Opinion
CASE NO. 06-20418-CIV-ZLOCH.
January 4, 2008
ORDER
THIS MATTER is before the Court upon Defendant Suntrust Bank's Motion For Reconsideration Of The Order Denying Defendant Suntrust Bank's Motion For Summary Judgment (DE 56) and Defendant Suntrust Bank's Motion For Summary Judgment (DE 22). The Court has carefully reviewed said Motions and the entire court file and is otherwise fully advised in the premises.
I. Motion For Reconsideration
In its prior Order (DE 55), the Court denied Defendant Suntrust Bank's Motion For Summary Judgment (DE 22). In said Order, the Court held that the Affidavit of a Suntrust supervisor Conchita Rodriguez (hereinafter "Rodriguez") was inadmissable hearsay. See DE 55. The Affidavit contained the statements of Plaintiff Ramon Sabatier's then-supervisor Juan Arana (hereinafter "Arana") concerning Plaintiff's behavior at a meeting, which led to his termination. See DE 24-2. The Court held that the Affidavit could not be used to show that Sabatier acted in the manner therein described to establish Suntrust's neutral non-retaliatory reason for terminating Plaintiff. See DE 22.
The Court notes that there are four basic grounds upon which a district court may grant a Rule 59(e) motion: to correct manifest errors of law or fact upon which judgment was based, to present newly discovered evidence, to prevent manifest injustice, or to give effect to an intervening change in controlling law. See Wright, Miller Kane, Federal Practice and Procedure: Civil 2d § 2810.1 (West 1995). In the instant Motion For Reconsideration (DE 56), Suntrust argues that while the Affidavit the Court declined to consider could not be used to show that Plaintiff was insubordinate at his meeting with Arana and that he admitted falsifying Suntrust records, it can properly be considered to establish Rodriguez's state of mind when she recommended terminating Plaintiff for being insubordinate and falsifying Suntrust's records. See Luckie v. Ameritech Corp., 389 F.3d 708, 716 (7th Cir. 2004) (noting the admissibility of statements that are not introduced to establish the truth of the matter asserted, but the declarant's state of mind).
The exclusion of the Rodriguez Affidavit precluded Suntrust from producing credible evidence of its legitimate non-retaliatory reason for terminating Plaintiff. Had the Court considered the Rodriguez Affidavit, its analysis of Suntrust's Motion For Summary Judgment (DE 22) would have changed. Therefore, because the Rodriguez Affidavit was admissible evidence under Federal Rule of Civil Procedure 56, the Court shall grant the instant Motion (DE 56), and consider the Rodriguez Affidavit in its analysis of Suntrust's Motion For Summary Judgment (DE 22).
II. Background
Plaintiff Ramon Sabatier initiated the above-styled cause with the filing of his Complaint (DE 1) in which he alleged several state and federal claims, which stem from his employment with and subsequent termination from Defendant Suntrust Bank. During the course of discovery, Plaintiff filed an Amended Complaint (DE 17) in which he alleged two counts: Count I for retaliation under the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3), and Count II for retaliation under the Florida Whistle-Blower Act, Fla. St. § 448.101. Count II of Plaintiff's Amended Complaint contained two discrete claims, one for retaliation for protesting his lawful entitlement to overtime wages and the other for objecting to certain gender discrimination he allegedly encountered at the workplace. In the course of responding to the instant Motion (DE 22), Plaintiff withdrew his retaliation claim for objecting to gender discrimination under the Whistle-Blower Act. See DE 36.
Plaintiff began his employment with Suntrust in 1985. From that time until June of 2002 he worked primarily in Suntrust's lock-box operations and later in its trusts division where he rose to the position of vice-president. On June 17, 2002, Plaintiff was transferred to Suntrust's retail operations at its Ponce De Leon branch in Miami, where he worked as a Financial Services Representative (hereinafter "FSR"). As an FSR, Plaintiff's duties included opening and servicing customer accounts and selling different Suntrust products to its customers.
These facts are contained in Suntrust's Statement Of Undisputed Facts (DE 23) unless otherwise noted. Pursuant to Local Rule of the United States District Court for the Southern District of Florida 7.5(D), those statements contained in Suntrust's Statement Of Undisputed Fact, that are not controverted by Plaintiff are deemed admitted, so long as there is support in the record. The Court notes that Plaintiff has failed to comply with the Local Rules, and instead of a concise statement concerning the facts he objects to, he has offered a long narrative of the factual history of this action. See DE 36, Ex. 1.
At the time of his transfer, Plaintiff's supervisor was Ms. Norma Basurto. Early in Plaintiff's tenure as an FSR, he received a warning about certain deficiencies in his performance from Basurto. Among the reasons given for this warning were the following: arriving late to work, behaving in an insubordinate manner to Basurto, and opening a Suntrust account for a family member. DE 48 (hereinafter "Sabatier Dep.") pp. 79, 88; DE 23, Ex. Nos. 14 16. Plaintiff was also given several other negative performance evaluations and warnings under Ms. Basurto. Sabatier Dep. pp. 93-95. He ultimately received a performance evaluation of "Inconsistent Performance," Suntrust's lowest employee rating. Id. p. 93. Later in the year, Basurto recognized that Sabatier improved in certain areas of his job but failed to show improvement in others. Id. at 102. Plaintiff continued to receive warnings from Basurto for his mistakes and his failure to follow Suntrust operating procedures. In February 2004, Plaintiff received an improved overall performance evaluation of "Solid Performance," but he still had problems in several areas. See DE 23, Ex. 22. In the later part of 2003 and through 2004, Suntrust began a new business model, whereby Suntrust FSR's were required to take on additional customer-oriented duties.
