Touzout v. AMERICA BEST CAR RENTAL KF CORP. et al
Filing
111
ORDER granting in part and denying in part 94 Defendant's Motion for Partial Summary Judgment. The Motion is granted in favor of Defendant America Best Car Rental KF Corp. as to Counts IV, V, VI, VII, and X of the Second Amended Complaint as specified in the Order, and denied in all other respects. Signed by Magistrate Judge William Matthewman on 5/11/2017. (ljn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-61767-CV-MATTHEWMAN
MARC TOUZOUT, and other similarly
situated individuals,
Plaintiff( s),
v.
AMERICA BEST CAR RENTAL
KF CORP., d/b/a AMERICA BEST
CRKF CORP. d/b/a SUNSHINE
RENT-A-CAR, KAMAL FEREG,
OMAR FAJARDO, and ROBERTO
HIPTYN,
Defendants.
----------------------------------I
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION
FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendant, America Best Car Rental KF Corp.'s
("Defendant") Motion for Partial Summary Judgment and Incorporated Memorandum of Law
("Motion") [DE 94]. 1 Plaintiff, Marc Touzout ("Plaintiff'), represented by counsel, filed a
Response [DE 105] and Affidavit [DE 106] in opposition to the Motion. Defendant filed a Reply
[DE 107]. Plaintiff also belatedly filed an Affidavit of Alexei Frades [DE 11 0] after Defendant's
Reply was filed and without first seeking leave of court. The Motion is fully briefed and ripe for
review. The Court has carefully considered the matter and is fully advised in the premises.
1
The Motion for Partial Summary Judgment was filed solely on behalf of the corporate Defendant, America Best Car
Rental KF Corp., as to Counts III through X. See DE 94, p. 1. The individual Defendants, Kamal Fereg, Omar
Fajardo, and Roberto Hiptyn ("Individual Defendants") did not move for summary judgment. Count III and Count X
of the Second Amended Complaint allege causes of action against both the corporate Defendant and the Individual
Defendant, Kamal Fereg. [DE 49, pp. 10,26-27, Wherefore Clauses]. However, because the Individual Defendants
did not move for summary judgment, this Order only applies to the corporate Defendant, America Best Car Rental KF
Corp.
1
I.
BACKGROUND
This case, originally filed on August 24, 2015, arises out of Plaintiffs job with Defendant,
America Best Car Rental KF Corp., first as a car-washer, then as an office worker, and alleges
overtime, retaliation, discrimination, and harassment claims.
Plaintiffs Second Amended
Complaint [DE 49], filed on February 24, 2016, alleges ten different counts, including wage and
hour violations under the Fair Labor Standards Act ("FLSA") (Counts I-II), retaliation under the
FLSA (Count III), religious discrimination and religious harassment under Title VII and the
Florida Civil Rights Act ("FCRA'') (Counts IV-VI), national origin discrimination and national
origin harassment under Title VII and the FCRA (Count VII), retaliation under Title VII and the
FCRA (Counts VIII-IX), and violation of 42 U.S.C. § 1981 (Count X). See DE 49. Plaintiff
seeks actual and compensatory damages, liquidated damages, punitive damages, injunctive relief,
and attorney's fees and costs. Id.
II.
UNDISPUTED MATERIAL FACTS
On February 13, 2017, the Court issued a "Notice of Summary Judgment" that informed
Plaintiff in detail, while he was proceedingpro se, 2 in accordance with Griffith v. Wainwright, 772
F .2d 822, 824 (11th Cir. 1988), of the types of filings he needed to make in opposition to the
instant motion.
[DE 95, p. 2].
Plaintiff was warned that, pursuant to Local Rule 56.1, all
material facts set forth in the statement served by Defendant would be deemed to be admitted
unless controverted by Plaintiffs required concise statement of material facts contending there is a
genuine issue to be tried. Id.
2
Plaintiff was initially represented by counsel from the time he filed this action on August 24, 2015, until his counsel
withdrew on July 22,2016. [DE 78]. Plaintiffproceededpro se in this case from July 26,2016 until March 20,
2017, when he retained new counsel to represent him. [DE 104]. Plaintiff is currently represented by counsel.
2
Southern District of Florida Local Rule 56.1, in pertinent part, requires that the respondent
to a summary judgment motion file a response to the movant's statement of material facts which
sets forth, as to each numbered undisputed fact that the respondent is contesting, "specific
references to pleadings, depositions, answers to interrogatories, admissions, and affidavits on file
with the Court" that support the respondent's version ofthe facts.
S.D. Fla. L.R. 56.l(a). If a
respondent fails to support its response with such citations to the evidence, the result is that the
movant's material facts will be deemed admitted.
S.D. Fla. L.R. 56.1(b).
The procedure
provided for in Local Rule 56.1 "is intended to reduce confusion and prevent the Court from
having to scour the record and perform time-intensive fact searching. The rule thus reflects a
clear policy that it is not the court's obligation to scour the record for a factual dispute that
precludes summary judgment." Joseph v. Napolitano, 839 F.Supp.2d 1324, 1329 (S.D. Fla.
2012). The Court's prior Notice in this case specifically advised Plaintiff of his obligations under
Local Rule 56.1. [DE 95, p. 2].
In response to the instant Motion, Plaintiff, now represented by counsel, filed a Response
to Defendant's Partial Motion for Summary Judgment [DE 105]. However, Plaintiff did not file a
concise statement of material facts that contends that there is a genuine issue to be tried, as
required by Local Rule 56.1. Moreover, although Plaintiff is no longer proceeding pro se, and
Plaintiffs counsel surely read the Notice of Summary Judgment issued by the Court once he was
retained, Plaintiff made absolutely no argument in his Response as to how the information
contained in the Response defeats Defendant's Statement of Material Undisputed Facts, nor did
Plaintiff even attempt to discuss the facts. A review of Plaintiffs Response shows that Plaintiff
did not even address any of the facts of the case or respond to any of Defendant's arguments in its
Motion.
3
Plaintiff did file an Affidavit in Opposition to Defendant's Motion for Summary Judgment
[DE 106] reciting the facts of the case from Plaintiffs perspective. The Court notes that this
Affidavit makes no "specific references to pleadings, depositions, answers to interrogatories,
admissions, and affidavits on file with the Court" that support his version of the facts. See S.D.
Fla. L.R. 56.1.
Additionally, Plaintiffs Affidavit [DE 106] appears to contradict his own
deposition testimony [DE 94-2] in some important areas. For example, at his deposition, Plaintiff
stated that his pay was raised from $7.25 per hour to $8.00 per hour at the end of2012 after he told
Defendant Kamal Fereg that he was Muslim.
[DE 94-2, p. 7].
