Vargas v. Michaels Stores, Inc.

Filing 52

ORDER: Defendant Michaels Stores, Inc.'s Motion for Summary Judgment (Doc. # 34 ) is GRANTED IN PART AND DENIED IN PART. The Motion is GRANTED as to Counts I through V to the extent they assert claims for hostile work environment or single- motive discrimination. The Motion is DENIED as to Counts I through V to the extent they are brought under the mixed-motive theory of liability. Vargas may proceed on these mixed-motive discrimination claims only. Signed by Judge Virginia M. Hernandez Covington on 7/10/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JESUS VARGAS,
Plaintiff,
v.

Case No.: 8:16-cv-1949-T-33JSS

MICHAELS STORES, INC.,
Defendant.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant

Michaels

Stores,

Inc.’s

Motion

for

Summary

Judgment, filed on May 15, 2017. (Doc. # 34). Plaintiff Jesus
Vargas filed a response in opposition on June 14, 2017. (Doc.
# 47). Michaels replied on June 28, 2017. (Doc. # 48). For
the reasons that follow, the Motion is granted in part and
denied in part.
I.

Background
A.

Vargas’s Employment and Move to Florida

Vargas,

who

is

from

Puerto

Rico

and

identifies

as

Hispanic, began working for Michaels, a national chain of
arts and crafts stores, in Puerto Rico over twenty years ago.
(Vargas Dep. Doc. # 35 at 42:19-25, 43:20-44:3). Michaels
subsequently closed its stores in Puerto Rico and, at some

1

point, Vargas moved to the United States. (Id. at 43:8-44:3).
Vargas began working for Michaels again in New York in 2010
as a store manager. (Id. at 47:15-49:3). After the New York
store in which Vargas worked closed, he was transferred at
his request to a store in Florida in 2011. (Id. at 52:653:17). Vargas hoped to return to Puerto Rico when Michaels
eventually reopened stores there. (Id.). The reopening of
stores

in

Puerto

Rico

was

being

planned

by

Michaels’s

management in the Tampa, Florida area. (Id. at 52:15-53:4).
In September of 2013, Vargas was transferred to a store
in Tampa, referred to as the South Dale Mabry store, to serve
as store manager. (Id. at 67:17-24). Vargas was the only
Hispanic store manager in the district. (Doc. # 47-3). As
store manager, Vargas’s duties included “manag[ing] the daily
operations of the store and ensur[ing] the execution of
company policies, procedures and programs to achieve store
sales and profit goals” and “manag[ing] and supervis[ing] the
Customer Experience.” (Doc. # 35-2 at 1). Although there were
other manager positions for specific departments, it was
ultimately the store manager’s responsibility to ensure the
store ran properly and met all of its goals. (Zenn Dep. Doc.
# 36 at 40:2-20). Vargas’s supervisor at the time of his
transfer to the South Dale Mabry store was district manager
2

Dave Ticich, who oversaw all the stores in the district.
(Vargas Dep. Doc. # 35 at 67:17-20; Ticich Dep. Doc. # 38 at
10:22-24, 19:3-5). Ticich never disciplined Vargas. (Ticich
Dep.

Doc.

#

38

at

21:22-22:6).

Ticich

was

eventually

terminated based on allegations of inappropriate behavior
toward female employees. (Id. at 11:19-12:18).
In March of 2014, Vargas’s new district manager, Jamie
Zenn, who had recently replaced Ticich, gave Vargas a “meets
expectations

—

high”

grade

on

his

annual

performance

evaluation and awarded Vargas a bonus of over $18,000, the
largest Vargas ever received. (Vargas Dep. Doc. # 35 at 147:5148:2; Doc. # 35-9 at 3). Zenn entered the evaluation into
the computer system using the store’s performance numbers
provided by Ticich for the previous year, after a conversation
with the Zone Human Resources Director Shawn Gingrich and the
Zone Vice President. (Zenn Dep. Doc. # 36 at 25:21-26:14,
31:5-32:2).

Although

Zenn

issued

the

evaluation,

Vargas

believes Ticich wrote the document before his termination and
Zenn merely delivered it to Vargas. (Vargas Dep. Doc. # 35 at
148:3-18).
B.

Failed Audit and Performance Discussion Records

The South Dale Mabry store did have some problems. On
July 11, 2014, Zenn went on a store tour with Vargas —
3

essentially an unofficial store audit — and gave the store a
“C,” a failing grade. (Zenn Dep. Doc. # 36 at 86:4-87:24;
Doc. # 36-5). The frequency of such store tours depended on
how well a store was running. (Zenn Dep. Doc. # 36 at 87:1724).
A formal audit occurred on July 17, 2014, and the store
failed. (Id. at 67:20-68:17; Doc. # 36-4). The auditor, Erick
Totten, gave Vargas and his assistant manager Don Colbeth an
action plan listing areas that needed improvement and had
Vargas and Colbeth describe the steps they would take to
prepare for the next formal audit. (Vargas Dep. Doc. # 35 at
121:15-16, 126:15-127:25; Doc. # 35-4).
Because of the failed audit, Zenn issued a performance
discussion record, giving Vargas a written warning. (Zenn
Dep. Doc. # 36 at 61:3-5; Doc. # 36-4). Zenn typically gave
store managers written warnings if their stores failed an
audit, and human resources was required to approve before a
written warning could be given. (Zenn Dep. Doc. # 36 at 61:618, 63:3-8). The written warning stated that, thirty days
after the failed audit, the “store must pass all District
Manager lead audits.” (Doc. # 36-4). It also specified that
the store would “be audited at least once a month until the

4

official re-audit occurs,” and that the store must pass those
informal audits. (Id.).
Although Zenn stated assistant managers would typically
receive a written warning after a failed audit, Colbeth was
only given a verbal warning. (Zenn Dep. Doc. # 36 at 83:2284:6; Colbeth Dep. Doc. # 44 at 13:22-14:11).
C.
In

Conflict with Employees
addition

to

the

failed

audit,

some

employees

complained to human resources or the district manager about
Vargas’s management style. Around October of 2013, before
Zenn became district manager, then-sales associate Cailyn
Arrington

complained

to

district

manager

Ticich

about

Vargas’s “demeanor and attitude towards his associates.”
(Arrington Dep. Doc. # 37 at 21:8-22:8, 23:19-25:6). Ticich
spoke to Arrington and then Vargas, though Vargas alleges the
conversation was only about his complaint that Arrington
frequently missed work because of illness. (Vargas Dep. Doc.
# 35 at 70:9-73:13; Arrington Dep. Doc. # 37 at 22:9-20,
40:15-41:8). Although Arrington stated Vargas tried harder to
treat associates respectfully after she complained, Arrington
also felt Vargas treated her poorly after Ticich spoke with
him about her complaint. (Arrington Dep. Doc. # 37 at 23:518, 39:21-40:17). He scheduled her fewer hours to work and
5

