Gonzalez v. State of Florida Department of Management Services
Filing
30
ORDER granting 17 Motion for Summary Judgment. Closing Case. Motions Terminated: 17 MOTION for Summary Judgment filed by State of Florida Department of Management Services, 24 MOTION to Strike 22 Notice (Other), < i>Motion to Strike Plaintiff's Notice of Filing filed by State of Florida Department of Management Services. Signed by Judge Marcia G. Cooke on 8/25/2015. (tm) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 14-22479-COOKE/TORRES
RAMON GONZALEZ,
Plaintiff,
v.
STATE OF FLORIDA DEPARTMENT
OF MANAGEMENT SERVICES,
Defendant.
____________________________________/
OMNIBUS ORDER ON DEFENDANT’S MOTION TO STRIKE AND
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Ramon Gonzalez (“Plaintiff” or “Mr. Gonzalez”) brings this action against
Defendant State of Florida Department of Management Services (“Defendant” or “DMS”)
to recover damages for violations of Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e, et seq. and the Florida Civil Rights Act of 1992 (“FCRA”), Fla. Stat. §
760.01. Defendant filed a Motion for Summary Judgment (ECF No. 17) with supporting
Statement of Undisputed Material Facts (ECF No. 16) to which Plaintiff filed a
Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment (ECF
No. 20) along with Plaintiff’s Rule 56.1 Response with Incorporated Statement of Material
Facts (ECF No. 21). Defendant then filed its Reply in Support of Summary Judgment
(ECF No. 25). Defendant also filed a Motion to Strike Plaintiff’s Notice of Filing (ECF No.
24), to which Plaintiff filed a Memorandum of Law in Opposition to Defendant’s Motion to
Strike (ECF No. 26) and Defendant filed a Reply in Support of Motion to Strike (ECF No.
27). Therefore, Defendant’s Motion for Summary Judgment and Defendant’s Motion to
Strike are fully briefed and ripe for adjudication.
I have reviewed Defendant’s Motion for Summary Judgment, the Response and
Reply thereto, Defendant’s Statement of Undisputed Material Facts and attached exhibits,
Plaintiff’s Rule 56.1 Response with Incorporated Statement of Materials Facts and attached
exhibits, Defendant’s Motion to Strike Plaintiff’s Notice of Filing, the Response and Reply
thereto, the record, and relevant legal authorities.
For the reasons provided herein,
Defendant’s Motion to Strike Plaintiff’s Notice of Filing is granted in part and denied in part
and Defendant’s Motion for Summary Judgment is granted.
I. BACKGROUND
The State of Florida Department of Management Services is comprised of several
different divisions, including the Division of Real Estate Development and Maintenance
(“the Division”), which is responsible in part for the maintenance of all buildings the State
of Florida owns. Def.’s Stmnt. Material Facts ¶ 1; Pl.’s Stmnt. Material Facts ¶ 1. The
Division’s general duties include routine maintenance work, such as plumbing, air
conditioning, structural integrity, and grounds maintenance, as well as maintaining public
records and administrative security, and ensuring premises safety. Id. Daniel Eberhart
(“Mr. Eberhart”) is the Deputy Bureau Chief of Regional Facilities at the Division and has
held this position since 1997. Id. at ¶ 2. He is responsible for overseeing all buildings from
Jacksonville to Marathon, Florida, and all twelve facilities managers, as well as the senior
refrigeration mechanic and his staff assistant, directly report to him. Id.
In late 2010, DMS hired Norberto Fernandez (“Mr. Fernandez”) as the Facilities
Manager. Id. at ¶ 3. Plaintiff was hired on November 29, 2010 as the Maintenance
Supervisor for the Rohde Building in Miami, Florida. Mem. Dismissing Pl., ECF No. 18-4.
Mr. Fernandez interviewed Plaintiff for the position of maintenance supervisor.
Daniel Eberhart 35:15-21.
Dep.
Mr. Eberhart did not participate in Plaintiff’s employment
interview. Id. at 35:9-11. Mr. Fernandez directly supervised Plaintiff while Mr. Eberhart
supervised Mr. Fernandez. Pl.’s Dep. 20:6-12. Both Mr. Fernandez and Plaintiff are Cuban
males. Def.’s Stmnt. Material Facts ¶ 3 at n. 1; Pl.’s Stmnt. Material Facts ¶ 3. Mr.
Eberhart did not know that Plaintiff was of Cuban nationality while Plaintiff was employed
with Defendant. Dep. Daniel Eberhart 141:6-10.
As the Maintenance Supervisor for the Rohde Building, Plaintiff was responsible for
a complex of two towers located in downtown Miami as well as for two additional buildings
located in Opa-Locka and Doral. Id. at ¶ 3. Plaintiff was also responsible for managing a
staff of seven employees, including three maintenance mechanics, two support technicians
at the Rohde Building, as well as one maintenance mechanic at the Opa-Locka facility and
one maintenance mechanic at the Doral facility. Id. Together with Mr. Fernandez, Plaintiff
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was responsible for developing work plans for the mechanical staff, reviewing maintenance
work performed at the three Miami-Dade DMS buildings, and contracting with outside
vendors for work order services and supplies.
Id. at ¶ 4.
More specifically, as the
Maintenance Supervisor, Plaintiff was responsible for prioritizing work orders based on
level of urgency, materials available, the duration of the job, and the ability level of all
available mechanics, as well as conducting daily inspections of operations systems,
including elevators and air conditioning units. Id.
On January 2, 2013, Mr. Eberhart issued a memorandum outlining his concerns
regarding Mr. Fernandez’s work performance. Mem. Re: Performance Concerns, ECF No.
18-4. Mr. Eberhart noted that Mr. Fernandez needed to improve his communication skills
by more consistently responding to tenant requests, timely responding to emails and phone
messages, and maintaining more frequent communication with the regional office and
Tallahassee headquarters. Id. The memorandum also recommended that Mr. Fernandez
meet with staff more frequently to ensure that performance standards were met, proper
maintenance schedules were maintained, and that required preventative maintenance
records were maintained. Id. Mr. Fernandez was warned that “corrective action … [was]
expected to begin immediately” as “further violations may result in more severe disciplinary
action, up to and including dismissal.” Id. Subsequently, on April 5, 2013, Tom Berger
(“Mr. Berger”), Director of the Division, decided to terminate Mr. Fernandez. Def.’s Stmnt
Material Facts ¶ 5; Pl.’s Stmnt. Material Facts ¶ 5. Mr. Berger cited Mr. Fernandez’s poor
supervisory performance as the reason for his termination, especially his hostile demeanor
and insubordination towards his superiors, which created an intimidating and
unprofessional work environment in the Rohde Building. Id.
As a result of Mr. Fernandez’s termination, Mr. Eberhart assigned Plaintiff and
Lissette Fernandez (“Ms. Fernandez”), Mr. Fernandez’s administrative assistant, joint
responsibility over the facilities. Id. at ¶ 6. Ms. Fernandez is a female from the Dominican
Republic.
Id. at n. 2.
While Plaintiff was tasked with determining all requested
maintenance projects and ensuring that the preventative maintenance programs were kept
up to date, Mr. Eberhart requested that all work requests be routed through him for final
approval. Id. at ¶ 6. Mr. Eberhart wanted to be the final decision-maker for all maintenance
requests for budgeting purposes because he did not believe that Plaintiff had the necessary
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familiarity with these issues since in the past he simply made all of his requests to Mr.
Fernandez, who then took care of the details in his role of Facilities Manager. Id. Under
this new arrangement, Ms. Fernandez oversaw all administrative functions while Plaintiff
was responsible for supervising all maintenance tasks, an arrangement that Plaintiff believed
improperly made Ms. Fernandez his superior even though she lacked the necessary
knowledge regarding the maintenance and structure of the building. Id.
On April 20, 2013, Mr. Eberhart participated in a conference call with his supervisor,
Bureau Chief Darren Fancher, the Division’s human resources liaison, Kris Parks, and his
assistant Belinda Huang. Dep. Daniel Eberhart 82:18-83:11. During this call, Mr. Eberhart
discussed Plaintiff’s poor attitude at work, his inability to communicate with staff, tenants,
and vendors in a respectful and effective manner, as well as Plaintiff’s issues with following
department procedures. Def.’s Stmnt. Material Facts ¶ 7; Pl.’s Stmnt. Material Facts ¶ 7.
More specifically, Mr. Eberhart shared that several DMS staff members complained that
Plaintiff would berate and belittle them in front of building tenants, vendors, and members
of the public, and that Plaintiff micromanaged them.
Id. at ¶ 8.
Additionally, Ms.
Fernandez also received complaints from several employees, tenants, and vendors about
Plaintiff’s loud, aggressive, and intimidating manner. Id. at ¶ 9. Tenants reported back to
her that Plaintiff had a bad attitude when responding to their maintenance calls and that he
would complain about having to make the necessary repairs. Id. Plaintiff often failed to
visit tenants with maintenance issues. Dep. Lissette Fernandez 32:5-33:13. When Ms.
Fernandez confronted Plaintiff about his failure to respond to tenants’ issues, he responded
that he would tend to the tenants’ concerns on his own schedule, not on theirs. Id.
In addition to tenant and vendor complaints about Plaintiff’s attitude, Plaintiff also
failed to adhere to Mr. Eberhart’s request to rout all work requests through him. Def.’s
Stmnt. Material Facts ¶ 10. Plaintiff instead authorized work without prior approval. Id.
For example, Plaintiff authorized a vendor to perform maintenance work on a fence before
a purchase order had been finalized. Id. Therefore, the work was performed before a
verified method of payment was in place. Id. In another incident, a security company
providing security at the Rohde Building damaged a light pole that required repair. Id. at ¶
11. Mr. Eberhart determined that the security company should pay for the repairs directly,
but Plaintiff, without any prior discussion with Mr. Eberhart, took it upon himself to pay for
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the repairs using his purchase card. Id. DMS then had to pursue reimbursement from the
security company, and, although the security company did reimburse DMS, those funds
were placed back into the DMS general revenue fund instead of back into the Rohde
Building budget, thus depriving the building budget of necessary funds. Id.
Mr. Berger ultimately “independently recommended the termination” of Plaintiff in
a memorandum dated May 30, 2013 “based on the information provided to [him].” Aff.
Thomas G. Berger ¶ 4.
In recommending Plaintiff’s termination, Mr. Berger cited to
negative incidents involving Plaintiff and various employees, including Mr. Eberhart,
custodial contractor supervisor Amanda Perez, mechanic Gus Gonzalez, DMS manager
Ralph Reynolds, and senior refrigeration mechanic Joel Kyllonen. Mem. Dismissing Pl.,
ECF No. 18-4. Common to all incidents were comments regarding Plaintiff’s tendency to
scream, berate, and name call, as well as Plaintiff’s failure to follow instructions and his
dereliction of duties. Id. The information Mr. Berger relied upon in his report came from
the human resources department, which in turn received its information from Mr. Eberhart.
Dep. Daniel Eberhart 100:1-25. And, while Mr. Eberhart is uncertain as to whether Mr.
Berger conducted an independent investigation of the complaints lodged against Plaintiff,
Mr. Eberhart believes that he provided human resources with supporting documentation for
each event described in Mr. Berger’s memorandum. Id. at 101:1-13. Mr. Eberhart gathered
information regarding various instances of complaints involving Plaintiff and submitted
them to human resources for a review and feedback on how best to proceed. Id. at 107:5-24.
After Mr. Berger submitted his memorandum to human resources recommending
that Plaintiff be terminated, human resources provided Plaintiff’s termination notice for
signature on June 4, 2013 to Bryan Bradner, the Deputy Director, who signed it. Letter
Terminating Pl.’s Emp’t, ECF No. 18-7. After human resources received Mr. Berger’s
memorandum recommending the termination of Plaintiff, human resources had the option
of referring Plaintiff to counseling or issuing him an official warning or reprimand. Dep.
Daniel Eberhart 103:25-104:15. Instead, after reviewing Mr. Berger’s memorandum, the
director of human resources decided that dismissal was warranted. Id.
DMS employees generally fall into two classifications: career service employees and
selected exempt service employees. Def.’s Stmnt. Material Facts ¶ 14; Pl.’s Stmnt. Material
Facts ¶ 14. Career service positions are unionized and comprise entry-level positions, such
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as mechanics, custodians, and laborers.
Id.
Conversely, individuals in supervisory
positions, such as the maintenance supervisor and facilities manager, are selected exempt
service employees. Id. While career service employees cannot be terminated without cause
pursuant to their collective bargaining agreement, selected exempt service employees are
considered “at will” and therefore terminable at any time without cause. Id. Though he
may not have been aware of his exact classification, Plaintiff was a selected exempt service
employee, “at-will” and terminable at any time without cause. Id. Additionally, according
to the DMS Administrative Policy concerning the Conduct of Employees and Disciplinary
Guidelines, applicable to all DMS employees, while “[d]isciplinary actions generally apply
to Career Service (CS) employees … DMS leadership may use disciplinary actions at their
discretion concerning Selected Exempt Service (SES) … employees.”
Admin. Policy
Concerning Emp. Conduct, ECF No. 22-3 at p. 39 (emphasis added).
Following Plaintiff’s termination, Mr. Eberhart hired Ramona McConnel (“Ms.
McConnel”) as the new facilities manager and Richard Laird (“Mr. Laird”), a Caucasian
male, as the new maintenance supervisor. Id. at ¶ 15. However, Mr. Berger decided to
terminate Mr. Laird on August 7, 2014, shortly after his hire, following two investigations
into incidents wherein it was alleged that he made discriminatory comments regarding
Puerto Rican and Cuban employees, damaged DMS property and made sexually
inappropriate gestures to subordinates, and sold scrap metal belonging to DMS without
documenting the sales or forwarding the proceeds to the Bureau of Financial Management
Services. Id. at ¶¶ 15, 16. Mr. Eberhart and his current supervisor, Bureau Chief Michael
Jara, then made the decision to hire Alfredo Caravello (“Mr. Caravello”), a Cuban male, to
replace Mr. Laird as the maintenance supervisor. Id. at ¶ 17. Mr. Eberhart acknowledged
that Mr. Caravello has a “notable accent.” Dep. Daniel Eberhart 142:20-21. Mr. Eberhart
promoted Mr. Caravello to the position of facilities manager after Ms. McConnel resigned.
Def.’s Stmnt. Material Facts ¶ 17; Pl.’s Stmnt. Material Facts ¶ 17. Before she resigned, Ms.
McConnel hired two new mechanics, Juan Menendez and Wilmer Medina, both of whom
are Latin. Id. While Mr. Eberhart did not participate in their interviews, he did not object
to their retention. Id.
Plaintiff filed an Equal Employment Opportunity Commission (“EEOC”) charge
against Defendant on September 17, 2013, claiming that his termination was a result of
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national origin discrimination. Id. at ¶ 18. In his discrimination charge, Plaintiff alleges
that Mr. Eberhart fired him for being Cuban because he did not like the fact that Plaintiff
spoke with a heavy accent. Id. While Plaintiff has no direct, independent knowledge of any
comments made by Mr. Eberhart regarding his accent, he claims that Mr. Fernandez told
him that Mr. Eberhart wanted to terminate Plaintiff since the beginning of his employment
because Plaintiff spoke too loudly and with a heavy Cuban accent. Decl. Ramon Gonzalez
¶ 5. Mr. Eberhart concedes that he did have a conversation with Mr. Fernandez regarding
Plaintiff, but that he did not focus “as much on his accent as … his volume.” Dep. Daniel
Eberhart 89:1-2. Mr. Eberhart conveyed to Mr. Fernandez that he had “a bit of concern
that … maybe [Plaintiff’s] rapid speech and loud demeanor would be of a concern in the
general public in dealing with some of the agencies and directing the staff.” Id. at 89:8-11.
Mr. Eberhart denies ever telling Mr. Fernandez that Plaintiff’s employment should be
terminated because of his volume, accent, and rapid speech. Id. at 89:12-90:1. Plaintiff
admits that he talks loudly, that he is a “strong, hard-voiced talking person,” and that his coworkers may misinterpret his mannerisms because when he is upset he talks louder and
faster. Dep. Pl. 52:7-19.
II. LEGAL STANDARD
Summary judgment “shall be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997) (quoting Fed.
R. Civ. P. 56(c)) (internal quotations omitted); Damon v. Fleming Supermarkets of Florida, Inc.,
196 F.3d 1354, 1358 (11th Cir. 1999). Thus, the entry of summary judgment is appropriate
“against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof
at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“The moving party bears the initial burden to show the district court, by reference to
materials on file, that there are no genuine issues of material fact that should be decided at
trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “Only when that
burden has been met does the burden shift to the non-moving party to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Id. Rule 56
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“requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by
the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.”
Celotex, 477 U.S. at 324.
Thus, the
nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but
must set forth specific facts showing that there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks omitted). However,
it is impermissible for the nonmoving party to attempt to create an issue of fact with a selfserving affidavit that contradicts the witnesses’ prior testimony. McCormick v. City of Fort
Lauderdale, 333 F.3d 1234, 1240 (11th Cir. 2003) (“Under the law of this Circuit, we may
disregard an affidavit submitted solely for the purpose of opposing a motion for summary
judgment when that affidavit is directly contradicted by deposition testimony.”); Van T.
Junkins & Associates, Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984) (“When a
party has given clear answers to unambiguous questions which negate the existence of any
genuine issue of material fact, that party cannot thereafter create such an issue with an
affidavit that merely contradicts, without explanation, previously given clear testimony.”).
“A factual dispute is genuine if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Damon, 196 F.3d at 1358. “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.” Abbes v. Embraer Servs., Inc., 195
F. App’x 898, 899-900 (11th Cir. 2006) (quoting Walker v. Darby, 911 F.2d 1573, 1577 (11th
Cir. 1990)). When deciding whether summary judgment is appropriate, “the evidence, and
all inferences drawn from the facts, must be viewed in the light most favorable to the nonmoving party.” Bush v. Houston County Commission, 414 F. App’x 264, 266 (11th Cir. 2011).
III.
DISCUSSION
A. Motion to Strike
Before addressing the parties’ arguments on summary judgment, I will first address
Defendant’s Motion to Strike Plaintiff’s Notice of Filing (ECF No. 24). Defendant argues
that the Declarations of Plaintiff Ramon Gonzalez and Norberto Fernandez, submitted in
support of Plaintiff’s Response to Defendant’s Motion for Summary Judgment, should be
stricken as: (1) violating Fed. R. Civ. P. 26(e); (2) containing legal conclusions, facts
unsupported by the record evidence, and statements of subjective belief without personal
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knowledge in violation of Fed. R. Civ. P. 56; and (3) attempting to introduce inadmissible
evidence, including hearsay.
1. Violations of Fed. R. Civ. P. 26(e)
Fed. R. Civ. P. 26(e)(1)(A) provides in relevant part that “a party who has made a
disclosure under Rule 26(a) … must supplement or correct its disclosure or response … in a
timely manner if the party learns that in some material respect the disclosure or response is
incomplete or incorrect…” Defendant contends that the Declaration of Norberto Fernandez
must be stricken because while it is dated February 16, 2015, Plaintiff failed to disclose its
very existence until Plaintiff filed it in support of his Response to Defendant’s Motion for
Summary Judgment. More specifically, Defendant contends that it served Plaintiff with
interrogatories and requests for production to which the Declaration of Norberto Fernandez
was clearly responsive, and yet Plaintiff withheld his Declaration until the last possible
moment, thus violating his continuing discovery obligations under Fed. R. Civ. P. 26(e).
Therefore, Defendant seeks relief under Fed. R. Civ. P. 37, which states that “[i]f a party
fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is
not allowed to use that information or witness to supply evidence on a motion…unless the
failure was substantially justified or is harmless.”
In response, Plaintiff argues that he withheld the Declaration of Norberto Fernandez
because he considered it to be work product and because it does not fall within the purview
of “documents” that must be disclosed pursuant to Fed. R. Civ. P. 26. Additionally,
Plaintiff argues that any failure to disclose the Declaration is substantially justified and
harmless because Defendant knew from the content of both Plaintiff’s Complaint and
Witness List exactly who Norberto Fernandez was and the information that he conveyed to
Plaintiff. Therefore, Defendant could have deposed him.
I disagree with Plaintiff’s reasoning that Norberto Fernandez’s Declaration
constitutes work product, exempt from production for discovery purposes, especially since
Plaintiff has failed to cite to any binding precedent from the Eleventh Circuit on that point.
Plaintiff relies on two decisions, one from the Northern District of California and the other
from the Middle District of Pennsylvania, in support of his argument that the Declaration of
Norberto Fernandez is work product and thus not subject to rules governing disclosure
during discovery. However, the factual situations in both cases differ significantly from the
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factual situation present here. In the case before the Northern District of California, Intel
Corp. v. VIA Tech., Inc., 204 F.R.D. 450 (N.D. Cal. 2001), the defendant sought to use the
declaration of a late-discovered former employee of plaintiff in support of its motion for
summary judgment.
In the case before the Middle District of Pennsylvania, Bell v.
Lackawanna Cty., 892 F. Supp. 2d 647 (M.D. Pa. 2012), plaintiffs sought to use their own
declarations in support of their opposition to summary judgment.
The Court there
acknowledged that the question of “whether a declaration … is appropriately deemed
undiscoverable attorney work product is not altogether clear.” Bell, 892 F. Supp. 2d at 660.
However, it also found that while declarations generated by attorneys and signed by parties
to the litigation generally would be regarded as work product, declarations of third-party
witnesses would most likely not be regarded as work product. Id. at 661. Therefore, the
factual situation in both Intel Corp. and Bell are clearly distinguishable from the situation at
hand, since the Plaintiff here seeks to introduce the declaration of a third-party witness
known to the Plaintiff from the very beginning of this case.
I agree with Defendant that Plaintiff’s failure to timely supplement its discovery
responses to include the Declaration of Norberto Fernandez violates Plaintiff’s obligations
under Fed. R. Civ. P. 26 and was not substantially justified or harmless. Defendant relies
upon the reasoning in Edwards v. Nat’l Vision, Inc., 568 Fed. Appx. 854 (11th Cir. 2014), to
support its argument in support of striking the Declaration of Norberto Fernandez, and I
agree that it applies to the factual situation at hand. The Eleventh Circuit upheld a district
court’s decision to strike the declaration of a witness after the Plaintiff conceded that she did
not timely produce the declaration and after finding that the declaration itself “was not
harmless because it contained significant information that was relevant to whether
[Defendant] discriminated and retaliated against [Plaintiff].” Edwards, 568 Fed. Appx. at
858.
Similar to the factual situation in the district court order affirmed on appeal,
Defendant here served Plaintiff with interrogatories and requests for production regarding
the information contained in the Declaration of Norberto Fernandez. However, instead of
providing Defendant with Mr. Fernandez’s Declaration, Plaintiff held onto it in what
appears to have been a tactical decision to ambush the Defendant in his response to
Defendant’s Motion for Summary Judgment. The Declaration is dated February 16, 2015,
but Plaintiff failed to provide Defendant with a copy of it until April 27, 2015, well after
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discovery had closed on April 3, 2015.
Plaintiff argues that its failure to provide Defendant with the Declaration is harmless
because “[t]he vast majority of factual averments in the declaration[] concern well-known
facts in this litigation, so much so that the anticipated testimony of Norberto Fernandez was
even included in the Complaint.” However, the district court in Edwards rejected those very
arguments, reasoning that the defendant never deposed the witness, “as it might have done
if it had timely been made aware of [the] declaration.” Edwards v. Nat’l Vision, Inc., 946 F.
Supp. 2d 1153, 1159 (N.D. Ala. 2013), aff’d, 568 Fed. Appx. 854 (11th Cir. 2014). While
the facts of this case are not as egregious as those outlined in Edwards, Plaintiff did
deliberately withhold the Declaration of Norberto Fernandez in the same manner as the
Plaintiff in Edwards, and his behavior cannot simply be excused as harmless.
The
Declaration of Norberto Fernandez serves as Plaintiff’s sole evidence of discrimination, and
Plaintiff’s failure to timely disclose his declaration prejudiced Defendant’s ability to depose
or further explore his statements. Therefore, in line with the reasoning of Edwards, the
Declaration of Norberto Fernandez is hereby stricken.
2. Legal Conclusions, Facts Unsupported by Record Evidence, and
Statements of Contrary to Deposition Testimony
Defendant next moves to strike portions of Plaintiff’s Declaration as containing
inadmissible statements contrary to Plaintiff’s deposition testimony.
More specifically,
Defendant contends that during Plaintiff’s deposition, Plaintiff admitted that he lacked
knowledge regarding the distinction between career service employees, who are subject to a
formal grievance procedure under the terms of their collective bargaining agreement, and
selected exempt service employees, such as Plaintiff and other supervisory level employees,
who are considered at-will, terminable at any time.
Defendant argues that Plaintiff’s
statements regarding disciplinary policies and procedures in his Declaration are contrary to
his statements made during his deposition where Plaintiff admitted to having no knowledge
of such policies and procedures.
However, I do not find Defendant’s arguments to be convincing on this front. It
could be that Plaintiff does not understand the distinction between career service employees
and selected exempt service employees in that the former is governed by a collective
bargaining agreement, while still understanding general disciplinary policies and
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procedures. The two are not necessarily incongruous and do not indicate contradictory
statements solely intended to create a question of fact on summary judgment. See Van T.
Junkins & Assoc. v. U.S. Indus. Inc., 736 F.2d 656, 657 (11th Cir. 1984) (a party “may not
create an issue of fact by submitting an affidavit in opposition to a summary judgment
motion, that, by omission or addition, contradicts the affiant’s previous deposition
testimony”).
Similarly, I find that Plaintiff’s statements contain sufficient personal
knowledge so as to not be considered subjective opinions for which Plaintiff lacks personal
knowledge.
3. Inadmissible Hearsay
Finally, Defendant argues that Plaintiff’s Declaration contains inadmissible hearsay
statements. More specifically, Defendant argues that paragraphs 5, 10, and 11 in Plaintiff’s
Declaration contain inadmissible hearsay statements because they include statements
Plaintiff heard from Norberto Fernandez, information Plaintiff gleaned after looking at
documents produced in this case, and statements made by Mr. Eberhart in a conference call
to which Plaintiff was not a party.
The Federal Rules of Evidence define hearsay as “a statement, other than one made
by the declarant while testifying at trial or a hearing, offered in evidence to prove the truth
of the matter asserted.” Fed. R. Evid. 801(c). Unless a recognized exception applies,
hearsay statements are inadmissible.
Fed. R. Evid. 802.
As a general rule, hearsay
statements cannot be relied upon to defeat summary judgment. Jones v. UPS Ground Freight,
683 F.3d 1283, 1293 (11th Cir. 2012). A district court may consider a hearsay statement in
evaluating a motion for summary judgment if the statement can be reduced to admissible
format trial. When a hearsay statement is contained within another level of hearsay, both
levels must meet some exception to the hearsay exclusion rule in order to be admissible. See
United States v. Pendas-Martinez, 845 F.2d 938, 942-43 (11th Cir. 1988).
Defendant contends that Mr. Eberhart’s statements to Mr. Fernandez regarding
Plaintiff’s accent, which were then conveyed by Mr. Fernandez to Plaintiff, are inadmissible
hearsay. Although Mr. Eberhart’s statements to Mr. Fernandez and Mr. Fernandez’s
subsequent statements to Plaintiff appear to fall within the definition of hearsay, both levels
of statements falls within the hearsay exclusion for statements made “by [a] party’s agent or
servant concerning a matter within the scope of the agency or employment, made during the
12
existence of the relationship,” which are deemed admissions by a party opponent. Fed. R.
Evid. 801(d)(2)(D); see also Zaben v. Air Prod. & Chemicals, Inc., 129 F.3d 1453, 1456 (11th
Cir. 1997). Additionally, statements made by a supervisory official who plays some role in
the decision making process are generally admissible. See Zaben, 129 F.3d at 1456. Mr.
Eberhart and Mr. Fernandez were both employed by Defendant at the time Mr. Eberhart
made the alleged statements to Mr. Fernandez. Mr. Fernandez then shared Mr. Eberhart’s
statements with Plaintiff sometime in February 2013, while Mr. Fernandez was still
employed by Defendant as a facilities manager.
The statements made by Mr. Eberhart to Mr. Fernandez clearly fall within the
hearsay exception articulated by Rule 801(d)(2)(D). However, Defendant argues that any
statements by Mr. Fernandez to Plaintiff relaying Mr. Eberhart’s statements cannot be
admitted as exceptions to hearsay because Mr. Fernandez was not involved in the decision
to terminate Plaintiff. In support of its argument, Defendant cites to Zaben, wherein the
Eleventh Circuit upheld a district court’s decision to exclude statements of two lower-level
supervisors to the plaintiff. However, Zaben is clearly distinguishable from this case because
in Zaben, the two lower-level supervisors were unable to specifically identify which senior
managers made the allegedly discriminatory comments.
Here, Plaintiff has clearly
identified that Mr. Fernandez shared with him statements he heard Mr. Eberhart make, all
during the course of his employment as a manager for Defendant. Therefore, the statements
conveyed to Plaintiff by Mr. Fernandez via what he heard from Mr. Eberhart are
admissible. See Zaben, 129 F.3d at 1457 (“If Carter and Dunning had been deposed—or had
furnished sworn affidavits—and had testified with respect to age-biased statements made by
specifically identified, senior managers at the plant, their statements … might have been
relevant and, therefore, permissible.”) (emphasis added).
Defendant also contends that Plaintiff’s statements and conclusions regarding Mr.
Eberhart’s meeting with Darren Fincher and Kris Parks are hearsay as Plaintiff was not
present for the conversation and merely relies on the documentary evidence to formulate his
own conclusions. Defendant makes the same argument with regard to Plaintiff’s statements
regarding Mr. Eberhart’s comments made during a conference call involving an evaluation
of Plaintiff’s attitude at work. As to Plaintiff’s statements regarding the meeting between
Mr. Eberhart, Darren Fincher, and Kris Parks, I do not find them to be inadmissible hearsay
13
because Plaintiff’s statements are not offered to prove the truth of the matter asserted.
Instead, Plaintiff uses the fact that a meeting occurred to explain that he never encountered
Darren Fincher or Kris Parks and that he never dealt with Tom Berger in any capacity
regarding his work performance. Therefore, Defendant’s motion to strike paragraph 10 of
Plaintiff’s Declaration is denied.
However, I do find that paragraph 11 of Plaintiff’s Declaration contains inadmissible
hearsay. Here, Plaintiff relates what he knows about statements made by Mr. Eberhart
during a conference call regarding Plaintiff’s performance at work. However, Plaintiff was
not privy to this call and only knows about what was said after reviewing the record
evidence. Plaintiff then proceeds to declare all of the claims made by Mr. Eberhart to be
untrue. Regardless of whether Plaintiff believes Mr. Eberhart’s alleged statements to be true
or false, his statement is a conclusion and an opinion drawn from his examination of the
documents; it is not a statement of fact based on personal knowledge. See Henry v. City of
Tallahassee, 216 F. Supp. 2d 1299, n. 13 (11th Cir. 2002). Plaintiff attempts to disprove the
truth of the matter asserted in his inclusion of an out of court statement allegedly made by
Mr. Eberhart. Therefore, paragraph 11 of Plaintiff’s Declaration is stricken as inadmissible
hearsay.
B. Motion for Summary Judgment on Title VII & FCRA National Origin
Discrimination1 Claims
“Title VII makes it an unlawful employment practice for an employer to fail or refuse
to hire or to discharge any individual, or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national origin.” Abbes v. Embraer Servs., Inc.,
195 F. App’x 898, 900 (11th Cir. 2006) (citing Bass v. Board of County Com'rs, Orange County,
Fla., 256 F.3d 1095, 1103 (11th Cir. 2001); 42 U.S.C. § 2000e-2(a)). “A prima facie case of
national origin discrimination may be proved by direct or circumstantial evidence.” Short v.
Mando Am. Corp., 805 F. Supp. 2d 1246, 1263 (M.D. Ala. 2011).
1
Because the Florida Civil Rights Act of 1992 was modeled after Title VII, these claims will be analyzed under
the same Title VII framework. See Washington v. Sch. Bd. of Hillsborough Cnty., 731 F. Supp. 2d 1309, 1317
(M.D. Fla. 2010) (citing Gamboa v. Am. Airlines, 170 F. App’x 610, 612 (11th Cir. 2006) (claims under Title VII
and the Florida Civil Rights Act are analyzed under the same framework)).
14
1. Direct Evidence
“Direct evidence of discrimination is ‘evidence, which if believed, proves [the]
existence of [a] fact in issue without inference or presumption.’” Id. (quoting Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 1999)). “[O]nly the most blatant remarks,
whose intent could mean nothing other than to discriminate on the basis of some
impermissible factor constitute direct evidence of discrimination.” Wilson, 376 F.3d at 1086
(internal quotation marks omitted). “If the alleged statement suggests, but does not prove, a
discriminatory motive, then it is circumstantial evidence.”
Id.
Where a case of
discrimination is proven by direct evidence, the burden shifts to the defendant to prove “by
a preponderance of the evidence that the same decision would have been reached even
absent the presence of the discriminatory motive.” Miles v. M.N.C. Corp., 750 F.2d 867, 87576 (11th Cir. 1985).
As direct evidence, Plaintiff offers a comment made by Mr. Eberhart to Mr.
Fernandez wherein Mr. Eberhart allegedly stated that he wanted Plaintiff terminated
because he spoke too loudly and with a heavy Cuban accent. Plaintiff argues that this
alleged comment by Mr. Eberhart to Mr. Fernandez while Mr. Fernandez was still an
employee of Defendant constitutes direct evidence of national origin discrimination because
it illustrates that Defendant never would have hired Plaintiff in the first place because of his
accent and manner of speech; that Defendant was looking for a convenient way to terminate
Plaintiff on the basis of his heavy accent.
Discrimination based on accent can be national origin discrimination. See Akouri v.
State of Fla. Dep’t of Transp., 408 F.3d 1338, 1347 (11th Cir. 2005) (supervisor’s statement
that Lebanese plaintiff was turned down for promotion because white coworkers were “not
going to take orders from you, especially if you have an accent” was direct evidence of
discrimination). However, an employee’s heavy accent can be a legitimate basis for adverse
employment action where effective communication skills are reasonably related to job
performance. See Yili Tseng v. Florida A&M Univ., 380 Fed. Appx. 908, 909 (11th Cir. 2010).
As a maintenance supervisor, Plaintiff’s job consisted of managing employees,
communicating with outside vendors, and addressing tenant concerns. Therefore, effective
communication skills were vital to his job as a supervisor. A review of the record evidence
reveals that employees aside from Mr. Eberhart voiced concerns about Plaintiff’s loud,
15
aggressive, and rapid speech. In fact, Plaintiff even acknowledges that he sometimes speaks
too loudly, aggressively, and quickly.
Therefore, Mr. Eberhart’s alleged statements
regarding Plaintiff’s heavy Cuban accent, when viewed in the context presented by the
record evidence as a whole, do not constitute “blatant” remarks “whose intent could mean
nothing other than to discriminate on the basis of” Plaintiff’s national origin. Wilson, 376
F.3d at 1086 (internal quotation marks omitted).
Plaintiff has failed to show that the statements allegedly made by Mr. Eberhart are
direct evidence of discrimination.
The Eleventh Circuit has made it clear that direct
evidence is “evidence, which if believed, [proves] the existence of the fact in issue without
inference or presumption. Kilpatrick v. Tyson Foods, Inc., 268 Fed. Appx. 860, 862 (11th Cir.
2008). The comments cited by Plaintiff still require the Court to infer that the decision to
terminate Plaintiff was motivated by Plaintiff’s national origin. At most, the statement cited
by Plaintiff establishes the undisputed fact that Mr. Eberhart was concerned about Plaintiff’s
communication skills. This is especially so given the gap in time between Mr. Eberhart’s
alleged comment and Plaintiff’s termination. See Scott v. Suncoast Beverage Sales, Ltd., 295
F.3d 1223, 1228 (11th Cir. 2002) (“To be direct evidence, the remark must indicate that the
employment decision in question was motivated by race … the comment in this case was
simply too far removed and too indirectly connected to the termination decision to
constitute direct evidence of discrimination under the law of this circuit.).
2. Circumstantial Evidence
A plaintiff may establish a prima facie case of national origin discrimination under
Title VII by circumstantial evidence under the test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). “Absent direct evidence of discrimination, a plaintiff in a
termination case can establish a prima facie case by showing that: (1) he is a member of a
protected class; (2) he was subject to an adverse employment action; (3) he was qualified for
the position held; (4) and he was replaced or treated less favorably than someone similarly
situated outside of his protected class.” Abbes, 195 F. App’x at 900 (citing Knight v. Baptist
Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003)). If the plaintiff establishes a
prima facie case of discrimination, a rebuttable presumption arises that the employer
unlawfully discriminated against him and the burden shifts to the employer to produce
evidence of a legitimate, nondiscriminatory reason for the employment decision. See Smith
16
v. Lockheed-Martin Corp., 644 F.3d 1321, 1325-26 (11th Cir. 2011). If the employer meets this
burden, the plaintiff must then present evidence tending to show that the proffered
legitimate reason is a mere pretext for unlawful discrimination. See id. at 1326. A plaintiff
can show pretext “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.” Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446
F.3d 1160, 1163 (11th Cir. 2006) (internal quotation marks omitted).
It is undisputed that Plaintiff has satisfied the first two prongs of the prima facie case.
He is of Cuban descent and was terminated from his employment. However, the parties
disagree over whether Plaintiff has met his burden on the third and fourth factors, namely,
whether Plaintiff was qualified for the position held and whether he was replaced or treated
less favorably than someone similarly situated outside his protected class. I will address the
fourth factor first, as it will be dispositive of whether Plaintiff has established a prima facie
case of discrimination.
Plaintiff has failed to demonstrate, with competent evidence, that he was replaced or
treated less favorably than someone similarly situated outside of his protected class. “To
show that employees are similarly situated, the plaintiff must show that the employees are
similarly situated in all relevant respects ... it is necessary to consider whether the employees
are involved in or accused of the same or similar conduct and are disciplined in different
ways.” Abbes, 195 F. App’x at 900 (citing Knight, 330 F.3d at 1316).
