Bush v. Barnett Bank of Pinellas County
| Decision Date | 22 February 1996 |
| Docket Number | No. 94-1650-CIV-T-17B.,94-1650-CIV-T-17B. |
| Citation | 916 F. Supp. 1244 |
| Parties | Jane BUSH, Plaintiff, v. BARNETT BANK OF PINELLAS COUNTY, a Florida Corporation, and Claudia Johnson, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
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Mark P. Kelly, Freeman, Lopez & Kelly, P.A., Tampa, FL, John J. Chamblee, Jr., Law Office of John J. Chamblee, Jr., Tampa, FL, for plaintiff.
David J. Stefany, Maria N. Sorolis, Hogg, Allen, Norton & Blue, P.A., Tampa, FL, for defendants.
ORDER ON DEFENDANTS' MOTION TO STRIKE AND MOTION FOR SUMMARY JUDGMENT
This action is before the Court on the following motions and responses:
Plaintiff has filed a complaint against Defendants, alleging pregnancy and racial discrimination under 42 U.S.C. § 2000(e) (Title VII). In addition, Plaintiff alleges that Barnett defamed her.
In order to evaluate the Defendants' motion to strike and motion for summary judgment, this Court believes that a thorough recitation of the relevant facts is required. Plaintiff is a white female who was hired in March of 1993 as the Sales and Service Manager (SSM) for Barnett's South St. Petersburg office. Plaintiff's employment was a result of the merger/acquisition of First Florida Banks and Barnett Banks, Inc. Plaintiff reported to Defendant Johnson, an African-American female, who was the South St. Petersburg office manager. Plaintiff functioned as Defendant Johnson's assistant manager. (Docket No. 23) At all times pertinent to this action, Defendant Johnson was "partnered" with Lee Johnson, an African-American, who managed Barnett's Southeast office. Barnett designed manager partnerships to provide less experienced managers with advice and assistance from more experienced managers.
On September 30, 1993, six (6) months after the working relationship began, Defendant Johnson counseled Plaintiff on her performance as a SSM which was considered deficient by Defendant Johnson. (Docket No. 29) In addition, Defendant Johnson issued a warning notice, documenting the problems Plaintiff was having at work. (Johnson Deposition, Exhibit 3) These problems related to Plaintiff's inability to work at a pace satisfactory to Defendant Johnson. (Docket No. 23) At this time, Defendant Johnson began keeping a file on Plaintiff's performance. (Johnson Deposition, Exhibit 1) Subsequently, Diane Cason, an African-American employee at the South St. Petersburg office, who was not pregnant, expressed an interest in a SSM position. Thereafter, Defendant Johnson "targeted" Ms. Cason and began training her for the responsibilities of the position. Defendant Johnson used the term "targeted" in her deposition to explain that Cason had expressed an interest in the position and would be developed as an eligible SSM.
On August 31, 1993, Plaintiff met with Rinda Bruce, Director of Barnett's Human Resources, and Alex Passarello, an investigator for Barnett's Security Department, concerning her employee checking account.1 Barnett's security flagged Plaintiff's account for excessive activity; they were concerned about "check kiting" and commercial activity. In the August meeting, Plaintiff explained that she had been using her account to deposit checks from a personal business she operated with her husband. Bruce instructed Plaintiff to discontinue the commercial activity and Plaintiff complied. In addition, Plaintiff and Bruce discussed the possibility of Plaintiff closing her account. Following this meeting, Passarello conducted a thorough investigation into Plaintiff's alleged "check kiting" and concluded that Plaintiff was not kiting checks. (Passarello Affidavit)
On October 1, 1993, Plaintiff received a memo concerning the results of the August meeting with Bruce and Passarello.2 The memo stated that Plaintiff's account continued to show excessive activity due to excessive credits and low collected balance. In addition, the memo reported an overdraft on Plaintiff's account for $262.72. The memo concluded with the following statement: "continued use of this account in the manner shown above will result in further action with respect to your employee account." (Johnson Deposition, Exhibit 16) Bruce, Passarello, and Plaintiff all signed and dated this memo.
