JENNINGS

v.

R.T.G. FURNITURE CORP.

This matter is before the Court on “Defendant’s Motion for Partial Summary Judgment,” filed on June 13, 2022. (Doc. 26). Plaintiff filed a response in opposition to the motion on July 5, 2022. (Doc. 29). Defendant filed a reply on July 19, 2022. (Doc. 31). Upon review of the motion, response, reply, court file and record, the Court finds as follows: Background Plaintiff Laqulla Jennings worked beginning in 1999 at the Lakeland, Florida, distribution center of Defendant R.T.G. Furniture Corp. She served as manager of the Reprocessing Department from 2015 until the termination of her employment in 2019. Reviewers consistently rated Plaintiff as above average, giving her “superior” and “exceeds expectations” rankings in some areas. However, multiple reviews found that she needed to improve her communication skills and in particular needed to avoid appearing argumentative when dealing with conflict or criticism. Plaintiff disagrees with these evaluations and contends that critical comments in her reviews resulted from race and gender discrimination. On November⁷, 2018, Plaintiff and another manager, Howard Fisher, met with LaShondra Mitchell, a subordinate employee, to discuss issues with Mitchell’s performance and a “writeup” to be placed in her file. Mitchell lodged an internal complaint following the meeting. Defendant’s Human Resources department investigated, and Plaintiff was given a written warning in January 2019. The warning stated that Plaintiff had handled the meeting poorly by raising her voice to Mitchell. It also stated that Plaintiff had inappropriately reviewed Mitchell’s social media pages, made reference to her character, and accused her of having an affair with another manager without proof. Plaintiff disputed the findings and on May⁶, 2019, filed an internal complaint with Human Resources, indicating on the complaint form that she was the victim of discrimination based on her race, gender, and exercise of her rights under the Family and Medical Leave Act (“FMLA”). Plaintiff’s narrative statement supporting her complaint blamed the problems in the November 2018 meeting on Fisher, whom she accused of lying to Human Resources about what happened. On June 14, 2019, Human Resources personnel Adrien Holiday and LaShay Crosby met with Plaintiff to discuss her discrimination complaint. According to their reports, Plaintiff acted unprofessionally at this meeting as well, raising her voice and engaging in personal attacks on Holiday and Crosby. Plaintiff disputes Holiday’s and Crosby’s accounts of the meeting. On July¹, 2019, William Bongiovanni, the senior general manager at the distribution center, met with Plaintiff and gave her a final written warning, which stated she would be terminated if she did not refrain from inappropriate behavior. Bongiovanni asserts that Plaintiff told him during the meeting that she was resigning. Plaintiff, in contrast, says she did not resign and that when Bongiovanni presented her with the final written warning, she became upset and requested FMLA leave for a day, which Bongiovanni granted. Bongiovanni asked another manager, Tony Wilson, to transport Plaintiff to her office in another part of the distribution center to collect personal items and then to her car. As they reached Plaintiff’s car, Wilson asked Plaintiff for her parking pass and identification card, explaining that Bongiovanni had informed him Plaintiff was no longer with the company. Plaintiff disputed this, and told Wilson she had not left the company, and that Bongiovanni had instead granted her request for FMLA leave. On October 23, 2019, Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) alleging race and gender discrimination. This operated as a dual filing with the Florida Commission on Human Relations (“FCHR”). When the FCHR failed to dispose of the charge within 180 days, Plaintiff filed this lawsuit, alleging claims for FMLA retaliation (Count I), race discrimination in violation of the Florida Civil Rights Act (the “FCRA”) (Count II), gender discrimination in violation of the FCRA (Count III), and retaliation in violation of the FCRA (Count IV). Defendant has moved for summary judgment on Counts II, III, and IV.

Legal Standard Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A properly supported motion for summary judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Only the existence of a genuine issue of material fact will preclude summary judgment. Id. The moving party bears the initial burden of showing that there are no genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F. 3d 1256, 1260 (11th Cir. 2004). When the moving party has discharged its burden, the nonmoving party must then designate specific facts showing the existence of genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F. 3d 590, 593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or evidence, the nonmoving party’s evidence is presumed to be true and all reasonable inferences must be drawn in the nonmoving party’s favor. Shotz v. City of Plantation, 344 F. 3d 1161, 1164 (11th Cir. 2003).