However, in his Affidavit,
Plaintiff claims that his pay was raised to $8.00 per hour in October of2011 a few weeks after he
was moved from washing cars to working in the office, which was before he told Defendant Kamal
Fereg that he was Muslim. [DE 106, p. 2,
~
4]. Regardless of these problems with Plaintiffs
Affidavit, there is one basic reason why Plaintiffs Affidavit must be disregarded by the
Court-Eleventh Circuit precedent. As stated by the Eleventh Circuit:
The proper course in applying Local Rule 56.1 at the summary judgment stage is
for a district court to disregard or ignore evidence relied on by the respondent-but
not cited in its response to the movant's statement of undisputed facts-that yields
facts contrary to those listed in the movant's statement. That is, because the
non-moving party has failed to comply with Local Rule 56.1-the only permissible
way for it to establish a genuine issue of material fact at that stage-the court has
before it the functional analog of an unopposed motion for summary judgment.
Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008). Therefore, pursuant to Reese, the Court
will treat Defendant's Partial Motion for Summary Judgment as factually unopposed and disregard
Plaintiffs Affidavit [DE 106] submitted in response to the Motion.
Plaintiff also belatedly filed an Affidavit of Alexei Frades [DE 11 0] after Defendant had
filed its Reply. Plaintiff did not seek leave of Court to file the Frades Affidavit and it is therefore
procedurally improper.
Moreover, a review of the Frades Affidavit shows it to be a classic
4
example of an Affidavit which says virtually nothing; it is meaningless in that it says nothing of
any factual value. The Frades Affidavit is comprised of three very short paragraphs, which assert
absolutely no material facts. But again, regardless of these defects in the Frades Affidavit, the
Court will disregard the Frades Affidavit pursuant to Reese.
The Court finds that Plaintiff has not properly responded to Defendant's Statement of
Material Facts. Further, the Court finds that Defendant's Statement is supported by the record as
required and substantially complies with the requirements of Local Rule 56.1, with two
exceptions. First, Paragraph 11 states that, "After he quit MBS, Plaintiff asked America Best, the
company that had been discriminating against him, allegedly for more hours." [DE 94-1, p. 2, ~
11]. The citation for this paragraph directs the Court to Plaintiffs deposition at pages 158-159;
however, these pages of Plaintiffs deposition were not filed with the Motion for Partial Summary
Judgment. Therefore, this statement is not supported by the record evidence and the Court will
not deem this fact admitted.
See Azze v. Dade Medical College, Inc., Case No.
15-cv-24175-GAYLES, 2017 WL 880426, *3 (S.D. Fla. Mar. 6, 2017). Second, Paragraph 13
states, "Plaintiffs hours were reduced to forty hours in 2014." [DE 94-1, p. 2, ~ 13]. However,
this is the only paragraph in the Statement of Material Undisputed Facts that does not contain a
citation. Furthermore, the schedule log [DE 94-5] that Defendant submitted with its Motion for
Partial Summary Judgment indicates that Plaintiffs hours fluctuated throughout 2014, with
Plaintiff often working more than forty hours per week. Therefore, this statement is also not
supported by the record evidence and the Court will not deem this fact admitted. See Azze, 2017
WL 880426 at *3.
Accordingly, the Court adopts the following facts from Defendant's Statement of Material
Undisputed Facts:
5
1. Plaintiff began working for America Best as a car washer in March of 2011.
[Deposition ofPlaintiffMarc Touzout ("Plaintiffs Depo"), DE 94-2, p. 47:13-18].
2. When he was hired, Plaintiff did not tell Defendant that his real name was
Mohamed and not Marc. [Plaintiffs Depo, DE 94-2, p. 53:9-11].
3. When he was hired, Plaintiff did not disclose to Defendant that he was Muslim.
[Plaintiffs Depo, DE 94-2, p. 53:14-16].
4. When he started with America Best, Plaintiff worked twenty hours per week,
earning approximately $75.00 per day, for ten hours each day. [Plaintiffs Depo,
DE 94-2, pp. 48:22-49:13].
5. At the end of 2011, Plaintiff informed America Best, for the first time, that he was
Muslim and that he was from Algeria. [Plaintiffs Depo, DE 94-2, p. 53:19-25].
6. At the end of 2012, at some time after he had informed Defendant of his religion
and national origin, Plaintiffs pay was raised from $7.25 per hour to $8.00 per
hour. [Plaintiffs Depo, DE 94-2, pp. 56:1-57:2].
7. While Plaintiff was working for Defendant, Plaintiff also worked for a company
called MBS starting in January of 2013, after he stopped working for another
company, Ever Trading. [DE 94-1, p. 2,
~
7].
8. Plaintiff quit his job with MBS in June 2013. [Plaintiffs Depo, DE 94-2, pp.
151 :21-154:24].
9. Plaintiff quit his job with MBS because he disagreed with the owner of that
company to point that it bothered him enough to quit. [Plaintiffs Depo, DE 94-2,
pp. 151:21-154:24].
6
10. At the time he quit his job with MBS, Plaintiff worked four days for MBS and three
days for America Best. [Plaintiffs Depo, DE 94-2, p. 156:4-8].
12. In 2013, at some time after he had informed Defendant of his religion and national
origin, Plaintiffs weekly hours also increased from 20 hours per week.
[Plaintiffs Depo, DE 94-2, p. 57:3-18].
14. Plaintiff filed his Charge with the EEOC on December 12, 2014. [Charge of
Discrimination, DE 94-3].
15. In the weeks following the filing of his Charge, Plaintiff worked overtime and his
hours were not affected negatively. [Time Records of Plaintiff, DE 94-5, p. 2].
16. Plaintiff filed his Complaint for overtime and minimum wage on August 24, 2015.
[Complaint, DE 1].
17. In the months around August of 2015, five employees other than Plaintiff were
terminated. [Payroll Summary Reports, DE 94-4].
18. While Plaintiffs hours were reduced in September of 2015, another employee,
Alejandro's hours were also reduced and other employees- Daniel and Javierworked less hours than Plaintiff did. [America Best Payroll Log, DE 94-6].
19. On April 15, 2016, Plaintiff was terminated for reasons other than discrimination,
even according to Plaintiffs own admission. [Email between Marc Touzout and
Martin Saenz, DE 94-7].
20. On June 6, 2016, after Plaintiff had been terminated, Kamal Fereg filed a lawsuit
for
defamation
m
State
Court,
against
Plaintiff.
Case
No.
132016CA014289000001, in the 11th Circuit, in and for Miami-Dade County,
Florida. This, according to Plaintiff, was the last time Kamal Fereg accused him
7
of supporting ISIS- specifically in Paragraph 9. [Verified Plaintiffs Complaint,
DE 94-8; Plaintiffs Depo, DE 94-2, pp. 78:19-79:25].
21. Paragraph 9 of that Complaint does not make the accusation Plaintiff, subjectively,
assigns to it. [Verified Plaintiffs Complaint, DE 94-8; Plaintiffs Depo, DE 94-2,
pp. 78:19-79:25].
