Bush v. Orange County Corrections Department

• Decision Date: 02 February 2009
• Docket Number: Case No. 6:07-cv-588-Orl-28DAB.
• Citation: 597 F.Supp.2d 1293
• Parties: Sherry BUSH, Deborah Harvey, Lona Fleming, Ethel Tomlinson, Plaintiffs, v. ORANGE COUNTY CORRECTIONS DEPARTMENT, Defendant.
• Court: U.S. District Court — Middle District of Florida

597 F.Supp.2d 1293

Sherry BUSH, Deborah Harvey, Lona Fleming, Ethel Tomlinson, Plaintiffs, v. ORANGE COUNTY CORRECTIONS DEPARTMENT, Defendant.

Case No. 6:07-cv-588-Orl-28DAB.

United States District Court, M.D. Florida, Orlando Division.

February 2, 2009.

Michael Lynn Moore, Law Offices of Michael L. Moore & Associates, PA, Orlando, FL, for Plaintiffs.

Douglas T. Noah, Dean, Ringers, Morgan & Lawton, PA, Orlando, FL, for Defendant.

ORDER

JOHN ANTOON II, District Judge.

Plaintiffs Sherry Bush, Lona Fleming, Deborah Harvey, and Ethel Tomlinson bring the instant action against their employer, the Orange County Corrections Department ("OCCD"), alleging discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). In the eight-count Complaint (Doc. 1), each of the four Plaintiffs brings a claim under each of these statutes. Plaintiffs claim that they were treated differently regarding promotions and pay based on their race and that they were paid less based on their gender.

This case is now before the Court on the Motion for Summary Judgment (Doc. 18) filed by OCCD. Plaintiffs have not filed a response to the motion. Having considered the record in this case and pertinent law, the Court concludes that OCCD's motion must be granted as to all of Plaintiffs' claims.

I. Background¹

Plaintiffs began their employment with OCCD in 1988 (Bush and Tomlinson), 1989 (Harvey), and 1990 (Fleming), working as nurses. (Compl. ¶¶ 16-19). They currently are employed by OCCD as corrections officers. (Id. ¶¶ 7-10). In 2006, Plaintiffs filed complaints with the EEOC alleging discrimination based on their race; they alleged that they, who identify themselves as "Black," were paid less than similarly situated white workers and that their retirement fund contributions were less than those of similarly situated white workers. (Id. ¶ 12). Plaintiffs filed this lawsuit on April 5, 2007. (Id.).

Plaintiff's aver that in 1990, while they were working as nurses for OCCD, their supervisor told them that they would lose their corrections certification as well as their 3% special-risk retirement status if they remained in their nursing positions. (Id. ¶ 20). Plaintiffs then transferred to corrections officer positions, believing that this was a promotion. (Id.). In February 2006, however, Plaintiffs became aware of payroll deficiencies and that the transfers that they received in 1990 "had been recorded as a voluntary demotion and their pay had been reduced without their knowledge." (Id. ¶ 21). Plaintiffs contend in the Complaint that they are being paid less than similarly situated males and less than similarly situated white employees. (Id. ¶¶ 24-25).

II. Summary Judgment Standards

Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing that no genuine issues of material fact remain. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, summary judgment should be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. When faced with a "properly supported motion for summary judgment, [the nonmoving party] must come forward with specific factual evidence, presenting more than mere allegations." Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir.1997). However, a "`district court cannot base the entry of summary judgment on the mere fact that the motion was unopposed but, rather, must consider the merits of the motion.'" Trs. of the Cent. Pension Fund v. Wolf Crane Serv., Inc., 374 F.3d 1035, 1039 (11th Cir.2004) (quoting United States v. One Piece of Prop., 5800 S.W. 4th Ave., Miami, Fla., 363 F.3d 1099, 1102 (11th Cir.2004)).

III. Discussion

As earlier noted, Plaintiffs have not filed a response to the motion for summary judgment. The Court has, however, as required by Eleventh Circuit case law, considered the motion on its merits. See, e.g., Trs. of the Cent. Pension Fund, 374 F.3d at 1039.

A. Race Discrimination Claims (Counts I, II, III, and IV)

In Counts I-IV, Plaintiffs bring claims of race discrimination under Title VII. They assert that they were treated differently with regard to pay and promotions than similarly situated white employees. OCCD argues that these claims are both untimely and lacking in merit. These contentions are addressed in turn.

1. Untimeliness

OCCD asserts that Plaintiffs' Title VII claims are untimely. Plaintiffs complain about demotions and pay reductions that occurred in 1990—sixteen years before this suit was initiated. In Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), the Supreme Court held that an EEOC charge alleging disparate pay under Title VII must be filed within 180 or 300 days of the discrete pay decision even if there is alleged to be a continuing resulting pay disparity years later. Under Ledbetter, Plaintiffs' claims would plainly be barred.

However, the Ledbetter decision prompted a Congressional response, and just last week, on January 29, 2009, President Barack Obama signed into law the "Lilly Ledbetter Fair Pay Act of 2009" ("the Act"). The Act amends Title VII—specifically, 42 U.S.C. § 2000e-5(e)—by adding the following provision:

[A]n unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3, 123 Stat. 5, 5-6.² The Act is retroactive and applies "to all claims of discrimination in compensation under Title VII ... that are pending on or after" May 28, 2007. Id. § 6. Thus, while OCCD's untimeliness argument was valid prior to last week, with the passage of the Act Plaintiffs' Title VII claims are no longer administratively barred.

2. Merits

Nevertheless, Plaintiffs' Title VII claims fail on their merits. Plaintiffs have not presented any direct evidence of discrimination, and therefore their claims are appropriately analyzed using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny in order to assess whether they can establish their Title VII discriminatory compensation claims by circumstantial evidence. See, e.g., EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir.2000) ("Disparate treatment claims require proof of discriminatory intent either through direct of circumstantial evidence.... Absent direct evidence, a plaintiff may prove intentional discrimination through the familiar McDonnell Douglas paradigm for circumstantial evidence claims.") (citations omitted); accord Harris v. Sec'y of the Army, 119 F.3d 1313, 1320 (8th Cir.1997) ("Because she has no direct evidence of discrimination, Harris' sex discrimination claim is governed by the burden shifting analysis first articulated in McDonnell Douglas v. Green.").

Under this framework, the plaintiff in a disparate treatment case has the initial burden to establish a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. As the Eleventh Circuit has noted, "[d]emonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination." Holifield v. Reno, 115 F.3d 1555 1562 (11th Cir.1997). If the plaintiff establishes a prima facie case, a presumption of discrimination arises. See, e.g., Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

Once the plaintiff has presented a prima facie case and its attendant presumption, the burden "shift[s] to the employer to articulate some legitimate, nondiscriminatory reason" for its actions. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The employer's "burden is one of production, not persuasion; it `can involve no credibility assessment.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). If the employer meets its burden of production, "`the McDonnell Douglas framework—with its presumptions and burdens'—disappear[s], and the sole remaining issue [is] `discrimination vel non.'" Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097 (quoting St. Mary's Honor Ctr., 509 U.S. at 510, 113 S.Ct. 2742, and U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)). In order to prevail on a claim of disparate treatment, the plaintiff must establish that the employer acted with a discriminatory animus. Edwards v. Wallace Cmty. Coll., 49 F.3d 1517 (11th Cir.1995) (citing Burdine).

Under the McDonnell Douglas/Burdine framework, a Title VII plaintiff alleging discriminatory pay establishes a prima facie case of race...