“would

reprimand

[her]

in

front

of

other

cashiers

and

customers and other associates in the store.” (Id. at 39:2142:12; Doc. # 37-2 at 1-2).
On September 8, 2014, Vargas had a confrontation with
the replenishment manager, Courtney Williamson, during which
they raised their voices and Williamson called Vargas a
“prick.” (Vargas Dep. Doc. # 35 at 142:25-143:12; Williamson
Dep. Doc. # 40 at 22:13-23:6; Colbeth Dep. Doc. # 44 at 26:230:14). Williamson told Vargas she did not like the way he
spoke to her because “[h]e would speak to [her] like [she]
was a child.” (Williamson Dep. Doc. # 40 at 26:12-19). Vargas
called

the

HR

hotline

and

complained

about

Williamson’s

conduct. (Vargas Dep. Doc. # 35 at 142:25-143:12). Colbeth,
who overheard the conversation, wrote a statement describing
the incident. (Doc. # 44-3).
According to Vargas, Zenn came to the store to speak
with him, Williamson, and Colbeth about the incident, but
Vargas did not feel that Williamson was truly apologetic.
(Vargas Dep. Doc. # 35 at 145:20-146:9). Instead, Vargas felt
Williamson

was

out

to

get

him.

(Id.

at

146:10-12).

Nevertheless, Vargas told Williamson he would work on his
communication style and the parties ended the conversation by
shaking hands and agreeing to move forward. (Id. at 26:236

27:1; 28:12-18; Doc. # 44-3). Williamson was not disciplined
for the incident. (Williamson Dep. Doc. # 40 at 26:4-6).
D.

Dentures Incident

Another incident involved a sales associate named Tina
Morrow. Morrow, who wears dentures, realized after arriving
to work in the morning on August 29, 2014, that she had left
her dentures at home. (Morrow Dep. Doc. # 39 at 25:25-26:12).
She asked a supervisor, replenishment manager Williamson, if
she could go home to quickly retrieve them. (Id.). Vargas
learned why Morrow had left and, later that day, was overhead
by Morrow and others speaking to assistant manager Colbeth,
as though he had no teeth. (Id. at 31:20-32:10; Doc. # 39-1;
Doc. # 39-2). Morrow and the employees who witnessed the
incident interpreted this as mocking Morrow. (Morrow Dep.
Doc. # 39 at 30:7-9; Faircloth Dep. Doc. # 41 at 30:12-32:8;
Williamson Dep. Doc. # 40 at 19:11-20:6; Doc. # 40-1). Morrow
also stated Vargas grabbed his crotch and wondered aloud “how
it would feel to get a [blowjob] from someone [with] out no
teeth.” (Doc. # 39-1 at 1; Doc. # 39-2 at 1). Vargas denies
this incident occurred, and Colbeth stated he does not recall
Vargas making any jokes about Morrow’s teeth. (Vargas Dep.
Doc. # 35 at 140:18-141:2; Colbeth Dep. Doc. # 44 at 24:122).
7

Nevertheless, Morrow reported the incident through calls
to human resources and Zenn within a few days, and later gave
Zenn a written statement. (Morrow Dep. Doc. # 39 at 23:1624:23; Doc. # 39-1; Doc. # 39-2). Williamson, who witnessed
the incident, also provided a written statement to Zenn.
(Williamson Dep. Doc. # 40 at 18:19-19:3; Doc. # 40-1).
Arrington submitted an anonymous letter complaining about
this incident, which she had not witnessed firsthand, as well
as Vargas’s general treatment of his subordinates. (Arrington
Dep. Doc. # 37 at 38:10-39:8, 47:7-48:9; Doc. # 37-2 at 12). Arrington wrote that she submitted the letter anonymously
because “the last time [she] came forward, [her] concerns
were brought to Jesus and he held a grudge against [her] for
months.” (Doc. # 37-2 at 1).
Zenn spoke with Vargas at the store about the dentures
incident. (Vargas Dep. Doc. # 35 at 139:23-141:6). Although
Vargas

denied

making

fun

of

Morrow,

Zenn

concluded

the

incident “probably happened” but did not warrant discipline
because “there was not enough evidence to totally prove that
these issues did or did not occur.” (Zenn. Dep. Doc. # 36 at
101:15-23;

Doc.

#

36-6).

Instead,

Zenn

issued

Vargas

a

coaching, dated September 15, 2014, on “how to talk to his
associates

and

the

right

and
8

wrong

ways

to

treat

his

associates.” (Doc. # 36-6). A coaching is not a disciplinary
action. (Zenn Dep. Doc. # 36 at 103:9-24). According to
Vargas, Zenn never gave him the coaching document. (Vargas
Dep. Doc. # 35 at 139:24-140:17).
E.

Transfer of New Replenishment Manager

In September or October of 2014, Brynn Roberts, who is
white, was transferred to the South Dale Mabry store to work
as replenishment manager. (Zenn Dep. Doc. # 36 at 139:1-11;
Roberts Dep. Doc. # 42 at 16:7-23, 32:5-13). Roberts had
worked as a store manager for Michaels in Maryland, but asked
to be transferred to Florida to be closer to her ailing
mother. (Roberts Dep. Doc. # 42 at 79:11-80:11). She was
transferred to the South Dale Mabry store without having met
with Vargas, or otherwise having Vargas approve the transfer.
(Doc. # 10 at ¶ 25; Zenn Dep. Doc. # 36 at 146:25-147:16).
According to Zenn, the store manager would not have a say in
whether an employee would be transferred to his store if that
employee requested the transfer, was in good standing, and
there was an opening at the store. (Zenn Dep. Doc. # 36 at
148:6-149:8; Roberts Dep. Doc. # 42 at 30:7-19)
The

relationship

between

Vargas

and

Roberts

was

contentious. Roberts took it upon herself to make suggestions
to

Vargas

about

improving

the
9

store’s

performance

and

employees’ compliance with Michaels’s policies. (Roberts Dep.
Doc. # 42 at 57:4-60:14; Doc. # 42-3). Roberts complained in
an October 3, 2014, email to Zenn about a particular incident
between herself and Vargas. (Doc. # 42-3). According to
Roberts, during one such conversation, Vargas told Roberts
“to stop being a police dog and focus on the real issues.”
(Id.). When Roberts “questioned [Vargas] on how [they] can
collectively hold a team accountable that way, [Vargas] got
pissed off and walked out of the office.” (Id.). She stated
that, if things did not change, she would seek reassignment
to another store. (Id.; Roberts Dep. Doc. # 42 at 62:2364:4).
Vargas was similarly chafed by Roberts’s presence. He
believed Roberts was “question[ing] [his] authority on the
decisions [he] made in the store” and “trying to set [him]
up.” (Vargas Dep. Doc. # 35 at 79:18-22, 80:13-18). Vargas
felt

Roberts

failed

to

follow

store

policies,

such

as

processing the unloading of trucks and filling out a board
regarding who was on staff and the amount of merchandise
received. (Id. at 79:2-10). As a result of her failure, Vargas
felt Roberts was risking the store’s passing the next store
audit. (Id. at 81:3-21).