22. When asked to provide the names of any corroborating witnesses, Plaintiff refused.
[Plaintiffs Depo, DE 94-2, pp. 87:8-88:24].
23. When asked to provide copies of corroborating documents, Plaintiff refused.
[Plaintiffs Depo, DE 94-2, p. 92:13-94:25].
Even though the Court adopts these material undisputed facts, this does not end the Court's
review of Defendant's Motion for Partial Summary Judgment. The law is clear that "the movant
is not 'absolved of the burden of showing that it is entitled to judgment as a matter of law, and a
Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise
unsupported by the record."' Reese, 527 F.3d at 1268-69. In other words, a district court may
accept the moving party's uncontested facts as true, but it is still required to consider the merits of
the moving party's summary judgment motion. The Court will therefore now address whether
Defendant has met its legal burden on its Motion for Partial Summary Judgment.
III.
LEGALSTANDARD
Federal Rule of Civil Procedure 56( a) states in relevant part that "[a] party may move for
summary judgment, identifying each claim or defense-or the part of each claim or defense-on
which summary judgment is sought.
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).
8
The moving party bears the initial
responsibility of demonstrating to the court by reference to the record that there are no genuine
issues of material fact that need to be decided at trial.
Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
When a moving party has discharged its initial burden, the nonmoving party must "go
beyond the pleadings," and, by its own affidavits or by "depositions, answers to interrogatories,
and admissions on file," identify specific facts showing there is a genuine issue for trial.
Celotex, 477 U.S. at 324.
Conclusory allegations without supporting evidence are insufficient.
Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997).
In an employment discrimination
case, a plaintiff's "mere belief, speculation, or conclusory accusation that he was subject to
discrimination will not create an inference of discrimination or satisfy his burden when
responding to a properly supported motion for summary judgment."
Gaston v. Home Depot
USA, Inc., 129 F.Supp.2d 1355, 1368 (S.D. Fla. 2001).
When deciding whether summary judgment is appropriate, the Court must view the
evidence and all reasonable factual inferences in the light most favorable to the party opposing
the motion.
Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th Cir. 1998) (citations and
quotations omitted).
the moving party.
Any doubts regarding whether a trial is necessary must be resolved against
Adickes v. S.H Kress & Co., 398 U.S. 144, 157 (1970).
So long as the non-moving party has had an ample opportunity to conduct discovery, the
non-movant must come forward with affirmative evidence to support its claim.
Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
Anderson v.
"A mere 'scintilla' of evidence supporting the
opposing party's position will not suffice; there must be enough of a showing that the jury could
reasonably find for that party."
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
9
Ifthe
evidence advanced by the nonmoving party "is merely colorable, or is not significantly
probative, then summary judgment may be granted."
Anderson, 477 U.S. 242, 249-50.
Disparate treatment claims under Title VII and the Florida Civil Rights Act ("FCRA") are
both analyzed under the same burden-shifting framework because the FCRA was patterned after
Title VII. See Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998).
IV.
DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Defendant moves for partial summary judgment on Counts III through X on the basis that
Plaintiff has not met his burden of proof to provide objective proof or evidence or sufficient
specific facts showing that there is a genuine issue of material fact as to these claims, other than
Plaintiffs own "subjective, distorted, and uncorroborated view of the events." [DE 94, p. 3]. In
regard to Plaintiffs discrimination claims, Defendant asserts that Plaintiff has failed to come
forward with any evidence of a non-minority employee who was similar to him and treated more
favorably than him. [DE 94, p. 6]. In regard to Plaintiffs harassment claims, Defendant asserts
that "Plaintiff has not established what was said, how often, or whether the alleged bad statements
were more than mere offensive utterance [sic] (if that even) that went beyond political/news
conversations regarding Islam, terrorism, and ISIS." [DE 94, p. 7].
According to Defendant, Plaintiff has not shown any direct evidence that Defendants
discriminated against him.
[DE 94, p. 8].
In fact, Defendant alleges that in Plaintiffs
deposition, he admitted that he was terminated because he denied participation in alleged illegal
activities at Defendant's company. !d. Defendant claims that "Plaintiff was not treated worse
after the date he claims to have disclosed his religion and national original to the Defendant, but
better." [DE 94, p. 9].
10
Further, Defendant argues that Plaintiff has not even shown any circumstantial evidence of
discrimination or harassment. [DE 94, p. 14]. According to Defendant, "[n]ot a single witness
has corroborated Plaintiffs allegations, nor has a single document been presented to show his
allegations." [DE 94, p. 17].
Finally, according to Defendant, Plaintiff has not presented any evidence of unlawful
retaliation. [DE 94, p. 18]. Defendant submitted schedule logs and time records of Plaintiff
showing that Plaintiffs hours were not reduced by Defendant following Plaintiffs filing of the
initial Complaint in this matter or following Plaintiffs filing of the charge with the EEOC. [DE
94, pp. 18-19].
In his Response [DE 105], Plaintiff claims that he "did not have an opportunity to conduct
substantial discovery during the time that he had been represented by prior counsel, nor thereafter,
when he proceeded to represent himself in prose form." [DE 105, p. 2]. According to Plaintiff,
he has not taken any depositions of any parties or witnesses nor taken any other discovery to
support his claims.
!d.
Therefore, Plaintiff asserts that, pursuant to Federal Rule of Civil
Procedure 56(d), Defendant's Motion for Partial Summary Judgment should be denied as
premature and Plaintiff should be afforded a fair opportunity to conduct basic discovery. !d.
Along with his Response, Plaintiff submitted his Affidavit in opposition to Defendant's
Motion for Partial Summary Judgment, providing his view of the case [DE 106, pp. 1-3, ~~ 1-18]
and listing the names ofwitnesses "in relation to this case." [DE 106, p. 3,
~
19]. Plaintiff also
belatedly and without leave of court filed an Affidavit of Witness Opposition to Defendant's
Motion for Summary Judgment [DE 11 0] of Alexei Frades, comprising a total of three short
paragraphs, where Affiant Frades alleges that he worked at America Best while Plaintiff worked
11
there and that he has "certain knowledge regarding the problems that [Plaintiff] encountered at this
Defendant filed a Reply [DE 107] claiming that "Plaintiff failed to controvert Defendant's
statement of material facts and show that there are any genuine issues of material fact." [DE 107,
p. 1]. According to Defendant, its Motion for Partial Summary Judgment is not premature
because Plaintiff has had ample time to conduct discovery. [DE 107, pp. 3-4]. Defendant argues
that Plaintiff has "failed to demonstrate how additional time to conduct discovery would enable
him to better rebut Defendant's Motion or set forth any facts in his Affidavit or Response
explaining why he is unable to file a substantive response or why he was unable to conduct the
additional discovery he is now seeking." [DE 107, p. 5]. Defendant contends that it is entitled to
partial summary judgment because Plaintiff did not comply with Federal Rule of Civil Procedure
56 or Local Rule 56.1 in opposing Defendant's Motion. [DE 107, p. 8].
