Valenzuela v. Globeground North America

• Decision Date: 19 August 2009
• Docket Number: No. 3D07-1742.,3D07-1742.
• Citation: 18 So.3d 17
• Parties: Gelsa A. VALENZUELA, Appellant, v. GLOBEGROUND NORTH AMERICA, LLC, Appellee.
• Court: Florida District Court of Appeals

18 So.3d 17

Gelsa A. VALENZUELA, Appellant, v. GLOBEGROUND NORTH AMERICA, LLC, Appellee.

No. 3D07-1742.

District Court of Appeal of Florida, Third District.

August 19, 2009.

Peter Marcellus Capua and Jorge A. Calil, for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker and Ricardo J. Cata and Brian M. McKell and Ronnie Guillen, Miami, for appellee.

Before COPE, SHEPHERD, and LAGOA, JJ.

LAGOA, J.

Gelsa A. Valenzuela appeals the entry of final summary judgment in favor of GlobeGround North America, LLC ("GlobeGround"). Because we conclude that Valenzuela failed to establish a prima facie case of gender discrimination and further failed to present evidence that GlobeGround's legitimate, non-discriminatory reasons for terminating her employment were pretextual, we affirm the entry of summary judgment in favor of GlobeGround.

I. FACTUAL AND PROCEDURAL BACKGROUND

GlobeGround, a provider of aircraft refueling services at Miami International Airport, hired Valenzuela as a commercial aircraft fueler on September 8, 2004. Valenzuela's job as a fueler involved the fueling of aircraft, and the operation of aircraft refueling equipment such as tanker trucks and hydrant cars. Federal, State and local licensing requirements mandate that employees operating aircraft fueling equipment at an airport possess a commercial driver's license ("CDL"). Valenzuela did not possess the required CDL. On her employment application, however, Valenzuela lied and stated that she held one.

Valenzuela's employment was subject to a Collective Bargaining Agreement ("CBA") between GlobeGround and the Transport Workers Union of America, Local 500, AFL-CIO. Article VIII, section 6 of the CBA provides that a new employee is on probation during the first 120 days of employment, during which time the employee may be terminated for any reason. Termination within the probationary period is not subject to the grievance or arbitration provisions contained in the CBA. It is undisputed that Valenzuela was terminated within her probationary period.

Valenzuela testified that in her introductory training class she was informed that a CDL was required in order to work as a fueler. On December 18, 2004, GlobeGround advised Valenzuela that she needed to obtain a CDL permit by the close of business on Monday, December 20, 2004, or risk termination. Valenzuela went to the license office, but was unable to get an appointment until December 22, 2004. It is undisputed that at no time prior to this date did Valenzuela attempt to obtain a CDL permit during her probationary period. On December 21, 2004, GlobeGround terminated Valenzuela for failure to complete the probationary period. GlobeGround based its decision on the following: (1) Valenzuela's inability to fuel the Boeing 737 and MD-80 series aircraft; and (2) Valenzuela's failure to obtain the required CDL.

Valenzuela filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). The EEOC found no probable cause, and dismissed the charges.

Following the EEOC's dismissal, Valenzuela filed a lawsuit against GlobeGround pursuant to the Florida Civil Rights Act of 1992, alleging that GlobeGround engaged in unlawful gender discrimination when it dismissed her for failure to comply with GlobeGround's requirement that she obtain a CDL. At the conclusion of discovery, GlobeGround moved for final summary judgment, arguing that Valenzuela failed to establish a prima facie case of gender discrimination and that Valenzuela failed to show that GlobeGround's legitimate, non-discriminatory reasons for terminating her employment were pretextual. The trial court granted final summary judgment in favor of GlobeGround and this appeal followed.

II. STANDARD OF REVIEW

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Haddad v. Hester, 964 So.2d 707 (Fla. 3d DCA 2007), review denied, 980 So.2d 489 (Fla.2008). We review the summary judgment under a de novo standard of review. Bryan v. Dethlefs, 959 So.2d 314 (Fla. 3d DCA 2007); Am. Eng'g & Dev. Corp. v. Sanchez, 932 So.2d 1241, 1243 (Fla. 3d DCA 2006).

