Pineda v. Pescatlantic Group, LLC et al
Filing
61
ORDER denying 36 Defendants' Motion for Partial Summary Judgment. Signed by Magistrate Judge Edwin G. Torres on 7/12/2018. See attached document for full details. (js02)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-25291-Civ-TORRES
DENISE PINEDA, and others
similarly-situated,
Plaintiff,
v.
PESCATLANTIC GROUP, LLC, a Florida
limited liability company, and CESAR CALVO,
individually,
Defendants.
___________________________________________/
ORDER ON DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT
This matter is before the Court on Pescatlantic Group, LLC’s (“Pescatlantic”)
and Cesar Calvo’s (“Mr. Calvo”) (collectively, “Defendants”) motion for summary
judgment against Denise Pineda (“Plaintiff”).
[D.E. 36].
Plaintiff responded to
Defendants’ motion on September 18, 2017 [D.E. 40] to which Defendants replied on
September 25, 2017.
[D.E. 41].
Therefore, Defendants’ motion is now ripe for
disposition. After careful review of the motion, response, reply, relevant authority,
and for the reasons discussed below, Defendants’ motion is DENIED.1
I. BACKGROUND
Pescatlantic employed Plaintiff from March 2016 through October 28, 2016 as
a logistic coordinator and compensated her at a rate of $1,375 every two weeks
On June 7, 2018, the parties consented to the undersigned Magistrate
Judge’s jurisdiction.
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during her 90-day probationary period.
After her probationary period, Plaintiff
demanded and was granted a raise in her salary. On the morning of October 28,
2016, Plaintiff alleges that she met with Mr. Calvo to discuss a potential change in
the law with respect to a Department of Labor regulation. Plaintiff claims that Mr.
Calvo did not care about the changes, but wanted to make clear that Defendants
were not going to pay Plaintiff for any overtime work going forward. Plaintiff then
told Mr. Calvo that she was not compensated in the past for overtime work and
refused to work overtime without compensation going forward. Because Plaintiff
refused to work for free and complained about the lack of compensation for overtime
pay, Plaintiff alleges that she was terminated.
Defendants dispute Plaintiff’s allegations and claim that Plaintiff voluntarily
resigned following her meeting with Mr. Calvo because she was asked to cease her
excessive use of her cell phone during business hours. Defendants also suggest
that, even if Plaintiff had not voluntarily left her job, they had valid nondiscriminatory reasons for terminating Plaintiff’s employment – namely her
excessive use of her cell phone for personal calls during business hours.
Pescatlantic contends that it had a policy against employees using their cell phones
during business hours other than for the use of emergencies.2 After Plaintiff was
terminated, it became known that she lied on her resume about acquiring a high
school diploma.
Defendants claim that, if they had known of Plaintiff’s
Plaintiff alleges that she only received a copy of these polices at the end of
her employment.
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misrepresentation, they would have never hired Plaintiff and/or fired her
immediately.
Subsequent to her departure, Plaintiff filed a three-count complaint in
Florida state court alleging (1) an unpaid overtime wage claim against Pescatlantic,
(2) an unpaid overtime wage claim against Mr. Calvo, and (3) a retaliation against
both Defendants. On December 21, 2016, Defendants removed this action to federal
court on the basis of federal question jurisdiction. [D.E. 1]. Plaintiff seeks money
damages for unpaid overtime wages under the Fair Labor Standards Act (“FLSA”)
and damages for unlawful retaliatory termination in violation of 29 U.S.C. §
215(a)(3).
II. APPLICABLE PRINCIPLES AND LAW
AThe court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a).
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by: (A) citing to particular parts of materials in
the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or (B) showing that materials cited do not
establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56 (c)(1). AOn summary judgment the inferences to be drawn from
the underlying facts must be viewed in the light most favorable to the party
opposing the motion.@ Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 597 (1986) (quoting another source).
