). However, Pierson continued to make racially
offensive comments. (Doc. No. 33-1, depo p. 56). Additionally, the “N-word” and the related
word, “nigga,” were used too many times to count by other employees around the auto shop
where Plaintiff worked. (Doc. No. 25-1, depo p. 20; Doc. No. 40, ¶ 9). Furthermore, Plaintiff
was required to take care of the African-American customers. (Doc. No. 25-1, depo p. 24-25;
Doc. No. 40, ¶ 11).
By the middle to end of September of 2012, Plaintiff complained to McGee about the
racial harassment based on his marriage to an African-American woman and asked to be
transferred to a different store. (Doc. No. 40, ¶ 17). McGee did not investigate Plaintiff’s
complaint at that time, and he denied Plaintiff’s request for a transfer.
On Sunday, October 7, 2012, Plaintiff got sick, and he texted Pierson that evening to let
1
Plaintiff worked for Defendant on two separate occasions in the past.
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him know. (Doc. No. 40, ¶ 18). The next morning, Plaintiff texted Pierson to let Pierson know
that he was going to see a doctor. (Doc. No. 40, ¶ 19). Plaintiff was diagnosed with strep throat,
and the nurse gave him a note saying that he could return to work on Wednesday, October 10th.
(Doc. No. 40, ¶ 20). That evening (Monday, October 8th), Plaintiff texted Pierson to let him
know about the strep throat diagnosis. (Doc. No. 40, ¶ 21). On Tuesday, October 9th, Plaintiff
texted the nurse’s note to Pierson so that Pierson would know that Plaintiff would be back to
work on October 10th. (Doc. No. 40, ¶ 22).
On Wednesday, October 10th, Plaintiff was still sick, so he texted Pierson that he was
going back to see the doctor. (Doc. No. 40, ¶ 23). The nurse extended Plaintiff’s sick leave and
stated that he could return to work on Thursday, October 11th. (Doc. No. 40, ¶ 23). After seeing
the nurse, Plaintiff texted Pierson to update Pierson and to let Pierson know that the nurse said to
return to see her if he did not feel better the next day. (Doc. No. 40, ¶ 23).
On Thursday, October 11th, Plaintiff still did not feel better, and he texted Pierson that
morning that he was going back to see the nurse. (Doc. No. 40, ¶ 24). After Plaintiff saw the
nurse, she extended his sick leave and stated that he should be able to return to work on Monday,
October 15th. (Doc. No. 40, ¶ 24). Plaintiff forwarded the nurse’s note to Pierson that
afternoon. (Doc. No. 40, ¶ 24).
On Friday, October 12th, Pierson texted Plaintiff twice early in the morning. (Doc. No.
40, ¶ 25). Plaintiff called Pierson at 8:00 a.m. and spoke with Mike Riley. (Doc. No. 40, ¶ 25).
Riley said to Plaintiff, “Man, I heard you were fired because you were acting like a ‘nigger!’”
(Doc. No. 40, ¶ 25). When Plaintiff spoke with Pierson on October 12th, Plaintiff explained that
he was still sick and was not coming into work. (Doc. No. 33-1, depo p. 57). In response,
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Plaintiff heard Pierson pull the phone away from his mouth and say (in reference to Plaintiff),
“Just like a nigger!” (Doc. No. 40, ¶ 25). Thereafter, Pierson said that Plaintiff would need to
contact McGee before Plaintiff came back to work on Monday. (Doc. No. 40, ¶ 25).
On the morning of Saturday, October 13th (which was a working day for Defendant),
Plaintiff texted McGee and informed McGee that he was still sick.2 On Monday, October 15th,
Plaintiff called Pierson and said that he was returning to work. (Doc. No. 40, ¶ 28). Pierson
responded that Plaintiff could not return until Plaintiff spoke with McGee. (Doc. No. 40, ¶ 28).
Plaintiff tried to contact McGee several times on the morning of October 15th. (Doc. No.
40, ¶ 28; Doc. No. 33-1, depo p. 80-81; Doc. No. 27-5, p. 21). McGee finally called Plaintiff
back and told Plaintiff that he was fired because McGee needed someone responsible in
Plaintiff’s position. (Doc. No. 40, ¶ 28; Doc. No. 33-1, depo p. 85). Prior to McGee telling
Plaintiff that he was fired, McGee knew that Plaintiff had strep throat and that Plaintiff had the
nurse’s notes stating that he was unable to return to work until October 15th. (Doc. No. 34-2,
depo p. 165, 171, 174). After McGee told Plaintiff that he was fired, McGee would not answer
Plaintiff’s calls, so Plaintiff sent texts to McGee expressing his confusion. (Doc. No. 33-1, depo
p. 86). Specifically, in the last text to McGee, Plaintiff stated:
So here it is a week after getting strep... still sick[.] I don’t [k]now
what to say after david [Pierson] made me out to be a piece of crap
for having strep...I have doctors note for the time I’ve missed. What
going on here[.] y do I feel like its my fault I got this shit and because
im sick people tell me that I lost my job. Y, havent I showed the
company I care? I also expressed that me and david do not work well
together!!! What do u want from me?
(Doc. No. 26-2, p. 61).
2
Defendant is closed on Sundays.
4
Curiously, Defendant’s files indicate that Plaintiff was terminated for job abandonment
on October 12th, not October 15th. (Doc. No. 34-2, p. 115). Job abandonment is described in
Defendant’s Employee Handbook as follows:
An employee who fails to report to work and fails to notify his/her
supervisor of the reason for absence from work for three consecutive
workdays will be considered to have abandoned his/her job. The
employee is deemed to have quit and will be terminated immediately.
(Doc. No. 27-7, p. 28). However, the evidence reveals that Plaintiff kept Pierson informed that
he was absent from work due to strep throat, and Plaintiff gave Pierson the nurse’s notes saying
that he was out sick and would return to work on October 15th.
Prior to telling Plaintiff that he was fired, McGee spoke with Pierson. (Doc. No. 34-2,
depo p. 179). McGee told Pierson that McGee was going to terminate Plaintiff, and Pierson
stated that he completely agreed with McGee. (Doc. No. 34-2, depo p. 179).
McGee stated in his deposition that Pierson had input in the decision to fire Plaintiff.
(Doc. No. 34-1, depo p. 92-93). McGee further stated in his deposition that Pierson’s input
consisted of Pierson’s prior coaching sessions with Plaintiff. (Doc. No. 34-1). McGee contends
that these coaching sessions were Pierson’s prior write-ups of Plaintiff. (Doc. No. 34-1, depo p.
65-66; Doc. No. 27-13). However, there is evidence before the Court that Defendant had no
record of these write-ups in August of 2013—almost a year after Plaintiff was fired. (Doc. No.
34-2, p. 118). Instead, these write-ups were found and turned over to Plaintiff’s counsel on April
18, 2016.
The document containing these alleged write-ups consisted of vague descriptions of
Plaintiff leaving work early or coming in late due to being sick, taking his mother to the
emergency room, taking his child to the doctor, picking his child up from school, taking care of a
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plumbing issue at his mother’s house, and seeing his brother who was in town from the Navy.
(Doc. No. 27-13). The document does not indicate how early Plaintiff left work or how late he
came in to work. (Doc. No. 27-13). Furthermore, Defendant’s corporate representative gave
testimony that conflicted with McGee’s testimony, as the corporate representative testified that
the document containing these alleged write-ups was not related to Plaintiff’s termination. (Doc.
No. 36-1, depo p. 118-19, 124). The corporate representative described these alleged write-ups
as informal conversation pieces, not written warnings. (Doc. No. 36-1, depo p. 123). However,
Pierson testified during his deposition that he did not recall ever sitting down with Plaintiff and
going over the issues set forth in the document. (Doc. No. 30-1, depo p. 63).
Plaintiff’s position was filled by John Burns. (Doc. No. 40, ¶ 31). Burns is a white male
who is not married to an African-American woman. (Doc. No. 40, ¶ 31).
After his termination, Plaintiff filed this lawsuit, in which he asserts three claims. First,
he asserts a race discrimination claim under § 1981. Second, he asserts a hostile work
environment claim under § 1981. Third, he asserts a retaliation claim under § 1981.
III. Motion for Summary Judgment
Defendant filed the instant motion for summary judgment, arguing that it is entitled to
summary judgment on all three claims. The Court has considered Defendant’s motion and all of
the arguments therein. Defendant essentially disputes almost all of the relevant facts in this case.
As such, genuine issues of material fact exist that preclude summary judgment. The Court will
briefly explain, without going through all of Defendant’s arguments, why Defendant’s motion
for summary judgment is denied.
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A. Framework for Analyzing Plaintiff’s Claims
Plaintiff asserts his claims under § 1981, which has the same requirements of proof and
uses the same analytical framework as claims under Title VII. See Standard v. A.B.E.L.
Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Specifically, the McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework applies to this circumstantial
case. See id. at 1331.
B. Race Discrimination
Plaintiff claims that he was discriminated against, and that the discrimination culminated
in his termination, due to his marriage to an African-American woman. Plaintiff has pointed to
evidence that: (1) he was married to an African-American woman;3 (2) he was qualified to do his
job;4 (3) he was terminated; and (4) he was replaced by John Burns, a white man who is not
married to an African-American woman. This is sufficient to establish a prima facie claim of
discrimination. See Flowers v. Troup County, GA, School District, 803 F.3d 1327, 1336 (11th
Cir. 2015).
Furthermore, Plaintiff has provided evidence that Defendant’s purported reason for
terminating him—job abandonment and/or failing to show up at work on Monday, October
15th—is not worthy of credence and may be a pretext for discrimination. To begin with, job
abandonment is described in Defendant’s Employee Handbook as failing to report to work while
failing to notify his supervisor (Pierson) of the reason for his absence from work for three
3
Courts have recognized that § 1981 prohibits discrimination based on an interracial
marriage. See Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 890 (11th Cir. 1986).
4
Doc. No. 34-1, depo p. 76-77.
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consecutive workdays. However, the evidence reveals that Plaintiff kept Pierson informed that
he was absent from work due to strep throat, and Plaintiff gave Pierson the nurse’s notes saying
that he was out sick and would return to work on October 15th. Furthermore, McGee knew that
Plaintiff had strep throat and that Plaintiff had the nurse’s notes stating that he was unable to
return to work until October 15th. Thus, it does not appear that Defendant had an honest, good
faith belief that Plaintiff abandoned his job, as defined in Defendant’s Employee Handbook.
To the extent that Defendant contends that Plaintiff was fired for simply failing to show
up to work on Monday, October 15th, there is evidence in the record that Plaintiff attempted to
go in to work, but Pierson told Plaintiff not to come in until Plaintiff had spoken to McGee.
There is also evidence that Plaintiff tried to contact McGee several times on the morning of
October 15th, and when McGee finally called Plaintiff back, McGee told Plaintiff that he was
fired.
The Court also notes that there is conflicting evidence in the record regarding the date of
Plaintiff’s termination—October 12th or 15th. Likewise, McGee’s testimony during Plaintiff’s
unemployment compensation appeal hearing about the events surrounding Plaintiff’s termination
conflicts with McGee’s deposition testimony in this case. (Doc. No. 27-5, depo p. 12-22; Doc.
No. 34-2). Furthermore, there is conflicting evidence regarding whether there were prior writeups for Plaintiff and whether those write-ups were part of the termination decision. Given all of
this evidence, the Court finds that genuine issues of material fact exist that preclude summary
judgment on Plaintiff’s discrimination claim.
C. Hostile Work Environment
Plaintiff also claims that he was subjected to a hostile work environment. The Court has
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not set forth in detail all of the alleged racist remarks, but the Court has reviewed the record and
concludes that there is evidence that supports Plaintiff’s hostile work environment claim.
Defendant argues that even if Plaintiff can establish a prima facie claim for hostile work
environment (which it disputes), it would still be entitled to summary judgment based on the
Ellerth/Faragher affirmative defense. The Court rejects this argument for two reasons.
First, the Ellerth/Faragher affirmative defense is available only if the alleged hostile work
environment did not culminate in an adverse employment action. See Walton v. Johnson &
Johnson Services, Inc., 347 F.3d 1272, 1280–81 (11th Cir. 2003)(citations omitted). However,
Plaintiff alleges that the hostile work environment culminated in his termination, and as such, the
affirmative defense would not be available.5
Second, the affirmative defense would require Defendant to prove two elements: (1) that
Defendant exercised reasonable care to prevent and correct promptly the harassing behavior, and
(2) that Plaintiff unreasonably failed to take advantage of any preventive or corrective
opportunities provided by Defendant or to avoid harm otherwise. See id. at 1286 (citation
omitted). Here, Plaintiff complained to McGee about the harassment in September of 2012, and
genuine issues of material fact exist regarding whether Defendant acted promptly to investigate
his complaint and correct the situation.
Accordingly, genuine issues of material fact exist regarding the availability of the
affirmative defense, as well as Defendant’s ability to satisfy the affirmative defense. Therefore,
the Court denies Defendant’s motion for summary judgment on Plaintiff’s hostile work
5
The evidence is conflicting regarding how much input Pierson had in the decision to
terminate Plaintiff.
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environment claim.
D. Retaliation
Finally, Plaintiff asserts a retaliation claim based on his complaint to McGee during the
middle to end of September of 2012 and Plaintiff’s subsequent termination a few weeks later.
Again, to the extent that Defendant argues that Plaintiff’s failure to show up for work on October
15th was a legitimate reason for firing Plaintiff, the Court has already explained that there is
evidence that this alleged legitimate reason may be pretextual. Accordingly, the Court concludes
that genuine issues of material fact exist that preclude summary judgment on Plaintiff’s
retaliation claim.
IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1)
Defendant’s Motion for Leave to File a Reply (Doc. No. 51) is DENIED.
(2)
Defendant’s Motion for Summary Judgment (Doc. No. 27) is DENIED.
(3)
The pretrial conference is set for October 4, 2016. The parties’ joint pretrial
statement must be filed by September 29, 2016.
(4)
The parties must file all pretrial motions, including motions in limine, by
September 12, 2016. Each party may file one motion in limine containing all of
their arguments in a single document not to exceed 25 pages. Responses thereto
must be filed by September 26, 2016.
DONE AND ORDERED at Tampa, Florida, this 15th day of August, 2015.
Copies to: Counsel of Record
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