St. George et al v. Advance Stores Company, Inc.

Filing 99

ORDER granting 57 Motion for Summary Judgment as to Plaintiff James Dorvil. Signed by Magistrate Judge Edwin G. Torres on 12/6/2011. (EGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-60036-Civ-TORRES
CONSENT CASE
JAMES DORVIL,
Plaintiff,
vs.
ADVANCE STORES COMPANY,
INC., d/b/a ADVANCE AUTO PARTS,
Defendants.
__________________________________/
ORDER GRANTING DEFENDANT’S
MOTION FOR FINAL SUMMARY JUDGMENT
This matter is before the Court on Defendant Advance Stores Company, Inc.,
d/b/a Advance Auto Parts’ Motion for Summary Judgment with Incorporated
Memorandum of Law as to Plaintiff James Dorvil’s claims [D.E. 57]. The Court has
reviewed the motion, response, reply, relevant authorities, supplemental filings and
record evidence submitted in support for or in opposition to the motion. Based upon a
thorough review of the record, we find that there are no genuine issues of material fact
to preclude final summary judgment. For the following reasons, the final summary
judgment motion will be GRANTED.
I. BACKGROUND
Defendant, Advance Stores Company, Inc., d/b/a Advance Auto Parts
(“Defendant” or “Advance”), employs over 51,000 people and operates 3,500 retail

locations in the United States and in the Caribbean. [D.E. 58 at 2]. In each retail
location, a Store Manager supervises between ten and fifteen full-time and part-time
hourly employees. [Id.]. Advance divides its retail locations into districts and assigns
a District Manager to supervise the Store Managers within the relevant district. [Id.].
Asset Protection Managers further monitor Advance’s retail locations by conducting
announced or unannounced financial audits of the stores within the Asset Protection
Manager’s assigned territory. [Id. at 6-7]. At some of its retail locations, Advance
employs an hourly Commercial Parts Professional (“Commercial Parts Pro”) to make
commercial sales. [D.E. 57, 58]. The Commercial Parts Pro reports to at least two
supervisors within Advance’s supervisory hierarchy; the Commercial Parts Pro reports
to the Store Manager [D.E. 58 at 4], but the Commercial Parts Manager also retains
supervisory authority over the Commercial Parts Pro. [D.E. 77 at 3]. Additionally,
Advance operates a Human Resources department, equipped with an hotline that
employees can call to report employer discrimination, and employs a Human Resources
Manager. [D.E. 58, 77].
Plaintiff James Dorvil (Black/Haitian) began working for Advance’s predecessor,
Discount Auto Parts, in 1998 as a Sales Associate. [D.E. 58 at 2]. Dorvil voluntarily
resigned in February 1999, but soon returned to Advance and was promoted to the
Store Manager position in 2003. [Id.]. As a Store Manager, Dorvil’s duties included
supervising the store’s overall operations, training, supervising, hiring and disciplining
team members, ensuring customer satisfaction, maximizing profitability through sales,
payroll, inventory, cost control, and complying with all company policies and
2

procedures. [Id.]. Dorvil received an annual salary of $41,340 in 2007 and received a
pay raise on March 30, 2008 based on his performance in 2007. [Id. At 3]. Dorvil served
Advance as a Store Manager from 2003 until his termination on April 25, 2008. [Id. at
2, 8].
In June 2007, Advance promoted Phil Bean (White/Caucasian) from the position
of Commercial Parts Manager to the position of District Manager for district 4106.
[D.E. 77 at 3]. As District Manager, Bean had supervisory authority over eleven retail
locations and initially supervised five Black Store Managers, five White Store
Managers, and one Hispanic Store Manager. [Id.]. Dorvil knew Bean when Bean served
as the Commercial Parts Manager, but their professional relationship changed when
Bean became Dorvil’s direct supervisor following Bean’s promotion to District
Manager. [D.E. 77].
In October 2007, Bean hired Edgar Herrera (White/Hispanic) to replace Reinaldo
Sales [Bean Depo. 11-25] as the Commercial Parts Pro in Dorvil’s store. Bean hired
Herrera at an hourly pay rate of $15.85, a pay rate within Advance’s compensation
range for the Commercial Parts Pro position, without any input from Dorvil. [D.E. 58,
57]. Bean had knowledge of Herrera’s capabilities having previously supervised him
in the Commercial Parts Pro position. [D.E. 58]. In directly hiring Herrera, Bean may
have deviated from Advance’s typical hiring procedure for the Commercial Parts Pro
position. Typically, the Store Manager interviews and hires applicants for the
Commercial Parts Pro position without input from the District Manager. [Bean Depo.
at 32-34]. However, a Store Manager may request that the District Manager conduct
3

a follow-up interview with a prospective Commercial Parts Pro candidate. Moreover,
in at least one other incident, another Store Manager hired an employee for the
Commercial Parts Pro position without any input from the Store Manager. [Id. at 34;
Bean Aff. ¶ 34].
As an hourly employee, Herrera qualified for overtime compensation. Under
some circumstances, Advance’s hourly employees may earn a higher annual
compensation than their Store Manager because Advance’s Store Managers receive
salaried compensation and do not qualify for overtime pay. [Bean Aff. ¶ 33]. For
instance, when Bean served Advance as a Store Manager he earned less than the
Commercial Parts Pro employed at his store. [Id. ¶ 34].
Advance utilizes a computer-generated system for calculating each retail
location’s payroll hours. [Bean. Depo. at 165]. The allotment of payroll hours varies
according to the store’s sales figures. [Id.]. Under this system, the District Manager has
no impact upon a store’s allotment of payroll hours. [Id.]. In February 2008, Dorvil
received a warning for exceeding the payroll hours allotted to his store. [Dorvil Depo.
at 146]. However, this warning did not go into Dorvil’s personnel file. [Colón Aff. ¶ 8].
Additionally, Bean issued warnings to non-Black/Non-Haitian Store Managers for
payroll

issues,

including

Ed

Bila

(White/American)

and

Gloria

Duque

(White/Columbian). [Bean Depo. at 240; Bean Aff. ¶ 16]. Dorvil alleges that two other
Store