Defendant initially
filled Plaintiff’s position with Mr. Laird, a Caucasian male. However, simply presenting
this evidence is not enough to conclusively establish that Plaintiff was replaced or treated
less favorably than someone similarly situated outside of his protected class. The record
evidence reveals that Mr. Laird was quickly terminated when an investigation into his
employment revealed gross misconduct. Therefore, both Plaintiff, a Cuban male, and Mr.
Laird, a Caucasian male, were terminated for similar reasons after investigations revealed
misconduct and an inability to follow proper departmental procedures. After Mr. Laird was
terminated, Mr. Eberhart interviewed and hired Mr. Caravello, a Cuban male with a
“notable accent,” to fill Plaintiff’s former position. Mr. Eberhart eventually promoted Mr.
Caravello to the position of facilities manager when that position became available.
Therefore, Plaintiff has failed to cite to any evidence demonstrating that Plaintiff, a Cuban
17
male, was disciplined any differently from individuals outside his protected class employed
as maintenance supervisors.
Plaintiff argues that even if he were unable to identify comparators outside of his
protected class that were treated more favorably than him, he can still prove his prima facie
case under the Eleventh Circuit’s reasoning in Jones v. Gerwens, 874 F.2d 1534 (11th Cir.
1989). He relies on language holding that:
[I]n cases involving alleged racial bias in the application of
discipline for violation of work rules, the plaintiff, in addition to
being a member of a protected class, must show either (a) that
he did not violate the work rule, or (b) that he engaged in
misconduct similar to that of a person outside the protected
class, and that the disciplinary measures enforced against him
were more severe than those enforced against the other person
who engaged in similar misconduct.
Jones, 874 F.2d at 1540.
However, Plaintiff’s reliance on the reasoning in Jones to
circumvent the prima facie elements of a discriminatory claim under Title VII is unavailing.
First, Jones involves a case of racial bias, whereas here, Plaintiff alleges that he was
terminated due to national origin discrimination. Additionally, while the plaintiff in Jones
presented some record evidence to demonstrate that he was disciplined differently from his
white counterparts, Plaintiff has failed to do the same here. Plaintiff here focuses on the fact
that he was never given a verbal or written warning of any kind before being terminated, but
fails to show that such a warning was mandatory or provided to employees in his position
but outside of his protected class.
In fact, the record evidence demonstrates that the
Caucasian employee hired to replace Plaintiff was fired in the same manner as Plaintiff,
without any warning or counseling. Therefore, without even addressing the third factor, it
is clear that Plaintiff has failed to establish a prima facie case of national origin
discrimination.
However, even assuming arguendo that Plaintiff had established a prima facie case of
national origin discrimination, Defendant is still entitled to summary judgment because
Plaintiff cannot rebut Defendant’s legitimate, non-discriminatory purpose for terminating
him. Defendant has introduced a great deal of record evidence demonstrating that Plaintiff
18
failed to perform his assigned duties, neglected tenant concerns, and ignored requests from
his managers regarding budget issues. Additionally, Plaintiff has failed to demonstrate that
Mr. Eberhart, the source of the alleged discriminatory comment, directly participated in
Plaintiff’s termination. The record evidence reveals that Mr. Eberhart gathered information
from various other employees regarding Plaintiff’s performance at work and then alerted
human resources and upper management to those issues. The ball was then in their court,
so to speak, in deciding how to discipline Plaintiff.
Additionally, I find it especially
compelling that the alleged discriminatory comment was made years before Plaintiff was
actually terminated.
Therefore, despite Plaintiff’s arguments that he was qualified for the job and that he
consistently received great reviews from his prior supervisor, Mr. Fernandez, Plaintiff has
failed to present any evidence to create a material dispute of fact that Defendant’s reasons
for terminating him were pretextual. More specifically, Plaintiff’s arguments regarding his
stellar reviews under the supervision of Mr. Fernandez and his sudden termination under
the supervision of Mr. Eberhart do not conclusively establish that Defendant’s stated
reasons for terminating Plaintiff were pretextual because courts have held that disciplinary
measures undertaken by different supervisors may not be comparable for purposes of a Title
VII analysis. See Jones, 874 F.2d at 1541 (citing Cooper v. City of North Olmsted, 795 F.2d
1265, 1271 (6th Cir. 1986) (“Although a change in managers is not a defense to claims of
race or sex discrimination, it can suggest a basis other than race or sex for the difference in
treatment received by two employees”).
As a selected exempt service employee, Defendant reserved the right to terminate
Plaintiff at its discretion, which it exercised in this case. Plaintiff has failed to introduce any
evidence that would suggest that Defendant’s myriad reasons for terminating Plaintiff are a
mere pretext. “If the plaintiff does not proffer sufficient evidence to create a genuine issue
of material fact regarding whether each of the defendant employer's articulated reasons is
pretextual, the employer is entitled to summary judgment on the plaintiff's claim.” Chapman
v. AI Transp., 229 F.3d 1012, 1024-25 (11th Cir. 2000) (en banc ).
IV. CONCLUSION
Having reviewed the arguments and the record, Plaintiff has failed to establish a
prima facie case of national origin discrimination in violation of the Florida Civil Rights Act
19
of 1992 or Title VII of the Civil Rights Act of 1964.
Therefore, as explained above,
summary judgment in favor of Defendant is appropriate.
Accordingly, it is ORDERED and ADJUDGED that Defendant’s Motion for
Summary Judgment and Incorporated Memorandum of Law (ECF No. 17) is GRANTED.
Plaintiff’s Complaint is DISMISSED. A separate judgment pursuant to Rule 58 of the
Federal Rules of Civil Procedure shall issue concurrently.
DONE AND ORDERED in chambers at Miami, Florida, this 25th day of August
2015.
Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of Record
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