Avila v. Childers

• Decision Date: 30 September 2016
• Docket Number: CASE NO. 3:15-cv-136/MCR/EMT
• Citation: 212 F.Supp.3d 1182
• Parties: Maryline AVILA, Plaintiff, v. Pam CHILDERS, in her official capacity As Escambia County Clerk of Court, Defendant.
• Court: U.S. District Court — Northern District of Florida

212 F.Supp.3d 1182

Maryline AVILA, Plaintiff,

v.Pam CHILDERS, in her official capacity As Escambia County Clerk of Court, Defendant.

CASE NO. 3:15-cv-136/MCR/EMT

United States District Court, N.D. Florida, Pensacola Division .

Signed September 30, 2016

Marie A. Mattox, William Gautier Kitchen, Marie A. Mattox PA, Tallahassee, FL, for Plaintiff.

Hetal Desai McGuire, Robert Jacob Sniffen, Sniffen & Spellman PA, Tallahassee, FL, for Defendant.

ORDER

M. CASEY RODGERS, CHIEF UNITED STATES DISTRICT JUDGE

Plaintiff Maryline Avila ("Avila") filed this suit against her former employer, Pam Childers ("Childers") in her official capacity as Escambia County Clerk of Court, for employment discrimination under the federal Civil Rights Act (Title VII) 42 U.S.C. § 2000(e), et seq. , the Florida Civil Rights Act, ("FCRA") and the Rehabilitation Act, 42 U.S.C. § 1981(a).¹ Avila also alleges retaliation and interference with her rights under the Family and Medical Leave Act, ("FMLA") 29 U.S.C. § 2612.² Pending before the court is Defendant's Motion for Summary Judgment, ECF No. 51. See Fed. R. Civ. P. 56. Also pending is Defendant's Motion to Strike portions of Avila's affidavit, ECF No. 59. Having fully considered the record and the parties' arguments, the court finds that Defendant's Motion for Summary Judgment is due to be granted, and the Motion to Strike will be denied.

Background³

Avila, a Filipino woman, received accounting degrees in both the Philippines and Canada and a Master's Degree in Business Administration from the University of Phoenix in Reno, Nevada. In May 2008, she was hired by the Escambia County Clerk of Court as an Accounting Specialist II. In 2009, Avila was promoted to the position of Tax Deed Specialist by the Clerk of Court. Brenda Robinson, who is Caucasian, was Avila's immediate superior. Avila's job responsibilities as a Tax Deed Specialist included auctioning off properties for the County, notifying owners of the sales, and entering data received from the Tax Collector's Office into the computer system. Avila also assisted with duties in other departments when necessary, including processing passport applications. In 2010, Avila received a formal reprimand for using her work computer to access social media websites. She was issued additional reprimands in 2010 and 2011 for failing to key receipts into the computer system and for making multiple errors on tax certificates.

Avila testified that prior to Robinson's departure from the Clerk's Office in 2012, Robinson subjected her to disparate treatment based on her national origin. More specifically, Avila testified that Robinson yelled directives at her in the presence of coworkers and customers, something she did not do with non-Filipino employees. Avila, however, does not point to any specific comments by Robinson that would indicate disparate treatment based on her national origin. Avila also testified that Robinson subjected her work to heightened scrutiny and disciplined her for errors and policy violations for which no other employee was disciplined. Avila alleges that in 2012, she complained to Lisa Bernau, Chief Deputy Clerk, that she felt she was being singled out by Robinson because she was Filipino.

The undisputed facts reflect that Avila applied for three positions within the Clerk's Office while working as the Tax Deed Specialist. First, when Robinson resigned from her position as Executive Director in 2012, Avila applied for her position. Heather Mahoney, a white female Operations Supervisor with no disciplinary record, was given the job instead. Avila then applied for Mahoney's position. Nick Kelly, a white male who worked as Avila's assistant, was promoted to Mahoney's position. In September 2012, Kelly resigned from his position as Operations Supervisor, and Avila applied for the position again. This was the last position Avila applied for in the Clerk's Office and it was filled by Mylinda Johnson, a Caucasian employee, with no disciplinary history, on September 27, 2012. Notably, when asked in her deposition if there was "anything else that you feel was discriminatory besides the failure of you to get those positions that we discussed and then the mistreatment by Ms. Robinson," Avila responded "[n]o." (ECF No. 50-4. Page 68).