Managers,

Chase

Ficarro

(White/American)

and

Conroy

Casella

(White/American), also exceeded their allotment of payroll hours but did not receive
warnings. [Dorvil Depo. at 52, 94, 154]. Ficarro was eventually promoted, but Bean
4

demoted Casella on August 10, 2008 for violating company policy. [Bean Aff. ¶ 23, 5;
Bean Depo. at 82-83].
At the time Dorvil received a warning for exceeding his allotment of payroll
hours, Herrera controlled his own schedule. [Dorvil Depo. at 61-62]. Although the Store
Manager typically controls the scheduling of hourly employees, Herrera would report
to work at times when he was not scheduled. [Id. at 62]. Additionally, Herrera would
work anywhere from 10 to 25 hours of overtime without consulting Dorvil. [Id.]. Dorvil
recognized Herrera’s unchecked scheduling as a problem, and voiced the issue to Bean.
[Id. at 62-64]. When Dorvil spoke to Bean about Herrera’s practice of working
unscheduled hours, Bean told Dorvil, “Don’t worry about it. I will take care of it.” [Id
at 62]. Dorvil thus attributed his payroll difficulties to the unchecked behavior of
Herrera. [Id. at 239-240].
Advance conducts a yearly Customers are Coming (“CAC”) inspection of each of
its retail locations to ensure that each store conforms to Advance’s performance and
appearance standards. [Bean Aff. ¶ 9]. Advance schedules CAC inspections far in
advance, and requires a District Manager from another district to complete the
inspection to prevent any possible bias. [Dorvil Depo. at 134; Bean Aff. at ¶ 10]. In the
experience of District Manager Alex Galnares, a CAC inspection has never been
cancelled either because of an emergency or at the request of a Store Manager.
[Galnares Depo. at 30].
Galnares conducted Dorvil’s February 1, 2008 CAC inspection. [Galnares Depo.
at 23-24]. Dorvil requested a delay of his CAC inspection because of a sewage problem
5

with his store. [Dorvil Depo. at 135]. Although Galnares did not recall a sewage
problem with Dorvil’s store, a sewage issue would nevertheless fail to constitute
grounds for rescheduling the CAC because Advance schedules the inspections months
in advance. [Galnares Depo at 25, 30]. Dorvil’s February 1, 2008 CAC inspection
proceeded as scheduled, and Dorvil’s store received a failing score. [Dorvil Depo. at 13435]. Bean visited Dorvil’s store on February 6, 2008 and gave him a “letter of concern”
that provided Dorvil with 60 days to either correct the problems identified by the CAC
review or face disciplinary action. [Id. at 149-50; Bean Depo. at 168-69].
Dorvil’s store underwent an upgrade beginning three to four months before
Dorvil’s CAC inspection was scheduled. [Bean 6/22/11 Aff.¶ 4]. The upgrade took place
in stages and should have been completed before Dorvil’s scheduled CAC inspection in
February. [Id.]. Another Store, managed by Casella, underwent an upgrade at a
similar time, but Casella’s store did not have the performance issues that Dorvil’s store
did. [Bean Aff. ¶ 39].
Another Store Manager in Bean’s District, John Dettman (White/American), also
failed the February 2008 CAC inspection. [Bean Depo. At 64-65; Bean Aff. ¶ 37]. Bean
placed Dettman on probation following his failing score on the CAC inspection, but
Dettman did not have any cash handling issues. [Id.]. Nevertheless, Advance
terminated Dettman on July 18, 2008 for his poor performance and his failure to
improve the overall condition of his store following his failed CAC inspection. [Id.].
Advance replaced Dettman with Roody Jean (Black/American). [Id.].

6

Around

the

same

time,

another

Store

Manager,

Patrick

Cheung

(Asian/American), ended his employment with Advance. Asset Protection Managers
Christian Taboas (White/American) and Fernando Rondinoni (White/Argentinian), and
Bean conducted an investigation into Cheung’s store. [Bean Depo. at 71]. The group
determined that Cheung violated Advance’s company policy by failing to mark-up for
resale automobile parts acquired by Advance from outside sources. [Id. at 71-72].
Advance placed Cheung on probation because it was a Friday, but intended to call him
back on Monday to affect his termination. [Id. at 72-73]. However, Cheung called Bean
on Friday afternoon and voluntarily resigned his position. [Id. at 72].
On April 23, 2008, Rondinoni and Taboas conducted an unannounced financial
audit of Dorvil’s store. [Rondinoni Aff. ¶ 21]. Rondinoni initiated the audit because
Dorvil’s store consistently reported unusually low inventory shrink numbers.
[Rondinoni Depo. at 38-40]. From his audit, Rondinoni concluded that Dorvil’s store
failed to comply with many of Advance’s Minimally Acceptable Performance standards
(“MAPs”). [Id. at 37-50]. Of more pressing concern, Rondinoni discovered that the
commercial parts register at Dorvil’s store was subjected to the forbidden practice of
“forced balancing.” [Id. at 51]. Forced balancing refers to the practice of treating certain
dollar amounts owed to Advance by commercial customers as having been already
collected. [Id. at 51, 60]. During the audit, Rondinoni found records, written in
Herrera’s handwriting on sheets of paper located next to the register, of the amounts
used to forcibly balance the commercial parts register. [Id.]. Rondinoni concluded that