10

Yet, Vargas never disciplined Roberts, even though store
managers can discipline the managers and associates working
under them. (Vargas Dep. Doc. # 35 at 118:24-119:16). Instead,
Vargas urged Zenn to speak to Roberts about his concerns and
decide the proper disciplinary action. (Vargas Dep. Doc. # 35
at 77:14-78:23). Zenn never did. (Id. at 78:11-25).
F.

Loss Prevention Investigation and Complaints

Subsequently,

complaints

were

made

about

Vargas

to

Michaels’s loss prevention department. Morrow reported to
loss prevention that she had seen Vargas remove a Christmas
tree some months before, approximately in October or November
of 2014. (Morrow Dep. Doc. # 39 at 50:10-22). Vargas had told
her the tree was being transferred to another store, but
Morrow later found out no such transfer had occurred. (Id. at
52:5-53:9). Morrow also reported to loss prevention that she
saw Vargas’s wife in the store before opening in February or
March of 2014, but she had not realized then that it was
against Michaels’s policy. (Id. at 47:12-48:18, 51:13-52:1).
On December 5, 2014, Morrow provided written statements to
Zenn

recounting

the

incidents

she

reported

to

loss

prevention. (Doc. # 39-3).
In the statements provided to Zenn, Morrow also noted a
time in December of 2014, when Vargas yelled at cashiers for
11

working too slowly, even though customers could hear him, and
a time when Vargas gave an additional fifty percent discount
on clearance items to “a Spanish customer.” (Id.). Morrow had
heard Vargas speaking Spanish with the customer and, when
Zenn asked her to write her statement and what the customer
looked like, she noted the customer was Spanish. (Morrow Dep.
Doc. # 39 at 57:5-20). Morrow disliked Vargas, and had told
her

Arrington

co-worker

that

“[she]

want[ed]

him

gone.”

(Arrington Dep. Doc. # 37 at 74:18-23).
Roberts

also

provided

a

written

statement

to

Zenn

concerning loss prevention, saying she
witnessed the store manager, Jesus of [store] 3708,
leave the store before opening for anywhere between
10 and 30 minutes. In those times, I have seen him
leave with things in his hand but not sure of
product and quantity. I also overheard him telling
another associate that he was bringing a Christmas
tree to the Bruce B. Downs store. He did leave the
store with that tree.
(Doc. # 42-2; Roberts Dep. Doc. # 42 at 53:1-54:12). And, in
a

December

20,

2014,

statement

that

customer

experience

manager Melinda Faircloth faxed to Zenn, she reported a
discrepancy in the amount of money in the cash drawer. (Doc.
# 41-2).
Gary

Graves,

an

investigator

with

Michaels’s

loss

prevention department, interviewed Vargas on December 22,

12

2014. (Vargas Dep. Doc. # 35 at 131:21-132:4; Doc. # 35-7).
Vargas

denied

the

accusations

of

taking

merchandise

but

admitted to letting his son come into the store before opening
hours at least once. (Vargas Dep. Doc. # 35 at 129:8-131:4,
138:2-12; Doc. # 35-7 at 1-2). Because it is against company
policy to allow non-staff members into the store before
opening, Vargas was given a final warning on December 23,
2014. (Doc. # 35-8).
G.

Performance Improvement Plan

Also on December 23, 2014 — the same day Vargas received
the final warning — Zenn placed Vargas on a performance
improvement plan (PIP), which Zenn had drafted based in part
on his observations during store tours. (Zenn Dep. Doc. # 36
at 226:11-14, 235:4-9, 242:21-243:12; Doc. # 36-19). The PIP
listed four separate store objectives, with various store
operating procedures (SOP) enumerated under each objective,
and set a deadline of January 23, 2017, by which the store
should meet the listed objectives. (Doc. # 36-19; Zenn Dep.
Doc. # 36 at 236:23-237:14, 240:21-241:20). For example,
Objective 4, labeled “HR Guidelines and Customer Service,”
lists four SOPs:
1.
Store Manager must ensure proper uses of
headsets are being followed by all associates
including management. Communication must be proper
13

and within Michaels guidelines. All associates are
treated with respect and dignity.
2.
Performance discussions must be done in the
office and off the sales floor. Praise and coaching
on the sales floor and all other items to be
addressed within the office.
3.
Craft Your Opinion scores must be at or above
the company average within 30 days. Please ensure
that all associates are performing at company
standards with greeting, assisting customers, clean
store and restrooms, fast and friendly checkout.
This is not all encompassing . . . . This pertains
to all scores on the CYO results.
4.
No unauthorized associates or Non-Michaels
personnel are to be in building before store
opening time.
(Doc. # 36-19 at 7). According to Vargas, the store was
exceeding expectations for sales and the SOPs listed on his
PIP were generic and inapplicable to his performance. (Vargas
Dep. Doc. # 35 at 84:8-12, 151:4-152:2, 159:11-23, 164:8-25;
Doc. # 36-19).
Performance improvement plans typically lasted a total
of sixty to ninety days, but were broken into thirty day
intervals to serve as checkpoints to review the progress being
made. (Zenn Dep. Doc. # 36 at 44:20-45:17, 238:22-239:18;
Gingrich Dep. Doc. # 43 at 67:18-68:20). All PIPs are drafted
by the district manager and then approved by HR before they
are issued. (Zenn Dep. Doc. # 36 at 41:13-42:5, 236:15-19;
Gingrich Dep. Doc. # 43 at 17:21-18:4). Managers who are on

14

a PIP at the end of the fiscal year are not qualified to
receive a bonus for that year. (Zenn Dep. Doc. # 36 at 47:2548:20). Vargas was put on PIP about one month before the
fiscal year ended and eligibility for bonuses was decided.
(Vargas Dep. Doc. # 35 at 98:4-16).
Vargas refused to sign the PIP because he disagreed the
store needed improvement in the objectives listed in the PIP.
(Id. at 98:4-9, 152:7-12, 154:3-15). Believing his store’s
performance did not warrant a PIP and that Zenn failed to
provide the store with sufficient support, Vargas asked Zenn
if he was being put on PIP because he was Hispanic and because
Zenn wanted to replace him with Roberts. (Vargas Dep. Doc. #
35 at 83:2-21). Zenn denied that the PIP was related to
Vargas’s race or national origin, but that Vargas should go
to HR if he wished. (Id. at 83:11-13). But Vargas did not
complain to HR that the PIP was discriminatory, and Vargas
admits that Zenn never made any discriminatory statements
about Vargas’s race or national origin. (Id. at 87:5-88:1518).
According to Vargas, Zenn then informed him that store
managers rarely recover from being placed on PIP and “it’s
going to look better if you start looking for another job.”
(Id. at 164:9-23, 165:15-22). Zenn and Gingrich deny there
15

was an unwritten rule that a store manager who received a PIP
would be terminated. (Zenn Dep. Doc. # 36 at

