Howard v. Sunniland Corp.
| Decision Date | 19 December 2017 |
| Docket Number | Civ. No. 2:16–321–FtM–PAM–MRM |
| Citation | 281 F.Supp.3d 1253 |
| Parties | Garry L. HOWARD, Plaintiff, v. SUNNILAND CORPORATION and Scott Ortegon, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Esmond J. Lewis, Esmond Lewis, PA, Ft. Myers, FL, for Plaintiff.
Cheryl L. Wilke, Kristen Dana Perkins, Daniel A. Krawiec, Thaddeus A. Harrell, Hinshaw & Culbertson, LLP, Ft. Lauderdale, FL, Jeffrey M. Novell, Hinshaw & Culbertson, LLP, Tampa, FL, for Defendants.
This matter is before the Court on Defendants' Motion for Summary Judgment. For the following reasons, the Motion is granted.
Defendant Sunniland Corporation is a roofing supply company with more than 20 locations in Florida and Georgia. (Ortegon Dep. (Docket No. 59–3) at 8.) Sunniland's office in Naples, Florida ("Sunniland Naples") employs a workforce of drivers, helpers, and sales associates, with Defendant Scott Ortegon serving as General Manager. (Id. at 7–8, 12.)
In October 2007, Plaintiff Garry Howard was hired as a truck driver at Sunniland Naples. (Howard Dep. (Docket No. 59–2) at 26.) Howard is African American. (Ortegon Dep. at 25.) As a truck driver, Howard delivered roofing materials to sites and performed transfer runs to other Sunniland locations. (Howard Dep. at 29–30.) Additionally, Howard and other drivers work in the warehouse, helping customers unload material and preparing for deliveries. (Ortegon Dep. at 52–53.)
In 2009, Howard claims that he was promoted to the warehouse supervisor position.1 (Howard Dep. at 30.) About one year later, Howard claims that he was the victim of four instances of racial discrimination. On April 22, 2010, he alleges that Ortegon and T.C. Hayes2 made a racially discriminatory joke in his presence. (Compl. (Docket No. 1) ¶ 14(g).) On May 7, 2010, he claims that Hayes approached him in an aggressive and threatening manner. (Id. ¶ 14(i).) Four days later, Howard claims that Hayes referred to him as a "f-cking n-gger." (Id. ¶ 14(j).) About two weeks later, he alleges that an unnamed Sunniland employee referred to a lawn mower as being "n-gger rigged" in his presence. (Id. ¶ 14(k).) Howard informed Ortegon of these instances of racial discrimination on June 13, 2010, and he claims that Ortegon demoted him back to the position of truck driver the following day. (Howard Dep. at 39–40.)
On September 1, 2010, Howard filed a charge of discrimination with the Equal Employment Opportunity Commission, alleging a hostile work environment and racial discrimination. (Compl. Ex. B.) Howard alleges that he continued to experience racial discrimination at Sunniland Naples while his EEOC charge was pending. (Id. ¶¶ 14(r)-(s); Howard Dep. at 128–32, 149–52.)
On April 16, 2012, Ortegon documented a written warning in Howard's employment record for three consecutive unexcused absences from work. (Howard Dep. Ex. 7.) The warning referred to Sunniland's Handbook, which states that an employee may be terminated for "being absent without proper notice or excuse." (Id. ) Then on March 27, 2013, Ortegon documented another written warning because Howard failed to report his absences from work on March 25 and 26, 2013. (Id. Ex. 12.) Howard was also absent on March 22, 2013. (Id. Ex. 2.)
On April 1, 2013, Howard again failed to report for work. Ortegon terminated Howard's employment the following day based on his "repeated no call/no show behavior" and his representations that he "could no longer perform [his] duties." (Id. )
In 2014, the EEOC issued a letter of determination, concluding that reasonable cause existed "to believe [Defendants] discriminated against [Howard] because of his race" but "the evidence obtained is insufficient to establish violations of Title VII, in regards to retaliation." (Compl. Ex. C.) Howard filed a five-count Complaint in May 2016. The Court dismissed Howard's hostile work environment claim (Count I) and retaliation by demotion (Count IV) against Ortegon following Defendants' motion to dismiss. (Docket No. 35.) Thus, the remaining claims before the Court are intentional discrimination by demotion against Sunniland (Count II), intentional discrimination by termination against Sunniland and Ortegon (Count III), retaliation by demotion against Sunniland (Count IV), and retaliation by termination against Sunniland and Ortegon (Count V). (Compl. ¶¶ 29–68.)
Summary judgment is proper only if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). When opposing a motion for summary judgment, the nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials and must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Howard claims that Sunniland intentionally discriminated against him by demoting him (Count II) and that Sunniland and Ortegon intentionally discriminated against him by terminating him (Count III), in violation of 42 U.S.C. §§ 1981, 2000e–2(a). (Compl. ¶¶ 29–50.) A prima facie racial discrimination case requires Howard to show that "(1) [ ]he belongs to a protected class; (2) [ ]he was qualified to do the job; (3) [ ]he was subjected to adverse employment action; and (4) [his] employer treated similarly situated employees outside [his] class more favorably."
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) ). He may satisfy his burden "by presenting direct evidence of an intent to discriminate" or by "circumstantial evidence using McDonnell Douglas's burden-shifting framework." Id. at 975–76.
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (citations omitted). Here, the racially charged remarks on May 11 and 28, 2010, were not made by a decisionmaker, and it is not clear that Hayes's conduct on May 7, 2010, was racially motivated. Howard's allegation about the April 22, 2010, remark may be clear discrimination by a decisionmaker, but this isolated remark is, by itself, insufficient to establish direct evidence of racial discrimination. See Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002) (). Howard must therefore establish his prima facie case through circumstantial evidence.
Howard claims that the four racially charged remarks and Sunniland's maltreatment following his alleged demotion provide sufficient circumstantial evidence. (Pl.'s Opp'n Mem. (Docket No. 59) at 15.) Defendants do not dispute that Howard belongs to a protect class.
Howard argues that Defendants discriminated against him by demoting him from warehouse supervisor to truck driver. Defendants argue that Howard cannot demonstrate that he was qualified to do a job that did not exist, that he suffered no adverse employment because he was not demoted, and that he failed to identify any similarly situated employee outside his class who was treated more favorably.
Whether Howard can demonstrate that he was qualified to do the job of a warehouse supervisor and whether he suffered an adverse employment action turns on whether the warehouse supervisor position ever existed. Generally, a plaintiff satisfies the prima facie burden of proving that he is qualified for a position if he has held "for a significant period of time." Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001) (quotation omitted). And demoting an employee is an adverse employment action. Crawford, 529 F.3d at 970 (quoting Stavropoulos v. Firestone, 361 F.3d 610, 617 (11th Cir. 2004) ).
Here, Sunniland contends that it has never employed a warehouse supervisor because no such position exists. (Ortegon Dep. at 47–48.) Howard's only evidence that he was employed as the warehouse supervisor is his own self-serving testimony that he was promoted to the position in 2009. (Howard Dep. at 30.) But he also testified that his formal job title did not change to warehouse supervisor. (Id. at 33.) And his pay and benefits did not change after the alleged promotion. (Id. at 43–44.) Howard's testimony is insufficient to withstand summary judgment on this issue. See In re Buescher, 783 F.3d 302, 308 (5th Cir. 2015) ; Dalton v. Severson, No. 2:13-CV-734, 2016 WL 1271467, at *6 (M.D. Fla. Apr. 1, 2016) (). Because...
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