Fonseca v. Ferman Motor Car Company, Inc.
Filing
57
ORDER denying in part and granting in part 48 Defendant's Motion for Summary Judgment; denying 50 Plaintiff's Motion for Summary Judgment. This case will proceed to trial on Plaintiff's claim under the Equal Pay Act. The Court defers entering judgment in Defendant's favor on Plaintiff's FWA claim until the conclusion of this case. Signed by Judge James S. Moody, Jr on 7/27/2018. (JG)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TRACY FONSECA,
Plaintiff,
v.
Case No. 8:17-cv-568-T-30TGW
FERMAN MOTOR CAR COMPANY, INC.,
Defendant.
__________________________________/
ORDER
This cause comes before the Court upon the parties’ motions for summary judgment
(Dkts. 48, 50) and their respective responses in opposition (Dkts. 54, 56). Upon review of
these filings, the record evidence, and upon being otherwise advised in the premises, the
Court concludes that Plaintiff’s motion should be denied and Defendant’s motion should be
denied in part and granted in part.
INTRODUCTION
Plaintiff Tracy Fonseca alleges that her former employer Defendant Ferman Motor
Car Company, Inc. violated the Equal Pay Act and the Florida Whistleblower Act. Both
parties believe they are entitled to summary judgment on Plaintiff’s claim under the Equal
Pay Act but the record reflects a genuine issue for trial on whether the pay differentials
between Plaintiff and her male co-workers were based on a factor other than sex.
Defendant also moves for summary judgment on Plaintiff’s Florida Whistleblower Act
claim. The Court grants judgment in Defendant’s favor on this claim because most of
Plaintiff’s objections—other than her complaints about her pay—were not about a violation
of law. With respect to Plaintiff’s objections about her unequal pay, Plaintiff has not
established pretext, i.e., that the real reason for her termination was due to her unequal pay
complaints.
BACKGROUND
In January 2016, Plaintiff Tracy Fonseca began her employment at Defendant Ferman
Motor Car Company, Inc. in the position of service advisor at the Ferman Buick-GMC
dealership, located in Lutz, Florida. Ferman Buick-GMC (“Ferman”) is a new car dealership
that sells and services vehicles. As part of its operations, Ferman employs service advisors
who work with a team of technicians to perform service repair work. The service advisors
and technicians are managed by a service manager. The service advisors’ duties include
writing customer repair orders/tickets (“ROs”), selling repair work, providing assistance to
customers, and finalizing work orders. Service advisors are responsible for all gross service
and parts sales and maintaining customer satisfaction index (“CSI”) levels at or above region.
Service advisors are compensated pursuant to a pay plan. Included in the plan is a
commission schedule based on benchmarks for certain services and parts sold by the service
advisors and department. The pay plan includes a monthly bonus if the three month rolling
CSI score for service advisors as a group is above region. Plaintiff agreed to a pay plan that
provided: a commission schedule of 15% on the first $10,000 gross service written, 4.5% for
Page 2 of 15
additional service labor above the initial $10,000, 3% for all parts gross written, and 0.3%
for total combined Buick-GMC parts and service department gross. Plaintiff was also
entitled to a $750 monthly bonus if the three month rolling CSI score was above region.
Once certain services were completed for a Ferman customer, a third party for General
Motors (“GM”) or Buick provided the customer with a CSI form to complete. Ferman
received a copy of the CSI scores. Maintaining CSI above region is an essential function of
the service advisor position.
When Plaintiff began her employment in January 2016, Bob Cooper was the service
manager. In March 2016, Ron Scott replaced Cooper. Plaintiff testified during her
deposition that her claims in this case relate to the time that Scott was the service manager.
Scott hired two male service advisors, Matthew Keith and Ty Robinson, in July 2016, and
August 2016, respectively. Plaintiff, Keith, and Robinson were the only service advisors
during the relevant time. The record reflects that Plaintiff, Keith, and Robinson executed the
same pay plan.1 However, when Scott hired Keith and Robinson, he made the business
decision to provide them with supplemental “training pay,” i.e., a guarantee of a minimum
dollar amount, while Keith and Robinson learned Ferman’s systems.