By the time Defendant Pam Childers took office as Escambia County Clerk of Court in January 2013, Avila had accumulated a long disciplinary history from both during and after Robinson's time at the Clerk's Office. For instance, she had received written reprimands and formal counseling for failing to follow mail and notarization procedures, leaving work for co-workers to complete, and not turning in her work on time. A few weeks after Childers took office, Avila met with Susan Woolf, General Counsel, to tell her about Robinson's discriminatory conduct and to request a transfer. Avila wanted to transfer from the department because Mahoney, who was serving as her supervisor at the time, was friends with Robinson. Avila testified, however, that she never complained about Mahoney. The transfer request was denied. In May 2013, Avila was formally suspended for five days for poor customer service. Along with the suspension, Avila was warned that subsequent violations could result in additional discipline, including termination.

In July 2013, Avila took bereavement and personal leave from July 3, 2013 until July 29, 2013 to attend her mother's funeral in the Philippines. During her absence, the Clerk's Office discovered numerous errors that Avila made in tax deed files.⁴ Avila testified that after the funeral she suffered from severe depression, preventing her from returning to work. Sometime at the end of July 2013, around the time she was supposed to return to work, Avila's daughter called to tell the Clerk's Office her mother was sick and that she would not be at work and a doctor's note would be faxed. Avila testified that her doctor faxed an excusal to the Clerk's Office that read "Please excuse pt. from work from 7-29-13 thru Aug. 2, 2013. May return to work Aug. 5, 2013." (ECF No. 50-18).⁵ The Clerk's Office, however, was never told that Avila was suffering from depression.⁶ On August 2, 2013, Childers issued a termination letter to Avila, which Childers states was issued because of the numerous errors found while Avila was out of the office.

Several months after her termination, Avila filed a charge with the Equal Employment Opportunity Commission, ("EEOC") alleging national origin discrimination. Although the parties disagree on the particular date, they agree the charge was filed sometime in late January 2014.⁷ The EEOC then transferred the complaint to the Florida Commission of Human Relations, ("FCHR") which issued a "no cause" determination. On April 9, 2015, Avila filed this complaint. Childers then filed a Motion for Summary Judgment on all claims.

Discussion

Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, "shows that there is no genuine dispute as to any material fact" and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (a) ; see also Martin , 543 F.3d at 1265. Summary judgment is not appropriate "if a reasonable fact finder evaluating the evidence could draw more than one inference from the facts[ ] and if that inference introduces a genuine issue of material fact." Jeffery v. Sarasota White Sox, Inc. , 64 F.3d 590, 594 (11th Cir. 1995). An issue of fact is "material" if it might affect the outcome of the case under the governing law, and it is "genuine" if the record taken as a whole could lead a rational fact finder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 807 (11th Cir. 2010) (en banc). The court will not make credibility determinations or weigh the evidence presented on summary judgment. Frederick v. Sprint/United Mgm't Co. , 246 F.3d 1305, 1311 (11th Cir. 2001). Whenever sufficient, competent evidence is present to support the plaintiff's version of the disputed facts, the court will resolve disputes in the plaintiff's favor. See Pace v. Capobianco , 283 F.3d 1275, 1276 (11th Cir. 2002).

Count III: National Origin Discrimination

Count III involves a claim of national origin discrimination, pursuant Title VII and the FCRA. See 42 U.S.C. § 2000(e), et. seq. ; Fla. Stat. § 760. Initially the court finds that Avila's Title VII national origin discrimination claim is time-barred.⁸ Because Avila filed her EEOC charge on January 24, 2014, any discriminatory act she complained of must have occurred within 300 days, or on or after March 30, 2013 to be timely. See Brooks v. CSX Transp., Inc. , 555 Fed.Appx. 878, 880 (11th Cir. 2014)⁹ (finding that for a charge to be timely in a deferral state like Florida, it must be filed within 300 days of the last discriminatory act); see also E.E.O.C. v. Joe's Stone Crabs, Inc. , 296 F.3d 1265, 1270 (11th Cir. 2002). Although Avila claims discrimination was ongoing until the time of her termination, nothing in the record supports that claim. As Avila's testimony reveals, she only felt discriminated against by Robinson, who left the Clerk's Office in July 2012. The only other action Avila claims was discriminatory is the failure of the Clerk's Office to appoint her to the positions for which she applied. The last position Avila applied for was filled on September 27, 2012. Thus, her claim for discrimination under Title VII is untimely.

Discrimination claims under the FRCA must be filed within 365 days of the alleged unlawful employment practice. Fla. Stat. § 760.11 (2015) ; see also Ganpath v. Advance Stores Co. , No. 10–60036–CIV, 2011 WL 6069336, at *6 (S.D. Fla. Dec. 6, 2011). Any discriminatory act under the FRCA must have occurred on or after January 24, 2013. Thus, the claims for discrimination based on the FRCA are also untimely.¹⁰

Count IV:...