47:14-20;

Gingrich Dep. Doc. # 43 at 24:21-25:6).
Around this time, Vargas called Ticich, who no longer
worked at Michaels, to discuss his placement on the PIP.
Vargas testified that Ticich stated it was possible to recover
from being placed on a PIP, that it was wrong for Zenn to
tell him to start looking for another job, and that he did
not think Michaels would fire Vargas because he is Hispanic.
(Vargas Dep. Doc. # 35 at 173:4-174:5). Ticich denies telling
Vargas during the call that his being placed on PIP was
related to his race or national origin. (Ticich Dep. Doc. #
38 at 41:5-13).
H.

Retaliation Allegations and Termination

On December 20, 2014, Faircloth, who was a customer
experience manager at the time, submitted a statement to Zenn
in which she stated Vargas “asked [her] if [she] knew who
called the HR confidential hotline” and “asked [her] to inform
him whenever someone makes a complaint or informs [her] that
they are going to call the hotline or [Zenn] so he can correct
any issues before.” (Doc. # 41-1 at 2; Faircloth Dep. Doc. #
41 at 50:8-23). Vargas concluded the conversation by saying
“that he must ‘take drastic measures to save his job.’” (Doc.
16

# 41-1 at 2; Faircloth Dep. Doc. # 41 at 36:12-37:2, 38:815).
Faircloth’s letter also reported Vargas had told her
“that the responsibility and accountability for the front end
and all the cashiers and back up cashiers was on [her and
Arrington’s] shoulders” and that they would “take the blame
for anything that goes wrong since he has to step back from
reprimanding associates.” (Doc. # 41-1 at 2). Faircloth felt
this was inappropriate because Vargas, as store manager,
“cannot just alleviate [sic] all of that responsibility onto
[her] shoulders.” (Faircloth Dep. Doc. # 41 at 52:6-14).
Arrington similarly complained in a written statement to Zenn
that,

among

other

things,

Vargas

had

informed

her

and

Faircloth they were “going to be held accountable for the
front end, and that he was going to be stepping back from
customer service.” (Doc. # 37-2 at 3-4). This concerned
Arrington

because

Vargas’s

job

“as

Store

Manager

is

to

maintain customer service throughout the store” and Vargas
was “supposed to be the final step in trying to fix any issues
[they] have with behaviors and attitudes of cashiers and sales
associates.” (Id.).
Vargas denies he requested the names of employees who
complained about him in order to retaliate. Instead, Vargas
17

asserts he spoke with Arrington and Faircloth to proactively
address any problems with his leadership that had led to the
complaints. (Vargas Dep. Doc. # 35 at 171:8-172:8).
Zenn received Faircloth’s complaint three days before
Zenn issued Vargas the PIP and then sent the statement to
Zone Human Resources Director Gingrich. (Zenn Dep. Doc. # 36
at 221:12-222:20, 231:16-21). Zenn did not speak to Vargas
about the retaliation complaint when he issued Vargas the PIP
and final warning because Faircloth’s complaint was unrelated
to the loss prevention investigation and HR had not yet
determined how to proceed on Faircloth’s complaint. (Id. at
221:17-25,
receiving

222:8-16,
the

223:1-18).

complaint

and

Gingrich

neither

did

Zenn

not

nor

recall

Gingrich

recalled investigating the allegations. (Id. at 229:8-230:5;
Gingrich Dep. Doc. # 43 at 64:7-8, 65:14-16).
On January 21, 2015, two days before the thirty day
period of the PIP ended, Zenn terminated Vargas. (Vargas Dep.
Doc. # 35 at 98:17-99:4, 167:23-168:6; Zenn Dep. Doc. # 36 at
231:5-8; Doc. # 36-14). Zenn told Vargas the decision had
been

made

by

HR

because

Vargas

created

a

hostile

work

environment. (Vargas Dep. Doc. # 35 at 99:8-20). In his
deposition,

Zenn

asserted

that

retaliating

against

an

associate who complained creates a hostile work environment
18

and an employee who retaliates “can and would be terminated
for retaliation.” (Zenn Dep. Doc. # 36 at 207:9-15). Indeed,
according to Zenn, Vargas was terminated only because “he
went around asking associates who called the hotline, who
told on him, and stuff like that, and there’s some statements
for

that.”

(Id.

at

209:1-5).

Michaels’s

Handbook

for

employees states, under the heading Retaliation,
Michaels will not permit retaliation against
anyone, who, in good faith, files a complaint,
assists
another
associate
to
complain
or
participates in an investigation. If you feel as if
you have been subjected to retaliations or adverse
action resulting from an investigation, you should
immediately report the problem to your Supervisor,
Supervisor’s
Manager
and/or
Human
Resources
Representative. Retaliation can lead to corrective
action, up to and including termination of
employment.
(Doc. # 35-1 at 16)(emphasis added). The decision to terminate
Vargas was made by Gingrich as Zone Human Resources Director.
(Zenn Dep. Doc. # 36 at 230:12-14, 232:14-16; Gingrich Dep.
Doc. # 43 at 13:12-24).
After his termination, Vargas learned that two Hispanic
Michaels store managers in New York that Vargas knew, Marco
Salazar and Daniel Narvaez, had also been terminated at some
point. (Vargas Dep. Doc. # 35 at 175:20-176:11; 178:8-16;
182:14-183:19). During phone calls with them, they expressed
their belief that their terminations were related to their

19

race and occurred to deny them bonuses. (Id.). Still, Vargas
never complained to Michaels’s HR that he was harassed because
of his race or national origin during his employment or that
the decision to terminate him was discriminatory. (Id. at
100:25-101:19).
Soon after Vargas’s termination, Roberts became store
manager of the South Dale Mabry store. (Roberts Dep. Doc. #
42 at 36:13-24). Roberts alleges Zenn told her about Vargas’s
impending termination a week beforehand and informed her that
she would be taking over the store manager position. (Id. at
37:2-38:6). Zenn does not recall this and doubted he said it
because “if there’s a store manager who is still employed,
you would not be saying that.” (Zenn Dep. Doc. # 36 at 158:215, 159:2-28). Hourly managers were typically interviewed by
the district manager, HR, and the Zone Vice President before
being promoted to store manager. (Id. at 155:19-156:4).
Regardless,

Roberts

worked as store manager

shortly

after Vargas’s termination. Sometime in January of 2015, the
store underwent another formal audit, which it passed. (Zenn
Dep. Doc. # 36 at 56:7-16). A few months later, in May of
2015,

Roberts

was

terminated

for

allegedly

falsifying

documents. (Zenn Dep. Doc. # 36 at 275:11-276:3; Roberts Dep.
Doc. # 42 at 17:19-20, 18:21-22).
20

I.