With respect to Keith, Scott agreed that if Keith made less than $5,000 under the pay
plan, he received the difference in training pay. With respect to Robinson, if Robinson made
less than $4,000 a month, Scott would pay him the difference in training pay. Scott admitted
1
In August 9, 2016, Plaintiff executed a new pay plan to reflect a 4.75% commission for
additional service labor above $10,000 to be consistent with the other service advisors’ pay plans.
Page 3 of 15
that he did not provide Plaintiff training pay because she had a full team of four technicians
and was familiar with Ferman’s systems. Scott testified during his deposition that the
training pay to Keith and Robinson was pursuant to a handshake deal and to secure their
employment. The training pay was charged to Ferman’s General Ledger account.
Kimberly Wright, Ferman’s Human Resources (“HR”) Director at the time had “no
idea” why the male service advisors were awarded this additional compensation. Wright
testified that training pay is when the service advisor is required to go or do training at the
store level; it is when the employee is “pulled away from work,” for a required course or to
complete “certain certifications.” The record is undisputed that Keith and Robinson did not
attend training during the relevant time.
Because Keith and Robinson were being compensated the additional training pay, they
ended up making more money than what was provided for in their pay plans. As reflected
in the below chart, (Dkt. 50 at 5), Keith and Robinson were also making more than Plaintiff
for several months, despite the fact that her production was always higher.
Page 4 of 15
Scott testified that Plaintiff’s performance was “very good.”
When Plaintiff
complained to Scott about the disparity in pay, Scott claimed that the training pay was a “one
time” deal and that “moving forward” Plaintiff would be on the same pay plan. The record
reflects that the additional training pay to Keith and Robinson continued for six months and
five months, respectively. Scott admitted during his deposition that he did not discuss the
training pay he gave to Keith and Robinson with HR.
According to Plaintiff, she complained constantly to Scott about the pay disparity.
The record reflects that Plaintiff, Keith, and Robinson performed the same work and had the
same job requirements. They also worked the same hours.
Page 5 of 15
Plaintiff testified that she also complained to Scott about what she believed were
violations of the law. According to Plaintiff, Ferman was engaged in “consumer fraud” and
warranty fraud. She testified during her deposition that in June 2016, Darlene Davis-Lloyd
brought her vehicle in for water damage and windshield leaks. Plaintiff claims that her
technician told her the repairs could not be done under warranty because the windshield had
previously been replaced. The record reflects that it is ultimately Scott’s decision to
determine whether repairs are covered under warranty. Even if the repairs are not made
under warranty, Scott can cover the repairs under “customer enthusiasm,” which GM
supports.
Scott concluded that the repairs for Davis-Lloyd’s vehicle were covered under
warranty. The warranty repair ticket was closed by GM in August 2016. GM did not
challenge the warranty designation.
Plaintiff also claims in this case that Davis-Lloyd’s vehicle was fraudulently sold to
Davis-Lloyd as new when it had really been a demo car and previously damaged. The Court
will not go into any additional detail on this claim because the record reflects that Plaintiff
was not employed at the time of the vehicle’s sale and has no personal knowledge of that
transaction or any violation of law.
Plaintiff testified that there were forged ROs written in her name. The record reflects
that Ferman employed Kent Gable as a service director during the relevant time. In that
capacity, Gable helped the service advisors with assisting customers. If a service advisor was
away from her desk or busy with a customer, part of Gable’s duties included writing the RO
Page 6 of 15
in the service advisor’s name so her technicians would handle the repair matter. It was then
the service advisor’s responsibility to follow-up with the customer. Because her name was
on the RO, Plaintiff would receive the commissions on the transaction and any CSI score
would be attributed to her. This was true for all of the service advisors.
If Gable was unavailable, the other service advisors were permitted to write an RO
in Plaintiff’s name if a customer arrived when she was unavailable. At the time the RO is
written, the service advisor would not know if that customer planned on completing a CSI
survey.
