Opinion
Case No. 99-6-CIV-T-17B
December 22, 1999
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court on Defendant, WAL-MART STORES, INC.'s, Motion for Summary Final Judgment and Memorandum of Law in Support Thereof, (Dkt. 10), filed on September 3, 1999, and Plaintiff, SHARON PATTERSON'S, Memorandum of Law in Opposition to Defendant's Motion For Summary Judgment, (Dkt. 26), filed on October 12, 1999.
BACKGROUND
On January 4, 1999, Plaintiff filed a Complaint in this Court alleging violations of Title VII of the Civil Rights Act of 1964 [hereinafter "Title VII"], as amended, 42 U.S.C. § 2000(e), and the Florida Civil Rights Act [hereinafter "FCRA"], Chapter 760, Florida Statutes. (Dkt. 1).
The following factual allegations are taken from Plaintiff's Complaint. (Dkt. 1). Plaintiff is a female resident of Lithia, Florida. Defendant is a Delaware corporation, with places of business throughout the State of Florida. Plaintiff was employed by Defendant from September 1983, until June 31, 1998. At the time Plaintiff left employment with Defendant, Plaintiff was an assistant manager for Defendant's North Lakeland retail store.
After Plaintiff's employment with Defendant was terminated, and within the time prescribed by Title VII and the FCRA, Plaintiff filed a written charge of discrimination against Defendant. Plaintiff's written charge of discrimination was filed with the Equal Employment Opportunity Commission [hereinafter "EEOC"], on September 3, 1998. On or about October 6, 1998, Plaintiff received a Notice of Right to Sue from the EEOC.
Plaintiff states that prior to her termination with Defendant, Plaintiff was promised, but was denied promotions to both store manager and store co-manager. While Plaintiff was allegedly promised those promotions, the manager and co-manager positions were, according to Plaintiff filled by males who were less qualified for the position.
In October 1997, Plaintiff was transferred to Defendant's North Lakeland store. At the time of the transfer, Plaintiff was promised a co-manager position. On or about January 1, 1998, Plaintiff was advised that the co-managers position had been awarded to a male who was, according to Plaintiff less qualified. When Plaintiff confronted her supervisor about the promotion, Plaintiff's supervisor told her that he forgot about the promise that was made to Plaintiff. Throughout the course of Plaintiff's employment with Defendant, according to Plaintiff, Plaintiff performed her job responsibilities at or above the reasonable expectations of Defendant.
As a result of Defendant's alleged discriminatory treatment of Plaintiff, Plaintiff claims that she was compelled to resign from employment with Defendant. Plaintiff resigned from employment with Defendant on June 31, 1998. Plaintiff states that she was constructively discharged by Defendant and thereby suffered an adverse employment action. Plaintiff states that no legitimate reason for the adverse employment actions taken against Plaintiff exist and any alleged legitimate reasons submitted by Defendant are merely pretextual.
Plaintiff requests that this Court award back pay, front pay, benefits, compensatory damages, punitive damages, costs, and reasonable attorney's fees. Plaintiff further requests that this Court order Defendant to institute and carry out policies, practices, and affirmative action programs which provide equal employment opportunities and which eradicate the effects of past and present unlawful employment practices.
Defendant answered Plaintiff's Complaint on February 1, 1999. In Defendant's Answer, Defendant alleged ten (10) separate affirmative defenses. Defendant states that Plaintiff: 1) has failed to state a cause of action under the FCRA; 2) has failed to state a claim under Title VII; 3) has failed to exhaust her administrative remedies; 4) has failed to fulfill all conditions precedent to filing a complaint; 5) has asserted claims that are barred by the applicable statutes of limitation; 6) has asserted claims that are barred by the equitable doctrines of waiver, collateral estoppel, laches, and/or unclean hands; 7) has failed to adequately mitigate damages; 8) has not suffered any adverse action under the FCRA or Title VII; 9) was the subject of reasonable, non-discriminatory actions that were taken in good faith for legitimate, non-discriminatory reasons; and 10) is not entitled to recover attorneys' fees or costs from Defendant.