Unless otherwise noted, all Exhibits herein referenced are found at DE 23.
In June of 2004, Plaintiff began lodging complaints with Suntrust for its failure to compensate him for overtime wages he believed he was owed under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (2006). In mid-July of the same year, a dispute arose between Basurto and Plaintiff over whether he actually worked five hours of overtime that he reported. The next week Basurto ordered him to "flex" his work schedule so that he would not accrue any overtime wages for that pay period. After Plaintiff spoke with several different supervisors and wrote several letters asserting his right to overtime wages, it was ultimately determined that Plaintiff and the other employees under Basurto were entitled to receive unpaid overtime wages. On September 10, 2004, Plaintiff received $8002.17 as full compensation for his unpaid overtime wages and signed a release with Suntrust for any claims he had pertaining to the same. Soon thereafter, in October of 2004 Basurto was transferred to a different Suntrust branch, and Juan Arana became Plaintiff's supervisor.
On November 15, 2004, a staff meeting at Suntrust's Ponce De Leon branch was scheduled for 8:15 a.m. Plaintiff and two other Suntrust employees, Ms. Carabeo and Ms. Mesa, entered work late and at the same time: 8:20 a.m. Both Plaintiff and Mesa submitted time cards for that morning that reflected that they began work at 8:15 a.m. Carabeo submitted a time card that reflected a start time of 8:30 a.m. One month later on December 15, 2004, Plaintiff and Mesa were given formal written warnings for falsifying company records by claiming a start time earlier than the actual time they entered work. Carabeo was not given a written warning for falsifying company records, because her timecard reflected a later start time than she actually arrived at work.
On December 16, 2004, Plaintiff wrote a letter appealing the decision to give him a written warning for falsifying his time card on November 15, 2004. However, after discussing the matter with Arana and being assured that the written warning would go nowhere and that an appeal "would only open a can of worms," Plaintiff decided not to file his appeal. Sabatier Dep. p. 177. The established policy of Suntrust is that if an employee is on written warning, any commissions earned during that period are withheld. Over a month after receiving the written warning for the timecard incident Plaintiff learned that based on the written warning he received on December 15, 2004, both his and Mesa's commissions on certain sales during the month of December were being withheld. On February 3, 2005, Plaintiff filed an appeal with the Suntrust Human Resources Department for withholding his commissions. In Plaintiff's appeal, he alleged that his commissions were withheld by Ms. Conchita Rodriguez, a Suntrust manager, because of his earlier protest over the wrongful denial of overtime wages. In his appeal, Plaintiff also objected to the fact that Carabeo did not receive a written warning.
The day after Plaintiff filed his appeal, Suntrust District Manager Armando Trabanco and Human Resources Generalist Jessica Forero initiated an investigation into the allegations made in Plaintiff's appeal. In the course of the investigation, Trabanco and Forero determined that there was no evidence of retaliation on the part of Rodriguez. They also determined that mitigating circumstances contributed to Plaintiff being late on November 15, 2004, and his December 15, 2004, written warning was subsequently withdrawn. After the warning was withdrawn, Plaintiff became eligible to receive his December commissions.
On March 5, 2005, Plaintiff met with Arana, Trabanco, and a Human Resources Manager Janet Brotman to discuss the payment of his December 2004 commissions. Upon scrutinizing the accounts on which Plaintiff claimed he was owed commissions, Arana determined that Suntrust did not owe Plaintiff commissions on three accounts he opened during the month of December. Plaintiff opened one of the challenged accounts for his son in December of 2004, in violation of Suntrust's established policies and procedures. Plaintiff did not contest that the other commissions were properly withheld. On March 8, 2005, Arana gave Plaintiff a final written warning for opening an account for his son; he appealed the warning that day. In his appeal, Plaintiff admitted to opening the account, but claimed that it was the accepted practice under Basurto for FSR's to open accounts for family members, on the condition that the account was transferred to another FSR by the next business day. Sabatier Dep. pp. 243-44; contra Basurto Aff. ¶ 8. However, Plaintiff never transferred the account to another FSR.
Earlier in Sabatier's Deposition, he states that there was an exception to opening an account for a family member so long as it was transferred the next day. Sabatier Dep. p. 87. On the second day of his deposition Sabatier stated that it was not a formal policy and that it only mattered that the account was transferred in a reasonable time. Id. p. 241-42.
On March 15, 2005, Arana gave Plaintiff his 2004 performance evaluation. Plaintiff was given an "Inconsistent Performance" rating, which is Suntrust's lowest possible rating for an employee. Suntrust posits that Arana based Plaintiff's evaluation on several objective criteria, including his failure to satisfy his non-negotiable daily goals for FiNAPs and right-party contacts, his failure to maintain a daily plan, and his inability to follow the schedule for client-retention time. See Sabatier Dep. p. 266; Ex. Nos. 32-37. Additionally, Plaintiff's rating reflected the number of accounts for which he failed to follow Suntrust's opening procedures. His "Inconsistent Performance" rating was also based on subjective criteria such as client retention and delivery of superior service quality. Sabatier Dep. p. 266; Rodriguez Aff. ¶ 14.