Plaintiff claims that her signature was allegedly “forged” on ROs. She claims that this
resulted in her having negative CSIs, but during her deposition she could not say how much
of an impact the “forged” ROs impacted her CSIs. Plaintiff admitted that she received a
commission for the work performed on any RO assigned to her.
Plaintiff claims that Scott wanted her to participate in warranty fraud for Plaintiff’s
vehicle. The record does not reflect any evidence that Ferman committed warranty fraud
with respect to Plaintiff’s vehicle or any other vehicle.2
It is undisputed that Plaintiff’s CSI numbers were some of the lowest in the company,
which impacted the dealership, its managers, and other employees. Luke Miller, the general
2
Plaintiff’s response to Defendant’s motion for summary judgment largely throws out
selfserving “facts” that she believes establishes that Defendant committed consumer fraud, warranty
fraud, and the crime of forgery. As discussed in more detail under the discussion of the Florida
Whistleblower Act claim, the record does not establish any genuine issues for trial on these claims
because all of the “facts” are based on Plaintiff’s suspicions. In other words, there is no evidence
establishing that Defendant actually committed any of these violations of the law.
Page 7 of 15
manager of sales who is over Scott and the service department, testified that managers will
be replaced if they cannot ensure the dealership’s CSI is above region.
Plaintiff
acknowledged her low CSI numbers. She attributed them to multiple causes, including the
fact that she wrote more ROs than others, she received more problem vehicles due to her
team’s expertise, and her team did not provide timely updates on ROs written in her name.
Plaintiff also testified that her poor CSI scores were related to the fact that others were
writing ROs in her name.
On January 19, 2017, Plaintiff requested a meeting with Miller. At the advice of HR,
Miller had Scott present at the meeting since he was Plaintiff’s direct supervisor. Neither
Miller nor Scott were planning on terminating Plaintiff at this time. Unbeknownst to Miller
and Scott, Plaintiff recorded their meeting on her cell phone. The transcript of Plaintiff’s
recording of this meeting reflects that Plaintiff, Miller, and Scott discussed her poor CSI
scores. Plaintiff acknowledged that her CSI numbers were low. Plaintiff told Miller that she
wanted to transfer to a non-CSI based position and had talked to Chris Shrewsburry about
a position at Ferman’s Body Shop. The record reflects that Plaintiff expressed to Miller and
Scott that the service advisor position was not a good fit for her due to the CSI expectations.
Miller said he would accept Plaintiff’s resignation and would allow her to apply anywhere
in Ferman with no break in service. Otherwise, Plaintiff would have to improve her CSI.
Plaintiff then told Miller that she could not resign until she secured a new position because
she was the only person in her family who was working at that time.
Page 8 of 15
At the conclusion of the meeting, Miller believed that Plaintiff decided against
resigning in order to stay in her current position while she looked to see whether there were
transfer options to another Ferman position. Miller stated that, to his surprise, Plaintiff
subsequently resigned.
Plaintiff claims she was terminated at the January 19, 2017 meeting. Plaintiff’s
Separation Notice dated January 23, 2017, reflects that Plaintiff was “ineligible for rehire”
and that Plaintiff voluntarily quit because she “no longer wanted to do advisor job.” The
record is completely unclear on whether Plaintiff was terminated or whether she resigned so
the Court will interpret this conflict in Plaintiff’s favor and assume that Plaintiff was
terminated for the purpose of the summary judgment analysis.
On January 23, 2017, Scott hired Jim Hindman to replace Plaintiff. Scott gave
Hindman $600 in “training pay” as additional compensation.
On March 8, 2017, Plaintiff filed her complaint in this case, alleging a violation of the
Equal Pay Act in Count I and a violation of the Florida Whistleblower Act in Count II.