Procedural History

Vargas initiated this action on July 5, 2016. (Doc. #
1).

In

his

Amended

Complaint,

Vargas

alleges

Michaels

discriminated against him based on his race and national
origin, and created a hostile work environment in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §§ 2000e et seq.; 42 U.S.C. § 1981; and the Florida
Civil Rights Act, Fla. Stat. §§ 760.01 et seq. (Doc. # 10).
Michaels filed its answer on August 15, 2016. (Doc. # 11). At
the Court’s direction, the parties mediated on April 12, 2017,
but met an impasse. (Doc. ## 22, 31).
Michaels then filed its Motion for Summary Judgment on
May 15, 2017. (Doc. # 34). Vargas responded on June 14, 2017,
and Michaels replied on June 28, 2017. (Doc. ## 47, 48). The
Motion is ripe for review.
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

21

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 non-moving
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
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 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)(quoting Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
22

be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, 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

allegations,”

than

summary

a

repetition

judgment

is

of

not

his
only

conclusional
proper,

but

required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir.
1981).
III. Analysis
The analysis is the same for the claims under Title VII,
§ 1981, and the FCRA. See Wen Liu v. Univ. of Miami Sch. of
Med., No. 15-14351, — F. App’x —, 2017 WL 2210867, at *2 (11th
Cir. May 19, 2017)(“Claims of race discrimination arising
under § 1981 have the same requirements of proof and use the
same analytical framework as Title VII claims. Since the FCRA
is patterned after Title VII, the same is true for FCRA
claims.”

(internal

citations
23

omitted)).

Vargas

alleges

Michaels created a hostile work environment and discriminated
against him based on his race and national origin. The Court
will address each claim in turn.
A.

Hostile Work Environment Claims

“To establish a claim of a hostile work environment, an
employee must prove that ‘the workplace 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.’” Adams v. Austal, U.S.A., L.L.C., 754 F.3d
1240, 1248 (11th Cir. 2014)(quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)). Establishing a prima facie
case of hostile work environment requires a plaintiff to show:
(1) that he belongs to a protected group; (2) that
he has been subject to unwelcome harassment; (3)
that the harassment must have been based on a
protected characteristic of the employee, such as
national origin; (4) that the harassment was
sufficiently severe or pervasive to alter the terms
and conditions of employment and create a
discriminatorily abusive working environment; and
(5) that the employer is responsible for such
environment under either a theory of vicarious or
of direct liability.
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002). Even if the plaintiff is able to prove one factor
in the prima facie case, this “does not compensate for the

24

absence of the other factors.” Mendoza v. Borden, Inc., 195
F.3d 1238, 1248 (11th Cir. 1999).
Michaels does not dispute Vargas is a member of a
protected group based on his race and national origin. But it
does dispute that Vargas was harassed, the harassment was
based

on

Vargas’s

protected

characteristics,

and

any

harassment was objectively severe or pervasive. (Doc. # 34 at
12-17).
In his response, Vargas claims he can satisfy the second
prong

—

harassment

—

based

on

(1)

the

allegedly

false

complaints by his subordinate Morrow, and the failure of Zenn
to reprimand Morrow for complaining; (2) Vargas’s placement
on a PIP for purportedly false reasons; (3) his subordinate
Williamson’s

calling

Vargas

a

“prick,”

but

not

being

disciplined by Zenn; and (4) Zenn’s transferring Vargas’s
subordinate Roberts to the store without consulting Vargas,
and refusing to discipline Roberts at Vargas’s request. (Doc.
# 47 at 17).
Even

assuming that

conduct

qualifies as harassment,

Vargas offers insufficient evidence to show the treatment was
related to his race or national origin, as required for the
third element of a hostile work environment claim. Vargas has
not presented any comments made to him regarding his race or
25

national origin. At most, Vargas can point to one complaint
of his subordinate Morrow, who noted in a statement to Zenn
that Vargas gave an additional fifty percent discount on
clearance merchandise to “a Spanish customer.” (Doc. # 39-3
at 2). Morrow testified she specified the customer was Spanish
because she had overheard Vargas speaking Spanish to the
customer and Zenn had asked her what the customer looked like.
(Morrow Dep. Doc. # 39 at 57:5-20).
But, according to Vargas, “Zenn specifically inquired
whether [Vargas] knew a Spanish-speaking customer” with the
implication “from Zenn [being] that [Vargas] may have known
the customer because they were Hispanic.” (Doc. # 37 at 17).
Additionally, Vargas notes that he was the only Hispanic store
manager in his district. (Doc. # 47 at 17; Doc. # 47-3). He
also focuses on Zenn’s investigation and disciplining of one
store manager of a different store, Dutka, and of Vargas’s
subordinate
replenishment

managers
manager

—

assistant

Williamson,

and

manager

Colbeth,

then-replenishment

manager Roberts. (Doc. # 47 at 17). Vargas asserts that
because Zenn did not reprimand or discipline these managers,
the discipline Vargas received was based on his race and
national origin.

26

The fact that Vargas was the only Hispanic store manager
in Zenn’s district alone does not give rise to the inference
that his termination was based on race. See, e.g., Loving v.
Lew, 512 F. App’x 616, 619 (7th Cir. 2013)(“Loving does not
dispute the district court’s finding that the record lacks
any evidence that Fox bore ill will toward her because of her
race, and the fact that she was the only black employee in
her

group

is

insufficient

to

support

that

inference.”);