V.
DISCUSSION
A. Whether Defendant's Motion for Summary Judgment is Premature under Federal
Rule of Civil Procedure 56( d)
As an initial matter, the Court will determine whether Defendant's Motion for Partial
Summary Judgment is premature pursuant to Federal Rule of Civil Procedure 56(d). Pursuant to
Rule 56( d), a non-moving party may request a continuance of the court's ruling on a summary
judgment motion, "where additional discovery would enable the non-movant to carry its burden on
summary
judgment."
Duvall
v.
Infinity
Sales
Group,
LLC,
Case
No.
13-80768-CIV-MARRA/MATTHEWMAN, 2014 WL 11412697, *1 (S.D. Fla. Apr. 18, 2014).
Summary judgment should not be granted unless a non-moving party has had "an adequate
3 See this Court's discussion of these two affidavits, supra, at pp. 4-5 of this Order.
12
opportunity to conduct discovery." Garmley v. Cochran, 651 Fed.Appx. 933, 936 (11th Cir.
2016)(citation omitted).
However, the non-moving party must specify the reasons, by affidavit or declaration, that it
cannot present facts necessary to justify its opposition to summary judgment. Fed. R. Civ. P.
56( d); Ashmore v. Sec 'y, Dept. of Transp., 503 Fed.Appx. 683, 686 (11th Cir. 2013). This
affidavit or declaration must "set[] forth with particularity the facts the [non-moving] party expects
to discover and how those facts would create a genuine issue of material fact precluding summary
judgment." Garner v. City of Ozark, 587 Fed.Appx. 515, 518 (11th Cir. 2014).
Although
Plaintiff submitted an Affidavit [DE 106] in opposition to the Motion, that affidavit is devoid of
any reasons, let alone specific reasons, that he cannot present facts essential to oppose partial
summary judgment for Defendant or what facts Plaintiff expects to discover.
alleges in his Affidavit his view of the case [DE 106, pp. 1-3,
~~
Plaintiff only
1-18] and that there are five
"witnesses in relation to his case." [DE 106, p. 3, ~ 19]. Further, Plaintiffs Response [DE 105]
only asserts that Plaintiff had a falling out with his previous attorney, who did not conduct
discovery in Plaintiffs defense, and that he should now be allowed to take depositions of key
parties and witnesses. [DE 105, pp. 3-4]. Therefore, Plaintiff does not set forth any specific
reasons, pursuant to Federal Rule of Civil Procedure 56( d), why he needs additional discovery to
oppose partial summary judgment. 3
"Additionally, a party will not be entitled to conduct further discovery under Rule 56(d)
where the absence of evidence essential to that party's case is the result of that party's lack of
diligence in pursuing such evidence through permitted methods of discovery."
3
Cordero v.
Nor has Plaintiff filed a motion to re-open discovery to permit him to conduct further discovery. Instead, Plaintiff
raised this argument for the first time within his Response [DE 105] to Defendant's Motion for Partial Summary
Judgment.
13
Readiness Mgmt. Support, L.C., No. 6:11-cv-1692-0rl-19DAB, 2012 WL 3744513, at *3 (M.D.
Fla. Aug. 29, 2012).
In this case, Plaintiff, represented by prior counsel, filed his original
Complaint on August 24, 2015. [DE 1]. The Court set the original discovery deadline for
November 9, 2015, and extended the deadline to December 9, 2015. [DE 29]. The Court then
granted Plaintiff leave to amend his Complaint, and Plaintiff filed a Second Amended Complaint
on February 24, 2016. [DE 49]. The discovery deadline was extended again to May 2, 2016.
[DE 53]. The parties subsequently consented to magistrate judge jurisdiction, and Plaintiffs
prior counsel withdrew from the case on July 22, 2016. [DEs 73, 78]. The undersigned held a
telephonic status conference, with Plaintiff proceeding prose, reset the trial date, and set a new
discovery deadline of December 30, 2016. [DE 88]. Therefore, Plaintiff had approximately
sixteen months to conduct discovery, from August of 2015 to December of 2016. This lengthy
period of time was more than sufficient to allow Plaintiff to conduct discovery both while he was
represented by counsel and while he was proceeding pro se. Plaintiffs argument that he did not
have sufficient time to conduct discovery is belied by the record and is frivolous.
Plaintiff provides no rationale as to why he did not conduct discovery or schedule
depositions before the discovery deadline, besides Plaintiffs vague assertion in his Response that
he "had a falling out with his prior attorney, who had not conducted discovery nor taken any
depositions in his case." [DE 105, p. 3]. Moreover, when Plaintiff was deposed on December 2,
2016, he refused to name witnesses that may have knowledge about his claims in this case.
[Plaintiffs Depo, DE 94-2, pp. 87:8-88:24].
Plaintiff stated that he would not tell defense
counsel "the list of [his] witnesses" until just before the trial because, according to Plaintiff, it was
"not good for the case." !d. Also at his deposition, Plaintiff stated that he would not provide
proof that other employees received higher raises than him, and he refused to provide the names of
14
any witnesses who would support his claims of discrimination.
[Plaintiff's Depo, DE 94-2,
pp.92:2-94:25]. Therefore, it seems that Plaintiff purposely obstructed discovery, at least in part.
Plaintiff apparently did not attempt to conduct any discovery despite being aware of these
undisclosed witnesses before the discovery deadline.
Therefore, Plaintiff's need to conduct
additional discovery is a result of his own delay and lack of diligence. Plaintiff has only himself
to blame for his failure to participate in the discovery process.
As stated in Federal Rule of Civil Procedure 1, the Federal Rules of Civil Procedure
"should be construed, administered, and employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1. This
matter has been delayed long enough and Plaintiff has failed to establish sufficient grounds that it
should be delayed any further.
The Court finds that Plaintiff has not shown that, for specified reasons, he cannot present
facts essential to justify his opposition to Defendant's Motion for Partial Summary Judgment.
Plaintiff has been dilatory with discovery and the Court will not reward Plaintiff for his dilatory
conduct. The Court now turns to its analysis of the specific claims which are the subject of
Defendant's Partial Motion for Summary Judgment.
B. Discrimination (Counts IV, VI, and VII)
Plaintiff brings three discrimination counts, two for religious discrimination (Counts IV
and VI) and one for national origin discrimination (Count VII). [DE 49]. Pursuant to Title VII
of the Civil Rights Act of 1964, it is unlawful for an employer to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment
because of that individual's race, religion, or national origin.
Brown v. Sybase, Inc., 287
F.Supp.2d 1330, 1339 (S.D. Fla. 2003). "In an employment discrimination case, the plaintiff
15
bears the ultimate burden of proving that the defendant intentionally discriminated against the
plaintiff."