It is Suntrust's policy that an employee who receives an "Inconsistent Performance" rating must follow an improvement plan or he will be terminated. Plaintiff was previously put on an improvement plan under Basurto, after receiving this rating. As part of Plaintiff's improvement plan, he was required to meet weekly with Arana and present fifteen completed FiNAP's for the current week, detail twenty-five right-party contacts made during the week, create five daily plans for the upcoming week, attend the licensed banker meetings, make five licensed banker presentations for the week, and he was to follow all account opening procedures. Sabatier Dep. pp. 304-06.
The following week, Plaintiff submitted an improvement-plan sheet that reflected he met his goals. However, Suntrust alleges that at Plaintiff's weekly meeting with Arana on March 31, 2005, he told Arana that he had not actually met his goals and lied on his improvement-plan sheet. See id. p. 338; Ex. 42; Rodriguez Aff. ¶ 18. Suntrust further alleges that when Arana asked Plaintiff whether he planned to attend the banking seminar, Plaintiff was insubordinate and told Arana that he refused to attend because he did not have transportation to the same. Rodriguez Aff. ¶¶ 17-19. He also did not complete his FiNAP goal and left it blank. Plaintiff denies that he was insubordinate to Arana. He also alleges that it was common practice for FSRs to falsify their reports and put down that they met the states goals for FiNAPS and licensed banker presentations when they had not. See Sabatier Dep. 333-39; 341-44.
On April 4, 2005, Arana recommended to Rodriguez that Plaintiff be terminated for his insubordinate refusal to attend the licenced banker meetings, the filing of incomplete FiNAPS, and his falsification of company records by reporting that he had conducted licenced banker presentations when they were not in fact conducted. Ex. 42. Rodriguez concurred with Arana's recommendation, and in her recommendation to Trabanco, she added that despite Plaintiff being warned to follow all account-opening procedures in order to avoid further output-review exceptions, Plaintiff had eight pending output-review exceptions. Ex. 43. Trabanco agreed with Arana's recommendation and Rodriguez's concurring recommendation. Thereafter, Plaintiff was terminated on April 7, 2005, for insubordination and falsification of company records. In response to his termination, Plaintiff filed an appeal with Suntrust stating that, although he did not complete the licensed banker presentations, he was told by Rodriguez to put it down as if he had. Id. pp. 337-39. Rodriguez denies ever making such a statement. Rodriguez Aff. ¶¶ 17-19.
III. Standard Of Review
Under Fed.R.Civ.P. 56(c), summary judgment is proper
if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.
To summarize, the moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment. Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
The moving party is entitled to "judgment as a matter of law" when the non-moving party fails to make a sufficient showing of an essential element of the case to which the non-moving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987). The evidence of the non-movant is to be believed, however, and all justifiable inferences are to be drawn in his favor. Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970).
Nevertheless, where the moving party properly supports the motion for summary judgment, "the nonmoving party may not rest upon the mere allegations or denials of its pleadings, but must, through affidavits or as otherwise provided in Federal Rule of Civil Procedure 56, designate specific facts showing that there is a genuine issue for trial." L.S.T., Inc. v. Crow, 49 F.3d 679, 684 (11th Cir. 1995) (internal quotations and citations omitted).
IV. Analysis
The remaining claims contained in Plaintiff's Amended Complaint arise under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (2006), and the Florida Whistle-Blower Act, Fla. St. §§ 440.01, et seq. (2006). When courts analyze retaliation claims under both statutes they use the burden shifting analysis employed in cases that concern Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (hereinafter "Title VII").See Brock v. Richardson, 812 F.2d 121, 123 n. 1 (3d. Cir. 1987);Vandesande v. Miami-Dade County, 431 F. Supp. 2d 1245, 1252-53 (S.D. Fla. 2006) (concerning retaliation claims under the Fair Labor Standards Act); Smierminiski v. Transouth Financial Corp., 216 F.3d 945, 950-51 (11th Cir. 2000) (concerning Florida Whistle-Blower Act). Therefore, the Court will apply the same McDonnell-Douglass burden-shifting analysis to both claims. McDonnell Douglass Corp v. Green, 411 U.S. 792, 802-03 (1973).
A. Plaintiff's Prima Facie Case
Under the McDonnell-Douglass framework, Plaintiff must first make a prima facie showing that (1) he engaged in activity protected by statute; (2) he subsequently suffered an adverse employment action; and (3) that a causal connection existed between the protected activity and the adverse action. Wolf v. Coca-Cola, 200 F.3d 1337, 1342 (11th Cir. 2000). Suntrust does not contest that Plaintiff's complaints concerning the payment of overtime wages qualify as protected activity under the Fair Labor Standards Act. However, Suntrust does argue that most of the retaliatory actions that Plaintiff alleges he suffered are not, as a matter of law, adverse employment actions. Additionally, it argues that Plaintiff cannot establish a causal connection between his protected activity and any adverse employment action he suffered.
In his Response (DE 36) to the instant Motion (DE 22), Plaintiff alleges the following eight different acts constitute adverse employment actions: his termination from employment; being given a formal written warning in December 2004 and March 2005; his negative performance evaluation in March 2005; the deprivation of five hours of overtime pay; failing to provide Plaintiff with a sales award; denying his request to transfer to another branch; and temporarily moving his desk. See DE 36.
