South Florida Personal Injury Blog

Florida discrimination attorneys are faced with challenging cases on a daily basis. Unfair practices in the workplace are more common than one might think despite our legal systems best efforts to prohibit such behavior on the part of Florida employees.
In May of 2010, the United States District Court for the Middle District of Florida decided a sex discrimination and retaliation case. (See Smith v. Naples Community Hospital, Inc., 2010 WL 2026163 (M.D.Fla.))
This case is about a woman who felt that she was discriminated based on her sex and retaliated against. The division in the company where she worked was sold to another company and she was eventually let go. She felt that her firing was pretextual and in retaliation for her filing with the EEOC, but the Court did not agree and granted Defendant’s Motion for Summary Judgment. The reasoning is as follows.
The first issue in this case was with regards to Defendant’s Motion to Strike the Affidavits that were attached to Plaintiff’s Response. “Rule 56(e) state that an affidavit “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to matters stated therein.” Thus, conclusory arguments, statements based on information and belief, and inadmissible hearsay are subject to motion to strike.” (cites omitted). Id. Defendant argued that all 4 declarants were deposed and that Plaintiff is submitting affidavits to supplement their deposition testimony. Id. The Court ruled that the affidavits were allowable less those portions that were opinions or hearsay. Id.
This sex discrimination case began when Plaintiff began working for Defendant in July of 2001 as the Director of Radiation Therapy. Id. In February of 2002 Plaintiff was promoted to a new position. Id. This new position was in addition to her old job load. And then in 2007 Defendant started to negotiate to sell the radiation therapy practice. Id.
In early 2007, Plaintiff came under the supervision of Kevin Cooper. Id. On November 30, 2007, Plaintiff filed a sexual discrimination charge with the EEOC against Mr. Cooper. Id. Then in December of 2007, the other part of Plaintiff’s job closed so she was just back to doing her regular job. In February of 2008, Plaintiff learned that of the possible sale and in April of 2008 the sale went through. Id.
Plaintiff was told of her upcoming termination on April 8, 2008 when she met with HR and explained that her position was eliminated due to the sale and that she would stay on to help with the transition for 2-6 weeks. Id. On April 25, 2008 Plaintiff was fired and so then on June 2, 2008, Plaintiff filed a second charge alleging retaliation. Id.
Plaintiff filed a 6 count complaint alleging sex discrimination based on a hostile work environment, retaliation, sex discrimination under Title VII and parallel counts alleging the same violation under the Florida Civil Rights Act.
Title VII prohibits discrimination against individuals in part because of one’s sex. Title VII prohibits two categories of discrimination-disparate treatment and disparate impact. Id. “In disparate treatment situations, an employer discriminates against an employee because of the person’s membership in a protected group (e.g., women) disparate treatment discrimination can take two forms-a tangible employment action or creation of a hostile work environment.” (cites omitted). Id. Plaintiff alleged both types.
To prove a hostile work environment claim, plaintiff must show: “1) that he or she belongs to a protected group, 2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature, 3) that the harassment must have been based on the sex of the employee, 4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatory abusive working environment, and 5) a basis for holding the employer liable.” (cites omitted). Id.
Plaintiff’s allegations against Mr. Cooper were that on a few occasions he yelled at Plaintiff, went ballistic on one occasion and pounded on the desk once. In order to win under a Hostile Work Environment, the harassment must be based on the sex of the employee. This Court follows the precedent that “Title VII is not a ‘general civility code.’” (cites omitted). Id. Title VII does “not prohibit harassment alone, however severe and pervasive.” Id. But, as there was evidence that Mr. Cooper only acted this way in front of women and not men, up to this point, her claim could continue. But, the next prong was to establish the ‘severe or pervasive’ element. To do so, the court utilizes the totality of the circumstances approach. Id. The Court looks to see if the conduct “alters the conditions of the victim’s employment.” (cites omitted). Id. And to this prong, the Court held that no reasonably jury could conclude that the conduct in this case satisfied either the severity or pervasiveness requirements. “it appears that much of the conduct plaintiff alleges was harassment was in fact annoyances and communications issues that do not come close to creating a hostile work environment.” Id. This Court held that a few isolated screaming incidents are not sufficiently severe to alter the conditions of Plaintiff’s employment to create a hostile work environment. Id.
Next, as to the termination of her employment, Plaintiff claims that it was in retaliation of her complaining to the EEOC. “In order to establish a prima facie case of retaliation under Title VII, an employee must show that: 1) she was engaged in an activity protected under Title VII; 2) she suffered an adverse employment action; and 3) there was a causal connection between the protected activity and the adverse employment action.” (cites omitted). Id.
The Court was not convinced that the evidence of when Defendant received the EEOC charge (on November 30, 2007) to when she was terminated (April 25, 2008) was proof of temporal proximity. This was not proof that the adverse action was not wholly related. But, Defendant argues that even if the Court does find this to be enough to establish a prima facie case, that the Defendant has a legitimate non-retaliatory business reasons for the termination of Plaintiff. Id. Defendant sold the unit where Plaintiff was working. Thus it was not up to Plaintiff to show that this was really just a pretext for her being retaliated against.
“If the proffered reason was legitimate and nondiscriminatory, then the plaintiff must meet the proffered reason head on and rebut it, and cannot succeed by simply quarreling with the wisdom of that reason.” (cites omitted). Id. In the case at hand, Plaintiff did not do this. She could not fight and disprove the Defendant’s business reasons for her firing. Defendant sold the division Plaintiff worked in to another company. This is a classic ‘reduction-in force’ case. Plaintiff was not replace and her duties were redistributed to current employees, two of who are female.
If you have been involved in a sex discrimination and retaliation discrimination case that you would like to find out the answers to, please call and speak to sex discrimination and retaliation discrimination lawyers Andrew S. Alitowski or William Ryan Moore at 888-892-5164. We are available 24 hours a day, 7 days a week.
If you are injured…Ask Andrew!!!