Bryant v. Brownlee, 265 F. Supp. 2d 52, 65 (D.D.C. 2003)(“In
the absence of some greater indicator of race or age bias,
the uniqueness of plaintiff’s race and age in her workplace
cannot substantiate a claim that plaintiff’s workplace was
permeated with discriminatory intimidation, ridicule, and
insult.” (internal quotation marks and citation omitted)).
And, even if Zenn did not support Vargas’s performance
and disciplined him more harshly, such treatment would only
be actionable if it was based on Vargas’s race or national
origin. See Coutu v. Martin Cty. Bd. of Cty. 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.”). Vargas’s
receipt of harsher discipline than one other store manager
and some of his own subordinate managers does not create the
27

inference that his punishment was based on his race or
national origin. The relationship between Zenn and Vargas was
strained,

which

led

to

what

Vargas

considered

harsh

treatment, but this is not evidence supporting that Vargas’s
race or national origin was the root of that strain. See Mann
v. Miami–Dade Cty. Corr. & Rehab., No. 09-22456-CIV, 2010 WL
11426147, at *4 (S.D. Fla. July 27, 2010)(“Although it is
clear that Mann and Luengas may have harbored some dislike
for one another and that may have made Mann’s job more
difficult and stressful, Mann has not established that she
was subjected to hostile work environment due to her race or
sex. Mann only speaks of the harsh manner in which her
supervisors allegedly dealt with her. This, however, is not
sufficient evidence of harassment.”).
Furthermore, Zenn testified store manager Dutka was not
disciplined because Dutka did not actually violate a SOP or
falsify documents. (Zenn Dep. Doc. # 36 at 140:10-145:8).
And, as for Colbeth, Williamson, and Roberts, they all held
positions of lower responsibility as assistant manager or
replenishment manager working under Vargas. That Zenn chose
to differently discipline subordinate employees — whom Vargas
himself had authority to discipline — does not support the
inference that Vargas was disciplined because of his race or
28

national origin. For example, while Zenn gave Vargas a written
warning for failing the July of 2014 audit but gave assistant
manager Colbeth only a verbal warning, Zenn issued written
warnings to every store manager who failed a formal audit.
(Zenn Dep. Doc. # 36 at 61:6-18, 63:3-8).
The fourth element requires a plaintiff to prove the
work

environment

hostile.

Adams,

is

both

754

F.3d

subjectively
at

1249.

and

“The

objectively

employee

must

subjectively perceive the harassment as sufficiently severe
and pervasive to alter the terms or conditions of employment,
and

this

subjective

perception

must

be

objectively

reasonable.” Mendoza, 195 F.3d at 1246 (citation and internal
quotation

marks

component,

four

omitted).
factors

“In

assessing

should

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.” Body v. McDonald, No. 8:13-cv-1215-T-33TGW,
2014 WL 7224814, at *8 (M.D. Fla. Dec. 17, 2014), aff’d sub
nom. Body v. Sec’y, Dep’t of Veterans Affairs, 616 F. App’x
418 (11th Cir. 2015).

29

Vargas subjectively perceived the allegedly harassing
conduct as severe and pervasive. (Doc. # 47 at 18). But,
taking the facts in the light most favorable to Vargas, the
alleged harassment was not objectively severe and pervasive.
The conduct — Vargas’s subordinates submitting complaints
about

his

behavior,

Zenn’s

not

disciplining

Vargas’s

subordinates, his transferring a department manager to the
store without consulting Vargas, and placing Vargas on the
PIP — was not physically threatening or humiliating. See Godoy
v. Habersham Cty., 211 F. App’x 850, 853-54 (11th Cir.
2006)(affirming summary judgment against a South American
plaintiff who was subjected to racial slurs “almost every
shift,” was battered by his supervisor, threatened over the
phone, and told “to go back to his boat and sail to South
America

where

he

belongs”).

The

conduct

occurred

over

approximately five months and was far less severe than that
found insufficient in other cases. See Adams, 754 F.3d at
1254 (finding an African-American plaintiff’s treatment was
not objectively hostile even though he occasionally heard
racial slurs, frequently saw racist graffiti in the bathroom,
and often saw coworkers wearing clothing emblazoned with the
Confederate flag because the slurs were not directed at him,

30

the graffiti was cleaned regularly, and his exposure to the
flag was “not directly humiliating or threatening”).
While the complaints about him and his being forced to
work with Roberts may have made Vargas’s job more difficult,
there is no evidence that Zenn and the employees’ behavior
unreasonably

interfered

with

Vargas’s

job

performance.

Although Roberts questioned his authority and violated store
policies, Vargas chose not to discipline Roberts, instead
waiting for Zenn to do so. (Vargas Dep. Doc. # 35 at 118:24119:16). And, although “harassment need not be shown to be so
extreme that it produces tangible effects on job performance
in order to be actionable,” it is notable that Vargas asserts
the store was exceeding expectations in sales and that the
PIP he received was unwarranted. (Id. at 84:8-12, 159:11-23);
Miller, 277 F.3d at 1277; see also Manganiello v. Town of
Jupiter Inlet Colony, No. 12-80722-CIV, 2013 WL 6577377, at
*10 (S.D. Fla. Dec. 16, 2013)(“Plaintiff, however, presents
no argument or evidence to support this allegation that
Pierson’s

conduct

unreasonably

interfered

with

her

job

performance. To the contrary, Plaintiff stated during her
deposition that she believed she had been doing well at work,
received multiple pay raises, and had not had any work
performance issues prior to her salary reduction in 2011.”).
31

Furthermore,

Michaels notes that Vargas never complained

about any harassment or discrimination based on his race or
national origin to HR. (Doc. # 34 at 17; Vargas Dep. Doc. #
35

at

100:25-101:19).

Considering

the

totality

of

the

circumstances, Vargas has not shown his work environment was
objectively hostile.
Therefore,

taking

the

evidence

in

the

light

most

favorable to Vargas, Vargas has failed to establish a prima
facie case of hostile work environment based on race or
national origin.
B.

Disparate Treatment Claims

Pursuant to Title VII, it is unlawful for an employer
“to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect
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).
A plaintiff may establish her Title VII claim with either
direct or circumstantial evidence of discrimination. Wilson
v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.
2004)(citing Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th
Cir. 1999)).

32

“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
Cty. Comm’rs, Orange Cty., Fla., 256 F.3d 1095, 1105 (11th
Cir.

2001)).

Vargas

presents

no

direct

or

statistical

evidence of discrimination. Thus, Vargas’s case is limited to
circumstantial evidence.
There are various theories of liability in disparate
treatment cases, including the single-motive and mixed-motive
theories. See Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227,
1235 (11th Cir. 2016)(“Discrimination claims brought under
Title VII and § 1983 are typically categorized as either
mixed-motive or single-motive claims.”). These are separate
theories of liability, not separate causes of action. Id. at
1235 n.4 (“Mixed-motive and single-motive discrimination are
different theories of discrimination, as opposed to distinct
causes of action. Specifically, they serve as alternative
causation

standards

for

proving

discrimination.”).

“An

employee can succeed on a mixed-motive claim by showing that
33

illegal bias, such as bias based on sex or gender, ‘was a
motivating factor for’ an adverse employment action, ‘even
though other factors also motivated’ the action.” Id. at 1235
(quoting 42 U.S.C. § 2000e–2(m)). But “single-motive claims
— which are also known as ‘pretext’ claims — require a showing
that bias was the true reason for the adverse action.” Id.
Each

theory

(specifying

has
the

a

different

framework

for

framework.

