Curet v. Ulta Salon, Cosmetics & Fragrance, Inc.

Filing 80

ORDER: Defendant Ulta Salon, Cosmetics & Fragrance, Inc.'s Motion for Judgment as a Matter of Law (Doc. # 75) is GRANTED. Ulta is entitled to judgment as a matter of law on Plaintiff Sandra Curet's retaliatory hostile work environment claim. The Clerk is directed to enter judgment accordingly and, thereafter, CLOSE the case. Signed by Judge Virginia M. Hernandez Covington on 5/19/2023. (DRG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SANDRA CURET,
v.

Plaintiff,

Case No. 8:21-cv-1801-VMC-TGW

ULTA SALON, COSMETICS
& FRAGRANCE, INC.,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Ulta
Salon, Cosmetics & Fragrance, Inc.’s Motion for Judgment as
a Matter of Law (Doc. # 75), filed on January 11, 2023. Sandra
Curet responded on January 24, 2023, (Doc. # 76), and Ulta
has replied. (Doc. # 79). For the reasons that follow, Ulta’s
Motion is granted.
I.

Background
The

parties

and

the

Court

are

familiar

with

the

underlying facts and the Court need not restate them here.
Plaintiff Sandra Curet initiated this action against her
former employer, Ulta, on July 26, 2021. (Doc. # 1). Ms.
Curet’s complaint asserted claims for retaliatory hostile
work

environment,

retaliation,

(Id.).

1

and

race

discrimination.

After discovery, Ulta moved for summary judgment on all
claims. (Doc. # 18). The Court granted summary judgment on
Ms. Curet’s retaliation and race discrimination claims, but
denied it as to her retaliatory hostile work environment
claim. (Doc. # 32).
Prior to trial, Ulta moved to bifurcate the issue of
punitive damages from the remainder of the trial. (Doc. # 25
at 10–11). The Court granted the motion. (Doc. # 44).
The case proceeded to trial on the retaliatory hostile
work environment claim. At the close of evidence, Ulta moved
for judgment as a matter of law pursuant to Federal Rule of
Civil Procedure 50(a). (Doc. # 55). The Court reserved ruling
on that motion. (Doc. # 56).
The case then went to the jury, which returned a verdict
in Ms. Curet’s favor. (Doc. # 67). The jury awarded Ms. Curet
$20,000

in

compensatory

damages.

(Id.).

The

case

then

proceeded to the punitive damages phase of the trial. Prior
to the jury’s deliberations, Ulta moved for judgment as a
matter of law on the issue of punitive damages, on which the
Court reserved ruling. (Doc ## 64, 65). The jury subsequently
found that punitive damages in the amount of $40,000 should
be awarded in Ms. Curet’s favor. (Doc. # 69).

2

Now, Ulta has renewed its motion for judgment as a matter
of law under Rule 50(a) and, alternatively, seeks judgment as
a matter of law under Rule 50(b). (Doc. # 75). Ms. Curet has
responded (Doc. # 76), and Ulta has replied. (Doc. # 79). The
Motion is ripe for review.
II.

Legal Standard
Federal Rule of Civil Procedure 50(a) provides:
once a party has been fully heard on an issue
during a jury trial and the court finds that
a reasonable jury would not have a legally
sufficient evidentiary basis to find for the
party on that issue, the court may: (A)
resolve the issue against the party; and (B)
grant a motion for judgment as a matter of law
against the party on any claim that requires
a favorable finding on that issue.

Fed. R. Civ. P. 50(a).
“Under Rule 50, a court should render judgment as a
matter of law when there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on that
issue.” Cleveland v. Home Shopping Network, Inc., 369 F.3d
1189, 1192 (11th Cir. 2004). Courts should grant judgment as
a matter of law only “if the evidence is so overwhelmingly in
favor of the moving party that a reasonable jury could not
arrive at a contrary verdict.” Middlebrooks v. Hillcrest
Foods,

Inc.,

256

F.3d

1241,

1246

(11th

Cir.

2001).

But

“[c]redibility determinations, the weighing of the evidence,
3

and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge.” Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 150 (2000).
III. Analysis
A.