Analysis Discrimination under the FCRA The FCRA prohibits an employer from discriminating against employees with respect to compensation, terms, conditions, or privileges of employment on account of their race, color, religion, sex, or other protected characteristics. § 760.10(1)(a), F.S. Prohibited discrimination includes both taking tangible adverse employment actions against employees (such as termination) and requiring employees to work in a hostile work environment. See, e.g., Nurse "Be" v. Columbia Palms W. Hosp. Ltd. P'ship, 490 F. 3d 1302, 1308 (11th Cir. 2007); Maldonado v. Publix Supermarkets, 939 So. 2d 290, 293 (Fla. 4th DCA 2006) (citing Mendoza v. Borden, Inc., 195 F. 3d 1238, 1244 (11th Cir. 1999)). The FRCA also prohibits retaliation against employees for opposing unlawful discriminatory practices. § 760.10(7), F.S. Plaintiff alleges that Defendant discriminated against her by taking tangible, adverse employment actions, and retaliated against her for engaging in activity protected by the FCRA. Plaintiff has not alleged a hostile work environment claim, nor submitted evidence or argument to support such a claim.2 Adverse Employment Actions

An adverse employment action, required for a discrimination claim, must be either (1) an ultimate employment decision (such as hiring or firing) or (2) other conduct sufficiently substantial to rise above the “ordinary tribulations of the workplace” and constitute a serious and material change in the terms, conditions, or privileges of employment. See Davis v. Town of Lake Park, Fla., 245 F. 3d 1232, 1238- 39, 1246 (11th Cir. 2001). Plaintiff cites two items that could possibly rise to the level of adverse employment actions: “poor reviews, thereby reducing her bonus,” and her termination on July¹, 2019.3

Smith, another manager. The letter grades awarded in the triannual reviews directly determined the quarterly bonuses managers received, and therefore there is an issue of fact as to whether this review constituted an adverse employment action. Any claim based on this review, however, is time-barred because it occurred more than one year before Plaintiff filed her administrative complaint with the EEOC on October 23, 2019. See § 760.11(1), F.S. (“Any person aggrieved by a violation of ss. 760.01-760.10 may file a complaint with the commission within 365 days of the alleged violation . . .”);

Pedrioli v. Barry Univ., Inc., No⁶:17-cv-577-Orl-40GJK, 2018 WL 538743, at *2 (M.D. Fla. Jan. 24, 2018) (stating that the FCRA requires filing a charge of discrimination within 365 days of the alleged discrimination).⁴ Plaintiff also refers to a performance review in December 2018 that discussed her “poor communication.” The only December 2018 review in the record is an annual review dated December 14, 2018. This review assessed Plaintiff as meeting or exceeding job requirements in many areas, and needing improvement in two areas. It did not include a letter grade, and Plaintiff has presented no evidence it had a material impact on her employment, such as lowering her bonus or her salary. Plaintiff therefore has not shown that this review constituted an adverse employment action.5 Thus, Plaintiff cannot base her discrimination claims on either of the performance reviews she relies on. Termination constitutes an adverse employment action. Defendant concedes that Plaintiff’s testimony concerning the July¹, 2019, meeting with Bongiovanni creates an issue of fact as to whether Plaintiff voluntarily resigned or was terminated. Accordingly, the Court assumes for purposes of this Order that she was terminated, which constitutes an adverse employment action. Discrimination Where, as here, “direct evidence of unlawful discrimination is lacking . . . plaintiffs may instead turn to the burden-shifting framework” set out in McDonnell

1213, 1220-21 (11th Cir. 2019) (en banc). Establishing a prima facie case creates an initial presumption of discrimination. Flowers, 803 F. 3d at 1336. The burden then shifts to the defendant to “articulate a legitimate, nondiscriminatory reason for its actions.” Lewis, 918 F. 3d at 1221 (citing Burdine, 450 U.S. at 253). “Once the employer advances its legitimate, nondiscriminatory reason, the plaintiff’s prima facie case is rebutted and all presumptions drop from the case.”

Flowers, 803 F. 3d at 1336 (citing Burdine, 450 U.S. at 255). The burden then shifts back to the plaintiff to demonstrate that the defendant’s reason was a pretext for discrimination. Lewis, 918 F. 3d at 1221. A plaintiff may meet her prima facie case by pointing to “comparators,” that is, similarly situated individuals outside her protected class who were treated more favorably than she was. To constitute proper comparators, the individuals must be similarly situated to the plaintiff “in all material respects.” Lewis, 918 F. 3d at

1224. Similarly situated comparators will ordinarily have engaged in the same type of misconduct, been subject to the same policies or rules, shared the same supervisor, and had a similar employment or disciplinary histories. Id. at 1227-28. As an alternative to the McDonnell Douglas approach, the Eleventh Circuit allows a plaintiff to avoid summary judgment by presenting a “convincing mosaic of circumstantial evidence that would allow the jury to infer intentional discrimination by the decisionmaker.” Smith v. Lockheed-Martin Corp., 644 F. 3d 1321, 1328 (11th Cir. 2011) (internal quotation and footnote omitted). A “convincing mosaic” may be shown by evidence that demonstrates “(1) suspicious timing, ambiguous statements . . . and other bits and pieces from which an inference of discriminatory intent might be drawn, (2) systematically better treatment of similarly situated employees, and (3) that the employer's justification is pretextual.” Lewis v. City of Union City, Ga., 934 F. 3d 1169, 1185 (11th Cir. 2019) (internal quotation omitted).⁶ Defendant argues, among other things, that Plaintiff has failed to present a prima facie case under McDonnell Douglas because she has failed to present proper comparators, and that she has not presented a “convincing mosaic” of circumstantial evidence to support her discrimination claims. Because the Court agrees with Defendant on these points, it need not address Defendant’s other arguments. Comparators Plaintiff offers as comparators white and/or male supervisors Kevin Smith and David Duncan, who Plaintiff asserts engaged in unprofessional and argumentative conduct in interactions with Plaintiff, and yet were not punished with “downgraded” reviews or with termination, as she was. As to Smith, Plaintiff points to the downgraded “B” she received on her triannual review in late 2017 arising out of her

