Calicchio v. Oasis Outsourcing Grp. Holdings, L.P.
| Citation | 584 F.Supp.3d 1215 |
| Decision Date | 22 July 2021 |
| Docket Number | Case No. 19-CV-81292-RAR |
| Parties | Dolores CALICCHIO, Plaintiff, v. OASIS OUTSOURCING GROUP HOLDINGS, L.P., et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
John Richard Byrne, Maderal Byrne PLLC, Coral Gables, FL, James Robert Bryan, Derek Eduardo Leon, Leon Cosgrove, LLC, Coral Gables, FL, Jennifer Bogue, Pro Hac Vice, Seth Alan Rafkin, Pro Hac Vice, Rafkin Esq. PLLC, Randolph, NJ, for Plaintiff.
Eric Keith Gabrielle, Stearns Weaver Miller Weissler Alhadeff & Sitterson, Fort Lauderdale, FL, for Defendants.
ORDER AFFIRMING AND ADOPTING IN PART REPORT AND RECOMMENDATION, GRANTING DEFENDANTS’ MOTION TO STRIKE, AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court upon United States Magistrate Judge Bruce E. Reinhart's Report and Recommendation [ECF No. 125] ("Report"), filed on April 28, 2021. The Report recommends that the Court grant Defendants’ Motion to Strike the Declaration of Vilma Petrovsky [ECF No. 113] and grant in part and deny in part Defendants’ Motion for Summary Judgment [ECF No. 97] ("MSJ"). Plaintiff and Defendants filed respective objections to the Report [ECF Nos. 128, 129] and responses to their counterpart's objections [ECF Nos. 130, 131]. The Court also permitted Plaintiff to file a Reply to Defendants’ Response to Plaintiff's Objections [ECF No. 132-2] and allowed Defendants to submit a corresponding Response [ECF No. 135]. Having reviewed the Report, objections, and responses, conducted a de novo review of the record, and being otherwise fully advised in the premises, it is
ORDERED AND ADJUDGED as follows: 1) the Report [ECF No. 125] is hereby AFFIRMED AND ADOPTED IN PART as supplemented herein; 2) Defendants’ Motion to Strike the Declaration of Vilma Petrovsky [ECF No. 113] is GRANTED ; and 3) Defendants’ Motion for Summary Judgment is GRANTED .
Except where specifically stated otherwise, the Court adopts in full the Report's detailed discussion of the relevant undisputed material facts as borne out by the record. See Rep. at 2-15. For posterity's sake, however, the most relevant undisputed facts are set forth below.
This is an employment discrimination action in which Plaintiff Dolores Calicchio brings claims against her former employer, Oasis, and its related entities, as well as Paychex, the corporation that acquired Oasis. Specifically, in her Second Amended Complaint [ECF No. 57], Plaintiff alleges claims under the Equal Pay Act ("EPA"), 29 U.S.C. section 206(d), and Title VII of the Civil Rights Act, 42 U.S.C. section 2000e et seq. , against the seven Defendants: Oasis Outsourcing Group Holdings, L.P.; Oasis Outsourcing Holdings, Inc.; Oasis Outsourcing Group Holdings, GP, LLC; Oasis Outsourcing Acquisition Corp.; and WRI II, Inc. (collectively referred to as "Oasis"); as well as Paychex, Inc. and Paychex North America, Inc. (jointly referred to as "Paychex").
Oasis is a Professional Employer Organization (PEO) that provides outsourced services such as payroll, benefits, and human resources operations to its client companies. Mark Perlberg served as its CEO and was the chief decisionmaker regarding executive compensation, though he needed board approval of salary decisions. Plaintiff joined Oasis as its Chief Human Resources Officer in 2017 and was the only woman reporting directly to the CEO. She asserts that she was unlawfully paid less based on her sex and seeks to support those claims by comparing her compensation to that of four male comparators: Executive Vice President and Chief Financial Officer Terry Mayotte; Chief Operating Officer Kelley Castell; Chief Sales Officer Michael Viola; and Chief Information Officer Joel Steigelfest. For the years 2017 and 2018, Plaintiff was paid less in salary and bonus than her male colleagues by at least the following amounts: $786,624.81 less than Mr. Mayotte; $396,782.22 less than Mr. Castell; $219,481.23 less than Mr. Viola; and $237,549.95 less than Mr. Steigelfest.
As part of its compensation package offer to new candidates for management positions, Oasis issued Incentive Common Units ("ICUs"), which permitted its holders to receive a portion of the proceeds of any sale of the company. The value of the ICU awards granted to Plaintiff and her male comparators in 2016 or later are as follows: Mr. Mayotte - $2,858,081; Mr. Castell - $2,839,039; Mr. Viola - $2,198,585; Mr. Steigelfest - $1,201,844; Plaintiff - $904,971.