STANDARD OF REVIEW
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
The plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. in such a situation, there can be no `genuine issue of material fact' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the non-moving party has failed to make a sufficient showing on an essential element of the case with respect to which that party has the burden of proof.Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of genuine issues of material fact. See id. That burden can be discharged by "showing . . . that there is an absence of evidence to support the non-moving party's case." See id. at 323, 325.
Issues of fact are "`genuine' only if a reasonable jury considering the evidence presented could find for the non-moving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986). Material facts are those which will affect the outcome of the trial under governing law. See id. at 248. In determining whether a material fact exists, the court must consider all the evidence in a light most favorable to the non-moving party. See Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir. 1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. See Hayden v. First Nat'l Bank of Mt. Pleasant., 595 F.2d 994, 996-97 (5th Cir, 1979) (quoting Gross v. Southern Railway Co., 414 F.2d 292, 297 (5th Cir. 1969)).
Although factual disputes preclude summary judgment, the "mere possibility that factual disputes may exist, without more, is not sufficient to overcome a convincing presentation by the party seeking summary judgment." See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980). When a party's response consists of "nothing more than a repetition of his conclusional allegations," summary judgment is not only proper but required. Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981).
DISCUSSION
I. Administrative Remedies
A. State Administrative Proceedings
Defendant claims that summary judgment is appropriate because Plaintiff failed to institute administrative proceedings under state law. Defendant asserts that Plaintiff was required to file her administrative charge with the Florida Commission of Human Relations [hereinafter "FCHR"] before Plaintiff filed her charge with EEOC. As Plaintiff filed a charge of discrimination initially with EEOC, Defendant claims Plaintiff has not complied with Title VII. Defendant cites 42 U.S.C. § 2000e-5(c) in support of this contention, which, according to Defendant, requires Plaintiff to file a charge of discrimination with FCHR at least sixty (60) days before an EEOC charge is filed. Defendant states that because Plaintiff has filed her charge of discrimination with EEOC without filing the charge with FCHR and waiting sixty days, Plaintiff has failed to comply with the requirements of Title VII. In response to Defendant's allegations, Plaintiff states that Title VII, 42 U.S.C. § 2000e-5(c), was satisfied by Plaintiff when Plaintiff included FCHR on the charge of discrimination.
Title VII, 42 U.S.C. § 2000e-5 (c), states, in pertinent part, that:
In the case of an alleged unlawful employment practice occurring in a State . . . which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law.
(emphasis added).
As an EEOC charge of discrimination is often filed by a person unskilled in the law, a charge of discrimination must be viewed in a most liberal manner. See Scannell v. Bel Air Police Dept., 968 F. Supp. 1059 (D.Md. 1997). In addition, there is nothing within the language of Title VII that prevents a state proceeding from being initiated by EEOC, acting on behalf of the individual filing the charge. See McKelvy v. Metal Container Corp., 854 F.2d 448, 451 (11th Cir. 1988) (citing Love v. Pullman Co., 404 U.S. 522, 526 (1972)). "The EEOC's referral of a charge initially filed with the EEOC to the appropriate state or local agency properly institutes the agency's proceedings within the meaning of [Title VII]. . ." EEOC v. Commercial Office Products Co., 108 S.Ct. 1666, 1669 (1988); see also McKelvy, 854 F.2d at 451; Anderson v. Illinois Tool Works. Inc., 753 F.2d 622, 624 n. 2 (7th Cir. 1985).
In addition to the case law previously cited by the Court, the Court would like to refer the parties in this case to the worksharing agreement entered into between FCHR and EEOC. In particular, the Court refers counsel to the following statements taken from the applicable worksharing agreement:
In order to facilitate the assertion of employment rights, the EEOC and the [FCHR] each designate the other as its agent for the purpose of receiving, drafting, and filing charges, including those that are not jurisdictional with the agency that initially receives the charges.
EEOC's receipt of charges on the [FCHR's] behalf will automatically initiate the proceedings of both EEOC and the [FCHR]. . . .
Normally, once an agency begins an investigation, it resolves the charge. Charges may be transferred between the EEOC and the [FCHR] within the framework of a mutually agreeable system.
The EEOC agrees to provide [FCHR] with notice of its final actions on all dual-filed charges.
EEOC will initially process/investigate all Title VII, ADA, and ADEA charges that they originally receive. [FCHR] will initially process all Title VII, ADA, and ADEA charges that they originally receive. . . .
