Watson v. Adecco Employment Services, Inc.

• Decision Date: 06 March 2003
• Docket Number: No. 6:01-CV-1268-ORL-31JGG.,No. 6:01-CV-1269-ORL-31JGG.,6:01-CV-1268-ORL-31JGG.,6:01-CV-1269-ORL-31JGG.
• Citation: 252 F.Supp.2d 1347
• Parties: Violet WATSON, Plaintiff, v. ADECCO EMPLOYMENT SERVICES, INC. & School Board of Brevard County, Florida, Defendants. Pamella Marriott, Plaintiff, v. Adecco Employment Services, Inc. & School Board of Brevard County, Florida, Defendants.
• Court: U.S. District Court — Middle District of Florida

252 F.Supp.2d 1347

Violet WATSON, Plaintiff, v. ADECCO EMPLOYMENT SERVICES, INC. & School Board of Brevard County, Florida, Defendants.

Pamella Marriott, Plaintiff, v. Adecco Employment Services, Inc. & School Board of Brevard County, Florida, Defendants.

No. 6:01-CV-1268-ORL-31JGG.

No. 6:01-CV-1269-ORL-31JGG.

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

March 6, 2003.

Jerry H. Trachtman, Esq., Law Office of Jerry H. Trachtman, P.A., Barry K. Baker, Esq., Boyd & Baker, P.A, Melbourne, FL, for plaintiff.

Alex P. Rosenthal, Esq., Reimer & Rosenthal LLP, Weston, FL, Michael H. Bowling, Esq., Bell, Leeper & Roper, P.A., Orlando, FL, for defendants.

ORDER

PRESNELL, District Judge.

This cause comes for the Court's consideration on the following motions and memoranda:

1) Defendant School Board of Brevard County, Florida's Motion for Summary Judgment (Case No. 1269, Doc. 28), and Memorandum of Law in Support (Case No. 1269, Doc. 29), as well as Plaintiff Pamella Marriott's Opposition thereto (Case No. 1269, Doc. 48);

2) Defendant Adecco Employment Services, Inc.'s Motion for Summary Judgment (Case No. 1269, Doc. 33), and Memorandum of Law in Support (Case No. 1269, Doc. 34), as well as Plaintiff Pamella Marriott's Opposition thereto (Case No. 1269, Doc. 52);

3) Defendant School Board of Brevard County, Florida's Motion for Summary Judgment (Case No. 1268, Doc. 25), and Memorandum in Support (Case No. 1268, Doc. 26), as well as Plaintiff Violet Watson's Opposition thereto (Case No. 1268, Doc. 44); and

4) Defendant Adecco Employment Services, Inc.'s Motion for Summary Judgment (Case No. 1268, Doc. 30), and Memorandum of Law in Support (Case No. 1268, Doc. 31), and Plaintiff Violet Watson's Opposition thereto (Case No. 1268, Doc. 45).

The Court heard oral argument on February 25, 2003.

I. Background

In October 1999, Adecco Employment Services, Inc. ("Adecco"), a temporary employee placement service,¹ hired both Plaintiffs as temporary employees. Meanwhile, Adecco and the School Board of Brevard County, Florida (the "School Board"), had a contract, whereby Adecco agreed to provide temporary employees upon the School Board's request. Pursuant to that contract, the School Board had complete discretion to terminate a temporary employee's service. (Yandura Affs., at H 6 and at Attachment 1).² In November 1999, the School Board requested from Adecco temporary cafeteria food line servers for an undetermined period of time at Southwest Middle School (the "School"). Adecco thus assigned Plaintiffs to temporarily perform cafeteria food line services for a shift to be determined by the School.

Once at the School, Lucille Arnone, the School Board's cafeteria manager, trained Plaintiffs for their job assignments and supervised them. (Watson Dep. at 12, 14; Marriott Dep. at 19-20).³ Adecco, however, issued the paychecks to Plaintiffs based on the hourly wages they earned at their assignments and withheld from those paychecks taxes and Social Security. Although Adecco issued general guidelines about appropriate attire,⁴ Arnone dictated the specific requirements regarding the cafeteria food server uniform, and provided parts of the uniform to each Plaintiff.