Plaintiff presents no evidence Duncan engaged in conduct similar to that Plaintiff was found to have engaged in, which included unprofessional conduct directed at a

The Court therefore concludes Plaintiff has failed to present evidence creating a genuine issue of material fact as to her claims of race and gender discrimination under the FCRA, and Defendant’s motion for summary judgment is granted as to Counts II and III of Plaintiff’s complaint. Retaliation under the FCRA Retaliation claims under the FCRA are reviewed under the burden-shifting framework discussed above. See Johnson v. Miami-Dade Cty., 948 F. 3d 1318, 1325 (11th Cir. 2020); Ceus v. City of Tampa, 803 F. App’x 235, 244 (11th Cir. 2020). Plaintiff may establish a prima facie case for retaliation by evidence that: (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse action; and (3) there was a causal connection between the two events. Johnson, 948 F. 3d at 1325; Scott v. Sarasota Doctors Hosp., Inc., 145 F. Supp. 3d 1114, 1127 (M.D. Fla. 2015). Where a plaintiff has established a prima facie case, the burden shifts to the defendant to offer a non-retaliatory reason for its action. See Johnson, 948 F. 3d at 1325. If the defendant meets that burden, then the plaintiff must present “‘sufficient evidence to allow a reasonable finder of fact to conclude that the [employer’s] articulated reasons were not believable.’” Callahan v. City of Jacksonville, Fla., 805 F. App’x 749, 753 (11th Cir. 2020) (quoting Brooks v. Cty. Comm’n of Jefferson Cty., 446 F. 3d 1160, 1163 (11th Cir. 2006)). Temporal proximity between protected conduct and an adverse action generally constitutes circumstantial evidence of causation. Thomas v. Cooper Lighting, Inc., 506 F. 3d 1361, 1364 (11th Cir. 2007). However, the proximity must be “very close.” Id. In addition, other circumstances occurring either before or after the protected conduct may negate the inference of causation based on temporal proximity. See, e.g., Hankins v. AirTran Airways, Inc., 237 F. App’x 513, 520-21 (11th Cir. 2007); Hill v. SunTrust Bank, No. 6:15-cv-890-Orl-28DCI, 2017 WL 253850, at *9 (M.D. Fla. Jan. 19, 2017). Plaintiff argues that she engaged in protected activity when she filed her internal complaint of discrimination against Howie Fisher on May⁶, 2019. She was terminated on July¹, 2019, less than two months later. Two months is sufficiently close in time to support an inference of causation. See Gogel v. Kia Motors Mfg. of

Georgia, Inc., 967 F. 3d 1121, 1154 (11th Cir. 2020) (en banc). However, Plaintiff’s behavior at the June 14, 2019, meeting with Human Resources to discuss her discrimination complaint constitutes intervening misconduct that negates any inference of a causal connection between her complaint and her termination. Plaintiff asserts that Crosby and Holiday fabricated their accounts of the meeting, but she offers no reason Bongiovanni could not have credited Holiday’s and Crosby’s version of the meeting and then acted accordingly. See, e.g., Evans v. St. Lucie Cty. Sch. Dist., No. 2:17-CV-14450, 2018 WL 5807661, at *9 (S.D. Fla. Nov.⁶, 2018) (holding that the plaintiff failed to establish causation because the defendant became aware of evidence, which it could reasonably believe, that the plaintiff had violated terms of his employment between the alleged protected activity and the adverse employment action). Plaintiff has failed to present a prima facie case of retaliation and Defendant’s motion for summary judgment is therefore granted on her FCRA retaliation claim in Count IV. It is therefore ORDERED, ADJUDGED, and DECREED: (1) “Defendant’s Motion for Partial Summary Judgment” (Doc. 26) is GRANTED as to Counts IJ, III, and IV of Plaintiffs complaint. (2) This case will proceed to trial only on Plaintiffs claims in Count I of the complaint under the Family and Medical Leave Act. DONE and ORDERED in Chambers, in Tampa, Florida, this 4th day of October, 2022.

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UNITED STATES DISTRICT JUDGE