Ulta’s Rule 50(a) Motion — Retaliatory Hostile Work
Environment

To establish a prima facie case for a retaliatory hostile
work environment, a plaintiff must show: (1) she engaged in
statutorily protected activity; (2) she suffered a materially
adverse employment action; and (3) there is a causal link
between the adverse action and the protected activity. Lucas
v. W.W. Grainger, 257 F.3d 1249, 1260 (11th Cir. 2001). As to
the materially adverse prong, the plaintiff must show that
the

conduct

complained

of

“well

might

have

dissuaded

a

reasonable worker from making or supporting a charge of
discrimination.” Monaghan v. Worldpay U.S. Inc., 955 F.3d
855, 862 (11th Cir. 2020).
However, unlike Title VII retaliation claims, which are
based on discrete acts, the “very nature” of a hostile work
environment claim “involves repeated conduct.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). Hostile
work environment claims are based on the “cumulative effect
of individual acts,” each of which “may not be actionable on

4

its own.” Id. Courts thus treat the “series of separate acts”
comprising a retaliatory hostile work environment claim as
“one unlawful employment practice.” Id. at 103 (internal
quotations omitted).
As to causation, a plaintiff must demonstrate a link
between her EEO activity and the totality of events allegedly
creating

a

hostile

work

environment.

See

Terrell

v.

McDonough, No. 8:20-cv-64-WFJ-AEP, 2021 WL 4502795, at *9
(M.D. Fla. Oct. 1, 2021) (rejecting plaintiff’s retaliatory
hostile work environment claim where she failed to link the
allegedly adverse actions to her EEO activity). To do so,
“[t]he plaintiff must generally establish that the employer
was actually aware of the protected expression at the time it
took the adverse employment action.” Debe v. State Farm Mut.
Auto. Ins., 860 F. App’x 637, 639 (11th Cir. 2021).
The parties agree that Ms. Curet engaged in protected
activity

by

making

hotline

complaints

alleging

race

discrimination, harassment, and retaliation on March 4, 2019;
April 11, 2019; May 30, 2019; June 30, 2019; and August 27,
2019. (Doc. # 40 at 6). The parties also agree that Ms.
Curet’s retaliatory hostile work environment claim is limited
to three written warnings issued in August and September 2019.
(Doc. # 40 at 7). The first occurred on August 17, when Ms.
5

Curet was asked to leave prior to her shift ending. (Doc. #
70-3). Ms. Curet’s shift was not scheduled to end until 2:00
pm, but because her only appointment for the day was at 11:00
am, Zan Oliva, the salon manager of the Ulta location where
Ms. Curet worked, asked her to leave at 1:15 pm. (Id.). Ms.
Curet did not want to leave because doing so would mean she
was unable to service walk-in customers, so she refused when
Ms. Oliva asked her to go home. (Id.; Doc. # 72 at 130:22–
25). Ms. Curet only left after Megan Lanza, the District
Manager, called the store to tell her to leave, resulting in
Ms. Oliva issuing a written warning. (Doc. # 70-3). Ms. Oliva
then documented the incident and informed Ms. Curet that she
was doing so. (Doc. # 72 at 132:7–18).
The second written warning occurred on September 14,
2019, when Ms. Oliva and Tammy Parsons, the General Manager
of the Ulta store where Ms. Curet worked, with Ms. Lanza’s
approval, placed Ms. Curet on a final written warning in
Ulta’s system. (Doc. # 70-4). Ms. Parsons and explained this
was because of Ms. Curet’s insubordinate conduct. (Doc. # 72
at 91:9–12.). The day before, on September 13, Ms. Oliva and
Ms. Curet were involved in a disagreement over mopping the
floor. (Doc. # 71 at 46:5–47:2). Ms. Curet refused to mop the
floor with a mop and bucket as instructed, which led Ms. Oliva
6

to issue a written warning. (Doc. # 72 at 91:2–12; Doc. # 704). In the written warning, Ms. Oliva explained that Ms. Curet
had refused to perform the job as required of a closing
employee. (Id.). On that day, Ms. Curet clocked out at 6:44
pm, and the store did not close until 9:00 pm. (Doc. # 70-6
at 14; Doc. # 71 at 47:20–25). However, at trial, Ms. Oliva
testified that it would not be unusual to ask stylists to
begin mopping before closing time, and that she had, on other
occasions, asked stylists other than Ms. Curet to begin
mopping before closing time. (Doc. # 72 at 135:14–24).
The third written warning occurred on September 18,
2019, after Ms. Oliva reprimanded Ms. Curet over her use of
Keratin, a hair product she used in her services, while Ms.
Curet was treating a client. (Doc. # 70-5). While Ms. Curet
was performing a Keratin treatment, Ms. Oliva informed her
that she was pouring too much Keratin and wasting the product.
(Doc. # 71 at 50:1–10). Ms. Curet stated that the Keratin was
reusable. (Id. at 50:12–14). However, Ms. Lanza testified
that Keratin is not reusable, so it would not be proper for
a salon employee to rebottle Keratin. (Doc. # 72 at 37:5–17).
After removing the bowl with the excess Keratin from Ms.
Curet’s workstation, Ms. Oliva took Ms. Curet to the break
room to discuss the incident. (Doc. # 72 at 140:13–19). Ms.
7

Parsons walked in on the conversation after returning from
lunch and testified that Ms. Curet had her voiced raised
during that conversation. (Doc. # 72 at 92:9–19). Thereafter,
Ms. Oliva documented Ms. Curet’s conduct and issued a written
warning. (Doc. # 72 at 143:9–10).
Ulta contends that Ms. Curet failed to adduce sufficient
evidence at trial to permit a jury to find (1) that Ms. Curet
suffered a materially adverse employment action; and (2) that
Ms.