On October 4, 1993, Plaintiff notified Defendant Johnson that she was thirteen (13) weeks pregnant. Thereafter, Defendant Johnson continued to have problems with Plaintiff's performance on the job. (Docket No. 23) In November 1993, Defendant Johnson placed Plaintiff on probation for failing to meet the standards Defendant Johnson expected of her as SSM.
On December 8, 1993, Plaintiff's physician recommended she take two (2) weeks leave of absence from her job due to her back pain. This leave of absence was to begin two (2) days later, on December 10th. Likewise, on December 10th, Defendant Johnson sent Plaintiff a probationary document, referencing a second overdraft on Plaintiff's employee checking account. The document stated that Plaintiff had overdrawn her account for $132.00. Defendant Johnson concluded the document by stating: "any evidence of continued misuse of your employee account at any time in the future will result in immediate termination of your employment." (Johnson Deposition, Exhibit 15) Both Defendant Johnson and Plaintiff signed the document.
Barnett's overdraft policy for its employee checking allows an employee a total of three (3) overdrafts in a six (6) month period. The policy states that (Johnson Deposition, Exhibit 5)
Furthermore, Barnett's overdraft policy does not threaten an employee's continued employment in cases of repeated offenses. The policy states that:
on the third overdraft, within a 6-month period, the employee will be charged and the check returned. A notice to close the employee's checking account will be sent to the employee's supervisor. The employee will no longer be afforded the privilege of a checking account with Barnett Bank. A letter of the violation will be placed in the employee's file.
(Johnson Deposition, Exhibit 5) Following the December 10th probation, Plaintiff incurred a third overdraft in the amount of $3.61 during her leave of absence. After being notified of the overdraft on December 24, 1993, Plaintiff wrote a memo on December 26 to Bruce, explaining what caused the overdraft.
Defendants terminated Plaintiff on December 28, 1993, for improper use of her employee checking account which included: (1) writing checks on money not in her account, i.e. overdrafts; (2) using her account to transact commercial business; (3) maintaining an exceedingly low balance in her account; and (4) failing to appropriately maintain her personal finances. (Docket No. 23) Plaintiff's position as SSM was never posted to elicit applications for possible replacements. (Johnson Deposition, 41-43) Defendant Johnson stated that Barnett has a procedure called "posting" used for the purpose of identifying positions that are vacant at Barnett. Subsequently, Defendant Johnson replaced Plaintiff's SSM position with Diane Cason, a nonpregnant African-American.
Plaintiff stated that she did not misuse her account. Plaintiff contends that any problems with her account due to excessive activity were either unfounded or resolved. Furthermore, Plaintiff argues that "inquiries into her account were unrelated to her employment until Defendant Johnson became involved" on December 10, 1993. (Docket No. 29) Plaintiff asserts that the true motivations for her discharge were based on Defendant Johnson's intention to make a place for Cason and constitutes discrimination against Plaintiff on the basis of race and pregnancy. (Docket No. 29)
This Court will first address Defendants' motion to strike portions of Plaintiff's memorandum in opposition to Defendants' motion for summary judgment. Defendants contend that these portions of Plaintiff's memorandum are "immaterial, irrelevant, and unduly prejudicial to Defendants." (Docket No. 30)
Rule 12(f), Fed.R.Civ.P., allows a matter to be stricken from a pleading which is "redundant, immaterial, impertinent, or scandalous." However, this Court has previously held in, Dah Chong Hong, Ltd. v. Greenhouse, Inc., 719 F.Supp. 1072, 1073 (M.D.Fla.1989), that such motions to strike are not favored, often being considered "time wasters," and will usually be denied unless the allegations have no possible relation to the controversy and might cause prejudice to one of the parties. Cherry v. Crow, 845 F.Supp. 1520, 1524 (M.D.Fla.1994); Poston v. American President Lines, Ltd., 452 F.Supp. 568, 570 (S.D.Fla.1978) (citing Augustus v. Board of Public Instruction, 306 F.2d 862 (5th Cir.1962)). Furthermore, when there is no showing of prejudice to the moving party, courts generally are not willing to determine disputed and substantial questions of law upon a motion to strike. Under such circumstances, courts should defer action and leave the sufficiency of the allegations for determination on the merits. Augustus, 306 F.2d at 868.
First, Defendants asserts that the following paragraph has no factual support in Plai...
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