For charges originally received by the EEOC and/or to be initially processed by the EEOC, the [FCHR] waives its right of exclusive jurisdiction to initially process such charges for a period of [sixty] 60 days for the purpose of allowing the EEOC to proceed immediately with the processing of such charges before the [sixty-first] 61st day.See Worksharing Agreement Between Florida Commission on Human Relations and the Equal Employment Opportunity Commission for Fiscal Year 1999 (effective October 1, 1998) (on file with the Florida Commission on Human Relations and the Equal Employment Opportunity Commission) (emphasis added).
On or about September 23, 1998, Plaintiff, in the case at hand, filed a charge of discrimination with EEOC. Plaintiff requested, by checking the appropriate box on her charge of discrimination, that EEOC file the charge with the appropriate state agency. As Plaintiff checked the appropriate box on the charge of discrimination and indicated that she would like to have the charge filed with FCHR, Plaintiff satisfied the filing requirements of 42 U.S.C. § 2000e-5(c) and Chapter 760, Florida Statutes. EEOC has the authority to receive and file all charges alleging violations under the jurisdiction of EEOC or FCHR. EEOC began the investigation into Plaintiff's charge and, therefor, pursuant to the workshare agreement, EEOC has the authority to resolve the charge without waiting the sixty (60) days stated in Title VII.
B. Sufficiency of Plaintiff's Charge
Defendant further asserts that because Plaintiff's charge of discrimination merely alleges a violation of Title VII, Plaintiff's charge of discrimination is insufficient to commence proceedings under State or local law. As Plaintiff's charge of discrimination is insufficient, according to Defendant, to commence proceedings under State or local law, Defendant asserts that Plaintiff has not complied with the requirements of 42 U.S.C. § 2000e-5 (c). As Plaintiff, according to Defendant, has, once again, failed to comply with 42 U.S.C. § 2000e-5(c), Defendant asserts that summary judgment is proper. Plaintiff responds to Defendant's allegation by stating that there is no requirement that state law discrimination statutes be addressed in a charge of discrimination to satisfy the requirements of 42 U.S.C. § 2000e-5 (c).
After completely reviewing the workshare agreement, Title VII, Chapter 760, Florida Statutes, and relevant case law, the Court finds that Plaintiff's charge of discrimination includes sufficient allegations to satisfy the requirements for filing under both federal and state law. Plaintiff makes sufficient factual allegations, even without alleging violation of a specific Florida statute, to satisfy the burden required for filing a charge of discrimination. In order to file a charge of discrimination under Title VII, a plaintiff must comply with the statutory requirements of Title VII. Title VII states, in pertinent part, that: "Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. . . . Whenever a charge is filed by or on behalf of a person claiming to be aggrieved . . . alleging that an employer . . . has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, time, place and circumstances of the alleged unlawful practice) on such employer. . . ." 42 U.S.C. § 2000e-5(b).
In order to file a charge of discrimination under Florida law, a plaintiff must comply with Chapter 760, Florida Statutes. Chapter 760, Florida Statutes, states, in pertinent part, that: "Any person aggrieved by a violation of ss. 760.01-760.10 may file a complaint with the commission within 365 days of the alleged violation, naming the employer, employment agency, labor organization, or joint labor management committee. . . . The complaint shall contain a short and plain statement of the facts describing the violation and the relief sought." Fla. Stat. § 760.11(1).
In the case at hand, Plaintiff filed a charge of discrimination with EEOC and requested, pursuant to the workshare agreement entered into between FCHR and EEOC, that EEOC forward the charge to FCHR. In addition to Plaintiff's request to dual file, Plaintiff's charge of discrimination contains a factual statement describing the alleged discrimination. Plaintiff's charge of discrimination states that:
On or about, 01/01/98, I was advised that I had not been promoted to th[e] position of [c]o-manager. A less qualified male was rehired for the position. My qualifications exceeded all requirements for the position. I have served as assistant [m]anager for 13 years and had been promised the next [c]o-manager position. I was constructively discharged on 06/31/98.
Plaintiff's charge of discrimination also names Wal-Mart #1245 as her employer.
After reviewing Plaintiff's charge of discrimination, the Court finds that Plaintiff has asserted sufficient factual allegations within her charge to satisfy both Title VII and Florida law. Plaintiff has provided EEOC with all the required information in the exact form EEOC requested. Plaintiff's charge of discrimination also satisfies Florida law. Plaintiff's charge of discrimination contains statements naming the employer, describing the violation, and describing the relief sought. As Plaintiff's charge of discrimination satisfies the requirements of Title VII and Chapter 760, Florida Statutes, regarding the sufficiency of Plaintiff's charge, summary judgment is not proper.
C. 180 Day Requirement
Defendant states that summary judgment is warranted because Plaintiff did not wait one-hundred eighty (180) days after the date she filed her administrative complaint of discrimination with the FCHR before filing this suit.
After thorough consideration, the Court finds that Plaintiff fully satisfied the requirements for filing a charge of discrimination with FCHR. As previously stated by the Court, Plaintiff filed her charge of discrimination initially with EEOC. As EEOC received the charge of discrimination, EEOC is the proper commission to investigate the charge. Plaintiff need not wait one-hundred eighty days after filing her complaint with FCHR to file this suit. Plaintiff received a Notice of Right to Sue from EEOC which requires Plaintiff to file suit within ninety (90) days of receiving the notice, should Plaintiff decide to pursue the cause of action. Plaintiff filed this suit within the ninety (90) days permitted pursuant to Plaintiff's Notice of Right to Sue; therefore, summary judgment is not appropriate.
II. Merits of Plaintiff's Claim
Defendant claims that summary judgment is warranted because Defendant has legitimate business reasons for making the decisions that Plaintiff alleges are discriminatory. Defendant states that all of the male individuals that were promoted ahead of Plaintiff were more qualified than Plaintiff and each held expertise in one aspect of management that Plaintiff did not possess. In response, Plaintiff merely asserts that she believes she was more qualified than the male individuals who were promoted.
A claim of disparate treatment alleges that an individual employee received less favorable treatment due to the employee's race, color, sex, religion, or national origin. The plaintiff in a disparate treatment case must prove discriminatory intent in order to prevail. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Title VII, 42 U.S.C. § 2000e, et seq., prohibits employers from discriminating on the basis of sex. When claiming a violation of Title VII, the plaintiff bears the burden of proving that sex was a determining factor in the employer's decision to take action against the plaintiff.See Walker v. Nations Bank of Florida N.A., 53 F.3d 1548, 1555 (11th Cir. 1995). The Eleventh Circuit recognizes three (3) manners in which a plaintiff can satisfy the burden of proof under Title VII: direct evidence of intentional discrimination; statistical evidence of discrimination; or by satisfying the four-part test established by the Supreme Court of the United States in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).See Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989).
Under McDonnell Douglas and Burdine the plaintiff bears the burden of establishing a prima facie case of sex discrimination. See McDonnell Douglas, 411 U.S. at 802. After the plaintiff establishes a prima facie case of sex discrimination, the burden shifts to the defendant. See Burdine, 450 U.S. at 254. Once the burden shifts to the defendant, the defendant is required to show a "legitimate nondiscriminatory reason" for the alleged discriminatory action. See id. The defendant is only required to produce a nondiscriminatory reason for the alleged discriminatory actions. See id. Defendant is not required to bear the burden of proof.See id. Thus, the burden of production that shifts to the defendant, once a plaintiff has established a prima facie case of discrimination, is "exceedingly light" and easily established. Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983). Once the defendant satisfies the burden of production, the plaintiff is required to prove by a preponderance of evidence that the defendant employer possessed a discriminatory intent. See Burdine, 450 U.S. at 256.
In order to establish a prima facie case of discrimination, the plaintiff must show that: 1) the plaintiff is a member of a protected class under Title VII; 2) an adverse employment action occurred; 3) that plaintiff was treated differently than similarly situated employees who were not members of the protected class; and 4) that sufficient evidence exists to infer a nexus or causal connection between sex and the disparate treatment alleged.See McKeon v. Vaicaitis, 825 F. Supp. 290, 293 (M.D.Fla. 1993) (citingMcDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 279 (1976); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1185 (11th Cir. 1984)).
A constructive discharge case is like a disparate treatment case. When claiming constructive discharge, the plaintiff must allege that the employer intentionally rendered the working conditions so intolerable that the employee was compelled to quit involuntarily. See Buckley v. Hospital Corp. of America. Inc., 758 F.2d 1525, 1530 (11th Cir. 1985). To find constructive discharge, the trier of fact must be satisfied that working conditions were so difficult or unpleasant that a "reasonable person in the employee's shoes would have felt compelled to resign."Garner v. Wal-Mart Stores. Inc., 807 F.2d 1536, 1539 (11th Cir. 1987) (citing Bourgue v. Powell Electrical Mfg., Co., 617 F.2d 61, 65 (5th Cir. 1980)).
When considering a motion for summary judgment, it is not enough, in and of itself, that the plaintiff has established a prima facie case of discrimination. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 594 (11th Cir. 1987). "The ultimate question in a disparate treatment case is not whether the plaintiff established a prima facie case or demonstrated pretext, but `whether the defendant intentionally discriminated against the plaintiff.'" Grigsby, 821 F.2d at 595 (citing Nix, 738 F.2d at 1184). Therefore, the plaintiff is required to do more than show proof of a prima facie case to avoid summary judgment. See id.
In the case at hand, because Plaintiff has not presented direct or statistical evidence of discrimination, Plaintiff must meet the four-part test set forth in McDonnell Douglas. Therefore, Plaintiff must produce evidence that she is a member of a protected class, that an adverse employment action occurred, that she and similarly situated non-protected employees were treated different, and that there is a sufficient nexus between Plaintiff's gender and the alleged disparate treatment. In relation to these requirements, Defendant admits that Plaintiff is a member of a protected class. However, Defendant states that Plaintiff has not submitted sufficient evidence to establish that Plaintiff suffered any adverse employment action, that she and similarly situated non-protected employees were treated differently, or that there is a sufficient nexus between Plaintiff's gender and the alleged disparate treatment.
Defendant states that Plaintiff cannot satisfy the second part of theMcDonnell Douglas four-part test because Plaintiff is unable to set forth any evidence to establish an adverse employment action taken against Plaintiff. However, Plaintiff asserts that on several occasions Plaintiff was not promoted after Plaintiff made her supervisors aware of her desire to be promoted and after at least one of those supervisors promised Plaintiff a promotion. The Eleventh Circuit and the Middle District of Florida have both recognized an employer's failure to promote as an adverse employment action. See, e.g., Ramsey v. Chrysler First. Inc., 861 F.2d 1541, 1543 (11th Cir. 1988); Maddin v. GTE of Florida. Inc., 33 F. Supp.2d 1027, 1030 (M.D.Fla. 1999). As Plaintiff has alleged several instances amounting to a failure to promote, Plaintiff has satisfied this part of the McDonnell Douglas four-part test.
Defendant states that Plaintiff cannot satisfy the third part of theMcDonnell Douglas test because Plaintiff is unable to set forth evidence to establish that other similarly situated male employees were treated in a more favorable manner than Plaintiff. In order to establish the third part of the McDonnell Douglas test, Plaintiff must show that an adverse employment action occurred "while others not in [the] plaintiff's protected class `having comparable or lesser qualifications,'" were not treated adversely. Nix, 738 F.2d at 1185 (quoting Whiting v. Jackson State Univ., 616 F.2d 116, 121 (5th Cir. 1980)). In addition, Plaintiff is required to prove that Plaintiff's conduct was "nearly identical" to that engaged in by employee's outside of Plaintiff's protected class that were not subjected to adverse employment action. Nix, 738 F.2d at 1185. This Court has previously stated that in order to make a proper comparison of the treatment of a plaintiff to the treatment of a non-protected individual, the plaintiff is required to show that the "comparable" non-minority co-workers are similarly situated in all respects. See Williams v. Publix Warehouse, 1995 WL 224423, *4 (M.D.Fla. 1995) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). This Court has also stated that in order to be similarly situated, the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards, and must have also engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment. See id. (citing Mazzella v. RCA Global Communications. Inc., 642 F. Supp. 1531, 1546 (S.D.N Y 1986); Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir. 1988); Cox v. Electronic Data Systems Corp., 751 F. Supp. 680, 690 (E.D.Mich. 1990)).
When determining whether employees are similarly situated under theMcDonnell Douglas test, "it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). When making the determination as to whether employees are similarly situated, it is most important for the court to consider the "nature of the offenses committed and the nature of the punishments imposed." Jones v. Gerwens, 874 F.2d 1534, 1539-40 (11th Cir. 1989) (citing Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir. 1985)); see Holifield, 115 F.3d at 1562. If a plaintiff does not satisfy the burden of showing that non-minority, similarly situated employees were treated more favorably, the plaintiff's case cannot succeed. See id. Where the plaintiff in a gender discrimination claim fails to show that similarly situated male employees were treated favorably, and where no other evidence of discrimination is present, summary judgment is proper. See Holifield, 115 F.3d at 1562 (citing Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 182 (1st Cir. 1989)). Title VII does not remove an employer's right to make non-discriminatory employment decisions. See Nix, 738 F.2d at 1187. Under Title VII, an employer is entitled to make employment decisions and is entitled to interpret employment rules in any manner the employer chooses, so long as that decision or interpretation is not performed in a discriminatory fashion.See id.
In an attempt to satisfy the third part of the McDonnell Douglas test, Plaintiff alleges in her Complaint that Conrad Veltman, a male employee of Defendant, is similarly situated to Plaintiff. Plaintiff further alleges that although Veltman is less qualified than Plaintiff, Veltman was rehired to the co-manager position. In support of this, Plaintiff states that: "On or about January 1, 1998, [Plaintiff] was advised by [her supervisor] that the co-manager's position in the North Lakeland Store had been awarded to Conrad Veltman, a male less qualified than [Plaintiff] for the position. When Patterson confronted [her supervisor] regarding Veltman's appointment, [her supervisor] replied that he had forgotten about the promise [previously made to Plaintiff] to appoint [Plaintiff] to the co-manager's position in the North Lakeland Store." (Dkt. 1). In further support, Plaintiff submits copies of various performance reviews of Plaintiff and her employment with Defendant. Plaintiff does not, however, submit anything more than her word as to Veltman and his employment qualifications. Plaintiff has submitted nothing to show that Veltman is similarly situated or that Veltman is less-qualified for the co-manager position.
In addition to Plaintiff's allegations concerning Veltman, Plaintiff also states within her affidavit that three other males were promoted to management positions. Plaintiff states that Peter Peck, Adam Cohen, and Uli Correa, all males, were promoted. Plaintiff in her affidavit, acknowledges that Peck was a former Target manager and had previously worked with Plaintiff as an assistant manager at one of Defendant's retail stores. Plaintiff also states that Correa was a former Circle K manager who had also worked with Plaintiff at Defendant's Brandon store as an assistant manager. Cohen also was an assistant manager of one of Defendant's stores.
Once again, the Court has considered and completely reviewed Plaintiff's allegations and the Court finds that Plaintiff has not satisfied the third part of the McDonnell Douglas test. Plaintiff states that Peck, Cohen, and Correa were promoted to managerial positions with Defendant, however, Plaintiff does not assert that these male individuals were similarly situated or less qualified than Plaintiff. Plaintiff merely states: "I believe I was more qualified or as qualified for these positions, and that Mr. Jackson [, her supervisor,] was aware that I wanted to be promoted to a co-manager or manager's position. I discussed these promotions with Mr. Jackson, however, I did not believe the reasons he gave me for the promotions, but believed that I was being discriminated against due to my gender." Plaintiff's "beliefs" alone do not establish a violation of Title VII or Chapter 760, Florida Statutes. Plaintiff has been given ample opportunity, through discovery, to establish documentation to support her claims, yet Plaintiff has presented no documentation or support to this Court. Plaintiff has failed to establish that Plaintiff was treated differently than similarly situated employees who were not members of the protected class, and, therefore, has not satisfied the third part of the McDonnell Douglas test.
Even though the Court finds that Plaintiff has failed to establish the third part of the McDonnell Douglas test, the Court recognizes that at management levels it can be difficult to find "similarly situated employees." See Holifield, 115 F.3d at 1563. Therefore, the Court will continue to analyze Plaintiff's allegations. However, even after assuming that Plaintiff provided sufficient evidence of similarly situated non-minority employees that were treated more favorably than Plaintiff, Plaintiff still has not fuffilled the requirements of establishing a prima facie case of discrimination. Plaintiff has not provided the Court with statistical or direct evidence of discrimination. Plaintiff merely relies on her allegations of discrimination for support. Plaintiff's allegations, without more, are not sufficient to create an inference of discrimination.See id. at 1563-64. The Court has reviewed the entire record and has viewed all of the evidence in a light most favorable to Plaintiff, however, the Court can find no evidence sufficient to create an inference of discrimination.
In addition to the above findings of the Court, the Court finds that Defendant has completely satisfied its burden of establishing legitimate, non-discriminatory reasons for its employment actions. Therefore, even if Plaintiff had established a prima facie case, Defendant would be entitled to summary judgment. Once a plaintiff establishes a prima facie case of discrimination, an inference of discrimination is created. See Burdine, 450 U.S. at 248. A defendant must then rebut the inference of discrimination by presenting legitimate, nondiscriminatory reasons for the employment action taken. See id. The defendant's burden is not a harsh burden and, therefore, is easily satisfied. See Holifield, 115 F.3d at 1564.
Defendant has completely satisfied its burden of establishing a legitimate, nondiscriminatory reason for its employment action. Defendant has submitted affidavits in support of summary judgment. Defendant's affidavits state that: 1) Peck was recommended for the co-manager position based on his experience as a store manager for one of Defendant's competitors, Target; 2) Correa was recommended for a co-manager position based on his prior experience as a store manager for a group of stores and because he speaks Spanish; 3) Cohen was recommended because of his merchandising strengths; and 4) Veltman was recommended because he had been a co-manager of other retail stores in the Tampa area. Defendant's affidavits also state that Plaintiff was less qualified than Peck, Correa, and Cohen because Plaintiff had not been a store manager previously, did not speak Spanish, and was not as strong as Cohen in merchandising.
Once again, Plaintiff has failed to establish anything more than the fact that Plaintiff believes she was discriminated against based on her gender. This alone is not sufficient to establish a claim of discrimination. Plaintiff has failed to offer the Court sufficient evidence that the alleged actions taken by Defendant were discriminatory or that the asserted reasons for those actions were pretextual. Plaintiff's opinion is not enough, in itself, to establish pretext of a sufficient nature to avoid summary judgment. See Carter, 870 F.2d at 585; Pugh v. Heinrich., 695 F. Supp. 533, 544 (M.D.Fla. 1988).
As Defendant has presented sufficient, legitimate, non-discriminatory reasons for the employment action taken and Plaintiff has failed to establish that Defendant's non-discriminatory reasons are a mere pretext, summary judgment is warranted. See Holifleld., 15 F.3d at 1565-66.
III. Constructive Discharge
In support of a claim of constructive discharge, the plaintiff must allege that the employer intentionally created a work environment so intolerable that the employee was compelled to quit involuntarily. See Pugh, 695 F. Supp. at 540 (citing Buckley v. Hospital Corp. of America. Inc., 758 F.2d 1525, 1530 (11th Cir. 1985)). To find constructive discharge the trier of fact must be satisfied that working conditions were so difficult or unpleasant that a "reasonable person in the employee's shoes would have felt compelled to resign." Garner v. Wal-Mart Stores. Inc., 807 F.2d 1536, 1539 (11th Cir. 1987) (citing Bourque v. Powell electrical Mfg. Co., 617 F.2d 61, 65 (5th Cir. 1980)).
Once again, Plaintiff has failed to assert anything but opinion, conjecture, and unsupported conclusions to support the allegations of constructive discharge. As Plaintiff has submitted no evidence in support of her constructive discharge claim, the Court finds that Defendant is entitled to summary judgment. The mere allegations asserted by Plaintiff do not establish that Plaintiff's employment was so "intolerable that a reasonable person standing in the [plaintiff's] shoes would have been compelled to resign." Garner, 807 F.2d at 1539. Accordingly, it is
ORDERED that Defendant, Wal-Mart Stores, Inc.'s, Motion for Summary Final Judgment, (Dkt.10), be granted; and the Clerk of the Court be directed to enter judgment consistent herewith.