Gaston v. Home Depot USA, Inc., 129 F.Supp.2d 1355, 1367 (S.D. Fla. 2001).
"Where direct evidence of discrimination is unavailable, a Title VII plaintiff may establish a prima
facie case of discrimination through circumstantial evidence under the framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973)." Brown, 287 F.Supp.2d at 1339.
"A prima facie case of disparate treatment in the workplace may be established by showing
that: (1) the plaintiff belongs to a protected class; (2) he was subjected to an adverse job action; (3)
his employer treated similarly situated employees outside his classification more favorably; and
(4) he was qualified to do the job." Gaston, 129 F.Supp.2d. at 1367. If a prima facie case of
disparate treatment is shown, the burden shifts to defendant to articulate a legitimate,
non-discriminatory reason for the adverse job action. Brown, 287 F.Supp.2d at 1340.
"With respect to the second element of the prima facie case of discrimination, it is clear that
not all conduct by an employer negatively affecting an employee constitutes adverse employment
action." Brown, 287 F.Supp.2d at 1339. A plaintiff must show a serious and material change in
the terms, conditions, or privileges of employment to establish an adverse employment action. !d.
Moreover, "[i]f a plaintiff fails to show the existence of a similarly situated employee, summary
judgment is appropriate where no other evidence of discrimination is present." Holifield, 115
F.3d at 1562. With this framework in mind, the Court now turns to the three specific
discrimination counts alleged by Plaintiff.
1. Religious Discrimination (Counts IV and VI)
Plaintiffs religious discrimination claims assert that Defendant improperly discriminated
against Plaintiff, who practices the Muslim religion, when America Best's owner, Kamal Fereg,
16
spoke about Plaintiffs religion in a derogatory manner and made Plaintiff work longer hours than
other employees, who were not Muslim, during the holy month of Ramadan. [DE 49, p. 11,
~~
54-55]. Plaintiff also testified at his deposition that "Roberto" told him twice not to wear perfume
at work. [Plaintiffs Depo, DE 94-2, pp. 74:24-76:11].
Further, Plaintiff alleges that Defendant made Plaintiff work seven days a week, did not
provide Plaintiff the same vacation time awarded to other employees who were not Muslim, and
did not give Plaintiff the same pay raises that were given to other employees who were not
Muslim. [DE 49, p. 11,
~~
56-57]. Plaintiff stated at his deposition that he could not take
vacation time off and, if he wanted to request vacation time off, he was the only one in the
company that had to write a letter requesting the time off.
[Plaintiffs Depo, DE 94-2, pp.
85:9-87:13]. When defense counsel asked Plaintiff if he had any proof that he was the only one in
the company who had to submit requests for time off in writing, Plaintiff stated that he had "some
kind of witness." [Plaintiffs Depo, DE 94-2, p. 87:8-13]. However, Plaintiff refused to tell
defense counsel the name of any ofhis witnesses. [Plaintiffs Depo, DE 94-2, pp. 87:16-88:24].
Plaintiff also alleges that he was discriminated against because his pay was not increased as
much as that of other people in the company. However, Plaintiff admitted at his deposition that
Defendant increased his hours and his pay after learning that Plaintiff was a practicing Muslim.
Plaintiff testified that he started working for Defendant in March of2011 and worked twenty hours
per week at $7.25 per hour.
[Plaintiffs Depo, DE 94-2, p. 47:13-18, pp. 48:22-49:13].
According to Plaintiff, he told Kamal Fereg, the owner of America Best, that he was Muslim in
December of2011. [Plaintiffs Depo, DE 94-2, p. 53:19-25]. Plaintiff stated that at the end of
2012 his pay was increased from $7.25 to $8.00 per hour.
[Plaintiffs Depo, DE 94-2, pp.
56: 1-57:2]. Moreover, Plaintiff stated that Defendant increased his hours in 2013. [Plaintiffs
17
Depo, DE 94-2, p. 57:3-18]. Plaintiff testified that Defendant increased his pay again from $8.00
per hour to $8.05 per hour in October of 2015.
[Plaintiff's Depo, DE 94-2, p. 92:2-6].
According to Plaintiff, however, Defendant raised the other employees' pay from $8.00 per hour to
$8.50 per hour. [Plaintiff's Depo, DE 94-2, p. 92:7-12]. When defense counsel asked Plaintiff
what proof he had that Defendant raised other employee's pay more than Plaintiff's pay, he said he
had proof but would not say what evidence there was and started being evasive in his responses.
[Plaintiff's Depo, DE 94-2, p. 92: 13-94:25].
In an employment discrimination case, a plaintiff's "mere belief, speculation, or
conclusory accusation that he was subject to discrimination will not create an inference of
discrimination or satisfy his burden when responding to a properly supported motion for
summary judgment."
Gaston v. Home Depot USA, Inc., 129 F.Supp.2d 1355, 1368 (S.D. Fla.
2001). There is simply insufficient evidence, if any, to show that Plaintiff was discriminated
against in this case. The evidence does not support an inference that Plaintiff was discriminated
against on the basis of his religion when his hours were increased or when his raise was not as high
as another employee's raise. While Plaintiff testified at his deposition that he felt discriminated
against, his opinion, without more, is not enough to establish a prima facie case of religious
discrimination. Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997).
Even if Plaintiff could show that he was subject to an adverse job action, he has not shown
that there were other similarly situated employees outside his classification who were treated more
favorably. At his deposition, Plaintiff alleged that he started out washing cars at America Best.
[Plaintiff's Depo, DE 94-2, p.47: 17-18]. Plaintiff stated that he was subsequently given an office
job at America Best in October of 2011. [Plaintiff's Depo, DE 94-2, p. 49: 14-18]. According to
Plaintiff, other employees were given better raises than he was given. However, in his deposition,
18
Plaintiff alleged that it was the employees who were working outside washing cars that made more
money than he did. [Plaintiffs Depo, DE 94-2, p. 92:2-20]. Therefore, these are not similarly
situated employees as Plaintiff because Plaintiff was working in the office at the time ofhis raise.
Plaintiff also contends in his deposition that "Roberto" told Plaintiff on two separate
occasions that he could not wear perfume.
[Plaintiffs Depo, DE 94-2, pp. 75:23-76:11].
According to Plaintiff, when "Alex" wore perfume, Robert did not say anything to him about it.
[Plaintiffs Depo, DE 94-2, p. 75:5-14]. However, Plaintiff does not allege how "Alex" was a
similarly situated employee who was not Muslim.
Further, Plaintiff testified in his deposition that he had to request vacation time off in a
letter but nobody else in the company had to request vacation time off in writing. [Plaintiffs
Depo, DE 94-2, pp. 85:13-86:17]. When defense counsel asked Plaintiff what proof he had that
the company did not ask others to put requests for vacation time off in writing, Plaintiff said "I was
working there the whole five years. So I know," and then Plaintiff refused to name any witnesses.