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In opposing a motion for summary judgment, the nonmoving party may not
rely solely on the pleadings, but must show by affidavits, depositions, answers to
interrogatories, and admissions that specific facts exist demonstrating a genuine
issue for trial. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
323B24 (1986). The existence of a mere “scintilla” of evidence in support of the
nonmovant=s position is insufficient; there must be evidence on which the jury could
reasonably find for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986). AA court need not permit a case to go to a jury . . . when the
inferences that are drawn from the evidence, or upon which the non-movant relies,
are >implausible.=@ Mize v. Jefferson City Bd. Of Educ., 93 F.3d 739, 743 (11th Cir.
1996) (citing Matsushita, 475 U.S. at 592B94)).
At the summary judgment stage, the Court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson, 477 U.S. at 249. In making this determination,
the Court must decide which issues are material. A material fact is one that might
affect the outcome of the case. See id. at 248 (AOnly disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.@).
“Summary judgment will not lie if the dispute about a
material fact is >genuine,= that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
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III. ANALYSIS
The gist of this case is that Plaintiff complained about the lack of overtime
pay and refused to continue working overtime without compensation going forward.
As a result, Defendants fired Plaintiff and she filed suit for retaliatory termination.
Defendants argue, however, that the facts – even when viewed in the light most
favorable to Plaintiff – are insufficient as a matter of law and that they are entitled
to partial summary judgment. We will discuss the parties’ arguments in turn.
A. Retaliatory Termination under the FLSA
The FLSA makes it unlawful for an employer to “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” the FLSA. 29 U.S.C. § 215(a)(3). In the Eleventh Circuit, retaliation claims
under the FLSA are ordinarily analyzed under the burden-shifting framework
employed by courts in cases brought under Title VII of the Civil Rights Act. Under
this framework, the plaintiff must first establish a prima facie case of unlawful
retaliation.
To establish a prima facie case of retaliation under the FLSA, a plaintiff must
demonstrate that “(1) she engaged in activity protected under [the] act; (2) she
subsequently suffered adverse action by the employer; and (3) a causal connection
existed between the employee’s activity and the adverse action.” Wolf v. Coca-Cola
Co., 200 F.3d 1337, 1343 (11th Cir. 2000) (quoting Richmond v. ONEOK, Inc., 120
F.3d 205, 208–09 (10th Cir. 1997)). In demonstrating causation, a plaintiff must
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prove that the adverse action would not have been taken “but for” the assertion of
her FLSA rights. See Reich v. Davis, 50 F.3d 962, 965–66 (11th Cir. 1995).
The allocation of the parties’ burdens in a retaliation case is akin to the
burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). This requires a plaintiff to “make out a case sufficient to withstand
a motion for summary judgment.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321,
1325 (11th Cir. 2011). “Demonstrating a prima facie case is not onerous; it requires
only that the plaintiff establish facts adequate to permit an inference of
discrimination.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). But, a
plaintiff “cannot rely on attenuated possibilities that a jury would infer a
discriminatory motive, but rather must come forward with sufficient evidence to
establish a prima facie case and respond sufficiently to any rebuttal by the
defendant to create a genuine issue of material fact.” Pace v. Southern Ry. Sys., 701
F.2d 1383, 1391 (11th Cir. 1983). This means that personal opinions and conclusory
allegations are insufficient to withstand a motion for summary judgment.
See
Chambers v. Walt Disney World Co., 132 F. Supp. 2d 1356, 1365 (M.D. Fla. 2001).
Once this presumption is satisfied, the “burden then shifts to the employer to
rebut this presumption by producing evidence that its action was taken for some
legitimate, non-discriminatory reason.”
E.E.O.C. v. Joe’s Stone Crabs, Inc., 296
F.3d 1265, 1272 (11th Cir. 2002) (citation omitted). In cases where “the defendant
has rebutted with a proffer of legitimate, nondiscriminatory reasons for the
discharge, a genuine issue of material fact is not automatically presented.” Pace,
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701 F.2d at 1391.
In other words, if a defendant meets its burden then “the
presumption of discrimination is rebutted and the inquiry ‘proceeds to a new level of
specificity,’ in which the plaintiff must show that the proffered reason really is a
pretext for unlawful discrimination.” Id. (citation omitted).
This leads to the final step where the plaintiff must proffer sufficient
evidence to create a genuine issue of material fact that the defendant’s articulated
reasons were pretextual. See Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir.
2008); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To demonstrate that
a defendant’s actions were pretextual, a plaintiff “must reveal’ such weaknesses,
implausibilities, inconsistencies, incoherencies or contradictions in [Defendants’]
proffered legitimate reasons for its actions that a reasonable factfinder could find
them unworthy of credence.” Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir.
2004) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)).
A reason is not pretextual for discrimination “unless it is shown both that the
reason was false, and that discrimination was the real reason.” Brooks v. County
Comm’n of Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006) (emphasis in
original) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).
“Although the intermediate burdens of production shift back and forth, the ultimate
burden of persuading the trier of fact that the employer intentionally discriminated
against the employee remains at all times with the plaintiff.” Id. (citation omitted).
Defendants advance several arguments in support of their motion for partial
summary judgment.
First, Defendants contend that Plaintiff cannot meet her
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burden to establish a prima facie case of retaliation because Plaintiff complained
only after her employment with Defendants had ended. Indeed, Defendants contend
that Plaintiff only complained to Defendants once via email and that email was sent
to Defendants after she was no longer employed with the company. This means
that, even if Plaintiff’s sole complaint raises to the level of protective activity (which
Defendants dispute), Plaintiff cannot prove that she suffered an adverse
employment action as a result of a complaint that was lodged after she was no
longer working for the company.
Assuming that Plaintiff can establish a prima facie case for retaliation,
Defendants argue that they are still entitled to partial summary judgment because
they have produced overwhelming evidence that Plaintiff was terminated for
legitimate non-discriminatory reasons.3
For example, Defendants claim that if
Plaintiff had not left voluntarily, she would have been terminated because of her
insubordination and excessive personal use of her cell phone during regular
business hours.
Defendants further argue that Plaintiff has a history of
insubordination and that her supervisor at the time, Nilma Labrada (“Mrs.
Labrada”), was already frustrated with Plaintiff’s refusal to follow instructions. For
instance, on July 14, 2016, Mrs. Labrada sought assistance from Mr. Calvo in how
to work with Plaintiff:
Cesar, I have reached my limit in giving instructions to Denise and for
her to believe that she does not have to comply [with them]. I just told
her that I spoke with you and that once she enters her information for
intake status, then I can input my part and then I will save it in
Defendants claim that Plaintiff voluntarily resigned whereas Plaintiff alleges
that Defendants terminated her.
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private for you, your father and myself. She told me that you are the
only one who can give her instructions. It seems that she is forgetting
that I am indeed her supervisor. I leave it in your hands to make her
understand.
[D.E. 36-8].
Defendants also claim that Plaintiff’s use of her cell phone for personal
reasons during business hours is another nondiscriminatory reason for her alleged
termination. Defendants reference an email that Plaintiff sent on June 3, 2016
where she allegedly concedes that the use of her cell phone has been an issue in the
work environment:
Cesar, Nilma informed me that you do not want me using the phone to
avoid errors. Me using the phone doesn’t interfere with my work and
doesn’t cause me to commit errors. My son is in an extremely delicate
stage right now, I honestly shouldn’t even be here. If he or his father
call me or text me, I will answer and respond. If this is an issue then
please let me know and I will just go home to be with him instead.
[D.E. 36-9]. Because Plaintiff cannot establish a prima facie case of retaliation nor
meet her burdens under McDonnell Douglas, Defendants conclude that they are
entitled to partial summary judgment.
B. Whether McDonnell Douglas Applies to this Case
The first issue to resolve is whether the burden shifting framework set forth
in McDonnell Douglas applies to the facts of this case.
Plaintiff argues that
McDonnell Douglas does not apply and that Defendants’ motion fails at the outset
because there is no burden shifting necessary when there is direct evidence of
discrimination. See Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1258 (11th Cir.
2001) (“Where direct evidence of discrimination is unavailable, a Title VII plaintiff
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may nonetheless present circumstantial evidence of discrimination sufficient to
create a jury question.”); Denney v. City of Albany, 247 F.3d 1172, 1182–83 (11th
Cir. 2001) (“Absent direct evidence, a plaintiff may prove intentional discrimination
through the familiar McDonnell Douglas paradigm for circumstantial evidence
claims.”).
Specifically, Plaintiff claims that there is direct evidence of discrimination
because Mr. Calvo allegedly told Plaintiff on her final day of work that – if she was
unwilling to work without overtime pay – she would be terminated:
Q Okay. As a result of that, what did you say back to him?
A I told him it was illegal for him to have me work without overtime
pay.
Q Okay. What happened after that?
A He told me that if I wasn't willing to work without overtime pay,
that he would let me go.
Q Okay. Did you say anything back to him?
A Yes, I told him then I guess I have no other choice because I wasn’t
going to do it.
Q You weren’t going to do what?
A I wasn’t going to work for free on my extra time for free.
[D.E. 36-2]. Because Mr. Calvo’s statement constitutes direct evidence, Plaintiff
concludes (1) that the McDonnell Douglas burden shifting analysis need not apply,
and (2) that this case must proceed to trial because there are genuine issues of fact
regarding Plaintiff’s termination.
Defendants take issue with Plaintiff’s argument because her deposition
testimony is implausible. Defendants contend that Plaintiff’s testimony is “simply
incredible” in that a meeting occurred where Mr. Calvo stated that Plaintiff would
not be compensated for future overtime work. Because Plaintiff has nothing more
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than her own self-serving testimony, Defendants conclude that this is not a direct
evidence case and that McDonnell Douglas applies.
Defendants’ arguments are unpersuasive for at least two important reasons.
First, Defendants’ mere skepticism that Plaintiff’s testimony is false does not
undermine Plaintiff’s position that she was terminated because she refused to work
overtime without compensation. That is a credibility determination for a jury to
decide. Second, McDonnell Douglas need not apply to the facts of this case because
“[d]irect evidence is evidence that establishes the existence of discriminatory intent
behind the employment decision without any inference or presumption.” Standard
v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (citing Carter v. City of
Miami, 870 F.2d 578, 580–81 (11th Cir. 1989)). In other words, direct evidence is
sufficient to bypass summary judgment because it provides sufficient evidence to
prove that a defendant’s decision was more probably than not based on illegal
discrimination.
Defendants suggest that a direct evidence case occurs only when a
decisionmaker provides testimony that he took an adverse employment action
against a plaintiff on the basis of a protected personal characteristic.
But, the
Eleventh Circuit’s decision in Wright v. Southland, 187 F.3d 1287 (11th Cir. 1999),
forecloses that argument entirely. In Wright, the Court considered the dictionary
definition of direct evidence that Defendants advocate for here and rejected it in
favor of a preponderance definition which considers “a causal link between an
adverse employment action and a protected personal characteristic.” Id. at 1293.
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As support, the Eleventh Circuit relied on a plethora of cases where plaintiffs
had direct evidence of discrimination based solely on their deposition testimony that
a defendant discriminated against them. For example, in Taylor v. Runyon, 175
F.3d 861 (11th Cir. 1999), the plaintiff alleged that she was denied a promotion on
the basis of her sex. The plaintiff testified that the decisionmaker told her that she
was not promoted because the male with whom she was competing (and who
ultimately received the position) had a wife and children and therefore needed the
money more than the plaintiff.
testimony
constituted
direct
The Eleventh Circuit concluded that plaintiff’s
evidence
of
sex
discrimination
under
the
preponderance definition of direct evidence. See id. at 867.
The Eleventh Circuit reached the same conclusion in Caban-Wheeler v.
Elsea, 904 F.2d 1549 (11th Cir. 1990), where a Hispanic director of a local
government program alleged that she was terminated because of her race. The
Court held that the plaintiff's testimony – that the employer said he “needed a black
director” – constituted direct evidence of employment discrimination because the
employer’s statement could have led a trier of fact to conclude that the employer
more probably than not fired the plaintiff because of her race. Id. at 1555.
The same reasoning applies to the facts of this case. Here, we have a plaintiff
who claims that she told her employer that she would not work overtime without
being paid and, in turn, the employer immediately terminated her. The facts of this
case fit squarely into the preponderance definition of direct evidence because a
reasonable trier of fact could find, more probably than not, that there is a causal
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link between Plaintiff’s refusal to work overtime without compensation and her
immediate termination. Therefore, McDonnell Douglas need not apply in this case
because Plaintiff has presented direct evidence that there is a genuine issue of
material fact on the cause of her termination.
Because we find that Plaintiff’s
testimony presents an issue of fact, Defendants’ singular reliance on an email that
arguably post-dated her termination is inconsequential.
Having found that Plaintiff has shown that this is a direct evidence case
based on her testimony that Mr. Calvo terminated her for refusing to work overtime
without compensation, we conclude there is a genuine issue of material fact as to
the cause of Plaintiff’s termination.
The issue of fact turns on a credibility
determination that can only be made at trial, and therefore the entry of partial
summary judgment on Plaintiff’s retaliatory termination claim must be DENIED.
C. Whether After-Acquired Evidence Limits Plaintiff’s Damages
Defendants’ final argument is that Florida adheres to the after-acquired
evidence doctrine to limit damages in discrimination/retaliation cases and that this
should be considered because there is no dispute that Plaintiff lied to her employer
that she had a high school diploma.
Under this doctrine, evidence discovered
subsequent to the alleged discrimination which would have led to the employee’s
immediate termination, is considered by the court in calculating a plaintiff's
damages. “If a court finds that the after-acquired evidence would have led to the
plaintiff-employee’s immediate dismissal, then the plaintiff may no longer recover
front-pay and may not be reinstated to the former position. In such a situation, a
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court will also calculate backpay by setting the beginning point for backpay as the
date of the alleged discriminatory event and setting the end point on the date that
the after-acquired evidence was discovered by the employer.” Cook v. Shaw Indus.,
953 F. Supp. 379, 384–85 (M.D. Ala. 1996) (internal citations omitted).
Plaintiff contends that Defendants failed to plead the after-acquired evidence
doctrine as an affirmative defense and cannot raise it at the summary judgment
stage because it constitutes a waiver. Plaintiff also argues that Defendants failed to
cite any authority where the after-acquired evidence doctrine applies in a FLSA
case.
Therefore, Plaintiff suggests that the after-acquired evidence doctrine is
irrelevant to the facts of this case and should not be considered.
We find that Defendants’ argument is premature because we need not
determine on a motion for summary judgment whether the after-acquired evidence
doctrine limits Plaintiff’s damages. While Plaintiff argues that the failure to plead
the after-acquired evidence doctrine constitutes a waiver, the omission of an
affirmative defense “is not fatal as long as it is included in the pretrial order.”
Pulliam v. Tallapoosa Cty. Jail, 185 F.3d 1182, 1185 (11th Cir. 1999) (citing Hargett
v. Valley Fed. Sav. Bank, 60 F.3d 754, 763 (11th Cir.1995) (stating that failure to
assert affirmative defense in answer curable by insertion of defense in pretrial
order); Fed. R. Civ. P. 16(e) (stating that pretrial order “shall control the subsequent
course of action”)). Given the procedural posture of this case, we prefer to decide
this issue at a time closer to trial. Therefore, Defendants’ motion to limit Plaintiff’s
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damages under the after-acquired evidence doctrine is DENIED with leave to
renew prior to trial.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Defendants’ motion for partial summary judgment [D.E. 79] is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 12th day of
July, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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