7

the forced balancing occurred only at the commercial parts register, and did not occur
at any other registers in Dorvil’s store. [Id. at 54].
On April 25, 2008, Rondinoni organized a meeting between himself, Bean, and
Tamara Colón (White/Puerto Rican), the Human Resources Manager, to discuss the
audit of Dorvil’s store. [Id. at 54]. At that meeting, the group concluded that Herrera
could not have practiced forced balancing without the knowledge or participation of the
Store Manager. [Id. at 52]. Dorvil, as Store Manager, retained the ultimate
responsibility for ensuring that each of the registers in his store balanced properly.
[Dorvil Depo. at 66]. Moreover, if Dorvil believed that Bean had knowledge of forced
balancing at a store within Bean’s district, Dorvil was obligated to report any such
misconduct on Bean’s part “to R[egional] V[ice] P[resident], to H.R., do an ethic call to
report this incident if it was–if he was aware and he got knowledge that there was
something wrong.” [Rondinoni Depo. at 65-66]. At the meeting, Bean made the decision
to terminate Dorvil. [Rondinoni Depo. at 58]. Advance eventually replaced Dorvil with
a Black/Nigerian manager, Olatubosun Oderino. [Bean Depo. at 75.]
Following his termination, Dorvil called Advance’s hotline to complain of
employer discrimination. [Dorvil Depo. at 192]. Dorvil reported that Bean made
comments directed towards Dorvil based on Dorvil’s race and/or national origin. Dorvil
asserts that Bean mimicked his accent, saying “Oh, speak English” in a funny accent;
Dorvil also asserts that Bean said “This is South Florida we do it in southern style,
you’ve got to speak English so I can understand what you’re saying,” and referred to

8

Haitians as “you Haitians,” or “you guys.” It is alleged that Bean also commented that
“Haitians are lazy.” [Id. at 93, 173-74, 233].
Dorvil next filed a charge with the Equal Employment Opportunity Commission
(“EEOC”). When completing the EEOC charge form, Dorvil failed to check the box
labeled “national origin” and failed to specifically raise a charge of discrimination
based on his Haitian background. [Dorvil Depo. at 207-08].
II. APPLICABLE LAW
A.

Summary Judgment Standard

“The court shall grant summary judgment 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 party asserting that a fact cannot be or is not
genuinely disputed must support that assertion by “citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers or other materials; or showing
that materials cited do not establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to support the fact.” Id. at
56(c)(1).
However, “in determining whether summary judgment is appropriate, the facts
and inferences from the facts are viewed in the light most favorable to the non-moving
party, and the burden is placed on the moving party to establish both the absence of
a genuine material fact and that it is entitled to judgment as a matter of law.”
9

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). As
such, the court must resolve all reasonable doubts in favor of the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In opposing a motion for summary judgment, the non-moving party may not rely
solely on the pleadings, but must show by affidavits, depositions, answers to
interrogatories, and admissions that specific facts exist demonstrating a genuine issue
for trial. See Fed. R. Civ. P. 56(c), (e); see also Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986); Gonzalez v. Lee County Hous. Auth, 161 F.3d 1290, 1294 (11th Cir.
1998). Further, “this standard provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson, 106 S. Ct. at 2510. Likewise, a court need not permit a case to go to a
jury when the inferences that are drawn from the evidence, and upon which the nonmovant relies, are “implausible.” Matsushita, 475 U.S. at 592-94; Mize v. Jefferson City
Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
B.

Statutory Framework

In this case, the Plaintiff’s claims of race and national origin discrimination
arise under the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes
(“FCRA”). The FCRA is patterned after Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000 et seq. (“Title VII”); therefore, federal case law dealing with Title VII
applies to employment discrimination cases brought under the FCRA. See Maniccia v.
Brown, 171 F.3d 1364, 1368 (11th Cir. 1999); Florida Dep’t of Cmty. Affairs v. Bryant,
10

586 So. 2d 1205, 1208 (Fla. 1st DCA 1991). Accordingly, this Court will begin by
analyzing the Plaintiff’s FCRA claims of race and national origin discrimination under
the framework for Title VII discrimination claims established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
C.

The Burden

In a Title VII claim, a plaintiff may establish employer discrimination by
providing the Court with either direct or indirect evidence of the alleged
discrimination. Hill v. Metro. Atlanta Rapid Transit Auth., 841 F.2d 1533, 1539 (11th
Cir. 1988). A plaintiff may “present direct evidence of discriminatory intent in the form
of actions or remarks of the employer reflecting a discriminatory attitude.” Id. “Direct
evidence is that which shows an employer’s discriminatory intent without any
inference or presumption.” Hinson v. Clinch County, 231 F.3d 821, 827 (11th Cir. 2000)
(internal quotation marks omitted). However, “only the most blatant remarks whose
intent could be nothing other than to discriminate” will constitute direct evidence of
discrimination. Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989).
Absent direct evidence of an employer’s discriminatory intent, this Court
recognizes a burden-shifting analysis for Title VII discrimination claims based on
circumstantial evidence. McDonnell, 411 U.S. at 802; See also Carter, 870 F.2d at 582.
The plaintiff carries the initial burden of establishing a prima facie case of
discrimination. Id. at 802. Under the McDonnell Douglas framework, “a plaintiff
establishes a prima facie case of race discrimination under Title VII by showing: (1) he
belongs to a racial minority; (2) he was subject to adverse job action; (3) his employer
11