Curet’s

three

written

warnings

protected activity. (Doc. # 75 at 7).

were

because

of

her

The Court will address

each argument in turn.
1.

Materially Adverse Employment Action

Ulta contends that the three written warnings issued to
Ms. Curet, even when viewed collectively, do not rise to the
level of a materially adverse employment action because the
warnings failed to result in a reduction in pay, benefits, or
responsibilities. (Doc. # 75 at 10). Ms. Curet falls back on
the

Court’s

summary

judgment

order,

highlighting

the

determination that “[a] reasonable jury could find that the
issuance of three written warnings in less than a month’s
time ‘well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.’” (Doc. # 32
at 21–22) (quoting Monaghan, 955 F.3d at 862).
8

In

setting

out

the

“materially

adverse

employment

action” standard, the Supreme Court has specified that such
a standard is objective. Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 69 (2006). However, in doing so, the Court
emphasized that it “phrase[d] the standard in general terms
because the significance of any given act of retaliation will
also

depend

upon

the

particular

circumstances.”

Id.

The

Eleventh Circuit has thus opined that “Burlington strongly
suggests that it is for a jury to decide whether anything
more than the most petty and trivial actions against an
employee should be considered “materially adverse” to [the
employee] and thus constitute adverse employment actions.”
Crawford v. Carroll, 529 F.3d 961, 974 n.13 (11th Cir. 2008).
Here, the evidence presented at trial is sufficient to
support the jury’s finding that Ms. Curet suffered an adverse
employment action. The jury was presented with the three
written warnings that Ms. Curet received. The jury also heard
testimony from Ms. Lanza that a formal written warning could
precede a final written warning, which “would lead to and can
lead to termination.” (Doc. # 72 at 25:23–25).
Although Ulta has cited to several cases in which written
warnings were not considered materially adverse employment
actions, those cases do not stand for the proposition that
9

written warnings cannot constitute adverse employment actions
as a categorical matter. See Debe, 860 F. App’x at 641
(finding “unjustified coaching, increased scrutiny, [and]
unfounded discipline” insufficient to demonstrate an adverse
effect where the plaintiff did not demonstrate they resulted
in objective harm”); see also Comerinsky v. Augusta Coating
& Mfg., LLC, 418 F. Supp. 3d 1252, 1263 (S.D. Ga. 2019)
(“Although reprimands are not, per se, materially adverse
changes

under

Title

VII,

they

may

qualify

as

adverse

employment actions under the particular circumstances of a
case.”); Brathwaite v. Sch. Bd. of Broward Cnty., Fla., 763
F. App’x 856, 860 (11th Cir. 2019) (“The Eleventh Circuit has
not yet held, in a published opinion, whether reprimands alone
can or should constitute materially adverse changes under
Burlington.”).
Thus, while the jury was not required to make such a
finding based on the evidence presented at trial, it was
nevertheless permitted to reach the conclusion that the three
written warnings — including a final written warning — were
materially adverse. The jury was presented with evidence that
Ms. Curet experienced formal discipline for her conduct. The
jury also heard Ms. Lanza’s testimony that such discipline
could be a precursor to termination. Given that inquiry under
10

Burlington is “fact-specific,” the Court declines to conclude
that the evidence as to the materially adverse employment
actions is “so overwhelmingly in favor of the moving party
that

a

reasonable

jury

could

not

arrive

at

a

contrary

verdict.” Brathwaite, 763 F. App’x at 860; Middlebrooks, 256
F.3d at 1246. The jury was entitled to find that Ms. Curet
suffered a materially adverse employment action based on the
evidence presented at trial.
2.

Causation

Ulta argues that Ms. Curet failed to present any evidence
at trial from which a jury could infer that Ms. Oliva, who
issued the three written warnings to Ms. Curet, was aware of
Ms. Curet’s protected activity. (Doc. # 75 at 12). Thus,
according to Ulta, Ms. Curet has failed to demonstrate a
causal connection between her protected activity and adverse
employment actions.
Ms. Curet contends that a jury could infer that Ms. Oliva
was made aware of Ms. Curet’s hotline complaints from the
fact

that

all

Ulta

managers

and

HR

employees

routinely

communicated about the operations of the salon where Ms. Curet
worked. (Doc. # 76 at 15). Ms. Curet also highlighted the
Court’s analysis set forth in its summary judgment order (Doc.
# 32) and its order denying Ulta’s motion for reconsideration.
11

(Doc. # 52). Arguing in opposition to Ulta’s motion for
judgment as a matter of law at the close of Ms. Curet’s case,
Ms. Curet’s counsel represented that the specific evidence of
Ms. Oliva’s knowledge was Ms. Oliva’s presence at two meetings
where Ms. Curet’s performance was discussed. (Doc. # 72 at
7:22–25).
“As
plaintiff

a

starting
needs

to

point
show

for
(among

any

retaliation

other

things)

claim,
that

a

the

decisionmaker actually knew about the employee’s protected
expression.” Martin v. Fin. Asset Mgmt. Sys., Inc., 959 F.3d
1048, 1053 (11th Cir. 2020). “[I]nferences in favor of a
plaintiff can be based only on evidence — not on speculation.”
Id. at 1058. Here, the relevant decisionmaker is Ms. Oliva,
because she was the manager who issued the three written
warnings forming the basis of Ms. Curet’s retaliatory hostile
work

environment

claim.

The

Court

recognizes

that

Tammy

Parsons, alongside Ms. Oliva, placed Ms. Curet on the final
written warning on September 14, 2019. (Doc. # 18-4 at ¶ 12).
But that written warning, which was issued on September 14,
2019, is the only instance of an adverse employment action
that Ms. Parsons is alleged to have participated in. In the
Court’s summary judgment order, it reasoned that there was
sufficient evidence to support an inference that Ms. Parsons
12

became aware of Ms. Curet’s protected activity during an April
12, 2019, meeting. (Doc. # 32 at 3; Doc. # 21-2 at 2). Because
“[a]

three-to-four-month

delay”

between

an

employer’s

discovery of protected activity and adverse action is “too
long,” Ms. Curet cannot establish a causal link between her
protected activity and any adverse action undertaken by Ms.
Parsons. Debe, 860 F. App’x at 639. Thus, only Ms. Oliva’s
knowledge is germane to the issue of causation.
On summary judgment, the Court determined that a factual
dispute existed as to whether Ms. Oliva was aware of Ms.
Curet’s hotline complaints. The Court highlighted the June 5,
2019, meeting, where Ms. Lanza sat down with Ms. Curet and
Ms. Oliva to discuss Ms. Curet’s concerns, focusing on Ms.
Curet’s issues with her schedule. (Doc. # 32 at 3). This
meeting occurred after Ms. Curet had submitted a hotline
complaint on May 30, 2019. (Doc. # 21-3 at 1). The Court noted
that during that meeting, Ms. Lanza discussed the importance
of clear communication and creating an environment where Ms.
Curet felt comfortable voicing her concerns with Ms. Oliva.
(Doc. # 32 at 3). The Court thus concluded that a reasonable
jury could infer that Ms. Oliva became aware of Ms. Curet’s
protected activity by virtue of the June 5, 2019, meeting.
(Id. at 23).
13

Ulta thereafter filed a motion for reconsideration as to
Ms.

Curet’s

retaliatory

hostile

work

environment

claim,

specifically homing in on the issue of Ms. Oliva’s knowledge.
(Doc. # 35). However, the Court denied the motion, reiterating
that “being asked to meet with the District Manager regarding
a

subordinate

could

indicate

to

someone

in

Ms.

Oliva’s

position that protected activity had occurred.” (Doc. # 52 at
4–5).
But the jury never heard the evidence on which this Court
had relied at the summary judgment stage in finding a genuine
dispute of fact. While the Court’s summary judgment and
reconsideration orders noted that evidence concerning the
June 5, 2019, meeting could support an inference of knowledge,
Ms. Curet failed to develop such evidence at trial.
Indeed,

Ms.

Curet’s

evidence

at

trial

failed

to

establish that Ms. Oliva even attended the two meetings
between Ms. Curet and her supervisors, much less that Ms.
Oliva became aware of Ms. Curet’s protected activity during
these meetings. During Ms. Curet’s testimony, her counsel
asked her about the complaint that she filed on May 30, 2019.
(Doc. # 71 at 38:1–2). Counsel then asked Ms. Curet with whom
she discussed the complaint after it was filed. (Id. at 38:4–
5). Ms. Curet stated that she spoke with Meghan Lanza. (Id.
14

at 38:6). Ms. Curet did not provide any testimony indicating
that Ms. Oliva was present at the meeting to discuss the May
30, 2019, complaint, or that Ms. Curet discussed the complaint
with Ms. Oliva at any point. Nor did counsel for Ms. Curet
ask her at any point whether Ms. Oliva attended this meeting.
Further, Ms. Oliva testified that she did not have any
in-person meetings with Ms. Curet to specifically discuss any
complaints that Ms. Curet had made. (Doc. # 72 at 146:4–21).
And at no point during her testimony did Ms. Oliva reference
the June 5, 2019, meeting with Ms. Curet and Ms. Lanza. See
(Doc. # 21-4 at 2) (documenting the June 5, 2019, meeting).
Nor did counsel for Ms. Curet inquire, on cross-examination,
whether Ms. Oliva had attended a meeting on June 5, 2019.
Ms. Lanza testified that during the meetings that she
had with Ms. Curet and other employees at the Ulta salon, she
did not indicate during the meeting that Ms. Curet had engaged
in protected activity. (Doc. # 72 at 57:8–18).
In short, at summary judgment, the Court based its
determination that a factual dispute existed as to Ms. Oliva’s
knowledge based on a June 5, 2019, meeting that occurred
between Ms. Curet, Ms. Oliva, and Ms. Lanza. (Doc. # 32 at
3). But at trial, Ms. Curet did not even move to introduce
the record evidence that the Court relied on and cited to in
15

both its summary judgment and reconsideration orders. See
(Doc. # 70) (noting the exhibits admitted during trial).
Likewise, at trial, Ms. Curet did not attempt to elicit
testimony from either her single witness or any of the defense
witnesses regarding Ms. Oliva’s presence at the June 5, 2019,
meeting.
Without evidence of Ms. Oliva’s presence at any meeting
regarding Ms. Curet’s hotline complaints, the jury here could
not have reasonably inferred that Ms. Oliva was aware of Ms.
Curet’s protected activity. In the absence of that meeting,
the only evidence Ms. Curet highlights as probative of Ms.
Oliva’s awareness relies on impermissible speculation. See
Martin, 959 F.3d at 1054 (noting that speculation cannot
support

a

jury’s

inferences).

Specifically,

Ms.

Curet

contends that the “constant interaction” between managers and
HR employees at Ulta is circumstantial evidence that Oliva
became aware of Ms. Curet’s protected activity. (Doc. # 76 at
6). The Court disagrees. As Ulta emphasizes, “‘could have
told’ is not the same thing as ‘did tell.’” Clover v. Total
Sys. Servs. Inc., 176 F.3d 1346, 1355 (11th Cir. 1999). That
Ms. Oliva and Ms. Lanza may have communicated at some point
in

time

between

when

Ms.

Curet

16

submitted

her

hotline

complaints and when Ms. Oliva issued the written warnings
does not establish knowledge.
Because Ms. Curet failed to present evidence at trial from
which the jury could have inferred that Ms. Oliva was aware
of Ms. Curet’s protected activity, Ms. Curet did not prove
causation as to her retaliatory hostile work environment
claim. Thus, judgment as a matter of law is appropriate.
B.

Ulta’s Rule 50(a) Motion — Punitive Damages

Ulta also contends that there was insufficient evidence
to support a punitive damages award and seeks judgment as a
matter of law on the issue of punitive damages. (Doc. # 75 at
18). Because the Court has determined that judgment as a
matter of law on Ms. Curet’s single claim presented at trial
is appropriate, Ms. Curet is not entitled to punitive damages.
See Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1205 (11th
Cir. 2004) (“[T]he jury’s failure to find any legal basis for
imposing civil liability . . . necessarily precludes any award
of punitive damages.”).
C.

Ulta’s Rule 50(b) Motion

In the alternative, Ulta moves to renew its motion for
judgment as a matter of law under Federal Rule of Civil
Procedure Rule 50(b). (Doc. # 75 at 20–21). Because the Court
has determined that judgment as a matter of law is appropriate
17

pursuant to Ulta’s motion under Rule 50(a), it need not
undertake an analysis under Rule 50(b).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant

Ulta

Salon,

Cosmetics

&

Fragrance,

Inc.’s

Motion for Judgment as a Matter of Law (Doc. # 75) is
GRANTED.
(2)

Ulta is entitled to judgment as a matter of law on
Plaintiff

Sandra

Curet’s

retaliatory

hostile

work

environment claim.
(3)

The Clerk is directed to enter judgment accordingly and,
thereafter, CLOSE the case.
DONE and ORDERED in Chambers in Tampa, Florida, this

19th day of May, 2023.

18