In December 2018, Oasis was acquired by Paychex, a company providing similar services, in a transaction valued at approximately $1.2 billion. As part of that process, Paychex determined which Oasis employees would be offered positions when the two organizations merged. In a meeting with Paychex executives, Mr. Perlberg described Plaintiff as a competent human resources professional but indicated that Paychex did not need to retain her because the position she held at Oasis was already filled at Paychex by Laurie Zaucha. On January 4, 2019, Mr. Perlberg met with Plaintiff and told her that her employment would end on March 31, 2019, although her final date of employment was ultimately pushed back to May 31, 2019.1
Plaintiff first raised the "pay equity issue" with Mr. Perlberg during their January 4, 2019 meeting when he notified her of her end-date. Mr. Perlberg responded, "you're spooking me, Dolores," and Mr. Perlberg then began leaving Plaintiff out of meetings and team dinners.
There were two positions Plaintiff was interested in at Paychex. The first was Human Resources Services Region Manager, but Plaintiff declined to pursue this role upon learning that the salary was lower than she had expected. The second position was the Director of PEO Centralized Services at Paychex, but sometime after Plaintiff's January 4, 2019 complaint to Mr. Perlberg about a pay disparity, Paychex offered the position to another Oasis employee, Mary Anne Tate. According to Defendants, Plaintiff was not considered for the Director of PEO Centralized Services position because Paychex viewed it as a business operations position—a client-facing job providing direction and administrative and operational support to regional PEO staff, working directly with PEO service customers and the Paychex sales force in the field—whereas Plaintiff was viewed as a human resources executive. Mr. Perlberg recommended Ms. Tate for the Director of PEO Centralized Services position at Paychex and did not recommend Plaintiff for this position. Plaintiff argues that Defendants’ refusal to consider her for the Director of PEO Centralized Services position was in retaliation for raising the gender pay disparity issue with Mr. Perlberg.
Plaintiff asserts eleven claims in the Second Amended Complaint [ECF No. 97] ("SAC"), including a claim for EPA violations against each of the seven Defendants (Counts I-VII), and Title VII claims for gender discrimination and retaliation against Defendants Oasis Outsourcing Group Holdings, L.P. and Paychex North America, Inc. (Counts XIII-XI). In response to Defendants’ Motion for Summary Judgment, Plaintiff submitted a declaration from Vilma Petrovsky, the Senior Director of Operations and Procurement at Oasis. Her Declaration attests to the relative influence and responsibilities of Plaintiff and her proffered comparators, Ms. Petrovsky's experience with being paid less than male employees who reported to her, and her perceptions of a male-dominated environment at Oasis. Decl. of Vilma Petrovsky [ECF No. 100-2] ¶¶ 3-5, 7-8. Defendants filed a Motion to Strike that Declaration as well as the facts contained in Plaintiff's Statement of Material Facts [ECF No. 101] that rely solely on the Declaration, arguing that Plaintiff did not identify Ms. Petrovsky as a witness during discovery and Defendants were prejudiced by that nondisclosure.
On April 28, 2021, Magistrate Judge Reinhart issued his Report in which he concluded: 1) the Petrovsky Declaration should be stricken because Plaintiff did not show that her failure to disclose her as a witness was substantially justified or harmless and Defendants were prejudiced as a result; 2) Plaintiff did not meet her burden of establishing a prima facie case under the EPA because she did not show that her job was substantially equal to her proffered comparators; 3) for the same reason, Plaintiff's Title VII claims for gender pay discrimination also fail; 4) Plaintiff's Title VII claims stemming from her termination are time-barred because she initiated this action more than 300 days after she was told unequivocally that she would be terminated; and 5) a reasonable juror could conclude that Defendants retaliated against Plaintiff in violation of Title VII due to her raising the issue of a gender pay disparity with Mr. Perlberg. Put simply, the Report recommends allowing only the Title VII retaliation claims in Counts X and XI proceed to trial.
The Court may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1). Those portions of the Report to which an objection is made are accorded de novo review so long as those objections "pinpoint the specific findings that the party disagrees with." United States v. Schultz , 565 F.3d 1353, 1360 (11th Cir. 2009) ; see also FED. R. CIV. P. 72(b)(3). Any portions of the Report to which no specific objection is made are reviewed only for clear error. Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001) ; accord Macort v. Prem, Inc. , 208 F. App'x 781, 784 (11th Cir. 2006).
The legal standards for deciding whether summary judgment is proper are well-settled. Summary judgment is rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a), (c). An issue of...
To continue reading
Request your trial