Id.

mixed-motive

at

1237-40

claims

after

rejecting application of the McDonnell Douglas framework used
for single-motive claims).
1.

Mixed-Motive Theory of Liability

In his response to the Motion, Vargas asserts his claims
should survive under either the single-motive or mixed-motive
theories of liability. (Doc. # 47 at 19-23). Both in its
Motion and reply, Michaels fails to address the mixed-motive
framework and Vargas’s assertion that the Amended Complaint
pleads a basis for this theory of liability. As Michaels has
failed to argue that the mixed-motive framework should not
apply or that summary judgment should be granted under this
framework, all of Vargas’s claims survive to the extent they
are brought under the mixed-motive theory of liability. See
(Doc. # 10 at ¶¶ 52, 62, 76, 82, 94)(pleading that the
allegedly

hostile

and

discriminatory
34

treatment

Vargas

suffered

was

“substantially

motivated”

by

his

race

or

national origin).
2.

Single-Motive Theory of Liability

In analyzing allegations of single-motive discrimination
supported by circumstantial evidence, the Court follows the
burden-shifting analysis established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See
Marcelin v. Eckerd Corp. of Fla., No. 8:04-cv-491-T-17MAP,
2006 WL 923745, at *4 (M.D. Fla. Apr. 10, 2006)(citing Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). 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

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
the plaintiff’s prima facie case, the defendant must provide
“legitimate, nondiscriminatory reason[s]” for the employment
action taken against the plaintiff. Burdine, 450 U.S. at 254;
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th
35

Cir. 1998). 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 [his] 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).
The Court will address each step in turn.
i.

Vargas Has Established a Prima Facie Case

In order to establish a prima facie case of disparate
treatment, Vargas must demonstrate that he: “(1) belongs to
a protected class; (2) suffered an adverse employment action;
(3) was qualified to do [his] job; and (4) was treated less
favorably than similarly situated employees outside of the
protected class.” Martin v. Rumsfeld, 137 F. App’x 324, 325
(11th Cir. 2005); see also Wilson, 376 F.3d at 1087.

36

Michaels argues that Vargas has not sufficiently alleged
there was an adverse employment action in relation to his
being placed on the PIP. (Doc. # 34 at 19-20). “[T]o prove
adverse employment action in a case under Title VII’s antidiscrimination clause, an employee must show a serious and
material change in the terms, conditions, or privileges of
employment.” Davis v. Town of Lake Park, 245 F.3d 1232, 1239
(11th Cir. 2001). “An adverse employment action is an ultimate
employment decision, such as discharge or failure to hire, or
other conduct that alters the employee’s compensation, terms,
conditions, or privileges of employment, deprives him or her
of employment opportunities, or adversely affects his or her
status as an employee.” Gupta v. Fla. Bd. of Regents, 212
F.3d

571,

587

(11th

Cir.

2000)(citation

and

internal

quotation marks omitted).
“[C]ourts are wisely reluctant to treat job performance
memoranda as actionable under Title VII where they do not
trigger any more tangible form of adverse action such as a
loss

in

benefits,

ineligibility

for

promotional

opportunities, or more formal discipline.” Davis, 245 F.3d at
1241.

To

be

actionable,

“[t]he

negative

evaluation

must

actually lead to a material change in the terms or conditions
of

employment,

such

as

‘an
37

evaluation

that

directly

disentitles an employee to a raise of any significance.’”
Barnett v. Athens Reg’l Med. Ctr. Inc., 550 F. App’x 711, 713
(11th Cir. 2013)(quoting Gillis v. Ga. Dept. of Corr., 400
F.3d 883, 888 (11th Cir. 2005)).
Michaels argues the PIP did not alter the terms and
conditions of Vargas’s employment even though Vargas would
have been ineligible for a bonus when bonuses were decided in
early February if he were still on the PIP at that time. (Doc.
# 34 at 20). Vargas was terminated before the first thirty
day interval of the PIP arrived and before the end of the
fiscal year when bonus eligibility was determined, so being
on the PIP did not actually prevent him from receiving a bonus
— the fact that he was terminated did. (Id.). Additionally,
Michaels notes that the thirty day interval of Vargas’s PIP
was in January and Vargas could have been taken off the PIP
if he met all the goals at that time. (Id.). Thus, being
placed on the PIP would not necessarily have prevented Vargas
from receiving a bonus because the PIP could have ended before
bonus eligibility was determined.
The Court agrees the PIP was not an adverse employment
action. On the subject of adverse employment action, Vargas
conclusorily

states

“The

unwarranted

PIP

constitutes

an

adverse employment action as it led to significant job38

related

consequences

and

affected

the

privileges

of

his

employment.” (Doc. # 47 at 20). Vargas has not shown that any
material alteration of his terms and conditions of employment
as a result of the PIP actually occurred. The Court could
only conclude that the PIP was an adverse employment action
if it speculated that Vargas would have failed the first
interval of the PIP and thus been ineligible to receive a
bonus when bonus eligibility would have been determined. But
“inferences

based

on

speculation

and

conjecture

are

not

reasonable.” Barnett, 550 F. App’x at 713–14 (“Thus, based on
the

above,

the

inference

could

not

be

drawn

that

an

unsatisfactory score on [Barnett’s] evaluation would preclude
a merit increase.”). And, indeed, Vargas asserts Michaels
“would not have been able to extend the PIP as the Store was
performing well and, in fact, passed the re-audit only days
after [Vargas’s] termination because of [his] efforts.” (Doc.
# 47 at 21).
Regardless,

Vargas’s

termination

was

an

adverse

employment action. And, Michaels has not challenged other
parts of Vargas’s prima facie case. Although Michaels argues
in its reply that there are no appropriate comparators,
Michaels failed to raise this argument in its Motion and the
Court will not consider it regarding the prima facie case.
39

See Grasso v. Grasso, 131 F. Supp. 3d 1303, 1309 (M.D. Fla.
2015)(“As

the

Eleventh

Circuit

has

‘repeatedly

.

.

.

admonished, arguments raised for the first time in a reply
brief are not properly before a reviewing court.’ As such,
‘District

Courts,

including

this

one,

ordinarily

do

not

consider arguments raised for the first time on reply.’”
(citations omitted)). Nor will the Court consider the new
declaration

of

Zenn

and

its

attachments,

which

Michaels

attached to the reply and which shows an execution date of
June 28, 2017. (Doc. # 49). Therefore, Michaels has not
demonstrated that Vargas did not establish a prima facie case
as to his termination.
ii.