III. ANALYSIS

The Florida Civil Rights Act of 1992 ("FCRA") protects employees from gender discrimination in the workplace. See §§ 760.01-.11, Fla. Stat. (2005). It provides, in pertinent part: "It is an unlawful employment practice for an employer: To discharge ... or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." § 760.10(1)(a), Fla. Stat. (2005).

Because the FCRA is patterned after Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17, we look to federal case law. See Russell v. KSL Hotel Corp., 887 So.2d 372, 377 (Fla. 3d DCA 2004); Green v. Burger King Corp., 728 So.2d 369, 370-71 (Fla. 3d DCA 1999); Fla. Dep't of Cmty. Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991); see also Maniccia v. Brown, 171 F.3d 1364, 1368 n. 2 (11th Cir.1999); Harper v. Blockbuster Enter. Corp., 139 F.3d 1385, 1387 (11th Cir.1998). It is well-settled law that Florida courts follow the three-part framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny,¹ for establishing by circumstantial evidence, a discrimination claim based on disparate treatment in the workplace.² See City of Hollywood v. Hogan, 986 So.2d 634, 641-42 (Fla. 4th DCA 2008) (age discrimination); Dep't of Children & Family Servs. v. Garcia, 911 So.2d 171 (Fla. 3d DCA 2005) (gender discrimination); Scholz v. RDV Sports, Inc., 710 So.2d 618, 624 (Fla. 5th DCA 1998) (racial discrimination).

Under the McDonnell Douglas framework, a plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination. If successful, this raises a presumption of discrimination against the defendant. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997) ("Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination.").

If a prima facie showing is made, the burden of proof then shifts to the employer to offer a "legitimate, non-discriminatory reason" for the adverse employment action. If the employer meets its burden, the presumption of discrimination disappears and the employee must prove that the employer's legitimate reasons for dismissal were a pretext for discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1081 (11th Cir.2005). The ultimate burden of proving discrimination rests at all times with the plaintiff. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

On appeal, Valenzuela contends that she demonstrated a prima facie case of gender discrimination. GlobeGround, however, argues that Valenzuela failed to meet her burden. We agree. In order to establish a prima facie case of disparate treatment based on gender discrimination, a plaintiff must prove that: (1) the employee is a member of a protected class; (2) the employee was qualified for her position; (3) the employee suffered an adverse employment action; and (4) similarly situated employees outside the employee's protected class were treated more favorably. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 842-43 (11th Cir.2000); Maniccia, 171 F.3d at 1368. It is undisputed that Valenzuela is a member of a protected class, and that she suffered an adverse employment action. We find, however, that she has not satisfied the fourth element—the "similarly situated" element—necessary to establish a prima facie case of gender discrimination.³

"In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." Holifield, 115 F.3d at 1562 (quoting Maniccia, 171 F.3d at 1368). The employee must show that she and the employees outside her protected class are similarly situated "in all relevant respects." Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (quoting Holifield, 115 F.3d at 1562). Thus, "the quantity and quality of the comparator's misconduct [must] be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges." Maniccia, 171 F.3d at 1368.

Similarly situated employees "must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff's, without such differentiating conduct that would distinguish their conduct or the appropriate discipline for it." Gaston v. Home Depot USA, Inc., 129 F.Supp.2d 1355, 1368 (S.D.Fla.2001) (quoting Mazzella v. RCA Global Commc'ns, Inc., 642 F.Supp. 1531, 1547 (S.D.N.Y. 1986)), affirmed, 265 F.3d 1066 (11th Cir. 2001) (table). If a plaintiff fails to present sufficient evidence that a non-protected, similarly situated employee was treated more favorably by the employer, the defendant is entitled to summary judgment. Holifield, 115 F.3d at 1562.

Valenzuela identifies several individuals she believes were afforded more favorable treatment. In particular, Valenzuela points to Javier Vargas, and to twenty-five other male employees who Valenzuela contends were employed for more than three months without a CDL with proper endorsements.

With regard to Javier Vargas, GlobeGround hired...