Opinion
CASE NO. 1:18-cv-22455-GAYLES/OTAZO-REYES
2022-07-05
Vicki AHERN, Plaintiff, v. DELTA AIR LINES, INC., and Humberto Tapanes, Defendant.
Brian R. Mildenberg, Pro Hac Vice, Mildenberg Law Firm, Philadelphia, PA, David Berlin, Pro Hac Vice, Weisberg Law, Morton, PA, Matthew B. Weisberg, Pro Hac Vice, Morton, PA, Gary Schafkopf, Pro Hac Vice, Schafkopf Law, LLC, Bala Cynwyd, PA, Richard James Caldwell, Miami, FL, for Plaintiff. Carol Ann Field, Charles Mark Garabedian, Jr., Morgan, Lewis & Bockius LLP, Miami, FL, for Defendant.
Brian R. Mildenberg, Pro Hac Vice, Mildenberg Law Firm, Philadelphia, PA, David Berlin, Pro Hac Vice, Weisberg Law, Morton, PA, Matthew B. Weisberg, Pro Hac Vice, Morton, PA, Gary Schafkopf, Pro Hac Vice, Schafkopf Law, LLC, Bala Cynwyd, PA, Richard James Caldwell, Miami, FL, for Plaintiff.
Carol Ann Field, Charles Mark Garabedian, Jr., Morgan, Lewis & Bockius LLP, Miami, FL, for Defendant.
ORDER
DARRIN P. GAYLES, UNITED STATES DISTRICT JUDGE
THIS CAUSE comes before the Court on Defendants’, Delta Air Lines, Inc. ("Delta Air Lines") and Humberto Tapanes ("Tapanes") (collectively, "Defendants"), Joint Motion for Summary Judgment (the "Joint Motion") [ECF No. 83]. The Court has reviewed the Joint Motion and the record, heard oral argument, and is otherwise fully advised. For the reasons that follow, the Joint Motion is granted.
The facts relevant to the Joint Motion are undisputed unless otherwise indicated and are taken from the following statements of facts along with their accompanying exhibits: Defendants’ Joint Statement of Material Facts in Support of Motion for Summary Judgment, [ECF No. 82]; Defendants’ Notice of Filing Exhibit 1 to Statement of Undisputed Facts in Support of Defendants’ Motion for Summary Judgment, [ECF No. 84]; and Plaintiff's Second Amended Response in Opposition to Defendants’ Statement of Facts and Plaintiff's Statement of Facts, [ECF No. 114].
Delta Air Lines, like many companies in the United States, maintains an anti-discrimination and harassment policy which is outlined in an internal company document titled The Way We Fly. The policy provides employees several avenues for reporting instances of discrimination, harassment, bullying, or intimidation that an employee is either subjected to or witnesses. By policy, Delta Air Lines does not tolerate any form of retaliation for reporting such acts. In this action, Plaintiff Vicki Ahern brings claims for discrimination and retaliation against Delta Air Lines and Tapanes for Tapanes's offensive remarks and behavior relating to Plaintiff's Jewish faith and for Delta Air Lines’ denial of Plaintiff's accommodation request.
These avenues include notifying: (1) the employee's leader; (2) any manager in the employee's department; (3) the employee's Human Resources professional; (4) the Equal Opportunity department; or (5) Delta Air Lines’ Ethics & Compliance Helpline.
I. Factual Background
A. Plaintiff's Position as a "Ready Reserve" Customer Service Agent
On January 21, 2015, Plaintiff began working for Delta Air Lines as a "Ready Reserve" Customer Service Agent ("RRCSA") at Miami International Airport. Her job duties included assisting passengers in the lobby, baggage drop, Aeromexico, Customs & Immigration, flights to Cuba, ticketing for First Class and general passengers, the gate, baggage claim, and general "cross utilization, wherever, whenever." [ECF No. 82 at 1 ¶ 6]. Additional RRCSA duties included: interacting with Delta Air Lines and Aeromexico customers; reviewing boarding cards and/or passports; tagging bags for check-in; lifting bags from a scale to a conveyor belt; lifting check-in bags of up to 70 pounds for First Class passengers; and lifting check-in bags of up to 50 pounds for non-First Class passengers. When assigned to a Delta Air Lines gate, RRCSA duties also included opening and closing aircraft doors weighing over 100 pounds and handling bags without the assistance of a bag belt.
Plaintiff disputes this description of her job duties, arguing that "some assignments require lifting heavy bags more than others. For example, working in the lobby, working for AeroMexico, and working in First Class check-in require[d] less lifting." [ECF No. 114 at 2 ¶ 12].
RRCSAs typically work between 600 and 1,400 hours per year and receive limited benefits. Additionally, an RRCSA can partner with another RRCSA to swap shifts or otherwise adjust their schedule. RRCSAs are managed by Operation Service Managers ("OSM"), who in turn are managed by Station Managers. During the relevant time period, John Higgins served as Delta Air Lines’ Station Manager for Miami. Four different OSMs directly supervised Plaintiff over the course of her employment with Delta Air Lines. Tapanes directly supervised Plaintiff during the first few months of her employment. Plaintiff was subsequently directly supervised by Jason Finks and then Roger Williams, see [ECF No. 82 at 3 ¶ 10], though Plaintiff maintains that Tapanes continued to supervise her because they both typically worked in the morning. See [ECF No. 114 at 1–2 ¶ 10; 24 ¶ 109].
B. Tapanes's Discriminatory Conduct
The parties dispute when Tapanes learned of Plaintiff's Jewish faith. Plaintiff maintains that Tapanes learned of her Jewish faith after she took bereavement leave to attend her father's funeral in July 2015. [ECF No. 114 at 11 ¶ 70]. Defendants argue that Tapanes learned of Plaintiff's faith on December 31, 2016, following an incident between Tapanes and Plaintiff. [ECF No. 82 at 8 ¶ 47 & 8 ¶ 47 n.5]. Though the parties fail to describe with specificity when certain comments and behaviors occurred, the Court endeavors to construct a chronological timeline to promote clarity about the events at issue.
In September 2015, when Plaintiff was not present, Tapanes made a comment to Hago Hagen—a German employee—stating: "How is that going to work, a German and a Jew working together?" Hagen immediately told Tapanes that he considered the comment to be inappropriate and Tapanes apologized. In a second instance in early 2016, Hagen told Tapanes of a trip he planned to Germany. Tapanes smiled, chuckled, and saluted Hagen while saying "Heil Hitler." After Hagen told Tapanes that he should not do that again and explained his concerns about the comment, Tapanes immediately apologized. Hagen later told Plaintiff in May or June 2017 about these earlier comments.
The parties dispute how Hagen received this comment. Plaintiff contends that Hagen did not believe the comment was funny and "was so alarmed that he told his husband and Plaintiff." [ECF No. 114 at 3 ¶ 22]. Defendants state that both Tapanes and Hagen "were smiling and Tapanes was ‘maybe laughing [a] little bit.’ " [ECF No. 82 at 4 ¶ 22].
Ashlee Johnson, another Delta Air Lines employee, overheard a separate comment and emailed Plaintiff in 2018 about the incident. Ms. Johnson believed that Tapanes had a disagreement with a Jewish passenger and later overheard Tapanes venting to other employees in the break room, referring to the passenger as "a fucking Jew."
During the course of her employment, Tapanes told Plaintiff to fix her broken name tag and the hem of her work uniform skirt. The parties do not provide dates or estimates as to when these events occurred. In October 2016, during a work briefing, Tapanes also commented on Plaintiff's hair containing a pink streak following an event she attended. [ECF No. 84 at 271]; [ECF No. 95-2 at 29].
On December 7, 2016, Plaintiff mentioned her favorite Ethiopian restaurant while discussing an upcoming trip. Plaintiff states that Tapanes replied, "you people need to be careful no pork for you." Tapanes denies that he made this comment, and the employee who was also present denies hearing Tapanes making such a comment. [ECF No. 82 at 6 ¶ 29]. On another undated occasion in the break room, while Plaintiff sat next to a Muslim employee, Tapanes commented: "Wow, a Jew and a Muslim speaking as friends, what a combination."
On December 31, 2016, Tapanes spoke to Plaintiff about a customer service incident involving Plaintiff (the "December 31, 2016, Incident" or the "Incident"). [ECF No. 82 at 7 ¶ 36]; [ECF No. 114 at 13–14 ¶ 73]. The Incident involved a customer with an infant who was required to go through the security line three times because the customer's boarding pass did not designate that he was travelling with an infant-in-arms. [ECF No. 82 at 7 ¶ 36]. The customer complained to a Passenger Service Agent, who then reported the Incident to Tapanes. [ECF No. 82 at 7 ¶ 36]. During a one-on-one meeting, Tapanes asked Plaintiff if she knew or remembered how to process a customer with an infant-in-arms. [ECF No. 82 at 7 ¶ 37]. Plaintiff stated she had no knowledge of the Incident and continued to request more information and the passenger's name. [ECF No. 82 at 7 ¶ 37]; [ECF No. 114 at 13–14 ¶ 73]. Tapanes responded that the passenger's name was not relevant because the goal of the meeting was to ensure that she knew how to process an infant-in-arms. [ECF No. 82 at 7 ¶ 37]. According to Plaintiff, Tapanes stated that he was "going to get his ducks in a row, and keep an eye on" Plaintiff and that she "better take care. I'm watching." [ECF No. 82 at 7 ¶ 38]; [ECF No. 114 at 13–14 ¶ 73]. Plaintiff also maintains that Tapanes asked "why didn't [she] just say that [she] did something wrong and let it be?" though she denies wrongdoing. [ECF No. 82 at 7 ¶ 38]; [ECF No. 114 at 13–14 ¶ 73]. That same day, Plaintiff emailed Tapanes and apologized "for any misunderstanding" for her mistake. [ECF No. 82 at 7 ¶ 39].
According to Plaintiff, after the Incident, the tension between Plaintiff and Tapanes got "personal" and Tapanes's unfair treatment of Plaintiff amplified. Specifically, Plaintiff states that Tapanes gave her assignments with the highest number of passengers in baggage drop, regularly hovered over her and invaded her personal space while she was performing her job duties in order to physically intimidate her, and refused to let her serve First Class passengers. Plaintiff does not supply any evidence regarding the dates or frequency of these incidents. Defendants assert Tapanes stood close to Plaintiff due to the limited space behind the ticket counter and removed her from working a First Class counter once in January 2017 following a shooting at a nearby airport when lines were long and Plaintiff required repeated assistance processing passengers. [ECF No. 82-1 at 32–35]. Tapanes states he moved a more experienced agent into the position to handle the increased passenger volume. Tapanes further explained he only assigned agents to work specific ticket counters when another agent was on bathroom break, for example, and the lines started to get backed-up.
Plaintiff also contends that, on an undated occasion, Tapanes commented to her about how frequently Plaintiff stopped the conveyor belt and asked her to keep a count of how many times she stopped it. In May 2017, Tapanes blamed Plaintiff for not providing a visa to an individual on a flight to Cuba; when it later came to light that another employee made the mistake, Tapanes told Plaintiff that the issue "had been straightened out" and walked away.
The parties offer different dates for when this incident occurred. In one location in the record, Plaintiff states that this occurred in March 2017, [ECF No. 114 at 18–19 ¶ 85]; but in several other instances, Plaintiff states it occurred on May 5, 2017, see id. at 5 ¶ 33 (not disputing the incident occurred on May 5, 2017); [ECF No. 82-19 at 19] (specifying May 5, 2017). Defendants state that it took place on May 5, 2017. [ECF No. 82 at 6 ¶ 33]. The parties also provide differing descriptions of how Tapanes addressed Plaintiff. Plaintiff states that Tapanes yelled at her for not providing the visa, [ECF No. 114 at 18–19 ¶ 85], while Defendants state that Tapanes accused her of not providing the visa, [ECF No. 82 at 6 ¶ 33]. Finally, the parties provide differing accounts of who received the visa. Plaintiff states that another employee received the visa, [ECF No. 114 at 18–19 ¶ 85], while Defendants state that a passenger received the visa, [ECF No. 82 at 6 ¶ 33]. These disputes are not material facts for purposes of this summary judgment motion.
C. Plaintiff's Complaints Regarding Tapanes
In late December 2016, Plaintiff contacted Cy Cardona, a Human Resources Representative, and stated that she believed Tapanes discriminated against her based on her Jewish faith. During the discussion, Plaintiff did not provide specific details or examples of Tapanes's alleged discrimination. Cardona asked Plaintiff if she spoke to Higgins about Tapanes, and Plaintiff stated that she had not. Cardona stated that Plaintiff could either file a complaint or go to Higgins. Plaintiff declined to file a complaint.
On December 31, 2016, following the Incident with Tapanes, Plaintiff emailed Higgins requesting to meet with him privately to discuss Tapanes. On January 6, 2017, Plaintiff and Higgins met and Plaintiff reported her complaints about Tapanes, including that she believed that Tapanes was being unfair and standing very close to her. Higgins addressed Plaintiff's concerns and stated in reference to the Incident that he believed Tapanes was doing his job by identifying and correcting a mistake she made. However, Higgins stated that he was "going to take care of it." [ECF No. 82 at 7–8 ¶ 41]. On January 9, 2017, Plaintiff emailed Higgins to follow up on their conversation. In the email, Plaintiff stated that Tapanes again made her feel intimidated, noted her disappointment, and stated: "it is my sincere wish that we can resolve this issue and not escalate it to [Human Resources]. Discrimination, harassment, [and] a hostile work environment are not the hallmarks of Delta Air Lines, nor the rules of the road." [ECF No. 82 at 8 ¶ 42]; [ECF No. 114 at 14–15 ¶ 76].
Plaintiff states she reported specific instances of Tapanes's anti-Semitic comments to Higgins in January or February 2017, [ECF No. 114 at 3–4 ¶¶ 23, 25; id. at 15–16 ¶ 77], including the comments made to Hagen about a German and a Jew working together and the "Heil Hitler" comment, but she admits she did not learn of these comments until May or June of 2017, [ECF No. 84-1 at 172]. In other places in the record, Plaintiff admits she never reported these comments, [ECF No. 84-1 at 174, 188].
Defendants note that during his deposition, Higgins stated that he did not observe discrimination or harassment from Tapanes. Instead, Higgins viewed the December 31, 2016, Incident as Plaintiff disagreeing with Tapanes bringing a mistake to her attention. [ECF No. 82 at 8 ¶ 43]. Plaintiff disputes this and states that Higgins was on notice of Plaintiff's complaints. [ECF No. 114 at 7 ¶ 43].
In February 2017, at Higgins's direction, Tapanes met with Plaintiff and a second OSM—Celia Fernandez—to apologize for the December 31, 2016, Incident. Tapanes explained that the December 31, 2016 discussion was not meant to write up or to discipline Plaintiff. Tapanes also stated that he liked Plaintiff, did not have any resentment towards her, and wished for them to "move on" and have a decent relationship. Tapanes then apologized for hurting Plaintiff's feelings and the two hugged. Plaintiff shook Tapanes's hand and thanked him for his time.
The parties provide different dates for when this meeting occurred. Plaintiff states that the meeting occurred in February 2017. [ECF No. 114 at 18 ¶ 83]. Defendants state that this meeting occurred in January 2017. [ECF No. 82 at 9 ¶ 49]. Plaintiff also disputes that Ms. Fernandez had knowledge of this meeting. [ECF No. 114 at 9 ¶¶ 48–49].
D. Plaintiff's Accommodation Request
On May 1, 2017, Plaintiff contacted the accommodation department at Delta Air Lines to request an accommodation for a medical condition resulting from abdominal surgery that she claimed was exacerbated by repeatedly lifting heavy luggage at work. Annelyse Sanders, an Accommodations Program Manager, sent Plaintiff an accommodations request packet for her and her doctor to complete. On May 23, 2017, Plaintiff again spoke to Sanders and expressed her frustration about operational decisions and changes such as not being assigned or trained to work gates, working at bag drop for most of her shifts, and not getting restroom breaks. Plaintiff also stated that Tapanes was the only OSM in charge of scheduling, that he "has it in for her," that his behavior temporarily changed for a few months due to an investigation, and that he was racist. Sanders stated that Plaintiff presented operational concerns that were not related to the accommodations process and that should be addressed with Human Resources. On May 25, 2017, Plaintiff provided Sanders with the completed forms Sanders requested. The forms included a physician's letter that stated that Plaintiff had a lifting restriction of 20 pounds or less for at least six months and that she be allowed to use the restroom at her discretion. On June 6, 2017, Plaintiff completed her last day of active work with Delta Air Lines. [ECF No. 82 at 10 ¶ 59].
Plaintiff claims that "Tapanes exacerbated Plaintiff's abdominal condition ... [by] chang[ing] the workload and conditions of Plaintiff's position." [ECF No. 114 at 22 ¶ 101].
On June 8, 2017, prior to Plaintiff's first interactive meeting for her accommodation request, Plaintiff told Sanders that she did not want Tapanes to attend the meeting because he had "not shown any empathy or compassion to her condition." [ECF No. 114 at 21 ¶ 93]. Plaintiff also expressed concern that Tapanes would monopolize the conversation because of his seniority and the other leaders would follow. Sanders explained the purpose of the interactive meeting to Plaintiff and stated that if Plaintiff had operational concerns with Tapanes, she would need to address those concerns with Human Resources through a formal investigation.
On June 9, 2017, the first interactive meeting as to Plaintiff's accommodation took place. Prior to the interactive meeting, Sanders led a pre-call with Cardona, Tapanes, Fernandez, and Williams. During the pre-call, Tapanes stated his concerns about Plaintiff's requested accommodations, including working the one AeroMexico flight in the mornings, stating that it did not provide her with enough work during her shift. Sanders stated that Delta Air Lines would not create a new position, supersede seniority, or waive essential job functions. Although Tapanes joined the interactive meeting, he left the call after the introductions were made because of an operational issue. During the interactive meeting, Plaintiff asked that Tapanes give her compassion and reiterated her complaints about him that she previously made to Higgins, Cardona, and Sanders. Cardona explained to Plaintiff that her complaints dealt with operational decisions that were separate from the accommodation review. Cardona further stated that Plaintiff should not discuss her complaints towards Tapanes during the interactive meeting, but that she could speak to Cardona after the call. The participants also addressed each of Plaintiff's requests.
Plaintiff states that she did speak to Cardona after the first interactive meeting. [ECF No. 114 at 24 ¶ 107]. Cardona then spoke to Higgins and Williams about Plaintiff's schedule. Id. Cardona did not investigate whether Tapanes informally assigned Plaintiff to tasks that were not recorded on an official schedule. Id. at 24 ¶ 110. Plaintiff contends that Cardona did not conduct any investigation into Plaintiff's complaint of discrimination or retaliation based on her religious faith. Id. at 24–25 ¶ 111.
On June 14, 2017, a second interactive meeting took place with Plaintiff, Sanders, Cardona, and Williams. Prior to the call, Williams explored each of Plaintiff's requested accommodations. Williams informed Plaintiff that Delta Air Lines would not accommodate her because a reasonable accommodation could not be found. Williams stated that he could not "come up with anything that would assist [Plaintiff] during her current (morning) shift" and stated that "during her shift there is only one AeroMexico flight that would take up 1 hour of her shift." [ECF No. 114 at 23 ¶ 106]. Williams attempted to find Plaintiff a new position in Tampa, but she was not willing to relocate. On June 26, 2017, Sanders sent Plaintiff a final determination.
Plaintiff argues that these were the same reasons Tapanes provided during the pre-call to the first interactive meeting and thus caused the outcome. [ECF No. 114 at 23 ¶ 106].
II. Procedural History
On June 19, 2018, Plaintiff filed her Complaint against Delta Air Lines for discrimination, in violation of 42 U.S.C. § 1981, and civil rights conspiracy, in violation of 42 U.S.C. § 1985. [ECF No. 1]. On October 10, 2018, Plaintiff filed her Amended Complaint against Delta Air Lines, Tapanes, and "John Does 1–10", again bringing claims for discrimination and civil rights conspiracy. [ECF No. 16]. On December 18, 2018, Delta Air Lines moved to dismiss the Amended Complaint, [ECF No. 26], which the Court granted on May 28, 2019, [ECF No. 48]. On June 11, 2019, Plaintiff filed her Second Amended Complaint in which she only raised a claim for discrimination, in violation of 42 U.S.C. § 1981, against Delta Air Lines, Tapanes, and "John Does 1–10". [ECF No. 49]. On June 25, 2019, Defendants moved to dismiss the Second Amended Complaint, [ECF No. 50], which the Court granted on July 19, 2019, [ECF No. 53].
On August 2, 2019, Plaintiff filed her Third Amended Complaint against Delta Air Lines, Tapanes, and "John Does 1–10", bringing two counts of discrimination, in violation of 42 U.S.C. § 1981, and two counts of retaliation, in violation of 42 U.S.C. § 1981. [ECF No. 55]. On August 23, 2019, Defendants filed their Answer and Affirmative Defenses. [ECF No. 63]. Defendants also partially moved to dismiss the Third Amended Complaint as to references to constructive discharge, Delta Air Lines’ alleged discrimination against other employees and passengers, and all references to "John Does 1–10", [ECF No. 62], which the Court denied as moot on January 24, 2020, [ECF No. 98].
On December 18, 2019, Defendants filed the instant Joint Motion. [ECF No. 83]. On June 22, 2021, the Court heard oral argument on the Joint Motion. [ECF No. 146]. On July 28, 2021, the Court ordered the parties to provide additional briefing on discrete issues related to the Joint Motion. [ECF No. 150]. On August 23, 2021, the parties each filed supplemental briefing, partially addressing the issues raised by the Court. [ECF Nos. 153 & 154]. Despite the Court's specific request, the parties failed to provide evidence regarding the dates or frequency of events, comments, and actions pertinent to this litigation.
The Court requested additional briefing on the following questions:
1. What are the effects of Monaghan v. Worldpay US, Inc. , 955 F.3d 855 (11th Cir. 2020), on the Court's analysis of Plaintiff's retaliatory hostile work environment claim against Tapanes? If it does affect Plaintiff's claim, how should the Court analyze the retaliatory hostile work environment claim using the standard outlined in Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ?
2. As to the first element of Plaintiff's retaliation claim—whether she engaged in statutorily protected activity—must Plaintiff have specifically complained of discrimination for her activity to be protected, or do general complaints suffice?
3. The parties fail to address whether and when Tapanes learned of Plaintiff engaging in the protected activity (complaining of discrimination). Does the record reflect if and when Tapanes learned about Plaintiff's complaints of discrimination? If so, when (i.e., a specific date) and how did he learn of this (including record citations)?
4. In the pleadings, the parties fail to provide specific dates or describe the frequency with which Tapanes's alleged retaliatory actions occurred. Does the record reflect when (i.e., specific dates) and/or how often Tapanes took the following retaliatory actions against Plaintiff (including record citations):
a. Tapanes increasing Plaintiff's workload;
b. Tapanes hovering over Plaintiff while she worked;
c. Tapanes refusing to allow Plaintiff to serve First Class passengers; and
d. Tapanes commenting on how often Plaintiff would stop the luggage belt and asking her to keep a tally of how often she stopped it.
5. If the Court finds that Tapanes did not retaliate against Plaintiff after she complained, can Plaintiff's retaliation claim against Delta Air Lines survive?
[ECF No. 150].
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment "is appropriate only if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Tolan v. Cotton , 572 U.S. 650, 656–57, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam) (internal quotation marks omitted) (quoting Fed. R. Civ. P. 56(a) ). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine" when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the nonmoving party in light of her burden of proof. Harrison v. Culliver , 746 F.3d 1288, 1298 (11th Cir. 2014) (citation omitted). A fact is "material" if, "under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co. , 357 F.3d 1256, 1259 (11th Cir. 2004) (citation omitted).
"Where the material facts are undisputed and all that remains are questions of law, summary judgment may be granted." Eternal Word Television Network, Inc. v. Sec'y of U.S. Dep't of Health & Human Servs. , 818 F.3d 1122, 1138 (11th Cir. 2016) (citation omitted), vacated on other grounds , 2016 WL 11503064, at *1 (11th Cir. May 31, 2016). However, summary judgment is inappropriate "even where the parties agree on the basic facts [ ] but disagree about the inferences that should be drawn from these facts." Whelan v. Royal Caribbean Cruises Ltd. , No. 1:12-cv-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013) (alteration added; citation omitted). Where "reasonable minds might differ on the inferences arising from undisputed facts, then the Court should deny summary judgment" and proceed to trial. Id. (citations omitted). The Court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See SEC v. Monterosso , 756 F.3d 1326, 1333 (11th Cir. 2014) (per curiam).
If the non-moving party bears the burden of proof at trial, the moving party may obtain summary judgment simply by: (1) establishing the nonexistence of a genuine issue of material fact as to any essential element of a non-moving party's claim, and (2) showing the Court there is insufficient evidence to support the non-moving party's case. See Blackhawk Yachting, LLC v. Tognum Am., Inc. , No. 12-14209-Civ, 2015 WL 11176299, at *2 (S.D. Fla. June 30, 2015) (citations omitted). "Once the moving party discharges its initial burden, a non-moving party who bears the burden of proof must cite to ... materials in the record or show that the materials cited do not establish the absence or presence of a genuine dispute." Id. (citing Fed. R. Civ. P. 56(c)(1) ; alteration added; quotation marks omitted). To defeat a motion for summary judgment, "the nonmoving party must offer more than a mere scintilla of evidence for its position; indeed, the nonmoving party must make a showing sufficient to permit the jury to reasonably find on its behalf." Urquilla-Diaz v. Kaplan Univ. , 780 F.3d 1039, 1050 (11th Cir. 2015). Furthermore, conclusory allegations will not create an issue of fact for trial sufficient to defeat a well-supported motion for summary judgment. Earley v. Champion Int'l Corp. , 907 F.2d 1077, 1081 (11th Cir. 1990) (citation omitted).
DISCUSSION
Defendants argue that Plaintiff fails to provide record evidence sufficient to establish her hostile work environment and retaliation claims against Tapanes and Delta Air Lines. Defendants further argue that the undisputed facts and reasonable inferences fail to demonstrate that a genuine issue of material fact exists and, thus, they should be entitled to summary judgment as a matter of law. Finally, Defendants argue that if the Court finds that Plaintiff has established a prima facie case for her retaliation claims, summary judgment should still be granted because she cannot establish pretext.
Both parties address constructive termination in their briefings. See [ECF No. 83 at 9–10]; [ECF No. 114 at 10–11]; [ECF No. 104 at 15–16]. However, the Court previously noted that "Plaintiff agrees in her response [to Defendants’ Partial Motion to Dismiss, or Alternatively Motion to Strike, Plaintiff's Third Amended Complaint] that she does not assert a claim for constructive termination." [ECF No. 98] (citing [ECF No. 64 at 14]). Therefore, the Court does not address the parties’ constructive termination arguments.
I. 42 U.S.C. § 1981
Section 1981 provides, in relevant part, that "[a]ll persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... to the full and equal benefit of all laws ... as is enjoyed by white citizens ...." 42 U.S.C. § 1981(a). To "make and enforce contracts" includes "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." Id. § 1981(b).
In this Circuit, claims brought under § 1981 are analyzed under the same framework as claims brought under Title VII of the Civil Rights Act of 1964. Telfair v. Fed. Exp. Corp. , 934 F. Supp. 2d 1368, 1373 n.1 (S.D. Fla. 2013) (citations omitted); see also Gogel v. Kia Motors Mfg. of Ga., Inc. , 967 F.3d 1121, 1134 (11th Cir. 2020) ("Retaliation claims are also cognizable under 42 U.S.C. § 1981 and are analyzed under the same framework as Title VII claims." (citations omitted)); Bryant v. Jones , 575 F.3d 1281, 1296 n.20 (11th Cir. 2009) ("[D]iscrimination claims, including hostile work environment claims, brought under the Equal Protection Clause, 42 U.S.C. § 1981, or Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2, are subject to the same standards of proof and employ the same analytical framework." (citations omitted)). Therefore, the Court relies on Title VII case law in order to evaluate the merits of Plaintiff's hostile work environment and retaliation claims. Jefferson v. Sewon Am., Inc. , 891 F.3d 911, 919 (11th Cir. 2018) ("We examine claims of discrimination and retaliation under the same legal framework regardless of whether the plaintiff invokes section 1981 or section 2000e."). II. Hostile Work Environment Claims (Counts I & II)
Defendants argue that Plaintiff fails to establish a prima facie case for a hostile work environment. Specifically, Defendants argue Plaintiff has not adduced sufficient evidence to show that the alleged harassment was sufficiently severe and pervasive. Title VII makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ...." 42 U.S.C. § 2000e-2(a)(1). A hostile work environment exists where "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (citations and internal quotation marks omitted); see also Pa. State Police v. Suders , 542 U.S. 129, 133, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) ("To establish hostile work environment, plaintiffs ... must show harassing behavior sufficiently severe or pervasive to alter the conditions of [their] employment." (citations omitted)). Because hostile work environment claims "involve[ ] repeated conduct ... [,] [s]uch claims are based on the cumulative effect of individual acts." Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
To establish a hostile work environment claim, the employee must show:
(1) that [she] belongs to a protected group; (2) that [she] has been subject to unwelcome harassment; (3) that the harassment must have been based on a protected characteristic of the employee, such as [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) that the employer is responsible for such environment under either a theory of vicarious or of direct liability.
Miller v. Kenworth of Dothan, Inc. , 277 F.3d 1269, 1275 (11th Cir. 2002) (citations omitted).
To establish the fourth element—that the harassment was sufficiently severe or pervasive—the employee "must prove that [her] work environment was both subjectively and objectively hostile." Fernandez v. Trees, Inc. , 961 F.3d 1148, 1153 (11th Cir. 2020) (citing Mendoza v. Borden, Inc. , 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc)). "[T]he employee must first establish that [she] subjectively perceive[d] the environment to be abusive ... [and] then must satisfy the objective component by showing that [her] work environment was one that a reasonable person would find hostile or abusive." Id. (internal quotation marks omitted) (quoting Harris , 510 U.S. at 21, 114 S.Ct. 367 ). See also Greene v. School Bd. of Broward Cnty. , No. 13-CIV-62644, 2014 WL 3950387, at *10 (S.D. Fla. Aug. 12, 2014) ("Harassment is subjectively severe and pervasive if the complaining employee perceives the harassment as [ ] severe and pervasive, and harassment is objectively severe and pervasive if a reasonable person in the plaintiff's position would adjudge the harassment severe and pervasive.").
Courts consider four factors when evaluating whether a work environment was objectively hostile: "(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." Mendoza , 195 F.3d at 1246 (citing Allen v. Tyson Foods , 121 F.3d 642, 647 (11th Cir. 1997) ). "[C]ourts should examine the conduct in context, not as isolated acts," Mendoza , 195 F.3d at 1246, and "must view the evidence ‘cumulatively and in the totality of the circumstances,’ " Fernandez , 961 F.3d at 1153 (quoting Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 808 (11th Cir. 2010) (en banc)). See also id. ("Although these factors help guide the inquiry, ‘the objective element is not subject to mathematical precision.’ " (quoting Bryant , 575 F.3d at 1297 )).
Defendants do not challenge the first element of Plaintiff's hostile work environment claim—that she is part of a protected group because of her Jewish faith. [ECF No. 83 at 9]. Instead, Defendants argue that Plaintiff fails to establish the remaining four elements of her hostile work environment claim. Based on the record, the Court finds that Plaintiff fails to satisfy the fourth element of her claim—that the harassment was objectively severe and pervasive.
Because the Court finds that Plaintiff has not produced sufficient evidence to establish the fourth element of her claim, the Court does not address the parties’ arguments regarding the second, third, and fifth elements.
Despite multiple opportunities to support her claim—and despite the Court's specific request—Plaintiff has proffered little to no evidence regarding the frequency of Tapanes's harassing behavior and comments and fails to provide dates or even rough estimates for many of the cited incidents. Plaintiff makes vague references to Tapanes hovering around her work station and assigning her to work longer check-in lines, but provides no information about how often this occurred. She refers to isolated, largely undated incidents of Tapanes asking her to abide by the dress code and cites one instance in which Tapanes observed that Plaintiff frequently stopped the baggage conveyor belt. And Defendant cites record evidence that Plaintiff was removed from serving First Class passengers on only one occasion in order to place a more experienced agent on the long line; Plaintiff cites no evidence to dispute this occurred only once. [ECF No. 84-1 at 245].
The Court limits its analysis to incidents of harassment that Plaintiff was aware of during her employment. See Adams v. Austal, U.S.A., L.L.C. , 754 F.3d 1240, 1245 (11th Cir. 2014) ("[A]n employee alleging a hostile work environment cannot complain about conduct of which [she] was oblivious for the purpose of proving that [her] work environment was objectively hostile."). Drawing all reasonable inferences in Plaintiff's favor, Monterosso , 756 F.3d at 1333, the Court considers the comments made to Hagen because Plaintiff learned of them in May or June 2017, when she was still working for Delta Air Lines. See [ECF No. 83 at 5 ¶ 22]. However, the Court does not consider the comment Plaintiff learned of from Ashlee Johnson in 2018 because Plaintiff was not aware of the incident during her employment. See Adams , 754 F.3d at 1245.
The record shows that Tapanes asked Plaintiff to remove a pink streak from her hair in October 2016, but Plaintiff supplies no evidence regarding when Tapanes asked Plaintiff to fix her broken name tag and uniform skirt hem.
The Court generously assumes a reasonable jury could infer that, based on the totality of the circumstances and in light of Tapanes's anti-Semitic comments, these incidents constituted harassment based on Plaintiff's Jewish faith, sufficient to satisfy the second and third elements of Plaintiff's claim. But see Salazar v. Delta Health Grp., Inc. , No. 10-20783-CIV, 2010 WL 5313497, at *9 (S.D. Fla. Dec. 20, 2010) (disregarding certain incidents—including allegations of increased workload and an incident regarding an issue with a patient—because plaintiff offered no evidence that the incidents occurred because of her race).
The record demonstrates that Tapanes made three offensive comments in September 2015, early 2016, and December 7, 2016 as well as one undated comment about Plaintiff being friends with a Muslim colleague. Only two of these comments were made directly to Plaintiff; Plaintiff learned of the other two comments secondhand from Hagen just before her employment ended. Cf. Adams v. Austal, U.S.A., L.L.C. , 754 F.3d 1240, 1256 (11th Cir. 2014) (finding that the plaintiff failed to raise disputed issue about her work environment where she learned of most of the harassment secondhand). These statements, interspersed with a handful of isolated incidents, occurred over the course of approximately two years and were thus far too infrequent to have permeated the workplace with discrimination. See Sugarman v. Deutsche Bank Sec., Inc. , No. 09-CIV-22257, 2010 WL 11506575, at *3 (S.D. Fla. Apr. 27, 2010) (finding three isolated incidents plus one comment frequently made over the course of eleven months to be too infrequent to satisfy the objective component). Based on this record, the Court concludes Plaintiff has not met her burden to show Tapanes's harassment was so frequent that it was objectively pervasive. Her failure to identify record evidence regarding when and how often Tapanes's behavior occurred necessitates the Court's conclusion. See Neal v. Thomson Plastics, Inc. , No. CV 113-076, 2014 WL 5410210, at *4 (S.D. Ga. Oct. 23, 2014) (concluding "[t]here is simply no indication that there were repeated incidents of verbal or physical harassment" and no indication that supervisor's conduct "permeated" the workplace where plaintiff failed to specify the frequency of their interactions).
Second, Tapanes's conduct was not sufficiently severe to satisfy the objective component. Courts in this Circuit have granted summary judgment to defendants on hostile work environment claims involving significantly more or equally severe conduct. See, e.g. , Godoy v. Habersham Cnty. , 211 F. App'x 850, 853–54 (11th Cir. 2006) (affirming summary judgment where plaintiff alleged he endured racial slurs nearly every day, but provided no evidence indicating the frequency or pervasiveness of the comments); Sugarman , 2010 WL 11506575, at *3–4 (finding offensive comments about "not letting Jews in," jokes about taking time off work for Yom Kippur, and references to Jewish employees as "you people" to be insufficiently severe to create a hostile work environment). As stated, several of Tapanes's comments were not made in Plaintiff's presence and she only became aware of them near the end of her employment. Cf. Adams , 754 F.3d at 1253, 1256 (harassment is less severe when plaintiff does not experience it firsthand).
Nor were Tapanes's actions objectively severe: identifying Plaintiff's dress code violations, discussing with Plaintiff two reports of dissatisfied customers, and hovering and assigning longer customer service lines an unknown number of times. Despite Plaintiff's insistence otherwise, these are simply instances of generalized "needling and criticism" that are insufficient as a matter of law to create a hostile work environment. Booth v. Pasco Cnty., Fla. , 829 F. Supp. 2d 1180, 1189–90 (M.D. Fla. 2011) (citation omitted). These instances depict, at most, that Plaintiff and Tapanes had a difficult working relationship. Based on the undisputed facts, no reasonable person would conclude that Tapanes's comments and actions, viewed cumulatively, were objectively severe. Third, there is no indication in the record that Tapanes's conduct was objectively physically threatening or humiliating, or that it would unreasonably interfere with an employee's job performance. Though Plaintiff asserts she subjectively perceived the pork comment as "particularly embarrassing," see [ECF No. 114 at 12–13 ¶ 71(c)], and that she subjectively felt physically intimated by Tapanes standing near her while she worked, see [ECF No. 114 at 16–17 ¶ 78(g)], the Court concludes that a reasonable person would not find that Plaintiff's work environment was hostile. Tapanes's infrequent comments do not rise to the level of being physically threatening or humiliating. Rather, they are mere offensive utterances, and "Title VII does not regulate mere offensive utterances or general vulgarity[.]" Thompson v. City of Miami Beach , 990 F. Supp. 2d 1335, 1340–41 (S.D. Fla. 2014) (finding three racial slurs insufficient to meet the objective component "given how infrequently they were uttered ..., their lack of severity, the absence of any physically threatening conduct, and the absence of ... [a] showing [that] the remarks unreasonably interfered with [the plaintiff's] job performance."); see also MackMuhammad v. Cagle's Inc. , 379 F. App'x 801, 805 (11th Cir. 2010) (per curiam) (finding that the plaintiff failed to prove that the harassment was objectively severe or pervasive where the record did not indicate that biased or hostile comments were intimidating or threatening). Moreover, the most offensive of these utterances—the "Heil Hitler" comment—was neither made in Plaintiff's presence nor directed at her; and, again, the Court points out that Plaintiff only became aware of the comment at or near the end of her employment.
Likewise, Tapanes's described conduct was not objectively threatening or humiliating. The record establishes, at most, that Tapanes addressed Plaintiff's dress code violations, discussed with Plaintiff two customer service complaints, stood close to Plaintiff in her work station, assigned her longer customer service lines an unknown number of times, and removed her from assisting First Class passengers on one occasion. Under these circumstances, a reasonable person in Plaintiff's position would not feel physically threatened or humiliated; nor would such intermittent conduct and comments unreasonably interfere with an employee's job performance. Plaintiff has offered no probative evidence to the contrary.
Because Plaintiff has not met her burden to show that the conduct she complains of is objectively severe or pervasive enough to establish her hostile work environment claim, Defendants’ Joint Motion to Dismiss is granted as to Counts I and II of Plaintiff's Third Amended Complaint.
III. Retaliation Claims (Counts III & IV)
Defendants argue that Plaintiff fails to establish a prima facie case for retaliation because she is unable to establish that she engaged in statutorily protected activity or that there is a causal connection between her protected activity and her adverse employment action. Defendants also argue that Plaintiff fails to show that Delta Air Lines’ legitimate, non-discriminatory reason for denying her accommodation request is merely pretext.
Title VII makes it unlawful for an employer to discriminate against an employee "because [the employee] has opposed any practice made an unlawful employment practice ...." 42 U.S.C. § 2000e-3(a). Where retaliation is alleged, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (internal quotation marks omitted) (quoting Rochon v. Gonzales , 438 F.3d 1211, 1219 (D.C. Cir. 2006) ). However, "not all conduct by an employer negatively affecting an employee constitutes adverse employment action." Webb-Edwards v. Orange Cnty. Sheriff's Off. , 525 F.3d 1013, 1031 (11th Cir. 2008) (quoting Davis v. Town of Lake Park, Fla. , 245 F.3d 1232, 1238 (11th Cir. 2001) ). In the Eleventh Circuit, retaliation and retaliatory hostile work environment claims are analyzed under the Burlington Northern standard. See Debe v. State Farm Mut. Auto. Ins. Co. , 860 F. App'x 637, 640 (11th Cir. 2021) (per curiam) (citation omitted); Tonkyro v. Sec'y, Dep't of Veterans Affs. , 995 F.3d 828, 836 (11th Cir. 2021).
When the Eleventh Circuit first recognized a "retaliatory hostile work environment claim," it applied the same standard as other hostile work environment claims—"whether a reasonable jury could find that ‘the actions complained of were sufficiently severe or pervasive to alter the terms and conditions of employment, thus constituting an adverse employment action.’ " See Babb v. Sec'y, Dep't of Veterans Affs. , 992 F.3d 1193, 1206 (11th Cir. 2021) (quoting Gowski v. Peake , 682 F.3d 1299, 1312 (11th Cir. 2012) ). However, the Eleventh Circuit later found "that the articulation of the retaliation standard in Gowski is inconsistent with Burlington Northern and Crawford [v. Carroll , 529 F.3d 961 (11th Cir. 2008) ]." Monaghan v. Worldpay US, Inc. , 955 F.3d 855, 862 (11th Cir. 2020). The Eleventh Circuit went on to announce that "the standard applicable to all Title VII retaliation claims is the Burlington Northern ‘well might have dissuaded’ standard ...." Id. The Eleventh Circuit recently reaffirmed this holding, stating that "retaliatory hostile work environment claims, like retaliation claims based on discrete acts, prevail if the conduct complained of ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ " Tonkyro , 995 F.3d at 836 (quoting Monaghan , 955 F.3d at 862–63 ).
To bring a prima facie claim for retaliation under § 1981, "a plaintiff must prove that [she] engaged in statutorily protected activity, [she] suffered a materially adverse action, and there was some causal relation between the two events." Goldsmith v. Bagby Elevator Co., Inc. , 513 F.3d 1261, 1277 (11th Cir. 2008). Establishing the causation element requires the plaintiff to demonstrate that "her protected activity was a but-for cause of the alleged adverse action by the employer." Gogel , 967 F.3d at 1135 (quoting Univ. of Tx. Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 362, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) ). See also Jefferson , 891 F.3d at 924 ("Stated another way, a plaintiff must prove that had she not complained, she would not have been fired."). This requires that the plaintiff "show that the decision-makers were aware of the protected conduct, and that the protected activity and the adverse actions were not wholly unrelated." Shannon v. Bellsouth Telecomms., Inc. , 292 F.3d 712, 716 (11th Cir. 2002) (internal quotation marks omitted). Alternatively, "causation may be established when a decisionmaker followed a biased non-decisionmaker's recommendation without independently investigating the basis for the complaint." Matamoros v. Broward Sheriff's Off. , 2 F.4th 1329, 1336 (11th Cir. 2021) (citations omitted). The causal link element is construed "broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated." Goldsmith , 513 F.3d at 1278 (quoting Olmsted v. Taco Bell Corp. , 141 F.3d 1457, 1460 (11th Cir. 1998) ).
"Once the prima facie case is established, it creates a ‘presumption that the adverse action was the product of an intent to retaliate.’ " Id. (quoting Bryant , 575 F.3d at 1308 ). The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged employment action. See id. at 1277. "If the employer produces such a reason, the presumption is rebutted, and the plaintiff must then demonstrate that the ‘proffered reason was merely a pretext to mask [retaliatory] actions.’ " Gogel , 967 F.3d at 1135 (alteration in original) (quoting Bryant , 575 F.3d at 1308 ). When evaluating whether the employer's proffered reason is simply pretext, courts will consider "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action." Knox v. Roper Pump Co. , 957 F.3d 1237, 1245 (11th Cir. 2020). "Importantly, throughout the entire process, the ultimate burden of persuasion remains on the employee." Id. (quoting Sims v. MVM, Inc. , 704 F.3d 1327, 1333 (11th Cir. 2013) ); Goldsmith , 513 F.3d at 1277 ("The plaintiff bears the ultimate burden of proving retaliation by a preponderance of the evidence and that the reason provided by the employer is a pretext for prohibited retaliatory conduct.").
A. Plaintiff Engaged in Statutorily Protected Activity
As to both of Plaintiff's retaliation claims against Defendants, a reasonable jury could conclude that the first element—that Plaintiff engaged in statutorily protected activity—is satisfied because Plaintiff complained to Higgins and Cardona of Tapanes's discriminatory conduct. Generally, "[t]he making of informal complaints or the use of an internal grievance system is protected conduct under the opposition clause." Gogel , 967 F.3d at 1144. See also Furcron v. Mail Ctrs. Plus, LLC , 843 F.3d 1295, 1311 (11th Cir. 2016) ("Title VII's protections are not limited to individuals who file formal complaints, but extend to those who voice informal complaints as well." (citation omitted)). "[T]he employee must, at the very least, communicate her belief that discrimination is occurring to the employer. It is not enough for the employee merely to complain about a certain policy or certain behavior of co-workers and rely on the employer to infer that discrimination has occurred." Murphy v. City of Aventura , 616 F. Supp. 2d 1267, 1281 (S.D. Fla. 2009) (quoting Webb v. R & B Holding Co., Inc. , 992 F. Supp. 1382, 1389 (S.D. Fla. 1998) ).
Here, it is undisputed that Plaintiff made general complaints, to Higgins and Cardona in January 2017 and to Sanders on May 23, 2017, about discrimination by Tapanes. See [ECF No. 82 at 5–8 ¶¶ 34–35, 41–43]; [ECF No. 114 at 14–15 ¶ 76; 17 ¶ 79]; [ECF No. 82-24 at 2]. Although it is unclear which specific actions Plaintiff attributed to discrimination, a reasonable jury could certainly conclude the first element is met.
To establish that a plaintiff engaged in statutorily protected activity, a plaintiff must show that she had "a good faith, reasonable belief that the employer was engaged in unlawful employment practices." Weeks v. Harden Mfg. Corp. , 291 F.3d 1307, 1311 (11th Cir. 2002) (quoting Little v. United Tech., Carrier Transicold Div. , 103 F.3d 956, 960 (11th Cir. 1997) ). Thus, to establish statutorily protected activity, a plaintiff must demonstrate that she subjectively, in good faith, believed that her employer engaged in unlawful employment practices and that her belief was objectively reasonable in light of the facts and record presented. See Johnson v. Fam. Prac. & Inj. Ctr., Inc. , 437 F. Supp. 3d 1108, 1123 (M.D. Fla. 2020) ; see also id. at 1129, 1132–33 (explaining that the conduct need not actually constitute an unlawful employment practice, but the opposed conduct must be "close enough" to support an objectively reasonable belief, and that a plaintiff's belief can still be objectively reasonable even if she failed to support her hostile work environment claim with evidence of severe or pervasive harassment).
Although Plaintiff had not yet learned of the two anti-Semitic comments Tapanes made to Hagen at the time she first complained of discrimination in early January 2017, the Court assumes, without deciding, that Plaintiff's belief that Tapanes was subjecting her to a hostile work environment was objectively reasonable. See Howell v. Corr. Med. Servs. , 612 F. App'x 590, 591 (11th Cir. 2015) (holding that plaintiff had an objectively reasonable belief that she was opposing unlawful employment practices in light of two racially-tinged comments and an incident where the director pushed a medicine cart into her, but noting it was "a close call").
B. The Remaining Elements as to Tapanes (Count III)
1. Plaintiff Suffered a Materially Adverse Action
Similarly, a reasonable jury could find that Plaintiff satisfied the second prong of her claim against Tapanes—that she suffered a materially adverse action. As previously noted, an employment action in the retaliation context is "materially adverse" where it "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. , 548 U.S. at 68, 126 S.Ct. 2405 (internal quotation marks omitted). While adverse action is broader in the retaliation context than in the discrimination context, "petty and trivial actions by the defendant are not sufficiently adverse." Rainey v. Holder , 412 F. App'x 235, 238 (11th Cir. 2011) (citation omitted). Anti-retaliation provisions are thus designed to "protect[ ] an individual not from all retaliation, but from retaliation that produces an injury or harm." Id. at 67, 126 S.Ct. 2405.
Viewed in the light most favorable to Plaintiff, a reasonable jury could conclude that at least some of Tapanes's post-complaint conduct toward Plaintiff went beyond "petty slights, minor annoyances, and simple lack of good manners." Burlington N. & Santa Fe Ry. Co. , 548 U.S. at 68, 126 S.Ct. 2405. While most of Tapanes's post-complaint conduct was, at best, petty and trivial—removing Plaintiff from serving a First Class counter on one occasion, asking Plaintiff to fix her broken name tag, and asking her to keep track of how often she stopped the baggage conveyor belt—Plaintiff's contention that Tapanes increased her workload could rise to the level of a materially adverse action. As the Supreme Court has instructed, "[c]ontext matters." Id. at 69, 126 S.Ct. 2405. The record reflects that Tapanes knew of Plaintiff's prior abdominal surgery and that she had previously requested assignments with lighter or less frequent lifting requirements. [ECF No. 82-1 at 28–29, 50]; [ECF No. 84-1 at 196–97]. If Tapanes assigned Plaintiff to work longer check-in lines, which required her to lift more and/or heavier baggage, a reasonable jury could find that Tapanes's behavior might have dissuaded Plaintiff from supporting her charge of discrimination against him. See, e.g., Burlington N. & Santa Fe Ry. Co. , 548 U.S. at 70–71, 126 S.Ct. 2405 (finding reassignment of job duties to a more arduous position can be materially adverse depending on the circumstances of the case).
Plaintiff asserts that continuously lifting heavy baggage exacerbated her medical condition, but there is no indication in the record that she reported that concern to Defendants until on or about May 24, 2017. [ECF No. 114 at 22 ¶ 101]. Although Tapanes stated he understood Plaintiff's limited lifting request to be a one-time request in May 2015 [ECF No. 82-1 at 29], a reasonable jury could nevertheless infer that Tapanes knew assigning Plaintiff to work stations with the highest number of passengers could worsen her medical condition.
Although the Court has located no caselaw on the issue, the Court assumes, without deciding, that hovering may also constitute a materially adverse action in certain circumstances.
2. Causation
"A plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took adverse employment action." Goldsmith v. City of Atmore , 996 F.2d 1155, 1163 (11th Cir. 1993). An employer's knowledge "may be established by circumstantial evidence." Id. Here, the record indicates Higgins told Tapanes of Plaintiff's complaints of discrimination sometime in January or February 2017. Specifically, Tapanes admits he learned of Plaintiff's complaints after she emailed Higgins on or about January 9, 2017 and before their meeting in Fernandez's office in February 2017, wherein he apologized for any misunderstanding regarding the December 31, 2016 Incident. [ECF No. 82-1 at 11, 14, 24–25; ECF No. 84-1 at 264–65]. It is obvious that only incidents that occurred after Tapanes became aware of Plaintiff's complaints are capable of being retaliatory in nature. See Griffin v. GTE Florida, Inc. , 182 F.3d 1279, 1284 (11th Cir. 1999) ("At a minimum, [the plaintiff] must show that the adverse act followed the protected conduct; this minimum proof stems from the important requirement that the employer was actually aware of the protected expression at the time it took adverse employment action." (internal quotation omitted)).
Plaintiff cites incidents that occurred prior to her reporting Tapanes's alleged discrimination to Higgins. See [ECF No. 95 at 5–6]. The Court will not consider these actions because they occurred prior to her complaints of discrimination and, thus, could not be in retaliation for her complaints.
Based on the limited evidence in the record, the Court concludes that Plaintiff has not met her prima facie burden to show a causal connection between her complaints and Tapanes's conduct. "Close temporal proximity between the protected activity and the adverse action may be sufficient to show that the two were not wholly unrelated." Bass v. Bd. of Cnty. Comm'rs , 256 F.3d 1095, 1119 (11th Cir. 2001). "But mere temporal proximity, without more, must be ‘very close.’ " Thomas v. Cooper Lighting, Inc. , 506 F.3d 1361, 1363 (11th Cir. 2007) (per curiam) (citation omitted). Indeed, "[a] causal relationship might reasonably be inferred from a series of adverse actions that commenced immediately after a plaintiff engaged in protected activity." Baroudi v. Sec'y, Dep't of Veterans Affs. , 616 F. App'x 899, 903 (11th Cir. 2015). For example, adverse action that occurs "within days—or at the most within two weeks—of [the plaintiff's] protected activity can be circumstantial evidence of a causal connection between the two." Jefferson , 891 F.3d at 926. By contrast, "[a] three to four month disparity between the statutorily protected expression and the adverse employment action is not enough." Thomas , 506 F.3d at 1364 (citations and internal quotation marks omitted).
In her Response, Plaintiff contends that Tapanes increased her workload and hovered over her while she worked after she complained that he was discriminating against her. See [ECF No. 95 at 5–6]. However, neither the undisputed facts nor the parties’ supplemental briefings make clear when or how frequently these acts occurred. While Plaintiff asserts that Tapanes retaliated against her "[i]mmediately after Plaintiff spoke to Higgins" (but apparently before the January 9, 2017 email) by "giving [her] assignments with the highest number of passengers in baggage drop," see [ECF No. 114 at 14 ¶¶ 75–76], it is unclear whether Tapanes was even aware at that point that Plaintiff had lodged a complaint against him. Further complicating matters is Plaintiff's muddled testimony: Plaintiff concedes Tapanes's behavior improved after she first complained to Higgins [ECF No. 84-1 at 236, 241], but contends that it resumed "a few months" later [ECF No. 82-24 at 2]. Elsewhere in the record, Plaintiff insists Tapanes assigned her baggage drop "repeatedly" [ECF No. 114 at 24 ¶ 108], but she provides no timeline as to when or for how long Tapanes did so. The only evidence she cites to support her statement refers to a complaint she made during the June 9, 2017 accommodations call. See [ECF No. 82-3 at 63 (Williams's deposition recalling Plaintiff's complaint on the first call that she felt like she was working bag drop "every day")]; [ECF No. 82 at 11 ¶ 63 (first call occurred on June 9, 2017)].
The Court does not discuss the other post-complaint actions Plaintiff identifies—removing Plaintiff from working a First Class counter on one occasion and asking her to keep count of how many times she stopped the baggage conveyor belt—because these are isolated "petty slights." Burlington N. & Santa Fe Ry. Co. , 548 U.S. at 68, 126 S.Ct. 2405.
Drawing all reasonable inferences in Plaintiff's favor, the Court concludes that Plaintiff has not demonstrated a causal link between her January and May 2017 complaints and Tapanes's post-complaint assignment of longer customer service lines to Plaintiff. Likewise, Plaintiff supplies no evidence regarding when, how often, or how long after Plaintiff's complaints the "hovering" incidents occurred. As such, it is impossible for the Court to evaluate whether indicators of causal connection, such as temporal proximity, are present. Because Plaintiff bears burden of establishing a causal link, her failure to identify such evidence inures to Defendants’ benefit. Even if the Court were to conclude a genuine dispute existed regarding causation, Plaintiff's claim fails because she cannot establish pretext, as described below.
3. Pretext
Finally, Defendants argue that even if Plaintiff can establish her prima facie case of retaliation against Tapanes, she has provided no probative evidence to rebut Tapanes's proffered legitimate, non-discriminatory reasons for his conduct. As explained, once a plaintiff has established a prima facie case of retaliation, "it creates a ‘presumption that the adverse action was the product of an intent to retaliate.’ " Goldsmith , 513 F.3d at 1278 (quoting Bryant , 575 F.3d at 1308 ). The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged employment action. See id. at 1277. "If the employer produces such a reason, the presumption is rebutted, and the plaintiff must then demonstrate that the ‘proffered reason was merely a pretext to mask [retaliatory] actions.’ " Gogel , 967 F.3d at 1135 (alteration in original) (quoting Bryant , 575 F.3d at 1308 ).
Even if Plaintiff could make out a prima facie case of retaliation against Tapanes, the Court agrees she has failed to demonstrate that Tapanes's non-discriminatory reasons for his conduct are merely pretext. For instance, Tapanes indicated he would have no choice but to stand near an agent if he were standing behind a ticket counter because the space behind the counter is very small. [ECF No. 82-1 at 33–34]. He explained that he was not responsible for and generally did not assign employees to specific work counters; when he did so, it was to maintain good customer service if the check-in lines were backing up due to another employee stepping away to use the restroom or take their lunch break. See id. at 36–37. Tapanes stated that it was part of his job duties to require employees to comply with the uniform code. See id. at 31. And he explained that he removed Plaintiff from working a First Class counter once in January 2017 after a shooting in Fort Lauderdale caused long lines and Plaintiff required assistance to process nearly every passenger. See id. at 34–35. Tapanes clarified that he placed a more experienced agent at the counter in order to provide faster service to the First Class passengers. See id.
Plaintiff has not shown that Tapanes's explanations are untrue or inaccurate. Plaintiff's conclusory assertion that Tapanes acted with retaliatory intent is insufficient to "demonstrate that the ‘proffered reason was merely a pretext to mask [retaliatory] actions.’ " Gogel , 967 F.3d at 1135 (alteration in original) (quoting Bryant , 575 F.3d at 1308 ). See Anderson v. Georgia-Pacific Wood Prods., LLC , 942 F. Supp. 2d 1195, 1212 (M.D. Ala. 2013) (plaintiff's bare statement that defendant's proffered reasons were not legitimate, without any evidence or argument in support thereof, was insufficient rebuttal); Cordoba v. Dillard's Inc. , 419 F.3d 1169, 1181 (11th Cir. 2005) ("Speculation does not create genuine issue of fact[.]"); Thatcher v. Dep't of Veterans Affs. , No. 8:17-cv-3061, 2020 WL 2838849, at *20 (M.D. Fla. June 1, 2020) ("[S]peculation and conjecture regarding the reason for [defendant's] decision ... is insufficient to [demonstrate pretext and] survive summary judgment").
Plaintiff has presented no evidence that would allow a reasonable juror to conclude that Tapanes's legitimate, non-discriminatory reasons were pretextual. In fact, Plaintiff fails to even address Defendants’ arguments concerning pretext in her Response or supplemental briefing. See Jean Baptiste v. Securian Fin. Grp., Inc. , 557 F. Supp. 3d 1271, 1284 (S.D. Fla. 2021) ("Of course, the Plaintiff waived this argument by failing to advance it in his Response to the Motion for Summary Judgment."). Therefore, Defendants’ Motion for Summary Judgment as to Count III is granted.
C. The Remaining Elements as to Delta Air Lines (Count IV)
Plaintiff does not plead vicarious liability in her Third Amended Complaint, nor does she argue in her Response or supplemental briefs that Delta Air Lines is vicariously liable for Tapanes's retaliatory conduct. Thus, the Court need not consider it. Even if Plaintiff had raised this theory of liability for her retaliation claims, it is elementary that a vicarious liability claim cannot proceed once the underlying claim against the employee fails. See Citibank, N.A. v. Data Lease Fin. Corp. , 904 F.2d 1498, 1500 (11th Cir. 1990) ("[A] principal cannot be held liable if the agent is exonerated." (citations omitted)).
Defendants also argue that Plaintiff cannot establish a causal connection between her protected activity and Delta Air Lines’ denial of her accommodation request. Even if that burden was met, Defendants argue that Plaintiff has not pointed to specific evidence to show Delta Air Lines’ stated reason for the denial was pretextual.
1. Materially Adverse Action
Plaintiff asserts that Delta Air Lines refused to accommodate her medical restrictions in retaliation for complaining about Tapanes's discrimination. The Court assumes that Delta Air Lines’ denial of Plaintiff's accommodation request, which effectively ended her employment, was a materially adverse action that could dissuade an employee from complaining of discrimination. Cf. Anderson , 942 F. Supp. 2d at 1209 n.11 (concluding that failure to accommodate a disability in retaliation for voicing race discrimination complaints, if proven, would constitute a violation of Title VII).
2. Causation
The Court finds, however, that Plaintiff fails to establish the causal link element of her retaliation claim against Delta Air Lines. Specifically, Plaintiff fails to establish that Delta Air Lines denied her accommodation request because of her discrimination complaints.
"One way of proving that the discriminatory animus behind the recommendation caused the discharge is under the ‘cat's paw’ theory." Stimpson v. City of Tuscaloosa , 186 F.3d 1328, 1332 (11th Cir. 1999) (per curiam). "The cat's paw theory provides that discriminatory animus may be imputed to a neutral decision-maker if a supervisor recommends an adverse employment action due to a discriminatory animus and that recommendation is a motivating factor of the decision-maker's ultimate adverse employment action." Quintero v. Publix Super Markets, Inc. , No. 18-CIV-21615, 2020 WL 607117, at *2 (S.D. Fla. Feb. 7, 2020). Generally, "[t]he cat's paw theory applies only when actual decision-makers blindly rely on the recommendation of a discriminatory non-decision-maker without undertaking an independent investigation." Monds v. Quitman Ga. , 767 F. App'x 750, 754 n.2 (11th Cir. 2019) (per curiam) (citing Stimpson , 186 F.3d at 1332 ). "In such a case, the recommender is using the decisionmaker as a conduit, or a ‘cat's paw,’ to give effect to the recommender's own discriminatory animus." Matamoros , 2 F.4th at 1336 (citing Stimpson , 186 F.3d at 1332 ). However, the Eleventh Circuit has cautioned:
[T]his causation must be truly direct. When the biased recommender and the actual decisionmaker are not the same person or persons, a plaintiff may not benefit from the inference of causation that would arise from their common identity. Instead, the plaintiff must prove that the discriminatory animus behind the recommendation ... was an actual cause of the other party's decision to terminate the employee.
Stimpson , 186 F.3d at 1331.
The crux of Plaintiff's claim is that Delta Air Lines’ managers failed to investigate her claims of discrimination against Tapanes and instead "rubber stamped" his recommendations as to her accommodation request. See [ECF No. 95 at 5–7]. However, the undisputed facts make clear that Delta Air Lines’ decision-makers did not blindly rely on Tapanes's recommendations and instead conducted an independent investigation. Monds , 767 F. App'x at 754 n.2. Plaintiff made a request for a workplace accommodation after her physician imposed a lifting restriction of 20 pounds on Plaintiff for at least six months. Prior to the first interactive meeting for Plaintiff's accommodation request, Sanders led a pre-call with Cardona, Tapanes, Fernandez, and Williams during which Tapanes raised concerns about Plaintiff's requested accommodations. A first interactive meeting was then held during which each of Plaintiff's requests were addressed. Although Tapanes initially joined the first interactive meeting, his involvement then was minimal.
Following the first interactive meeting, Williams undertook the process of investigating each of Plaintiff's accommodation requests, including her request to work AeroMexico flights. A second interactive meeting was held in which Williams informed Plaintiff that a reasonable accommodation could not be found during Plaintiff's morning shift and that Plaintiff's requested accommodation of working the AeroMexico flight would only cover a limited portion of her shift. Williams continued to assist Plaintiff by trying to find her a new position, which she did not accept.
Neither party disputes that Williams independently investigated each of Plaintiff's accommodation requests rather than simply "rubber stamping" Tapanes's comments during the pre-call. See [ECF No. 82 at 11 ¶ 64] ("Williams took the lead in exploring each of Ahern's requested accommodations ...."); [ECF No. 114 at 10–11 ¶ 64] (disputing reason for denial of accommodation request, but not denying that an independent investigation was conducted); id. at 23 ¶ 106. Even so, Plaintiff attempts to infer causation under a cat's paw theory by arguing that Delta Air Lines must have blindly accepted Tapanes's recommendations because one of the reasons Williams provided for denying Plaintiff's accommodation request was similar to comments Tapanes made during the pre-call. However, this is the exact sort of "inference of causation" that the Eleventh Circuit warned that a plaintiff could not benefit from in attempting to establish causation through a cat's paw theory. See Stimpson , 186 F.3d at 1331 ("[C]ausation must be truly direct .... [A] plaintiff may not benefit from the inference of causation that would arise from ... common identity."). The record is simply insufficient to suggest a "truly direct" causal link as to Delta Air Lines. Id.
Additionally, the undisputed facts suggest that Delta Air Lines managers directly addressed Plaintiff's complaints of discrimination; specifically, managers attempted on multiple occasions to direct Plaintiff's complaints to the proper department and, when asked if she wanted to file a complaint, she declined.
In sum, the Court finds that Plaintiff fails to bring forth sufficient evidence to establish the causal link prong of her retaliation claim against Delta Air Lines. Therefore, Defendants’ Motion for Summary Judgment is granted as to Count IV of Plaintiff's Third Amended Complaint.
Similarly, Plaintiff has not shown Delta Air Lines’ stated reasons for denying her requested accommodation were pretext—that the morning AeroMexico flight would be insufficient to cover the length of her shift; she would be required to provide wheelchair assistance and might still have to lift baggage over 20 lbs. if she only worked in the lobby; gate agents are required to assist with gate checked baggage and lift heavy aircraft doors; auditing is not an open position, it involves only one hour of work, and it is not available during Plaintiff's morning shift; and stocking requires lifting and transferring boxes of over 20 lbs. See [ECF No. 82-24 at 7, 9]. Plaintiff cites no evidence to support her naked assertion that these reasons were not legitimate and Delta Air Lines’ used them as pretext for denying her an accommodation. To the contrary, the evidence in the record suggests Delta attempted in earnest to accommodate Plaintiff by suggesting alternative work arrangements, such as working AeroMexico flights in the afternoon or taking a reservation position in Tampa, but Plaintiff did not accept these accommodations. See id. at 9; [ECF No. 82 at 11 ¶ 67]; [ECF No. 114 at 11 ¶ 67]. Based on the record, no reasonable juror could conclude Delta Air Lines’ stated reasons for denying her requested accommodations were pretext.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendants, Delta Air Lines, Inc. and Humberto Tapanes's Joint Motion for Summary Judgment [ECF No. 83] is GRANTED .
2. Final judgment shall issue by separate order.
DONE AND ORDERED in Chambers at Miami, Florida, this 5th day of July, 2022.