[Plaintiffs Depo, DE 94-2, pp. 86:18-23, 87:8-25]. Therefore, Plaintiff refused to name any
employee that was similarly situated to him and treated more favorably because they were outside
his classification.
In conclusion, Plaintiff cannot establish a prima facie case for religious discrimination.
Therefore, summary judgment should be granted in favor of Defendant on Plaintiffs religious
discrimination claims (Counts IV and VI).
2. National Origin Discrimination (Count VII)
Plaintiffs national origin discrimination claim asserts that Defendant improperly
discriminated against Plaintiff, who is from Algeria, when America Best's owner, Kamal Fereg,
would continuously remark that people from Algeria are thieves.
19
[DE 49, p. 17,
~
98].
Moreover, Plaintiff alleges that Defendant made Plaintiff work seven days a week, did not provide
Plaintiff the same vacation time awarded to other employees who were not from Algeria, and did
not give Plaintiff the same pay raises that were given to other employees who were not from
Algeria. [DE 49, p. 17, ~~ 99-1 00]. According to Plaintiff, despite his complaints and objections
to Defendant's discriminatory acts and/or conduct, Defendant took no appropriate remedial action.
[DE 49, p. 26, ~ 196].
Plaintiffs discrimination claims based on religion discussed above are the same as the
discrimination claims he makes based on national origin. Therefore, the same analysis as above
applies here. Plaintiff cannot establish a prima facie case that he was discriminated against based
on his national origin.
Accordingly, Defendant should be granted summary judgment on
Plaintiffs claim of national origin discrimination (Count VII).
C. Harassment (Counts V, VI, and VII)
Plaintiff brings three harassment counts, two for religious harassment (Counts V and VI),
and one for national origin harassment (Count VII). [DE 49]. Pursuant to Title VII of the Civil
Rights Act of 1964, it is also unlawful for an employer to create a hostile work environment for an
individual because ofthat individual's race, religion, or national origin. See Mack-Muhammadv.
Cagle's Inc., No. 4:08-CV-11 (CDL), 2010 WL 55912, *4 (M.D. Ga. Jan. 4, 2010), aff'd 379
Fed.Appx. 801 (11th Cir. 2010). A prima facie case of harassment in the workplace may be
established by showing: (1) that he belongs to a protected group; (2) that he has been subject to
unwelcome harassment; (3) that the harassment was based on his religion; (4) that the harassment
was sufficiently severe or pervasive to alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and (5) a basis for holding the employer liable."
20
Lara v. Raytheon Technical Service Co., LLC, 476 Fed.Appx. 218,220-21 (11th Cir. 2012). With
this framework in mind, the Court will now address Plaintiffs three harassment counts.
1. Religious Harassment (Counts V, VI)
Plaintiffs religious harassment claims m Counts V and VI assert that Defendant
improperly harassed Plaintiff, who practices the Muslim religion, when America Best's owner,
Kamal Fereg, spoke about Plaintiffs religion in a derogatory manner and made Plaintiff work
longer hours than other employees, who were not Muslim, during the holy month of Ramadan.
[DE 49, p. 13,
~~
70-71]. Specifically, at his deposition, Plaintiff testified that Mr. Fereg told
Plaintiff that because he was Muslim he was responsible "for what happen [sic] in the world" and
allegedly accused Plaintiff of supporting ISIS on multiple occasions. [Plaintiffs Depo, DE 94-2,
pp.73:11-74:22].
Plaintiff also testified that Omar Fajardo, a manager at America Best, would talk to
Plaintiff "about the ISIS, about the terrorist, about the Muslim, how bad they are." [Plaintiffs
Depo, DE 94-2, pp. 70: 12-72:4]. However, according to Plaintiff, Omar Fajardo did not ever
accuse Plaintiff of being in ISIS, did not call Plaintiff a dirty Muslim, and did not call Plaintiff a
terrorist. [Plaintiffs Depo, DE 94-2, pp. 72:18-73:10].
Further, Plaintiff alleges that Defendant made Plaintiff work seven days a week, did not
provide Plaintiff the same vacation time awarded to other employees who were not Muslim, and
did not give Plaintiff the same pay raises that were given to other employees who were not
Muslim. [DE 49, p. 13, ~~ 72-73]. According to Plaintiff, despite his complaints and objections
to Defendant's discriminatory acts and/or conduct, Defendant took no appropriate remedial action.
[DE 49, p. 14, ~ 78].
21
Plaintiff asserts that he belongs to a protected group (Muslims), and then vaguely asserts
that he was subjected to some harassment because of his religion. However, the harassment
asserted was far from sufficiently severe or pervasive enough to alter the terms and conditions of
employment and create a discriminatorily abusive working environment. See Mack-Muhammad,
2010 WL 55912 at *5.
"Establishing that harassing conduct was sufficiently severe or pervasive to alter an
employee's terms or conditions of employment includes a subjective and an objective
component." Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.1999) (en bane). "To
evaluate the objective severity of the alleged harassment, we look to: (1) the frequency of the
conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes
with the employee's job performance." Lara, 476 Fed.Appx. at 221.
Plaintiff contends that he was subjected to religious harassment because: (1) Mr. Fajardo
would talk to him about ISIS and how bad Muslims are; (2) Mr. Fereg accused Plaintiff of
supporting ISIS; and (3) Plaintiff was not allowed to wear perfume at work. "Though these
allegations demonstrate that Plaintiffs supervisors and co-workers may have been insensitive and
rude, the allegations do not rise to the level of severe and pervasive harassment."
Mack-Muhammad, 2010 WL 55912 at *5. Plaintiff was unclear about the frequency of this
conduct at his deposition.
When asked how much he was exposed to the conduct he just
responded "always," but then clarified that Mr. Fajardo talked about ISIS twice a week with him
and that he was told not to wear perfume on two occasions. [Plaintiffs Depo, DE 94-2, pp.
73:1-1 0]. The conduct was not severe because, as Plaintiff admitted at his deposition, he was
never directly accused of being in ISIS or being a terrorist. [Plaintiffs Depo, DE 94-2, pp.
22
72:18-73:1 0].
Moreover, the conduct was not threatening and merely amounted to alleged
offensive utterances.
See Mack-Muhammad, 2010 WL 55912 at *5 (court concluded that
plaintiff, who was Muslin, was not subject to religious harassment when supervisors and
co-workers made comments calling plaintiff "Mr. Bin Laden" and "Osama" and made jokes and
comments about plaintiffs religious dietary restrictions).
For these reasons, the Court concludes that Plaintiffs alleged harassment was neither
objectively nor subjectively severe nor pervasive enough to alter Plaintiffs terms or conditions of
employment.
Accordingly, the Court grants summary judgment in favor of Defendant on
Plaintiffs religious harassment claims (Counts V and VI).