The relevant portion of the Fair Labor Standards Act states that an employer may not "discharge or in any other way discriminate against any employee because such employee has filed any complaint." 29 U.S.C. § 215(a)(3) (2006). Courts have ascribed to the phrase "any other way discriminate" the meaning used in Title VII cases for harassment: a materially adverse employment action. In said cases, a materially adverse employment action involves an ultimate employment decision. See, e.g.,Porter v. Roosa, 259 F. Supp. 2d 638, 659 (S.D. Ohio 2003) (noting "an adverse employment action must be based on an ultimate employment decision") (quotations omitted); Conner v. Celanese, Ltd., 428 F. Supp. 2d 628, 639 (S.D. Tex. 2006) (noting "ultimate employment decision forms the basis for retaliation claim") (quotation omitted). These cases have taken their analysis of what constitutes an adverse employment action from Title VII cases. Id. In the realm of Title VII, the Eleventh Circuit has applied the language used by the Supreme Court inBurlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998), and held that a plaintiff must show that he suffered a tangible employment action, which is a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Brown v. Snow, 440 F.3d 1259, 1265 (11th Cir. 2006) (quoting Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 512 (11th Cir. 2000), quoting Ellerth, 524 U.S. at 761). The language used in Brown applied equally to claims for employment discrimination under the Civil Rights Act and claims for retaliation.
However, in Burlington N. Santa Fe. Ry. Co. v. White, ___ U.S. ___, 126 S. Ct. 2405, 2409 (2006) the Supreme Court distinguished its holding in Ellerth from cases that involve retaliation claims. Id. at 2413. The Supreme Court held that
we conclude that Title VII's substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. We therefore reject the standards applied in the Courts of Appeals that have treated the anti-retaliation provision as forbidding the same conduct prohibited by the anti-discrimination provision and that have limited actionable retaliation to so-called "ultimate employment decisions."Id. at 2415.
In White, the Supreme Court went on to approve the formulation used by the Seventh and D.C. Circuits to determine whether 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." Id. at 2411 quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) quoting Washington v. Ill. Dept. of Rev., 420 F.3d 658, 662-63 (7th Cir. 2005). InWhite, the Supreme Court went on to note that anti-retaliation laws do not protect individuals from all retaliation, only from "retaliation that produces an injury or harm." White, 126 S. Ct. at 2414. To recover for an allegedly adverse action, a "plaintiff must show that a reasonable employee would have found the challenged action materially adverse." Id. at 2414. This allows courts to "separate significant from trivial harms," id., because, "not everything that makes an employee unhappy is actionable adverse action."Manning v. Metro Life Ins. Co., 127 F. 3d 686, 692 (8th Cir. 1997); see also Randlett v. Shala, 118 F.3d 857, 862 (1st Cir. 1997) (noting that there exists "a de minimis threshold" for retaliation claims). Therefore, because courts have previously applied the standard for retaliation claims under Title VII to those concerning retaliation under the Fair Labor Standards Act, the Court will apply the standard articulated in White to determine whether the adverse employment actions suffered by Plaintiff are actionable or are simply among the countless inconveniences for which the law offers no redress. See Shannon v. Bellsouth Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002) ("Not everything that makes an employee unhappy is an actionable adverse employment action.").
In the instant action, there are three categories of action that Plaintiff suffered while employed by Suntrust: the trivial, the otherwise non-recoverable, and those that constitute an adverse employment action for which Plaintiff may find redress under the FLSA. Among the actions that are otherwise trivial annoyances that a reasonable employee would not have found materially adverse are the temporary movement of Plaintiff's desk and the denial of the Admiral Club award. The Plaintiff's desk was moved for a single day. Further, there is nothing in the record, apart from Plaintiff's bald assertion, that his efforts merited an Admiral Club award, or that the award had any value apart from a motivational tool. Both actions are at best petty inconveniences for which the law offers no redress. Shannon, 292 F.3d at 716.
The second category of retaliatory action that Plaintiff alleges he suffered includes the following: the denial of his request to transfer, his denial of five-hours of overtime pay, his negative performance evaluation and his March 2005 formal warning for opening an account for his son. To establish an adverse employment action a "plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which . . . means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." White, supra at 2414. This statement derives its meaning from the facts in White and those contained in the cases it cited approvingly: Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006); Washington v. Ill. Dept. of Rev., 420 F.3d 658, 662-63 (7th Cir. 2005). In those cases, the claimants' adverse actions went beyond a mere negative performance evaluation and touched upon something personal to the employee. See Rochon, 438 F.3d at 1219 (threats to Plaintiff's family); Washington, 420 F.3d at 662-63 (being forced to expend sick time to care for an ill child because the defendant's actions precluded her from enjoying her previously flexible schedule); White, supra at 2416 (forcing the plaintiff to engage in more strenuous and less prestigious work).