Michaels
Had
Nondiscriminatory
Vargas

a
Reason

to

Legitimate
Terminate

Assuming Vargas established a prima facie case, Michaels
argues

it

had

a

legitimate,

nondiscriminatory

reason

to

discipline and ultimately terminate Vargas. (Doc. # 34 at 2022). Michaels’s burden of rebuttal is “exceedingly light,”
and it “need not persuade the court that its proffered reasons
are legitimate; the defendant’s burden is merely one of
production, not proof.” Weston–Brown v. Bank of Am. Corp.,
167 F. App’x 76, 80 (11th Cir. 2006)(quoting Cooper v. S.
Co., 390 F.3d 695, 725 (11th Cir. 2004)). “The reason offered

40

by an employer for an action does not have to be a reason
that the judge or jurors would act on or approve. Instead,
all that matters is that the employer advance an explanation
for

its

action

Schoenfeld,

168

that

is

F.3d

not

at

discriminatory

1269

(internal

in

nature.”

citation

and

quotations omitted).
Michaels

argues

its

legitimate,

non-discriminatory

reason for firing Vargas was his creation of a hostile work
environment

by

seeking

out

the

names

of

employees

who

complained about him. (Doc. # 34 at 22). Michaels received a
complaint from Faircloth that Vargas sought the names of those
who complained about him and instructed Faircloth to inform
him about any future complaints before they could be reported.
(Doc. # 41-1). Zenn stated Michaels interpreted this behavior
as retaliation and decided to terminate Vargas for that
reason. (Zenn Dep. Doc. # 36 at 209:1-5). This is a sufficient
legitimate, non-discriminatory reason. The burden now shifts
back to Vargas to show a genuine issue of material fact as to
pretext.
iii. Vargas Has Not Shown Pretext
“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
41

impermissible retaliation or discrimination.” Worley v. City
of Lilburn, 408 F. App’x 248, 251 (11th Cir. 2011)(citing St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). “If
the proffered reason is one that might motivate a reasonable
employer, a plaintiff cannot merely recast the reason, but
must meet it ‘head on and rebut it.’” Id. (quoting Chapman v.
AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)).
“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.” Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1363 (11th Cir.
1999). As the Eleventh Circuit has explained:
[I]n carrying out its business and in making
business
decisions
(including
personnel
decisions), the employer can lawfully act on a
level of certainty that might not be enough in a
court of law. In the workaday world, not every
personnel decision involving a false statement (or
a cover-up) has to be treated as something like a
trial for perjury. Therefore, an employer, in these
situations, is entitled to rely on its good faith
belief about falsity, concealment, and so forth.
E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th
Cir. 2000).
To establish pretext, Vargas argues that Faircloth’s
complaint about retaliation was false. (Doc. # 47 at 23).
Still, Vargas’s assertion that he never inquired into who

42

complained, as Faircloth alleged, is not evidence that the
decision to terminate him for retaliation was pretextual. Cf.
Soloski v. Adams, 600 F. Supp. 2d 1276, 1360 (N.D. Ga.
2009)(“That the findings reported to Mace were wrong is not
evidence that the decision was pretextual. An employer may
make an employment decision ‘for a good reason, a bad reason,
a reason based on erroneous facts, or for no reason at all,
as long as its action is not for a discriminatory reason.’”
(quoting Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181,
1187

(11th

Cir.

1984))).

Vargas

does

not

dispute

that

Faircloth’s complaint was given to Zenn and then passed on to
Michaels’s HR. Although Vargas considers it suspicious that
Faircloth’s complaint was submitted days before he received
the PIP yet was not discussed with him, Zenn stated he did
not address Faircloth’s complaint when he issued Vargas the
PIP because Faircloth’s complaint was unrelated to the PIP
and the loss prevention investigation. (Zenn Dep. Doc. # 36
at 221:17-25, 222:8-16, 223:1-18). Vargas does not present
any evidence the complaint was fabricated by Faircloth at
Zenn’s direction.
Instead, Vargas emphasizes that Roberts was told by Zenn
that Vargas would be fired a week before it occurred and that
Roberts would be made store manager. (Doc. # 47 at 23). But
43

Zenn’s alerting Roberts to Vargas’s imminent termination does
not imply that Vargas’s termination was not based on his
alleged retaliation against associates. Again, so long as an
action is not motivated by a discriminatory reason, it is not
illegal, even if the reason was incorrect or unfair. See Smith
v. City of Fort Pierce, 565 F. App’x 774, 779 (11th Cir.
2014)(citing Nix, 738 F.2d at 1187); Thomas v. Nicholson, 263
F. App’x 814, 816 (11th Cir. 2008)(citing Damon, 196 F.3d at
1361)).
Vargas asserts that Michaels “conducted no investigation
of

the

[retaliation

complaint],

despite

its

own

policy

requiring it to do so.” (Doc. # 47 at 23). He also notes that
Roberts and Ticich, who were terminated while holding the
respective positions of store manager and district manager,
were only terminated after complete investigations in which
they were able to defend themselves and address the charges
against them. (Doc. # 47 at 21-22). But while the failure to
give Vargas a sufficient opportunity to deny Faircloth’s
allegations might have been unfair, that does not support the
inference that Faircloth’s complaint was not the true basis
for

Vargas’s

termination

or

discriminatory.

44

that

the

real

reason

was

And the terminations of the two other Hispanic store
managers Vargas knew does not support an inference of pretext.
These other store managers worked in New York stores, and the
decision to fire them would not have been made by Zenn and
Gingrich,

the

parties

involved

in

Vargas’s

termination.

Furthermore, Vargas has presented only his testimony that,
during phone conversations with Salazar and Narvaez, those
men expressed their belief their terminations were related to
race. Without more, their terminations cannot support an
argument that Vargas’s termination was related to his race or
national origin.
Therefore, Vargas has not presented sufficient evidence
to establish a genuine issue of material fact concerning
pretext.
IV.

Conclusion
No genuine issue of material fact exists as to the

hostile work environment claims or claims brought under the
single-motive theory of liability, and summary judgment is
granted as to those claims. But, because the Motion did not
address the mixed-motive framework and the Amended Complaint
plausibly pled a basis for a mixed-motive theory of liability,
Counts I through V survive to the extent they are brought
under the mixed-motive theory of liability.
45

Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Michaels Stores, Inc.’s Motion for Summary
Judgment (Doc. # 34) is GRANTED IN PART AND DENIED IN
PART.

(2)

The Motion is GRANTED as to Counts I through V to the
extent they assert claims for hostile work environment
or single-motive discrimination.

(3)

The Motion is DENIED as to Counts I through V to the
extent they are brought under the mixed-motive theory of
liability.

Vargas may proceed on these mixed-motive

discrimination claims only.
DONE and ORDERED in Chambers in Tampa, Florida, this
10th day of July, 2017.

46