SUMMARY JUDGMENT STANDARD
Motions for summary judgment should be granted only when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
show there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The existence of some factual disputes between the litigants will not defeat an
otherwise properly supported summary judgment motion; “the requirement is that there be
Page 9 of 15
no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)(emphasis in original). The substantive law applicable to the claimed causes of action
will identify which facts are material. Id. Throughout this analysis, the judge must examine
the evidence in the light most favorable to the non-movant and draw all justifiable inferences
in his or her favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the
absence of a genuine issue of material fact, whether or not accompanied by affidavits, the
nonmoving party must go beyond the pleadings through the use of affidavits, depositions,
answers to interrogatories and admissions on file, and designate specific facts showing that
there is a genuine issue for trial. Chelates, 477 U.S. at 324. The evidence must be
significantly probative to support the claims. Anderson, 477 U.S. at 248-49. This Court
may not decide a genuine factual dispute at the summary judgment stage. Fernandez v.
Bankers Nat'l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f factual issues are
present, the Court must deny the motion and proceed to trial.” Warrior Tombigbee Transp.
Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983).
A dispute about a material fact is genuine and summary judgment is inappropriate if
the evidence is such that a reasonable fact finder could return a verdict for the nonmoving
party. Anderson, 477 U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990).
However, there must exist a conflict in substantial evidence to pose a question for the fact
finder. Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
Page 10 of 15
DISCUSSION
I.
Equal Pay Act
“A plaintiff establishes a prima facie case under the Equal Pay Act if she shows that
her employer paid ‘different wages to employees of opposite sexes for equal work on jobs
requiring equal skill, effort, and responsibility, and which [we]re performed under similar
working conditions.’” Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358, 1362–63 (11th
Cir. 2018) (quoting Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995) (internal quotation
marks omitted)). Once a plaintiff makes such a showing, the employer can avoid liability
only if it proves by a preponderance of the evidence that the wage differential was justified
by “a seniority system,” “a merit system,” “a system which measures earnings by quantity
or quality of production,” or some “factor other than sex.” See id. (internal quotation marks
omitted). As the Eleventh Circuit recently noted, proving this affirmative defense can be
difficult; the employer’s “burden is a heavy one.” Id. (internal quotation marks omitted).
“The employer must show that the factor of sex provided no basis for the wage
differential.” Id. (internal quotation marks omitted). “Further, the employer must show that
none of the decision-makers, whether in middle or upper management, were influenced by
[sex] bias.” Steger v. Gen. Elec. Co., 318 F.3d 1066, 1078 (11th Cir. 2003). If the employer
satisfies its burden, the plaintiff must offer evidence showing that the employer's
nondiscriminatory reason for the wage differential is pretext. See Irby, 44 F.3d at 954.
Plaintiff is entitled to proceed to trial on her Equal Pay Act claim. She has established
a prima facie case by pointing to the pay disparity between her and the other male service
Page 11 of 15
advisors. Although Ferman claims a nondiscriminatory reason for the disparity, i.e., that the
male service advisors were entitled to training pay in order to establish their teams and learn
Ferman’s systems, a jury could find that Ferman “has failed to satisfy its heavy burden of
showing that sex provided no basis for the disparity.” Bowen, 882 F.3d at 1363. Plaintiff
has established pretext because Scott’s reasons for the pay disparity are inconsistent in the
record. For example, Scott claimed that the training pay was a one time deal but continued
to pay the additional compensation to the male service advisors for months. And the record
reflects that the male service advisors did not perform any actual training to substantiate the
additional compensation. Moreover, Scott replaced Plaintiff with Hindman, a male, and paid
him training pay.
Of course, a jury could also find based on this record that sex had nothing to do with
the pay disparity. Accordingly, summary judgment is not appropriate in either party’s favor
and this claim will proceed to trial.
II.
Violation of the Florida Whistleblower Act
The Florida Whistleblower Act (“FWA”), Fla. Stat. 448.102, prohibits employers
from taking retaliatory action against their employees for reporting violations of laws, rules,
or regulations. The statute provides:
An employer may not take any retaliatory personnel action against an
employee because the employee has:
(1) Disclosed, or threatened to disclose, to any appropriate governmental
agency, under oath, in writing, an activity, policy, or practice of the employer
that is in violation of a law, rule, or regulation. However, this subsection does
not apply unless the employee has, in writing, brought the activity, policy, or
Page 12 of 15
practice to the attention of a supervisor or the employer and has afforded the
employer a reasonable opportunity to correct the activity, policy, or practice.