Turning to the facts alleged in Plaintiff's Amended Complaint, the Court notes that, as a matter of law, a plaintiff's inability to secure a transfer is not an actionable adverse employment action. See Freeman v. Potter, 200 Fed. Appx. 439, 443 n. 1 (6th Cir. 2006); Forehand v. Fulton County, Ga., 510 F. Supp. 2d 1238, 1249 (N.D. Ga. 2007) (noting denial of a lateral transfer cannot support a prima facie case for discrimination). Further, Plaintiff's claim that he was denied five hours of work by Basurto is unsupported in the record, and as a matter of law is not an adverse employment action. Sabatier Dep. pp. 152-53. Plaintiff has not produced any evidence in support of this allegation and in his Deposition states that "I've never seen my salary short." Sabatier Dep. p. 153. Therefore, it is impossible to insist that he was denied five hours of work. However, construing Plaintiff's argument liberally, he may have meant that he was deprived five hours of overtime wages. This would comport with the fact that he received a paycheck for all the hours, but was deprived the ability to work five hours at an overtime rate. Addressing the alternative, the Court notes that Suntrust is free to regulate its employees for the purpose of avoiding the added expense of overtime compensation. See Adams v. City of McMinnville, 890 F.2d 836, 440 (6th Cir. 1989) ("The FLSA guarantees that premium compensation will be paid to employees who work overtime. But it does not guarantee employees that they will be able to work overtime hours in order to receive premium pay."). Such a decision does not constitute an adverse employment action.
Additionally, Plaintiff did not receive an adverse consequence beyond a formal notice of his Supervisor's displeasure for his March 8, 2005 Final Written warning. In the case of his March 15, 2005 performance evaluation, he was simply required to abide by his standard employment goals with weekly supervision by Arana. There is nothing in Plaintiff's allegations to suggest the warning and employment evaluation caused him any personal hardship or were sufficient to dissuade a reasonable employee from making a charge under the FLSA.
The same cannot be said for his December 15, 2004 written warning. The direct result of the warning was Plaintiff's inability to collect otherwise earned commissions for the month of December. Although these commissions were ultimately paid, Plaintiff's inability to collect and use such wages for an additional two months and the realistic fear that he may never receive the same, was a consequence that would dissuade a reasonable worker from pursuing a claim. Further, there is no question that Plaintiff's ultimate termination from Suntrust constituted an adverse employment action. Therefore, the Court finds that Plaintiff's December 15, 2004 written warning and his termination are adverse employment action so as to satisfy the second element of his prima facie case.
Once Plaintiff has established that he engaged in protected activity and suffered an adverse employment action, he must establish a causal connection between the two. A causal connection may be established through either direct evidence, or can be circumstantially inferred from the time between the protected activity and the adverse employment action. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271-72 (2001). Courts have determined that, as a matter of law, varying time frames between the protected activity and the adverse action are too remote for the Court to infer causation. Id. at 273-74 (concluding that twenty months was not a temporal connection);see also Wascura v. City of S. Miami, 257 F.3d 1238, 1248 (11th Cir. 2001) (rejecting FMLA retaliation claim because three-and-a-half months was too long to find a retaliatory connection). The facts of each case will determine how the court frames the time-span between the operative events.
In its Motion (DE 22), Suntrust argues that Plaintiff's termination is the only adverse employment action; therefore, the operative time frame for causation began with Plaintiff's June 2004 letter and ended with his termination in April 2005. Thus, a ten-month gap would exist between the two activities, and, as a matter of law, Plaintiff could not establish causation. See Wascura, 257 F.3d at 1248. Suntrust's time-frame ignores the fact that Plaintiff engaged in protected activity for a period that began in June 2004 and continued through September 2004, when his right to overtime compensation was finally vindicated. Sabatier Dep. pp. 88-89, 155, 159, 163-64. Although he initiated his protected activity with the formal letter, Plaintiff's Deposition makes clear that he continued to engage in protected activity for several months after the July letter. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390 (unofficial assertion of right to overtime wages is sufficient to sustain retaliation claim). Plaintiff's first adverse employment action took place in December 2004, and his termination was a mere four months from this first adverse employment action, with intervening inconveniences and annoyances between the two dates. Therefore, taking the facts in the light most favorable to Plaintiff, he has met the low burden of establishing a prima facie case of discrimination under the McDonnell-Douglas analysis as to his December 15, 2004 written warning and his termination.
B. Suntrust's Non-Retaliatory Reason For Its Action
Once Plaintiff has made a prima facie showing of retaliation, the burden shifts to Suntrust to offer a neutral non-retaliatory reason for Plaintiff's December 15, 2004 written warning and his termination. See McDonnell Douglas, 411 U.S. at 802; Gupta, 212 F.3d at 590. This burden is one of production, and not persuasion, St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Burdine, 450 U.S. at 256-58, because under this McDonnell Douglas burden-shifting analysis, "[t]he plaintiff [always] retains the burden of persuasion." Burdine, 450 U.S. at 256.