2. National Origin Harassment (Count VII)
Plaintiffs national origin harassment claim in Count VII asserts that Defendant improperly
created a hostile work environment for Plaintiff, who is from Algeria, when America Best's
owner, Kamal Fereg, would continuously remark that people from Algeria are thieves. [DE 49, p.
17,
~
98]. At his deposition, Plaintiff testified that Mr. Fereg talked to him about politics in
Algeria on multiple occasions when he knew Plaintiff did not want to discuss Algerian politics and
Mr. Fereg told Plaintiff on multiple occasions that all Algerians are thieves. [Plaintiffs Depo, DE
94-2, pp. 73:11-74:7]. Moreover, Plaintiff alleges that Defendant made Plaintiffwork seven days
a week, did not provide Plaintiff the same vacation time awarded to other employees who were not
from Algeria, and did not give Plaintiff the same pay raises that were given to other employees
who were not from Algeria. [DE 49, p. 17, ~~ 99-1 00]. According to Plaintiff, this environment
was offensive to Plaintiff and would be offensive to a reasonable person. [DE 49, p. 18, ~ 103].
For purposes of this case, the parties do not seem to dispute that Plaintiff belongs to a
protected class being from Algeria. However, it is questionable whether Plaintiff was subjected
23
to any harassment because of his national origin. Moreover, even if Plaintiff was subjected to
national origin harassment, the harassment was far from sufficiently severe or pervasive enough to
alter the terms and conditions of employment and create a discriminatorily abusive working
environment. See Khattab v. Morehouse School of Medicine, Civil Action No. 1:07-CV-196RWS-LTW, 2009 WL 2600523 (N.D. Ga. Aug. 20, 2009), aff'd 404 Fed.Appx. 374 (11th Cir.
2010).
"Establishing that harassing conduct was sufficiently severe or pervasive to alter an
employee's terms or conditions of employment includes a subjective and an objective
component." Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.1999) (en bane). "To
evaluate the objective severity of the alleged harassment, we look to: (I) the frequency of the
conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes
with the employee's job performance." Lara, 476 Fed.Appx. at 221.
Plaintiff contends that he was subjected to national origin harassment because: (I) Mr.
Fereg made a few comments that people from Algeria were thieves; and (2) Mr. Fereg talked about
politics in Algeria with Plaintiff when Plaintiff did not want to discuss those politics. These
allegations do not rise to the level of severe and pervasive harassment. Plaintiff was unclear
about the frequency of this conduct at his deposition. When asked how much he was exposed to
the conduct he just responded "many time [sic]." [Plaintiffs Depo, DE 94-2, p. 73:24]. Further,
the conduct was not severe because Plaintiff does not assert that Mr. Fereg directly accused
Plaintiff of being a thief. The conduct was clearly not threatening and merely amounted to
offensive utterances, if even that. See Khattab, 2009 WL 2600523 at *13 (court concluded that
24
plaintiff, who was from Syria, was not subject to national origin harassment when a co-worker
stated she wanted "Americans to kill all Syrians like [plaintiff], like they killed the Iraqis").
For these reasons, the Court concludes that Plaintiffs alleged national origin harassment
was neither objectively nor subjectively severe nor pervasive enough to alter Plaintiffs terms or
conditions of employment.
Accordingly, the Court grants summary judgment in favor of
Defendant on Plaintiffs national origin harassment claim (Count VII).
D. Retaliation (Counts III, VIII, IX)
Plaintiff also brings three retaliation causes of action. Count III alleges retaliation in
violation of 29 U.S.C. § 215(a)(3), Count VIII alleges retaliation in violation of Title VII, and
Count IX alleges retaliation in violation of the Florida Civil Rights Act ("FCRA").
Pursuant to the Fair Labor Standards Act ("FLSA"), specifically 29 U.S.C.A. § 215, an
employer may not "discharge or in any other manner discriminate against any employee because
such employee has filed any complaint or instituted or caused to be instituted any proceeding
under or related to this chapter."
29 U.S.C.A. § 215(a)(3).
"FLSA retaliation claims are
governed by the same legal analysis applicable to retaliation claims under Title VII." Munroe v.
PartsBase, Inc., No. 08-80431-CIV, 2009 WL 413721, *7 (S.D. Fla. Feb. 18, 2009) (quoting
Beltran v. Brentwood N. Healthcare Ctr., LLC., 426 F.Supp.2d 827, 833 (N.D.Ill.2006)).
Even if an employee's discrimination claims are meritless, an employee may still pursue a
claim for retaliation if the employee has a good faith, reasonable belief that the employer's
practices violate Title VII. Joseph v. Napolitano, 839 F.Supp.2d 1324, 1334 (S.D. Fla. 2012).
"Under Title VII, a plaintiff bears the ultimate burden of proving retaliatory treatment by a
preponderance ofthe evidence." Ekokotu v. Federal Exp. Corp., 408 Fed.Appx. 331, 337 (11th
Cir. 2011). "A plaintiff may establish a prima facie case of retaliation by showing that (1) he
25
engaged in statutorily protected expression, (2) he suffered an adverse employment action, and (3)
there is some causal relationship between the two events." !d.
Plaintiffs retaliation claims assert that Defendant improperly reduced Plaintiffs work
schedule from approximately eighty hours per week to forty hours per week after Plaintiff verbally
complained to Defendant about his unpaid wages (Count III). [DE 49, p. 9, ~~ 40-41]. Plaintiff
alleges that Defendant further reduced Plaintiffs work schedule to twenty-four hours per week
after Plaintiff filed his charge of Discrimination with the Miami-Dade County Commission on
Human Rights/EEOC and his original lawsuit in this action. [DE 49, p. 9,
~
42]. Additionally,
Plaintiff claims that, during this litigation, Defendant further reduced Plaintiffs hours, paid
Plaintiff the lowest amount of all employees, and engaged in other acts of retaliation. [DE 49, p.
10,
~
43]. Specifically, Plaintiff contends that Defendant raised Plaintiffs pay from $8.00 per
hour to $8.05 per hour but raised all other employees' pay from $8.00 per hour to $8.50 per hour.
[DE 49, p. 10, ~ 44].
Plaintiff also alleges that Defendant improperly retaliated against Plaintiff by performing
all the above actions after Plaintiff objected to discriminatory actions taken against him based on
his religion and national origin (Counts VIII-IX). [DE 49, p. 22-24,
~~
126-29, 137]. Further,
Plaintiff claims that Defendant began to micromanage Plaintiffs work and write-up Plaintiff for
alleged violations of Defendant's policies while other non-Muslim and non-Algerian employees
were not micromanaged or written up for violations of policies. [DE 49, p. 22, ~ 130]. Plaintiff
also contends that, in further retaliation, Defendant is attempting to collect money from Plaintiff
for the rental of a car that Defendant required Plaintiff to drive to and from work so Plaintiff could
stay late at work and drive back to work early in the morning. [DE 49, p. 22, ~ 132].