treated similarly situated employees outside his classification more favorably; and (4)
he was qualified to do the job.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
Where a plaintiff successfully establishes a prima facie case of discrimination,
the evidence “creates a presumption that the employer unlawfully discriminated
against the employee.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).
The burden then shifts to the employer to produce a legitimate, nondiscriminatory
reason to rebut the presumption of discrimination. Id. “To accomplish this, the
defendant must clearly set forth . . . the reasons for the plaintiff’s rejection,” but
notably, the burden requires only production and not persuasion. Id.
Once a defendant produces a legitimate, nondiscriminatory reason for its action,
the burden again shifts back to the plaintiff to “demonstrate that the proffered reason
was not the true reason for the employment decision.”Id. at 256. The plaintiff’s burden
of undermining the employer’s proffered reason thus “merges with the ultimate burden
of persuading the court that [the plaintiff] has been the victim of intentional
discrimination.” Id. A plaintiff may satisfy this burden “either directly by persuading
the court that a discriminatory reason more likely motivated the employer or indirectly
by showing that the employer’s proffered explanation is unworthy of credence.” Id.
However, if the plaintiff cannot identify a similarly situated employee outside
of their protected class who was treated more favorably as required by the McDonnell
Douglas framework, the plaintiff will still be able to avoid summary judgment by
supplying the court with sufficient evidence to create an inference of discrimination.
The inability to identify a comparator “does not necessarily doom the plaintiff’s case.”
12

Smith v. Lockheed Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). In Lockheed,
the court held that the McDonnell Douglas framework is not the only way in which a
plaintiff can establish a triable issue of fact. Instead, the plaintiff can survive summary
judgment by presenting a “convincing mosaic of circumstantial evidence that would
allow the jury to infer discrimination.” Id . (quoting Silverman v. Bd. of Educ., 637 F.3d
729,734 (7th Cir. 2011)).
III. ANALYSIS
A.

Plaintiff Properly Asserted a National Origin Claim

The Plaintiff in this case properly asserted his national origin discrimination
claims, contrary to Defendant’s argument that Dorvil is precluded from raising a
national origin claim after having failed to exhaust his administrative remedies.
There is no dispute that a federal court must enforce the “requirement of
exhaustion of administrative remedies” before a plaintiff may properly assert a
discrimination claim. Griffin v. Carlin, 755 F.2d 1516, 1522 (11th Cir. 1985). The
requirement “is satisfied when the issues (a) are expressly raised in the pleadings
before the administrative agency, (b) might reasonably be expected to be considered in
a diligent investigation of those expressly raised issues, or (c) were in fact considered
during the investigation.” Id.
Following the exhaustion of administrative remedies “after a party has filed a
Charge with the EEOC, any subsequent judicial proceeding is limited by the nature
of the Charges filed with the EEOC.” Lieberman v. Miami-Dade County, Case No. 991714, 2000 WL 1717649, *4 (S.D.Fla. Aug. 16, 2000). Although “a court should apply
13

a ‘liberal’ standard when considering the relationship between an EEOC Charge and
a judicial complaint, a claimant’s lack of specificity in an EEOC Charge precludes the
claimant from later seeking judicial relief.” Id.
For example, in Griffin, the plaintiff’s administrative complaint charged racial
discrimination alleging that the post office systematically excluded qualified blacks
from

training,

development,

and

opportunities

for

promotion

within

the

administration. Griffin, 755 F.2d at 1522. The District Court dismissed the plaintiff’s
challenge to the post office’s administration of written tests to determine candidates
for advancement. The District Court concluded that the plaintiff’s judicial challenge
to the written tests fell outside of the scope of “the administrative investigation which
could be reasonably expected to grow out of the charge of discrimination.” Id. However,
the Eleventh Circuit reversed the order and remanded for consideration of the claim.
The Eleventh Circuit reasoned that “written examinations were an integral part of the
promotional scheme” and held that “[plaintiff’s] complaint clearly challenged aspects
of defendant’s employment practices which would reasonably include testing.” Id.
Also, the Fifth Circuit has held that technical defects, such as failure to check
a box on a form, will not automatically bar a plaintiff’s discrimination claim. Sanchez
v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). In Sanchez, the plaintiff filed
a charge of discrimination with the EEOC by completing a Charge form. The form
“calls for the complainant to specify whether the discrimination alleged was ‘because
of’ (a) ‘race or color,’ (b) ‘religious creed,’ (c) ‘national origin’ or (d) ‘sex’; a row of boxes
is provided- one for each category of discrimination.). Id. at 458. The complainant
14

checked only the box labeled “sex.” Id. The complainant later amended her charge of
discrimination and checked the boxes labeled “sex” and “national origin.” Id. However,
the plaintiff amended her complaint after the ninety-day period allowed for such
amendments. Id. Nevertheless, the Fifth Circuit concluded that the “[plaintiff’s] failure
to check the box labeled ‘national origin’ was a mere ‘technical defect or omission’” and
would not bar the plaintiff from presenting the claim of national origin discrimination
to the Court. Id. at 462. The Fifth Circuit reasoned that “the provisions of Title VII
were not designed for the sophisticated or the cognoscenti, but to protect equality of
opportunity among all employees and prospective employees.” Id. at 463.
Notably, the Court identified three reasons why a charging party might fail to
check the correct box on the EEOC charge form: (1) the charging party may be unaware
of the employer’s motivation for perpetrating the “unfair thing” done to him, (2) the
charging party may not understand the distinction between an act motivated by
different kinds of discrimination, and (3) the charging party may be unschooled in the
use of forms. Id. at 462-63. The Court explained that none of the aforementioned
reasons “should cut off the charging party’s rights.” Id. at 462.
In the present case, like the plaintiff in Sanchez, Dorvil failed to check the box
labeled “national origin” on the EEOC Charge form, and only checked the box labeled
“race.” [Dorvil Depo. at 208]. In response to the EEOC Charge form’s prompt to provide
a description of the discrimination, Dorvil wrote: “I was terminated because the DM
disliked my race.” [Id. at 208 and Exh. “15" thereto]. However, in his deposition, Dorvil
notes that “English is my second language” [Id.. at 209], and reveals his confusion
15