In Suntrust's Motion, it states several neutral non-retaliatory reasons for each decision to reprimand and finally terminate Plaintiff, all of which it supports with evidence in the record. Suntrust offers the fact that Plaintiff violated its established policies and procedures by falsifying his timecard, which resulted in his December 15, 2004 written reprimand and the withholding of his commissions. See Sabatier Aff. pp. 173-74, 176-80, 186-88; Ex. 26; Rodriguez Aff. ¶¶ 10-11; e.g., DE 23 ¶¶ 16-18. Plaintiff's final written warning was the product of his violation of Suntrust policy by opening an account for his son. See Sabatier Dep. pp. 239-242, 252-53; Trabanco Aff. ¶ 11;e.g., DE 23 ¶¶ 23-24. Plaintiff's failure to satisfy his objective and subjective performance standards as an FSR resulted in his "Inconsistent Performance" evaluation in March of 2005. Sabatier Dep. p. 266; Rodriguez Aff. ¶ 14; e.g., DE 23 ¶ 25. Finally, Rodriguez and Trabanco believed that Plaintiff was insubordinate at his meeting with Juan Arana, and that he falsified certain information in Suntrust's computer system, all of which Rodriguez relied upon in recommending to Trabanco that Suntrust terminate Plaintiff. Sabatier Dep. pp. 304-06; Rodriguez Aff. ¶ 17. Additionally, Rodriguez added that Plaintiff failed to follow Suntrust account opening procedures on eight accounts, despite being instructed in his Improvement Plan to do so. Rodriguez Aff. ¶¶ 17-19. The final decision to terminate Plaintiff was then made by Trabanco on the basis of Rodriguez and Arana's recommendations. Sabatier Dep. p. 374; Rodriguez Aff. ¶ 19; Trabanco Aff. ¶ 12.
Based upon the evidence contained in the record herein, the Court finds that Suntrust's articulated reasons for giving Plaintiff a written warning on December 15, 2004, and his subsequent termination, including the falsification of his time card, his insubordination at the meeting with Arana, his falsification of company records in reference to the meeting with Arana, and his failure to comply with Suntrust's account opening procedures are neutral non-retaliatory reasons for terminating Plaintiff.
C. Plaintiff's Burden To Establish Pretext
The burden now shifts to Plaintiff to demonstrate through sufficient evidence that Suntrust's neutral non-retaliatory reasons for his adverse employment actions are pretextual and undeserving of credibility. McDonnell Douglas, 411 U.S. at 804. Plaintiff "may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256;see also Hicks, 509 U.S. at 509. "If the employer proffers more than one legitimate, nondiscriminatory reason, the plaintiff must rebut each of the reasons to survive a motion for summary judgment." Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007) (citing Chapman v. AI Transp., 229 F.3d 1012, 1037 (11th Cir. 2000)). Thus, Plaintiff must show that Suntrust's articulated legitimate, non-retaliatory reasons, are pretext for its true illicit animus toward Plaintiff, which directed Suntrust's decision to give him his December 15, 2004 written warning and his ultimate termination.
To establish pretext, Plaintiff must "come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable fact finder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision."Chapman, 229 F.3d at 1024 (citation omitted). The evidence offered must be "significantly probative" as to the issue of pretext. Mayfield v. Patterson Plumbing, Co., 101 F.3d 1371, 1376 (11th Cir. 1996).
A plaintiff's subjective belief that he has been the victim of retaliation is insufficient to establish pretext. See Earley v. Champion Int'l Corp., 907 F.2d 1077, 1083 (11th Cir. 1990) (noting if an employee alleges discrimination in a conclusory way, but offers nothing more than a bare allegation, summary judgment is appropriate). Additionally, mere speculation and conjecture cannot serve as a basis for establishing pretext. See Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989) (noting that a plaintiff's subjective opinion that defendant's action was discriminatory, "without supportive evidence, is not sufficient to establish pretext"). An employee cannot succeed by simply quarreling with the wisdom of his employer's decision.Chapman, 229 F.3d at 1030. In Chapman, the Eleventh Circuit stated:
Federal Courts do not sit as a super-personnel department that reexamines an entity's business decisions. No matter how medieval a firm's practice, no matter how high-handed its decisional process, no matter how mistaken a firm's managers, the . . . [law] does not interfere. Rather, our inquiry is limited to whether the employer gave an honest explanation of its behavior.Id. at 1030 (citation omitted). Thus, "[a]n employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a retaliatory reason." Id.; see Alexander v. Fulton County, Ga., 207 F.3d 1303, 1341 (11th Cir. 2000) (noting in a Title VII case that "it is not the court's role to second-guess the wisdom of an employer's decisions as long as the decisions are not racially motivated").
In the instant action, Plaintiff attempts to establish that Suntrust's articulated reasons for his termination and December 15, 2004 written warning are pretextual on two bases. The first is that they are not worthy of credence by pointing to "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the defendant's proffered explanation." Brooks v. County Comm'n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (quotation omitted). His second argument is part of the first, but distinct in the analysis applied: Plaintiff argues that other similarly-situated employees were treated in more a favorable manner than he was. Thereby, Plaintiff attempts to establish that Suntrust's non-retaliatory reasons are pretext.
The crux of Plaintiff's argument that Suntrust's reason is not worthy of credence is that at one time he was an excellent employee, a vice-president of the company, and that after he objected to the non-payment of overtime wages he began to receive negative reports at work. See DE 36 pp. 12-14. He argues that this culminated in his performance review that was based on subjective criteria and judged by Arana, who acted as Rodriguez's "cat's paw" in forcing him out at their March 31, 2005 meeting.Id. pp. 11, 13. This argument is a complicated formula of vapid conjecture and speculation that does not carry with it any evidence that impugns Suntrust's articulated reason for terminating him. Nonetheless, for the benefit of any reviewing court and the Parties, the Court will address each argument of weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions offered by Plaintiff.