In December 1999, Arnone put up Christmas-related decorations and played Christmas music in the School's cafeteria. Arnone also instructed the cafeteria food line servers to don Santa hats as part of their work uniforms.⁵ Arnone instructed both Plaintiffs at different times and under different circumstances⁶ to wear the Santa hats, but on December 8, 1999, both Plaintiffs objected to wearing the hats for the religious reason that they were practicing Jehovah's Witnesses and did not celebrate Christmas.⁷

On that same day, Arnone phoned Adecco to report the Plaintiffs' religious objections to wearing the Santa hats. Arnone spoke to a female Adecco agent,⁸ who asked to speak with each Plaintiff. In separate conversations, the Adecco agent asked each Plaintiff what happened. Later, Sheila Koubek, Adecco's personnel placement manager, contacted Larry Henshaw, the School Board's Operations Specialist, to discuss an accommodation for Plaintiffs religious objections. (Koubek Affs. at ¶ 4). Henshaw agreed to allow Plaintiffs to wear red baseball caps instead of the Santa hats. (Id, at ¶ 4). Koubek then phoned Arnone to suggest the red baseball cap alternative, and Arnone agreed to allow the accommodation. (Id. at ¶ 4). Arnone informed both Plaintiffs separately of the red baseball cap idea, and Plaintiffs agreed to that accommodation.⁹ No party disputes that Plaintiffs and Arnone left work on December 8, 1999, assuming that an accommodation had been reached.

The facts surrounding the following day's events are, however, heavily disputed. Plaintiffs contend that as they were getting ready for work on December 9, 1999, at their respective homes, they each received a phone call from an unidentified and unknown Adecco female agent, who advised them not to report to work at the School. Plaintiffs both asked the reason for this decision, and the Adecco agent allegedly replied, "they [the School] don't want you anymore." (Marriott Dep. at 38-39¹⁰; Watson Dep. at 24¹¹. The agent also allegedly told Plaintiffs that Adecco would place them in other positions after the holidays ¹² (Marriott Dep. at 39), or in a place that did not celebrate Christmas (Watson Dep. at 24). Plaintiffs admit that they never contacted Adecco about their availability to work.¹³ (Id. at 39, 66; Marriott Dep. at 63). Moreover, Watson did not phone Arnone or the School Board about the situation, (Watson Dep. at 25-26), but Marriott claims she called the School's Vice Principal the following day. (Marriott Dep. at 40-41). Neither Plaintiff contends that Adecco terminated them as Adecco temporary employees.

Meanwhile, Adecco denies that one of its agents phoned both Plaintiffs to tell them not to report to work and points to Adecco computer records of Plaintiffs' work histories, which show that Plaintiffs separately expressed to Adecco Sales Representative Manager Cher Malone¹⁴ on the morning of December 9, 1999, their desire not to return to their School positions due to religious objections. (Employee Work Histories of Marriott and Watson¹⁵). Moreover, Adecco's records show that an agent told Plaintiffs she would try to locate schools that did not celebrate Christmas and that in the beginning of 2000, Adecco offered both Plaintiffs other temporary positions, which that Plaintiffs turned down for various reasons. (Wallace Dep. at 19; Wallace Aff. at ¶ 4, 6; see also Employee Work Histories of Marriott and Watson).

The School Board has yet another take on the facts. Arnone testified that she was surprised when Plaintiffs did not report to work on December 9, 1999, as she thought all parties had agreed that Plaintiffs would wear red baseball caps instead of Santa hats. Arnone simply assumed that because Plaintiffs did not return to the School, Adecco ¹⁶ had decided to assign both Plaintiffs elsewhere. (Arnone Dep. at 33-34).¹⁷

Plaintiffs thus brought separate actions against Adecco and the School Board. Both Plaintiffs alleged religious and racial discrimination under Title VII of the Civil Rights Act of 1964 and the Florida Civil Rights Act of 1992.¹⁸ Plaintiffs since have stipulated to voluntarily dismiss the racial discrimination claims, and the two cases were consolidated sua sponte by order of the Court.

II. Standard of Review

A party is entitled to judgment as a matter of law when the party can show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). The substantive law applicable to the case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is mandated "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of proving that no genuine issue of material fact exists. Id. at 323, 106 S.Ct. 2548. In determining whether the moving party has satisfied its burden, the court considers all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. If the record presents factual issues, the court must not decide them, but rather, must deny the motion and proceed to trial. Environmental Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981).¹⁹

III. Analysis

The Court first will analyze the admissibility of contested portions of Plaintiffs' deposition testimonies. Then, the Court will separately address the liability of each Defendant.

A. Admissibility of Plaintiffs' Deposition Testimonies

Although neither Defendant has moved to exclude portions of Plaintiffs' deposition testimonies, Defendants suggest in their separate summary judgment motions that portions of the testimonies would not be admissible at trial and therefore should not be considered on summary judgment. There are two relevant statements at issue: 1) the statements made by an unknown, unidentified female Adecco employee summarizing what an unknown, unidentified School Board person(s) told her, i.e., that "they" do not want Plaintiffs anymore; and 2) the statements made by the same unknown, unidentified female Adecco agent regarding job referrals after the holidays.

Generally, a court cannot consider inadmissible hearsay²⁰ on a summary judgment motion. Macuba v. Deboer, 193 F.3d 1316, 1322-23 (11th Cir.1999). Rather, deposition testimony, just like affidavits, in support or opposition to a summary judgment motion, must set forth facts as would be admissible in evidence. Id. (citing the principle set forth in Federal Rule...