(2) Provided information to, or testified before, any appropriate governmental
agency, person, or entity conducting an investigation, hearing, or inquiry into
an alleged violation of a law, rule, or regulation by the employer.
(3) Objected to, or refused to participate in, any activity, policy, or practice of
the employer which is in violation of a law, rule, or regulation.
Fla. Stat. § 448.102 (emphasis added).
In the Eleventh Circuit, courts apply the same burden shifting framework used in Title
VII retaliation cases to claims under the FWA. Sierminski v. Transouth Fin. Corp., 216 F.3d
945, 950 (11th Cir. 2000). That is, an employee must first make a prima facie showing of
retaliation. As with a Title VII retaliation claim, an employee can establish the prima facie
case by showing that (1) she engaged in statutorily protected activity, (2) she was subjected
to adverse employment action, and (3) there was a causal connection between the events.
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). If the employee can
meet these elements, the burden then shifts to the employer to articulate a non-retaliatory
reason for its action. Id. If the employer can present a non-retaliatory reason, the burden
then shifts back the employee to show that the employer’s reason is pretext. Id.
Notably, the FWA’s requirement that an employer’s policy be “in violation of a law”
is “unequivocal.” Graddy v. Wal-Mart Stores E., LP, 237 F. Supp. 3d 1223, 1227–28 (M.D.
Fla. 2017). The FWA does not provide protection to employees for “alleged” or “suspected”
violations of the law. Id.
Page 13 of 15
Ferman is entitled to summary judgment on Plaintiff’s FWA claim for several reasons.
First, for all of the claims except the claim that Ferman violated the Equal Pay Act, Plaintiff
has not established that she engaged in FWA protected activity. In Plaintiff’s opinion,
Ferman committed consumer fraud, warranty fraud, and forgery, but these purported
violations are not established in the record. These are the types of “suspected” violations of
the law that are insufficient.
Second, Plaintiff has not established a causal connection, that is, that any alleged
protected activity is causally connected to her alleged termination.
Third, even if the Court were to assume that Plaintiff established a prima facie case
under the FWA for all of her claims, including her claim that Defendant violated the Equal
Pay Act, Plaintiff provided no evidence of pretext. Although the circumstances surrounding
Plaintiff’s termination may be unclear in the record, there is simply no evidence showing that
Plaintiff’s complaints about Ferman violating a law had anything to do with the real reason
behind her termination. Indeed, the transcript of Plaintiff’s clandestine recording of the
meeting where she claims Miller and Scott terminated her does not reveal any reference to
unequal pay or any other violation of law. The transcript reflects that Plaintiff, Miller, and
Scott discussed in great detail Plaintiff’s low CSI, which is consistent with Ferman’s
legitimate, non-discriminatory reason for Plaintiff’s termination.
Plaintiff does not provide enough evidence to permit a reasonable fact finder to
conclude that her low CSI was not the real reason for her termination. Combs v. Plantation
Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1528 (11th Cir. Ala. 1997). And the law is clear
Page 14 of 15
that an employee’s own evaluation and opinion is not a sufficient basis to establish pretext.
Standard v. A.B.E.L. Servs., 161 F.3d 1318, 1332-1333 (11th Cir. Ga. 1998). Accordingly,
Defendant is entitled to summary judgment on Plaintiff’s FWA claim.
It is therefore ORDERED AND ADJUDGED that:
1.
Defendant’s Motion for Summary Judgment (Dkt. 48) is denied in part and
granted in part.
2.
Plaintiff’s Motion for Summary Judgment (Dkt. 50) is denied.
3.
This case will proceed to trial on Plaintiff’s claim under the Equal Pay Act.
The Court defers entering judgment in Defendant’s favor on Plaintiff’s FWA
claim until the conclusion of this case.
DONE and ORDERED in Tampa, Florida on July 27, 2018.
Copies furnished to:
Counsel/Parties of Record
Page 15 of 15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?