It is undisputed that Plaintiff rose to the level of vice-president while employed by Suntrust. He also received many accolades and awards both before he left the "lock box" operation and after he became an FSR. DE 36, Ex. 2 pp. 1-3. However, it is inaccurate to represent Plaintiff as a model employee whose evaluations turned sour only when he began protesting his lack of overtime pay. Plaintiff received counseling for his job performance in late 2002. Sabatier Dep. pp. 79, 88; Exs Nos. 14 16; Basurto Aff. ¶ 17. In 2003, he was disciplined for behaviors affecting his job performance and received the company's lowest rating for an employee: "Inconsistent Performance." In May 2003, and he received a corrective action plan because of his low performance evaluation. Sabatier Dep. pp. 93-95; Exs Nos. 15-16; Basurto Aff. ¶¶ 9-10. Plaintiff did improve in certain areas, but he also received an inconsistent rating in many areas of his evaluations in October of 2003 and May of 2004. Sabatier Dep. pp. 142, 145-46; Ex. Nos. 22 23; Basurto Aff. ¶ 13-14. On January 20, 2004, he also received a verbal warning for his failure to abide by Suntrust's procedures relating to certain customer identification programs. Sabatier Dep. pp. 142, 145-46; Basurto Aff. ¶ 14. Thus, it is inaccurate for Plaintiff to argue that he was a model employee who never received a negative report until he asserted his rights under the Fair Labor Standards Act for overtime wages.
It is perfectly reasonable for an employee to perform competently or to excel in one area of his duties while failing to meet an employer's expectations in others. In this action, Plaintiff consistently failed to meet certain benchmarks, which were both objective and subjective in nature. See Chapman, 229 F.3d at 1033 (noting the validity of an employer using subjective criteria to judge an employee's performance). Thus, the fact that Plaintiff filed his complaint for unpaid wages and subsequently continued to receive negative job performance ratings does not demonstrate an implausibility in Suntrust's reasons for his formal discipline and ultimate termination. Wilson, 376 F.3d at 1088.
Plaintiff's other assertions of inconsistencies and incoherencies in Suntrust's articulated reasons stem from policies that he insists condoned the behavior for which he was censured. See DE 36, pp. 15-17. Among the assertions Plaintiff makes in his Deposition and Affidavit are that it was acceptable for an FSR to open accounts for family members, with the qualification that it be transferred to another FSR the next day. Sabatier Dep. pp. 87, 241-42, 249, 252-53. Plaintiff's assertions are the only evidence submitted in support of this theory, and they are contradicted by the Affidavits of several Suntrust employees. See Rodriguez Aff. ¶ 13; Basurto Aff. ¶ 8. Even if the Court found that Plaintiff's exception existed, Plaintiff failed to comply by transferring the account to another FSR, either the following day or before it was discovered, two full months after he opened the account for his son.
In the same vein of arguing that Suntrust's proffered reasons are full of inconsistencies and incoherencies, Plaintiff asserts that it was common and accepted practice for FSR's to falsely report that they performed licensed banker presentations. This argument is also based upon his assertion that Suntrust's policy was other than what is reflected in the Affidavits of its other employees and its official handbook. Sabatier Dep. pp. 166, 199. Plaintiff asserts that Rodriguez told him to falsify his data entry for his weekly progress reports. Id. pp. 337-38. Plaintiff fails to offer any evidence to establish this point, other than his own assertions. In response to Plaintiff's argument Suntrust offers that it established procedures and the Affidavit of Rodriguez who states that she never made such a statement. Rodriguez Aff. ¶ 18; see also DE 23, Ex. 42 (memo of Plaintiff's meeting with Arana). Additionally, the Court notes that the specific entries that Plaintiff falsified were those he was required by Arana to meet in his Improvement Plan. DE 23, Ex. 34. Plaintiff has not offered any evidence or argument that he was told by Arana to falsify the same, or that this alleged exception to Suntrust's policy was shared with Arana when he made his improvement plan or his recommendation to terminate Plaintiff for falsifying the same.
Further, Plaintiff has not put forth any evidence of any incoherencies or inconsistencies in Suntrust's policies that led to his adverse employment action, other than in his own Deposition. The burden upon Plaintiff is one of persuasion.Hicks, 509 U.S. at 506-07; Burdine, 450 U.S. at 256. He must produce probative evidence that establishes for a reasonable fact-finder that the reason for his termination was retaliation for his protected activity. Chapman, 229 F.3d at 1024. The evidence offered must be "significantly probative" as to the issue of pretext. Mayfield v. Patterson Plumbing, Co., 101 F.3d 1371, 1376 (11th Cir. 1996). Plaintiff has not produced any evidence that suggests Suntrust's reasons are pretextual. Plaintiff's subjective belief and vapid conjecture that he has been the victim of retaliation are insufficient to establish pretext. See Carter, 870 F.2d at 585; see also Earley, 907 F.2d at 1083 (noting if an employee alleges discrimination in a conclusory way, but offers nothing more than a bare allegation, summary judgment is appropriate). Therefore, as a matter of law, Plaintiff has failed to suggest that Suntrust's reasons are pretext on the basis of inconsistencies and incoherencies within the same. Further, Plaintiff has failed to put forth any evidence that Arana was acting as Rodriguez's so-called "cat's paw," in a conspiratorial effort to terminate him.