about the exact basis for the discrimination stating that, in his perception, “black race.
It’s the same thing. Haitian black.” [Id. at 207].
Moreover, Dorvil did include the word “Haitian” on his EEOC Charge form.
Dorvil wrote on the form that “Mr. Bean also addressed Black and Haitian employees
as ‘you guys,” and ‘you Haitians,’ he stated on numerous occasions that ‘Haitians are
lazy,’ he mimic the accent and tell people to ‘speak English.’” [Dorvil Depo. at 231].
This Court must employ liberal standards in determining the relationship
between the EEOC Charge and the plaintiff’s later judicial complaint. As the court
indicated in Sanchez, it is entirely probable that Dorvil was unaware of the distinction
between acts motivated by different kinds of discrimination. In fact, Dorvil’s
statements indicate that he doesn’t perceive a difference between being Haitian and
being Black. Additionally, similar to Griffin, in which the plaintiff’s reference to the
exclusion of Blacks from training and promotion could reasonably be expected to
include an investigation into the written tests used to determine promotions, an
investigation into national origin discrimination could reasonably be expected to be
executed when Dorvil’s EEOC Charge directly referenced race but also included
allegations of discriminatory remarks made about his national origin.
Therefore, Dorvil adequately asserted his claims of national origin
discrimination in his EEOC Charge, and the Court is entitled to address these claims
here.

16

B.

Plaintiff’s Prima Facie Case

Dorvil clearly meets the requirements for the first and fourth prongs of the
McDonnell Douglas test to establish a prima facie case of discrimination based on race
and/or national origin: (1) Dorvil is a member of a protected class as he is Black and
is of Haitian national origin; and (4) Dorvil was qualified for his position. The
Defendant does not contest the first and fourth prongs of the prima facie case, and the
Court will accordingly limit discussion to the second and third prongs of the McDonnell
Douglas test.
1.

Plaintiff’s Termination Constitutes an Adverse
Employment Action For Purposes of the Prima Facie Case

The second prong of the McDonnell Douglas test requires that the plaintiff
suffer an adverse job action to establish a prima facie case of discrimination. Holifield,
115 F.3d at 1562. Although Dorvil makes several allegations that Defendant’s
discrimination resulted in adverse job actions, only Dorvil’s eventual termination
constitutes an adverse job action for the purposes of the McDonnell Douglas test and
the establishment of his prima facie case.
First, “not all conduct by an employer negatively affecting an employee
constitutes an adverse employment action” for the purposes of establishing a prima
facie case of discrimination. Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238
(11th Cir. 2001). For a plaintiff to establish a prima facie case of discrimination, and
to then succeed on discrimination claim, an employee must show that the employment
decision seriously and materially affected the terms of her employment. Id. at 1239.
17

Second, if the employer’s alleged discriminatory action falls short of an ultimate
employment decision, the conduct must substantially “alter the employee’s
compensation, terms, conditions, or privileges of employment, deprive him or her of
employment opportunities, or adversely affect his or her status as an employee.”
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (internal quotation marks
omitted). As such, if a plaintiff alleges discrimination with regards to an employment
decision that falls short of termination, the Eleventh Circuit requires an employee to
“demonstrate she suffered a serious and material change in the terms, conditions, or
privileges of employment to show an adverse employment action.” Id. at 971.
The Defendant’s actions in February 2008 fail to constitute an adverse job action
for the purposes of the prima facie case. In February 2008, Dorvil exceeded his allotted
payroll hours. In response to this infraction, Dorvil received a warning; however, the
Defendant did not save the warning in Dorvil’s personnel file. Dorvil argues that
evidence that three Black Store Managers received similar warnings, including
plaintiffs Dorvil, St. Georges, and Ganpath, while only two White Store Managers
received such warnings demonstrates that Bean targeted Black Store Managers. This
showing of evidence is insufficient as a matter of law given that the Defendant employs
a computer-generated system for determining payroll hour allocations and given the
statistical insignificance between the numbers two and three.
Similarly, the Defendant’s actions in allowing Bean to hire Herrera as the
Commercial Parts Pro and in allowing Bean to supervise Herrera does not constitute
an adverse employment action for the purposes of the prima facie case. Dorvil claims
18