26
It seems clear that Plaintiff engaged in protected conduct in verbally complaining about his
unpaid wages, filing an EEOC discrimination charge, and filing this lawsuit. It also appears
arguable that Plaintiff suffered adverse employment action when his hours were reduced and he
was terminated from his position.
The question is whether there was a causal relationship
between Plaintiffs protected conduct and the adverse employment actions.
To meet the causal connection element, a plaintiff must show that there was knowledge of
the protected conduct and that the protected conduct and the adverse action were not completely
unrelated.
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004).
"A 'close temporal
proximity' between the employee's protected activity and adverse actions may be sufficient
circumstantial evidence to create a genuine issue of material fact of a causal connection."
Ekokotu, 408 Fed.Appx. at 338. However, the Eleventh Circuit has held that a three-month
period between the protected conduct and the alleged retaliatory action, without more, does not
allow "a reasonable inference of a causal relation between the protected expression and the
adverse action." Higdon, 393 F.3d at 1221.
Plaintiff asserts that his hours were first reduced after he verbally complained to Defendant
about his unpaid wages, then again after Plaintiff filed his EEOC Charge of discrimination, and yet
again after Plaintiff filed the lawsuit in this action. [DE 49, p. 9,
~~
40-42]. Plaintiff filed his
EEOC Charge on December 12, 2014. [DE 94-3]. Plaintiff filed this lawsuit on August 24,
2015.
[DE 1].
According to Defendant's time records for Plaintiff, Plaintiffs hours were
fluctuating around forty hours per week in December of 2014 and January 2015 (some weeks
Plaintiff worked forty hours and other weeks Plaintiff worked more than forty hours).
[DE
94-5,pp. 2-3]. Then, in February of2015, Plaintiffs hours were reduced to under forty hours per
week.
[De 94-5, pp. 1-2].
Moreover, in August of 2015, after Plaintiff filed his original
27
Complaint in this lawsuit, Plaintiffs hours went down to twenty-four hours per week according to
Defendant's Payroll Log. [DE 94-6, pp. 1-6]. Then, Plaintiff was terminated on April15, 2016.
[DE 94-7]. Therefore, there is a genuine issue of material fact as to whether Plaintiffs hours were
reduced and he was terminated in retaliation for his complaints of unpaid wages, the filing of his
EEOC Charge, and the filing of this lawsuit. Accordingly, the Court will not grant summary
judgment in favor of Defendant on Plaintiffs Counts III, VIII, or IX.
E. Violation of 42 U.S.C. § 1981 (Count X)
Plaintiff alleges in Count X that Defendant deprived him of equal rights because he is
Arab. If Plaintiff can show that he was "subjected to intentional discrimination based on the fact
that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he
will have made out a case under§ 1981." Saint Francis College v. Al-Khazraji, 107 S.Ct. 2022,
2028 (1987). "To state a claim of race discrimination under § 1981, plaintiffs must allege facts
establishing: ( 1) that the plaintiff is a member of a racial minority; (2) that the defendant intended
to discriminate on the basis of race; and (3) that the discrimination concerned one or more of the
activities enumerated in the statute." Jackson v. Bel/South Telecomms., 372 F.3d 1250, 1270
(11th Cir. 2004). The activities enumerated in the statute are the right to make and enforce
contracts, the right to sue, and the right to give evidence. !d.
Plaintiffs equal rights claim alleges that Plaintiff was born in Algeria and he is a citizen of
Arab descent and that the corporate Defendant America Best and Individual Defendant Kamal
Fereg violated Plaintiffs equal rights "by depriving him of his right to the enjoyment of all
benefits, privileges, terms, and conditions of his employment contract as is enjoyed by non-Arab
descendants."
[DE 49, p. 25,
~~
188, 190].
Plaintiff contends that both Defendants
discriminated against Plaintiff on the basis of his Arab race and descent. [DE 49, p. 26,
28
~
194].
The only activity of § 1981 that Plaintiff claims was denied to him was the right to make and
enforce contracts. [DE 49, p. 26,
~
193].
Plaintiff has not explained in his Second Amended Complaint or at his deposition how any
of the alleged conduct of Defendants toward Plaintiff affected his rights to make, enforce, or do
anything else with a contract. Cook v. Randolph County, Ga., 573 F.3d 1143, 1157 (11th Cir.
2009). Moreover, there is no evidence that Plaintiffs rights to make and enforce contracts were
in any way denied. Therefore, Plaintiffs § 1981 claim fails and the corporate Defendant America
Best should be granted summary judgment on this claim (Count X).
VI.
CONCLUSION
As stated above, the Court grants summary judgment in favor of Defendant, America Best
Car Rental KF Corp., as to Plaintiffs claims asserted in Count IV (Violation of Title
VII-Religious Discrimination), Count V (Violation of Title VII-Religious Harassment), Count
VI (Violation of the FCRA-Religious Discrimination and Harassment), Count VII (Violation of
VII-Discrimination and Harassment Based on Plaintiffs National Origin), Count VII [sic]
(Violation of the Florida Civil Rights Act of 1992-National Origin Discrimination), and Count X
(Violation of 42 U.S.C. § 1981) as to Defendant America Best. The Court denies Defendant's
Partial Motion for Summary Judgment [DE 94] in all other respects.
This case shall proceed to trial on Count I (Wage and Hour Violation by the Corporate
Defendant), Count II (Wage and Hour Violation by the Individual Defendants), Count III (Federal
Statutory Violation Pursuant to 29 U.S.C. 215(a)(3) (Retaliation)), Count VIII (Violation ofTitle
VII-Retaliation), Count IX (Violation of the FCRA-Retaliation), and Count X (Violation of 42
U.S.C. § 1981) as to Defendant Kamal Fereg.
29
It is hereby ORDERED AND ADJUDGED that Defendant's Motion for Partial
Summary Judgment and Incorporated Memorandum of Law [DE 94] is GRANTED IN PART
AND DENIED IN PART. Summary judgment is granted in favor ofDefendant on Counts IV,
V, VI, VII, and X 5 of the Second Amended Complaint.
The parties are reminded that this case is specially set for jury trial beginning on June 12,
2017. [DE 89]. Calendar call is set for June 6, 2017 at 2:00p.m. [DE 89]. The parties' counsel
shall appear for calendar call on June 6, 2017 at 2:00 p.m. The parties and their counsel are
directed to appear for trial on June 12, 2017 at 9:30a.m., and to comply with all pretrial obligations
pursuant to the Court's applicable Scheduling Order [DE 88].
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this
II
71,
aay of May' 2017.
uJiY~~~~
WILLIAM MATTHE MAN
UNITED STATES MAGISTRATE JUDGE
5
Summary judgment on Count X is granted only as to the Corporate Defendant, America Best. To the extent this
Count applies to an Individual Defendant, it will proceed to trial, as discussed above.
30
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