Plaintiff's other argument in an attempt to establish that Suntrust's neutral non-retaliatory reasons are pretextual is his use of other similarly situated Suntrust employees who engaged in identical conduct as Plaintiff and were treated more favorably than he was treated. Plaintiff argues that two Suntrust employees, Norma Basurto and Blanca Alvarez, were similarly situated to him but received more favorable treatment than he, in that they were not terminated from their employment at Suntrust. Additionally, Plaintiff argues that Carabeo was treated more favorably then he, despite the fact that she also falsified her timecard.
In determining whether employees are similarly situated for purposes of establishing pretext, "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) (citation omitted). The Eleventh Circuit requires a very high degree of similarity for a co-worker to be considered a similarly-situated individual.See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004); Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) ("[T]he quantity and quality of the comparator's misconduct [must] be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges."). This high standard of similarity prevents the Court from sitting as an Article III personnel department, reviewing the varying discipline of a defendant's employees. See Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991).
Plaintiff argues that Alvarez made a mistake that led to a $30,000 loss for Suntrust and Basurto violated federal labor laws and neither of them were fired, although both were disciplined. The Court notes that neither of the aforementioned employees committed the same offense as Plaintiff. Even if the Court took a broad view of Plaintiff's conduct and labeled it as an infraction of dishonesty and not fraudulent behavior and insubordination, the conduct would still not be "nearly identical" with that of Basurto and Alvarez. Rather, Basurto and Alvarez engaged in violations of company policy that led to a pecuniary loss. Alvarez's error led to a $30,000.00 loss, and Basurto's error led to the FSR's under her receiving overtime wages. See Basurto Aff. ¶¶ 11, 19; Alvarez Aff. ¶ 6. The losses incurred by Suntrust were the product of the aforementioned employees' incompetence, not the result of dishonesty. An employer is not forbidden from distinguishing incompetence and dishonesty for purposes of discipline. Cf. Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1187 (11th Cir. 1984). The Court will not look into an employer's reasons if it chooses to treat different employees in different factual situations differently. See Chapman, 229 F.3d at 1024;Wilson, 376 F.3d at 1091. Further, Plaintiff has not put forth any evidence that Basurto or Alvarez had a disciplinary history prior to their respective infractions. Thus, Plaintiff cannot establish that similarly situated employees who did not engage in protected activity were treated more favorably then he. The other occasion of adverse employment action that Plaintiff suffered was his December 15, 2004 written warning that withheld, for a time, his commissions for that month. Suntrust has offered both at the time of the withholding and in its Motion (DE 22) that the reason for Plaintiff's discipline was the falsification of his timecard, it reflected an earlier start time than when he actually arrived at work. Two other Suntrust employees entered work late that day, Carabeo and Mesa. Mesa reported an earlier start time, and Carabeo claimed a later start time than when she actually arrived at work. Mesa, like Plaintiff, received a written warning for falsifying her timecard and claiming an earlier start time than when she arrived at work. Mesa also had her commissions withheld for the month of December because she received a written warning for the same; however, unlike Plaintiff, Mesa did not have her written warning withdrawn by Trabanco.
Further, Plaintiff attempts to argue that Carabeo also falsified her time card and that she was not disciplined. Suntrust concedes that Carabeo falsified her timecard, but it was done so to reflect a later start time than she arrived. Thus, unlike Plaintiff, she was not claiming payment for time that she did not work. Maniccia, 171 F.3d at 1368 (noting "the quantity and quality of the comparator's misconduct [must] be nearly identical"). Thus, Plaintiff cannot establish through the use of similarly-situated employees that Suntrust's reason for his December 15, 2004 written warning was pretext.
V. Conclusion
The Court notes that the governing standard in this Circuit is set forth in Crawford v. City of Fairburn, Ga., 482 F.3d 1305 (11th Cir. 2007), where the Eleventh Circuit held that "[i]f the employer proffers more than one legitimate, nondiscriminatory reason, the plaintiff must rebut each of the reasons to survive a motion for summary judgment." Id. at 1308. In this Order the Court has addressed the arguments set forth by Plaintiff as to why Suntrust's reasons are pretext. However, Plaintiff has not addressed all of the arguments put forth by Suntrust, including Rodriguez and Trabanco's belief that he was insubordinate at the meeting with Arana and his failure to follow operating procedures as detailed in the Rodriguez Affidavit and Suntrust's Response (DE 38). If Plaintiff could establish such inconsistencies in Suntrust's procedures, the Court would nevertheless find for Suntrust based on Plaintiff's failure to rebut all of its legitimate non-retaliatory reasons for his termination.
Therefore, taking all facts in the light most favorable to Plaintiff and drawing all reasonable inferences therefrom, Plaintiff cannot produce any evidence, "including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable fact finder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Chapman, 229 F.3d at 1024 (citation omitted). Thus, Suntrust is entitled to summary judgment on all counts.
Accordingly, after due consideration, it is
ORDERED AND ADJUDGED as follows:
1. Defendant Suntrust Bank's Motion For Reconsideration Of The Order Denying Defendant Suntrust Bank's Motion For Summary Judgment (DE 56) be and the same is hereby GRANTED;
2. The Court's prior Order (DE 55) be and the same is hereby VACATED, set aside, and of no further force or effect;
3. Defendant Suntrust Bank's Motion For Summary Judgment (DE 22) be and the same is hereby GRANTED; and
4. Final Judgment shall be entered by separate Order.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida.