Opinion
Case No. 99-2625-CV-HUCK
October 16, 2001
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
The parties in this case have consented to this Court resolving this dispositive motion pursuant to 28 U.S.C. § 636(c).
THIS MATTER is before this court on Defendant Miami Dade County's Motion for Summary Judgment, and on Defendants' Motion for Summary Judgment, both filed May 7, 2001 This court has reviewed the motions, the response, the reply, and all pertinent materials in the file.
FACTS
The majority of these facts were contained in the Defendants' Statement of Material Facts in Support of Motion for Summary Judgment, and were not responded to by Plaintiff in her Response. Accordingly, those facts are deemed admitted. S.D. Fla. Local Rule 7.5.
Defendant Dade County ("the County") is apolitical subdivision of the State of Florida. The Public Health Trust ("PHT") of Miami-Dade County is an agency and instrumentality of Dade County, which, through its governing body is responsible for the operation, maintenance and governance of Defendant Jackson Memorial Hospital, ("JMH"), a local hospital with facilities located throughout Dade County.
The County and PHT/JMH are distinct legal governmental entities, with their respective chief executive officers, budgets and employees. JMH is not a department of the County. JMH establishes its own budget, and pays its own employees. JMH personnel supervise employees of JMH, and the County Manager does not have any authority over JMH employees. JMH's Chief Executive Officer, Ira Clarke, is solely responsible for JHM's table of organization and is also ultimately responsible for selecting employees for exempt positions at JMH. Clarke and his staff set hours of employment for JHM employees, and JHM administrators review requests for, among other things, vacation and sick leave, tuition reimbursement, training leave, funeral leave and transfers.
Plaintiff Georgina B. Delandro ("Delandro"), an African American female, is a JMH employee. JMH hired Delandro in 1978 as a Nurse II. In November 1980, she was reclassified as a Nurse Midwife and was assigned to Jackson's North Medical Center ("Jackson North"), which is located apart from JMH's main campus.
In 1982, JFH issued Delandro a written reprimand because she failed to maintain a current and valid Associate Registered Nurse Practitioner ("ARNP") license to practice as a nurse-midwife. In 1986, JMH issued Delandro a 10-day suspension for violating JMH's personnel rules. An independent hearing examiner sustained this 10-day suspension. On March 1, 1991, Delandro submitted a notarized statement to JMR's Director of Nursing at Jackson North acknowledging that she submitted her application and fees to the Florida State Board of Nursing for license renewal.
In 1991, Delandro was promoted to Nurse Midwife Supervisor. Also in 1991, Jane Maas ("Maas"), JMH Senior Vice President of Patient Care Services, promoted Delandro to Manager, Nurse Midwife at Jackson North. The Manger Nurse Midwife supervises nurses and midwives and is responsible for maintaining high standards of therapeutic care and in requesting medical assistance or early consultation when patients require complex care. As the Manager, Nurse Midwife at Jackson North, Delandro had administrative and clerical duties and responsibilities.
Delandro reported to Virginia Harvin ("Harvin"), Director of Patient Care Services, who was the administrator in charge of Jackson North. Harvin reported to Anne Scupholme, Director of Patient Care Services, Women's Hospital ("Scupholme"), who, in turn, reported to Maas. As to administrative issues at Jackson North, Delandro reported to Clyde Fleming ("Fleming"), Administrator at Jackson North, who in turn reported to JMH Vice President Sylviane Kauffman Ward ("Ward").
In August 1994, Scupholme and Maas gave Delandro an overall rating of "meets standard" in her yearly performance evaluation. On July 30, 1996, Harvin forwarded a request for a 5% pay increase for Delandro retroactive to July 30, 1996 to Fleming. Fleming forwarded the request to his supervisor, Ward. Ward denied this request because with this increase Delandro would have been paid more than other similarly situated supervisors throughout JMH.
JMH had an anti-discrimination policy. Pursuant to this policy, employees who felt that they had been subject to discrimination must file a complaint with Affirmative Action. On or about February 9, 1997, Delandro sent Ernest B. Miller, JHM's Affirmative Action Coordinator, a memorandum ("the February 9 memo") describing complaints she had received since 1994 from midwives and nurses under her supervision concerning "rude/abusive behavior from the medical staff."
On April 29, 1997, Ward sent Delandro a memorandum concerning specific directives from Scupholme regarding Delandro's supervision of staff at Jackson North. In this memorandum, Ward advised Delandro that her performance would be monitored on a continuing basis. In response, Delandro sent Ward a memorandum in which she requested "a written apology for misconstrued statements written about me defaming my character, practice and management style." Delandro further stated that she was "appalled that you [Ward] would function at such a level to try and accomplish your goals."
On June 8, 1997, Ward issued a notice to Delandro which placed her on administrative leave with pay. On July 8, 1997, Ward wrote a letter to Delandro, stating that Delandro's "disregard of my [Ward's] authority is evidence of your [Delandro's] refusal to work under my direct or indirect supervision and constitutes blatant insubordination on your part which will not be tolerated." Also on July 8, 1997, Ward terminated Delandro.
On July 10, 1997, Delandro, on advice of her Union representative, voluntarily requested a demotion to Staff Certified Nurse Midwife at Jackson North.
On August 21, 1997, William E. Binkley ("Binkley"), JMH Vice President, Human Resources and Professional Services, rescinded Delandro's termination and instead issued a 10-day suspension, effective July 8, 1997 through July 19, 1997. According to Binkley, a 10-day suspension was appropriate in light of Delandro's May 30, 1997 response to Ward, in that the response to Ward's letter was "insulting, argumentative, and insubordinate. . . ." Binkley accepted Delandro's request for a demotion, effective July 20, 1997, but denied her request to be assigned to Jackson North. Binkley additionally directed that Delandro's administrative leave be paid at her new salary rate of $33,8468 per hour effective July 22, 1997. Binkley did not know that Delandro had sent the February 9 memo to Miller.
On August 22, 1997, Danny L. Curry, Manager Labor Relations, directed Cynthia R. Sinclair, Administrator Human Resources Division, to implement Binkley's orders reinstating Delandro and rescinding her termination. Pursuant to Binkley's instructions, Delandro was assigned by Sandy Sears, Vice President of Ambulatory Care Services to Ambulatory/Primary Care Division effective September 2, 1997.
Since her reinstatement and transfer in September 1997, Delandro has worked as a Nurse Midwife for the Ambulatory Care Center which covers several of NH's satellite facilities. She has not been disciplined or transferred. Sears assigned Delandro to several primary care locations under the aegis of this Division, which included the Women's Detention Center and Turner-Guilford Knight Center ("TGK"). Sears did not know that Delandro had complained of discrimination.
On November 6, 1997, Delandro filed a charge of race discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC"). On September 30, 1999, Delandro filed the instant suit, alleging harassment and disparate treatment based on race, and retaliation, in violation of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000 et seq. and 42 U.S.C. § 1981.
Delandro has never heard Ward or Scupholme utter a racially derogatory statement. She believes she heard Maas make a derogatory statement when she referred to a black midwife as "that woman."
DISCUSSION
I. Standard on Motion for Summary Judgment
A summary judgment is proper only if the record before the court shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The purpose of summary judgment is "to pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56 advisory committee's note).
In order to prevail, the moving party must do one of two things: (1) show that the non-moving party has no evidence to support its case, or (2) present "affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437-38 (11th Cir. 1991) (en banc); Young v. City of Augusta, Ga., 59 F.3d 1160, 1170 (11th Cir. 1995). In making this determination, the court should consider all of the evidence in the light most favorable to the nomnoving party and with all reasonable inferences drawn in favor of such party. Dibrell Bros. International S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994).
If the movant successfully discharges this initial burden, the burden shifts to the non-movant to establish, by going beyond the pleadings, that there is a genuine issue as to facts material to the nonmovant's case. Young, 59 F.3d at 1170. The non-moving party must do more than rely solely on its pleadings, and simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. 475 U.S. at 586-87. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Rich v. Robinson-Humphrey Co., 142 F.3d 1391, 1393 (11th Cir. 1998); Thornton v. E.I. Du Pont De Nemours and Co., Inc., 22 F.3d 284, 288 (11th Cir. 1994). Where a reasonable fact finder may "draw more than one inference from the facts, and that inference creates a general issue of material fact, then the court should refuse to grant summary judgment." Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989).
II. Defendant County is not Delandro's Employer under Title VII
The Eleventh Circuit has held that only those plaintiffs who are "employees" or potential employees may bring a Title VII suit. See Llampallas v. Mini-Circuits, Inc., 163 F.3d 1236, 1242 (11th Cir. 1998). The County, citing applicable case law and the above undisputed facts, argues that it is entitled to summary judgment because it is not Delandro's employer for purposes of Title VII. Plaintiff has failed to respond to this argument, and therefore the Court finds that the County is entitled to summary judgment on this claim.
Delandro's claims brought under 42 U.S.C. § 1981 fail, in that the statute does not provide a cause of action against state actors. Butts v. County of Volusia, 222 F.3d 891 (11th Cir. 2000).
III. Racial Harassment/Hostile Work Environment
In her complaint, Delandro alleged that she "has also been subjected to continued harassment and disparate treatment due to her race. . . ." Delandro testified in her deposition that since 1994, she and other African-American nurses had been subjected to harassment and a hostile work environment at Jackson North as a result of the behavior of several doctors.
Before a claimant can file a Title VII civil action, she must file a timely charge of discrimination with the EEOC. Florida is a "deferral state," which requires an aggrieved employee to file a discrimination charge with the EEOC within 300 days of the alleged discriminatory act. See Mason v. K Mart Corp., 1 F. Supp.2d 1333, 1336 (M.D. Fla. 1998). "The timeliness of a discrimination claim is measured from the date the claimant knows or reasonably should know that she has been discriminated against." Dudley v. Metro-Dade County, 989 F. Supp. 1192, 1198 (S.D. Fla. 1997).
Delandro filed her EEOC Charge on November 6, 1997, stating that the earliest date of discrimination took place on April 1, 1997 and the latest on September 2, 1997. She did not check the box which stated that the discrimination was a "continuing action." Therefore, any claims which occurred more than 300 days prior (or prior to January 10, 1997) are barred. To the extent Delandro claims harassment or hostile environment discrimination based on alleged instances of wrongful treatment subsequent to April, 1997, Delandro is unable to preclude summary judgment, as further discussed below.
Furthermore, Delandro stated in her EEOC charge that she "[has] been subjected to an ongoing harassment campaign after [she] filed an internal race complaint with the Affirmative Action Office." Plaintiff filed her internal complaint on February 9, 1997.
III. Disparate Treatment
Although her complaint is not completely clear, Delandro apparently alleges that she suffered disparate treatment at the hands of Defendants, through her termination/suspension, her demotion, and her transfer to the jail facilities.
Delandro raised several other examples of disparate treatment in her complaint (e.g., biased counseling, biased evaluation, and closely monitoring her work performance) but has pointed the court to no evidence which suggests the existence of a material fact as to those claims.
With respect to termination, that employment action was ultimately rescinded and resulted in a suspension. Even if the termination was actionable, in order to establish a prima facie case of disparate treatment under Title VII based on wrongful termination Delandro must show inter alia that she was replaced by a person outside of the protected class. Coutu v. Martin County Bd. of County Comm'rs, 47 F.3d 1068, 1073 (11th Cir. 1995). Defendants note that the duties which Delandro held were subsequently taken over by a black female, in the position of Head Nurse over Jackson North's Labor and Delivery area.
To the extent that Delandro would argue that the termination by Ward constituted adverse action, the Eleventh Circuit has recently reaffirmed that "the decision to reprimand or transfer an employee, if rescinded before the employee suffers a tangible harm, is not an adverse employment action." Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001). The undisputed facts show that the termination, announced on July 8, was rescinded on August 21, and that Delandro was on paid administrative leave during that period. Delandro has not established any other tangible harm which resulted from the suspension, in that she volunteered for the demotion on July 10, which resulted in the reduced salary which was paid during her administrative leave.
With respect to the other actions, Delandro must show that (1) she belongs to a protected group; (2) she was subjected to an adverse job action; (3) her employer treated similarly situated employees outside her classification more favorably; and (4) she was qualified to do the job. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). The facts are undisputed that Delandro requested her demotion. With respect to her transfer, not only was that action taken subsequent to Delandro's voluntary request for demotion, but Delandro has not provided any evidence as to the terms and conditions of the transfer such that the Court could determine that it should be considered an "adverse action." See Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001) (holding that "to prove adverse employment action in a case under Title VII's anti-discrimination clause, an employee must show a serious and material change in the terms, conditions, or privileges of employment.") Moreover, Plaintiff has not pointed to any "similarly situated" employee with whom she may be compared, as to any alleged adverse employment action.
Finally, even assuming Plaintiff had established a prima facie case, Defendants have come forward with a legitimate reason for the termination and suspension of Delandro — her insubordinate conduct. Once a defendant comes forward with a legitimate reason for an adverse employment action, a plaintiff must show that defendant's true reason was pretextual and that the real reason was discrimination. See Silvera v. Orange County School Bd., 244 F.3d 1253, 1258 (11th Cir. 2001). Delandro has failed to even address, let alone provide legal argument opposing the Defendants' arguments above. Accordingly, the Court finds that Defendants are entitled to summary judgment as to Delandro's claims of disparate treatment.
III. Retaliation
Title VII provides, in pertinent part that "[i]t shall be unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful practice . . . or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). In order to establish a prima facie case of retaliation under Title VII the Plaintiff must show that: (1) she engaged in protected activity; (2) the employer was aware of that activity; (3) she suffered adverse employment action; and (4) a causal link between the protected actions and the adverse employment decision. See Maniccia v. Brown, 171 F.3d 1364, 1369 (11th Cir. 1999).
The Eleventh Circuit has interpreted the causation requirement broadly to require that a plaintiff need only prove that the protected activity and the adverse employment action are "not completely unrelated." Meeks v. Computer Associates Intern., 15 F.3d 1013, 1021 (11th Cir. 1994). A plaintiff must however, at a minimum, establish that the defendant was actually aware of the protected expression at the time that it took the adverse employment action. Raney v. Vinson Guard Service, Inc., 120 F.3d 1192 (11th Cir. 1997).
Once the plaintiff has established a prima facie case, the employer may articulate a legitimate, non-discriminatory reason for the action, and plaintiff must then submit evidence that the reason is a pretext for discrimination. Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998).
A. Termination/Suspension
Scupholme terminated Delandro on July 8, 1997. However, the ultimate decisionmaker as to this disciplinary action was Binkley, who subsequently rescinded the termination and found suspension to be the appropriate action. In Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1330-31 (11th Cir. 1999), the Court stated that "[w]hen the biased recommender and the actual decisionmaker are not the same person or persons, plaintiff may not benefit from the inference of causation that would arise from a common identity. Instead the plaintiff must prove that the discriminatory animus behind the recommendation, and not the underlying employee misconduct identified in the recommendation, was an actual cause of the other party's decision to terminate the employee." Id. at 1331. Delandro has submitted no evidence of discriminatory animus on the part of the ultimate decisionmaker, Binkley. Rather, the evidence shows that Binkley had no knowledge of the February 9 memo. Accordingly, because Delandro cannot show the requisite connection between the alleged protected activity and the termination, her claim fails.
Furthermore, the Court has doubts as to whether the February 9 memo can indeed be considered protected activity. Plaintiffs memo mentions nothing about discrimination, harassment, or race. Rather, it discusses generally, instances of alleged mistreatment of midwives by doctors. One of the memos which is attached to Delandro's memorandum does suggest that this conduct was race related; however, that memo was written by another employee. Accordingly, the Court will assume, for purposes of this motion, without deciding, that the February 9 memo constitutes protected activity.
Furthermore, even if Delandro could establish a prima facie case of retaliation, as previously discussed, Defendants have put forward a legitimate, non-discriminatory reason for the action, and Delandro has not met her burden of demonstrating that the reason was pretextual.
B. Demotion/Transfer
As previously noted, the undisputed evidence is that Delandro herself requested the demotion, and has failed to show that her transfer to the jail was an "adverse action." Furthermore, Delandro has failed to show that the decisionmaker who ordered the transfer, Sears, was aware of any protected activity on her part.
C. Hostile environment/threatening phone calls
In her Response, and in her deposition testimony, Delandro stated that after a meeting, Anne Scupholme approached her and said "I can kill." She further stated that after she submitted the February 9 memo to Miller, she received four threatening phone calls, which began when she was sent home on administrative leave. Delandro failed to raise these specific allegations in her complaint, but even if she had, she is not entitled to relief.
Delandro testified that the alleged face to face threat occurred in 1996. Depo. p. 75. Even assuming that the February 9 memo qualifies as protected activity, the alleged threat occurred prior to it, and therefore cannot be considered to be retaliatory. With respect to the phone calls, Delandro testified that the caller only identified himself/herself as the "Cuban mafia" and that she has no evidence that anyone at JMH made the calls. Depo. p. 85. Therefore, Delandro cannot prove that these calls were retaliatory, and Defendants are entitled to summary judgment on this claim.
D. Licensing
Delandro again raises for the first time in her Response allegations that the Defendants requested that her ARNP license be placed in inactive status and that she suffered consequences as a result, including "a suspension of privileges, a reprimand fine and punitive course work." Delandro has offered no evidence which supports her theory that it was anyone associated with the Defendants, let alone one who was aware of her protected activity, who caused her license to be placed in inactive status. Delandro also argues that her "name was purposely left off the list of nurses sent to the Board of Nursing for re-licensure" but again offers no evidence as to who allegedly took such action.
Delandro additionally claims that once her license was reactivated, "Jane Maas refused, unilaterally to return the plaintiff to certified midwife status until December 18, 2000." These allegations are, again, outside of the scope of the complaint. Furthermore, Delandro testified that she signed a release as to this issue, although she claims it was signed "under duress."
IV. Conclusion
Based on the foregoing, the Court finds that Plaintiff has failed to show that there exists an disputed material fact as to her claims. It is therefore ORDERED AND ADJUDGED that Defendant Miami Dade County's Motion for Summary Judgment and Defendants' Motion for Summary Judgment are hereby GRANTED.