that the Defendant discriminated against him when Bean hired Herrera to work as the
Commercial Parts Pro in Dorvil’s store. Dorvil also claims that the Defendant
discriminated against him because Bean supervised Herrera while Herrera worked in
Dorvil’s store. This Court is not persuaded that Defendant’s actions in hiring and
supervising Herrera constituted adverse employment actions for the purposes of the
prima facie case. This employment decision falls short of an ultimate employment
decision. Even if the Defendant’s actions modified Dorvil’s duties in some way, the
evidence does not suggest that the Defendant’s actions significantly altered the terms,
conditions, or privileges of Dorvil’s employment. Moreover, even if the Defendant’s
actions in hiring and supervising Herrera suggest that the Defendant deviated from
the Defendant’s typical hiring procedures, on at least one other occasion a District
Manager directly hired a Commercial Parts Pro for Bean’s store.
In addition, the Defendant’s actions in failing to reschedule Dorvil’s CAC
inspection in light of a sewage problem with Dorvil’s store does not constitute an
adverse employment action for the purposes of the prima facie case. Dorvil claims that
the Defendant discriminated against him because the Defendant did not accommodate
Dorvil’s request to reschedule his annual CAC inspection. The Defendant’s refusal to
reschedule the CAC inspection falls short of an ultimate employment decision.
Moreover, the Defendant’s refusal to reschedule the CAC inspection in does not amount
to a “serious and material change in the terms, conditions, or privileges of employment
to show an adverse employment action.” Crawford, 529 F.3d at 971. In fact, the yearly
CAC inspection is one of the Store Manager’s critical duties, is scheduled far in
19

advance and around the same time each year, and is rescheduled only in the event of
an emergency. Additionally, senior management stated that a sewage problem would
not constitute grounds for rescheduling the CAC. Thus, the Defendant’s decision to
move forward with the CAC inspection despite the sewage problem does not rise to the
level of an adverse employment action.
Finally, the Defendant’s actions in moving forward with the CAC even though
Dorvil’s store was being upgraded and in failing to provide Dorvil assistance with his
store’s upgrade while providing assistance to another Store Manager undergoing an
upgrade does not constitute an adverse employment action for the purposes of the
prima facie case. The Defendant’s actions regarding the store upgrade do not rise to the
level of an ultimate employment decision. Moreover, the upgrade of Dorvil’s store
began three to four months before the CAC, took place in stages, and should have been
completed prior to the CAC. Drawing all reasonable inferences in the Plaintiff’s favor,
the upgrade of Dorvil’s store and the assistance given by the Defendant to Casella fail
to constitute an adverse employment action because these decisions do not seriously
and materially affect Dorvil’s terms, conditions, and privileges of employment.
Only the Defendant’s eventual termination of Dorvil constitutes an adverse
employment action for the purposes of the prima facie case. Unquestionably, the
termination seriously and materially altered Dorvil’s terms, conditions, and privileges
of employment. Thus, at least with respect to his termination, Dorvil satisfies the
second prong of the McDonnell Douglas framework for the purposes of establishing a
prima facie case of discrimination.
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2.

Plaintiff Failed to Identify a Similarly Situated Employee Outside
his Class that the Defendant Treated More Favorably

The third prong of the McDonnell Douglas framework requires that the plaintiff
identify a similarly situated employee outside of the plaintiff’s protected class that the
employer treated more favorably. Holifield, 115 F.3d at 1562. Although Dorvil tries in
vain to identify a similarly situated comparator outside of his protected class, as a
matter of law Dorvil fails to identify such a similarly situated employee for the purpose
of establishing his prima facie case.
In order to satisfy the third prong of the McDonnell Douglas framework and to
establish a prima facie case, the comparator’s conduct must be nearly identical to the
plaintiff’s conduct in all relevant aspects to prevent the Court from second-guessing the
wisdom of an employer’s legitimate business decision. E.g., Jiles v. United Parcel Serv.,
Inc., 360 F. App’x. 61, 65 (11th Cir. 2010). When comparing the conduct of the plaintiff
with the alleged similarly situated individual, the court must consider the nature of
the offenses committed and the nature of the punishment imposed on each of the
employees. Marshall v. Mayor & Alderman of City of Savannah, Ga., 366 F. App’x 91,
98 (11th Cir. 2010) (finding that a female firefighter failed to identify any other
employee that had engaged in the same behavior and thus failed to demonstrate any
disparate punishment).
Hence, in determining whether employees are similarly situated in cases
involving allegedly discriminatory discipline, the Court evaluates “whether the
employees [were] involved in or accused of the same or similar conduct and [were]

21

disciplined in different ways.” Burke-Fowler v. Orange County, 447 F.3d 1319, 1323
(11th Cir. 2006) (citation omitted). The “quantity and quality” of the comparator’s
misconduct must be “nearly identical” to the plaintiff's misconduct, in order “to prevent
courts from second-guessing employers’ reasonable decisions.” Id. (citation omitted).
Courts in this district have found that similarly situated employees “must have
reported to the same supervisor as the plaintiff, must have been subject to the same
standards governing performance evaluation and discipline, and must have engaged
in conduct similar to the plaintiff's, without such differentiating conduct that would
distinguish their conduct or the appropriate discipline for it.” Cabrera v. LaHood, 2011
WL 2600705, *8 (S.D. Fla. June 29, 2011) (quoting Mazzella v. RCA Global Commc’ns,
Inc., 642 F. Supp. 1531, 1547 (S.D.N.Y.1986)); see also Sanguinetti v. United Parcel
Serv., Inc., 114 F. Supp. 2d 1313, 1317 (S.D. Fla. 2000).
Dorvil fails to identify a comparator that is similarly situated to himself in all
material aspects. To satisfy the similarly situated prong, Dorvil must identify a Store
Manager outside of his protected class who committed infractions identical to those
committed by Dorvil and yet received disparate punishment. More specifically, Dorvil
must identify a non-Black/non-Haitian Store Manager who engaged in the forced
balancing of the commercial parts register and who was not then terminated by the
Defendant for those infractions of company policy.
Dorvil’s first proposed comparator, Store Manager John Dettman, fails to
establish the third prong of Dorvil’s prima facie case because Dettman was not
similarly situated to Dorvil in all relevant aspects. Like with Dorvil, the Defendant
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placed Dettman on probation after Dettman failed his February 2008 CAC inspection.
The Defendant eventually terminated Dettman on July 18, 2008 for his poor
performance and inability to improve the condition of his store. Although Dettman’s
termination occurred some months after Dorvil’s termination, Dettman’s store did not
have the forced balancing issues that Rondinoni discovered at Dorvil’s store. Because
the nature of the offenses committed by Dorvil and Dettman were not identical,
Dettman cannot be an adequate comparator to generate an inference of discrimination
as required by the McDonnell Douglas framework.
Dorvil’s second proposed comparator, Store Manager Conroy Casella, also fails
to establish the third prong of Dorvil’s prima facie case because Casella was not
similarly situated to Dorvil in all relevant aspects. The Defendant demoted Casella on
August 10, 2008 for violating Advance’s company policies regarding sick time.
Although the Defendant demoted Casella while the Defendant terminated Dorvil,
Casella’s store did not have the forced balancing issues that Rondinoni discovered at
Dorvil’s store. The nature of the offense committed by Casella was different than the
offense by Dorvil, which also prohibits Casella from being a similarly situated
employee for the purposes of establishing Dorvil’s prima facie case.
Dorvil’s third proposed comparator, Store Manager Patrick Cheung, also fails
to establish the third prong of Dorvil’s prima facie case because Cheung was not
similarly situated to Dorvil in all relevant aspects. The Defendant suspended Cheung
for violating the Defendant’s store policy regarding the mark-up percentages required
by the Defendant for resale on parts bought by the Defendant from outside sources.
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Cheung was suspended and not immediately demoted because the investigation and
deliberations concluded on a Friday and the Defendant’s upper management preferred
to call him on a Monday to effect the termination. However, Cheung then called Bean
and quit his position with the Defendant. Again, the nature of the offenses committed
by Dorvil and Cheung differed, and Dorvil is ultimately unable to identify a
comparator suitable for purposes of the McDonnell Douglas framework.
Having been unable to satisfy this critical third prong of that framework, Dorvil
as a matter of law fails to establish a prima face case of discrimination. And having
failed to proffer any evidence of direct evidence of racial or national origin
discrimination, Dorvil’s claim cannot survive on summary judgment.
C.

If Plaintiff Had Established a Prima Facie Case, the Defendant
Proffered a Legitimate, Nondiscriminatory Reason for its
Employment Decision That Has Not Been Shown to Be Pretextual

Even if the Plaintiff was able to establish a prima facie case of discrimination,
the Defendant proffers a legitimate, nondiscriminatory reason for auditing Dorvil’s
store and for effecting Dorvil’s termination. Rondinoni, the Asset Protection Manager
responsible for Bean’s district and Dorvil’s store, conducts a financial or inventory
audit of a store when he observes a “red flag.” There is no factual dispute that the audit
of Dorvil’s store was triggered by a financial metric – the unusually low inventory
shrinkage. Bean did not request that Rondinoni audit Dorvil’s store, and Bean was not
present for the audit of Dorvil’s store. Rondinoni, who has not been accused of
harboring discriminatory animus, conducted the audit to fulfill his responsibilities as
an Asset Protection Manager and to protect Advance’s financial well-being.
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Similarly, the Defendant terminated Dorvil and did not consider any other forms
of discipline because of the seriousness of the forced balancing issue at Dorvil’s store.
The Defendant made a business decision to terminate a Store Manager who neglected
his responsibilities as Store Manager and thus proved ineffective in that position.
Because the McDonnell Douglas framework requires only production of a legitimate,
non-discriminatory reason for its employment decision, the Defendant has clearly
satisfied this burden.
The burden then shifts to Dorvil, who must offer evidence demonstrating that
the reason given for his termination was merely pretext for discrimination. Under the
McDonnell Douglas framework, an employee retains the ultimate burden of persuading
the court by a preponderance of the evidence of an employer’s intentionally
discriminatory conduct. Tex. Dept. Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Dorvil must provide probative circumstantial evidence to prove the pretextual nature
of Advance’s employment action by “discredit[ing] in the mind of a reasonable juror all
of the defendant’s proffered nondiscriminatory reasons for its actions.” Combs v.
Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997). However, where an
employer offers objective evidence supporting its explanation, an employee’s
submissions of conclusory allegations do not and cannot establish pretext. Young, 840
F.2d at 830.
Dorvil does not establish that the reasons proffered by the Defendant merely
represent pretext for discrimination. Dorvil attempts to argue that inconsistent
testimony regarding the impetus for the financial audit of his store establish that his
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termination was a pretext for discrimination. However, the fact remains undisputed
that under Dorvil’s watch amounts owed to the store were permitted to be calculated
as if already paid. The practice of forced balancing clearly violated Advance’s store
policy, and Dorvil fails to offer the Court any convincing arguments as to why his
termination should more properly be construed as the result of discrimination rather
than the result of his violation of company policy. A reasonable juror could not find
otherwise on this record, therefore Dorvil’s ultimate burden of demonstrating
discriminatory intent cannot be satisfied as a matter of law.
We add that Dorvil’s contrary and sincere belief that discrimination occurred
does not alter the result under Eleventh Circuit law. Dorvil’s “opinion [that he was
discriminated against], without more, is not enough to establish a prima facie case of
race discrimination.” Holifield, 115 F.3d at 1564; see also Mack v. St. Mobile Aerospace
Engineering, Inc., 195 F. App’x. 829, 844 (11th Cir. 2007). Indeed, “[t]he inquiry into
pretext centers on the employer’s beliefs, not the employee’s beliefs and, to be blunt
about it, not on reality as it exists outside of the decision maker’s head.” Alvarez v.
Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). And because
Defendant has the “right to interpret its rules as it chooses, and to make
determinations as it sees fit under those rules.” Nix v. WLCY Radio/Rahall Commc’ns,
738 F.2d 1181, 1187 (11th Cir. 1984), while its decision to terminate Dorvil may have
been harsh and even erroneous there is insufficient credible evidence from which a jury
can infer that it was discriminatory. See id.

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D.

There is no Other Evidence Sufficient
to Create an Inference of Discrimination

“Establishing the elements of the McDonnell Douglas framework is not, and
never was intended to be, the sine qua non for a plaintiff to survive a summary
judgment motion in an employment discrimination case,” Smith, 644 F.3d at 1328.
Therefore, Dorvil can still establish a triable issue of fact by presenting the court with
other evidence sufficient to create an inference of discrimination even though he fails
to establish the existence of a similarly situated comparator. However, Dorvil failed to
present the “convincing mosaic of evidence” that Lockheed requires in order to avoid
summary judgment. Id.
Dorvil argues that an inference of discrimination is created by the fact that Bean
must have known that Herrera forcibly balanced the commercial parts register at
Dorvil’s store. However, Dorvil admits that, as Store Manager, the Defendant charged
him with enforcing all company regulations and ensuring the compliance of all
subordinate employees with company regulations. As such, Dorvil had the ultimate
responsibility of ensuring that the commercial parts register was properly balanced.
Dorvil acknowledges this responsibility, but argues that he informed Bean of the
illegal practice and that Bean failed to correct the problem. However, if the problem
remained after Dorvil notified Bean, the Defendant’s company policy required Dorvil
to continue notifying superiors up the chain of command until someone rectified the
problem. To satisfy Dorvil’s ultimate responsibility as a Store Manager, Dorvil should
have continued addressing the problem until his store’s cash handling complied with

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the Defendant’s policy. Because Dorvil’s attempt to address the forced balancing issue
failed to satisfy his ultimate responsibility as a Store Manager, the Defendant had
sufficient grounds for termination.
Thus, drawing all reasonable inferences in the light most favorable to the
Plaintiff, and assuming that Bean knew that Herrera forcibly balanced the commercial
parts register at Dorvil’s store, Dorvil’s evidence still fails to create an inference of
discrimination.
Additionally, Dorvil argues that certain comments made by Bean to Dorvil
create an inference of discrimination. Dorvil claims that Bean mimicked his accent,
saying, “Oh, speak English” in a funny accent, and, “This is South Florida we do it in
southern style, you’ve got to speak English so I can understand what you’re saying.”
Additionally, Bean allegedly referred to Haitians as “you Haitians,” or “you guys.”
Dorvil also claims that Bean said, “go, whitey, go,” and commented that “Haitians are
lazy.” However, not every comment addressing a plaintiff’s protected characteristics
create an inference of discrimination. Young v. Gen. Foods Corp., 840 F.2d 825, 829
(11th Cir. 1988). Here, the relationship between Bean’s comments and Dorvil’s
termination is simply too attenuated to establish an inference of discrimination.
Finally, Dorvil argues that the fact that Colon, who was responsible for
overseeing the handling of Dorvil’s hotline complaint, was a part of the decision to
terminate him suggests that Advance does not take EEO complaints seriously.
However, this argument is not convincing. The audit of Dorvil’s store was initiated by
Rondonini based on a financial metric, and the ultimate decision to release Dorvil was
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made by Bean. The fact that the Human Resources Manager was notified and
consulted prior to the termination does not create an inference of discrimination, even
if the individual involved had knowledge of Dorvil’s claims of discriminatory treatment.
The evidence presented to the Court regarding Bean’s knowledge of the forced
balancing, his isolated and stray comments, and Colon’s involvement in the
termination decision falls short of creating a “convincing mosaic of circumstantial
evidence” sufficient to establish an inference of discrimination, especially in light of the
fact that Dorvil was replaced by a Black manager of Nigerian national origin.
In Smith the Eleventh Circuit found that a convincing mosaic of evidence was
created based on (1) the backdrop of racial tension in the company following a
workplace shooting, (2) a listing of employees by name and race created for use while
making disciplinary decisions, and (3) an upcoming news program portraying
Lockheed’s struggles with racism in an unflattering light. Here, by contrast, the
evidence presented by Dorvil cannot compare to the substantial discriminatory record
present in Lockheed and, fails to create an inference of discrimination sufficient to
survive summary judgment.
The Court, therefore, is left with little choice but to grant summary judgment
on this record in favor of Defendant.

The Court considered Dorvil’s claims, in

particular, to be quite close to the line where a jury trial was necessary for proper
resolution. That is especially so given the inconsistency between Bean’s treatment of
Herrera, his friend whom he hired, with Dorvil in relation to the same mishandling of
the commercial parts register. But the Court’s judgment that this inconsistency was
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wrong does not mean that it was discriminatory based on race or national origin,
particularly in light of the fact that Bean was not the only decisionmaker. The
evidence of discrimination is simply lacking, as a matter of law, under the authority
that this Court must apply in this Circuit.
IV. CONCLUSION
For the reasons stated above, it is hereby ORDERED AND ADJUDGED that
Defendant Advance Stores Company, Inc. d/b/a Advance Auto Parts’ Final Summary
Judgment Motion [D.E. 57] is GRANTED. Judgment shall be entered by separate
Order in favor of Defendant and against Plaintiff James Dorvil.
DONE AND ORDERED in Chambers at Miami, Florida, this 6th day of
December, 2011.

/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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