Response to Summary Judgment

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

 

NEDRA REDACTED,                                                 Case No.

            Plaintiff,

v. 

 

REDACTED, d/b/a REDACTED

REDACTED

 

            Defendant.

_________________________/

 

PLAINTIFF’S RESPONSE IN OPPOSITION TO

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

Plaintiff, Nedra Redacted (“Plaintiff”), by and through her undersigned counsel, files this Response in Opposition to Defendant’s Motion for Summary Judgment.

I.            PLAINTIFF’S STATEMENT OF MATERIAL FACTS

Plaintiff submits the following as facts that preclude entry of judgment against her:

A.            Plaintiff’s Employment with Defendant

Plaintiff began working for Defendant as a server in late 2004, when the restaurant opened.  (Plaintiff’s Deposition (“Plf. Dep.”), pp. 12, 27).  Plaintiff’s immediate supervisor was Redacted Redacted, an owner of the store.  (Plf. Dep., p. 27).  When Redacted Redacted was not there, Redacted Redacted supervised Plaintiff.  (Plf. Dep., p. 27).  Redacted Redacted, the store’s President, (Redacted Redacted Deposition (“DC Dep.”), p. 7)), and Redacted Redacted supervised Redacted Redacted, (Plf. Dep., p. 27).  During Plaintiff’s employment with Defendant, Redacted Redacted made the work schedule.  (Plf. Dep., p. 36); (DC Dep., pp. 13, 31).

Plaintiff advised management and Redacted Redacted that she was pregnant in late June, 2005.  (Defendant’s Motion, p. 2); see (Plf. Dep., pp. 33, 36); (Redacted Redacted Deposition (“PC Dep.”), p. 17).  Prior to announcing her pregnancy, Redacted Redacted never had any criticisms of Plaintiff’s performance.  (Plf. Dep., p. 45); (PC Dep., p. 11).  In fact, he thought Plaintiff was a great waitress, (PC Dep., p. 44), and did not think anyone was a better employee, (PC Dep., p. 11).  Similarly, Redacted Redacted was not aware of any problems with Plaintiff’s performance.  (Redacted Redacted Deposition (“JC Dep.”), pp. 14, 19).  Plaintiff got along with everyone at the restaurant.  (PC Dep., p. 56).

Defendant does not have any training on the anti-discrimination laws.  (PC Dep., p. 33).  Redacted Redacted never received any training regarding those laws.  See id.

B.            Discriminatory Treatment and Harassment and Reduction of Hours after Knowledge of Plaintiff’s Pregnancy

 

1.            Harassing Comments and Discriminatory Treatment

Immediately after Plaintiff announced her pregnancy, Redacted Redacted started making harassing and discriminatory comments to Plaintiff.  (Plf. Dep., p. 33).  On a daily basis, Redacted Redacted commented on Plaintiff’s pregnancy, including telling Plaintiff her breasts looked funny because she was pregnant, that she would look funny pregnant, that he questioned whether she would be a good mother, that she would look funny because she had a lopsided butt and a big pregnant belly, and similar comments.  (Plf. Dep., p. 33); (PC Dep., pp. 33-34) (admitting that he made comments to Plaintiff about the shape of her rear-end).  As Plaintiff’s pregnancy progressed, the treatment toward her became worse.  (Plf. Dep., p. 33).

In addition, Redacted Redacted treated Plaintiff differently than other servers after learning of her pregnancy.  For example, Redacted Redacted would deny Plaintiff’s requests to have a snack more often.  (Plf. Dep., p. 41).  When Plaintiff complained to Redacted Redacted about her hunger, Redacted Redacted told her she could not eat because she was not working a double shift.  (Plf. Dep., p. 42).  However, other workers were allowed to go out in shifts to have a smoke break.  (Plf. Dep., p. 41).

Plaintiff was also more closely scrutinized than other servers.  For example, Redacted Redacted reprimanded Plaintiff about getting a snack, even though other servers went off the premises to eat and nothing was said to them.  (Plf. Dep., p. 42).  In addition, Plaintiff felt as though someone was always on her back watching her.  (Plf. Dep., p. 42).

2.            Discriminatory Reduction of Plaintiff’s Hours

Not only was Plaintiff harassed and treated discriminatorily after she announced her pregnancy, but she also suffered significant financial harm directly after announcing her pregnancy.  In fact, in July, 2005, the month right after Plaintiff told management she was pregnant, Plaintiff’s hours were reduced.  (Plf. Dep., p. 36).  According to Plaintiff’s testimony, prior to announcing her pregnancy, Plaintiff worked from 35 to 40 hours per week, sometimes working overtime.  (Plf. Dep., pp. 65-66).  In July, 2005, Plaintiff worked only about 25 to 30 hours per week, and even less in August and September of 2005.  (Plf. Dep., p. 66).  Consistent with this, Defendant’s records reflect that Plaintiff’s hours decreased dramatically after she announced her pregnancy:

 

 

 

(Exhibit “A” to Redacted Redacted Affidavit: Defendant’s Payroll Records).

 

Even more significantly, Plaintiff’s time behind the bar decreased substantially after announcing her pregnancy.  (Plf. Dep., p. 48).   Prior to announcing her pregnancy, Plaintiff worked at the bar a minimum of two times a week for five to seven hour shifts.  (Plf. Dep., p. 48).  However, immediately after announcing her pregnancy, Plaintiff only worked at the bar a handful of times and the bar hours were completely eliminated shortly thereafter.  (Plf. Dep., p. 49).   This reduction was significant because servers made more money on the bar than they did working as a normal waitress.  (Plf. Dep., p. 49); (PC Dep., p. 17) (testifying that servers could make more money bartending than serving).  Moreover, the elimination of Plaintiff’s bar hours contradicts Defendant’s own job description of servers, which Defendant has testified includes “serving food and beverages from the . . . bar”.  (Exh. “A”, DC Dep., Def. Interrogatory Answers, No. 13).

Further, Plaintiff was completely available to work during this time frame.  From the time Plaintiff learned she was pregnant until her last day of work on September 16, 2005, Plaintiff never called in sick or missed a shift due to illness, other than to see Dr. Moffet in late August, 2005 for the flu, (Plf. Dep., p. 27), nor did she leave early from a shift due to not feeling well, (Plf. Dep., p. 28).  Plaintiff did not have any pregnancy related restrictions or limitations while she was working with Defendant and never stayed home from work due to nauseous or discomfort related to her pregnancy.  (Plf. Dep., p. 42); (Defendant’s Interrogatory Answers, No. 5) (Defendant does not argue that Plaintiff was incapable of performing her work due to pregnancy); (PC Dep., pp. 18, 42) (Plaintiff was able to do her job).  Between the time Plaintiff first told management that she was pregnant and her last day of employment on September 16, 2005, Plaintiff did not request time off from work.  (Plf. Dep., pp. 36, 37).

C.            Plaintiff’s Complaints to Management about Discriminatory Comments, Reduction of Hours and Harassment of Plaintiff

 

In July, 2005, Plaintiff complained to Redacted Redacted and Redacted Redacted about Redacted Redacted’s harassing and discriminatory comments and advised Redacted Redacted that she felt uncomfortable about the comments.  (Plf. Dep., pp. 33, 35).  Plaintiff also complained to Redacted Redacted that she was not tending bar as often once she announced her pregnancy.  (Plf. Dep., p. 49).  This was one of Plaintiff’s biggest complaints because servers made more money on the bar than they did serving.  (Plf. Dep., p. 49).  Despite these complaints, Plaintiff’s bar hours were never reinstated. (Plf. Dep., p. 49).

Plaintiff also complained numerous times to Redacted Redacted regarding her work hours.  (Plf. Dep., p. 35).  Among other things, she complained that she was missing her hours behind the bar, that he would give her only night shifts even though she requested morning shifts, and that even though she was the server who had been with the company the longest, she had the fewest hours.  (Plf. Dep., pp. 35, 36).

Nothing was done about Plaintiff’s repeated complaints to management.  See supra.  Thus, around the end of August, 2005, Plaintiff called Redacted Redacted outside of work.  (Plf. Dep., pp. 33-34, 37).  During the call, Plaintiff told Redacted Redacted that she felt she was being treated differently and that ever since she got pregnant her hours had been cut.  (Plf. Dep., p. 37).  Plaintiff further advised Redacted Redacted that she believed Redacted Redacted wanted her to quit and that he would say hurtful comments.  (Plf. Dep., p. 37).  Plaintiff also explained to Redacted Redacted that she was tired of being stressed and extremely anxious about going to work.  (Plf. Dep., p. 38).

In response, Redacted Redacted told Plaintiff that she was one of her best servers.  (Plf. Dep., pp. 38, 43).  She also said that she would address the issue with Redacted Redacted.  (Plf. Dep., pp. 38, 43).

The same day Plaintiff called Redacted Redacted, Plaintiff’s mother called Redacted Redacted, as Plaintiff had previously told her mother that she was emotionally sick and stressed and had high anxiety due to the harassment at work.  (Plf. Dep., pp. 34, 37-38).  Plaintiff’s mother complained to Redacted Redacted that she was worried about Plaintiff’s stress and the harassment Plaintiff had to endure.  (Plf. Dep., p. 38).  Plaintiff’s mother also advised Redacted Redacted that Redacted Redacted commented to Plaintiff that she would not last because she was pregnant.  (DC Dep., p. 51).  After the call, Redacted Redacted discussed Plaintiff’s complaints with Redacted Redacted.  (PC Dep., p. 47).

D.            Retaliation after Plaintiff’s Complaints regarding Discriminatory Treatment, Reduction of Hours and Harassment

 

1.            Increased Tension and Anxiety

Despite Plaintiff’s and her mother’s pleas to Redacted Redacted and Redacted Redacted in late August, 2005, the problems with Redacted Redacted continued.  (Plf. Dep., pp. 42-43).  Plaintiff feared that Redacted Redacted would treat her worse because she complained of his discriminatory treatment.  (Plf. Dep., p. 43).  Plaintiff’s fear was realized, as Redacted Redacted acted angry toward Plaintiff and there was increased anxiety, stress and tension, immediately following Plaintiff’s complaints in August, 2005.  (Plf. Dep., pp. 42-43).  In fact, for about two weeks, Redacted Redacted treated Plaintiff as though she was not there; he would not say a word to her and would ask other servers to relay his comments to her.  (Plf. Dep., pp. 43, 44).  In addition, anything Plaintiff requested from Redacted Redacted was denied, even more so than it already had been after she announced her pregnancy.  (Plf. Dep., p. 43).  Redacted Redacted also continued to make rude and insulting comments to Plaintiff, including comments about the way she looked.  (Plf. Dep., p. 44).  For example, Redacted Redacted told Plaintiff that she should not breast feed because it would make her nipples look funny.  (Plf. Dep., p. 44).

2.            Retaliatory Treatment at Mandatory Work Meeting

Plaintiff suffered further retaliatory treatment from Redacted Redacted when she attended a mandatory work meeting.  In late August, 2005, Plaintiff missed work to see Dr. Douglas Moffett for sickness unrelated to her pregnancy.  (Plf. Dep., p. 28).  Later, Plaintiff attended a mandatory employee meeting, where Redacted Redacted reprimanded Plaintiff in front of everyone because she did not have a doctor’s note.  (Plf. Dep., pp. 28, 29, 30).  Redacted Redacted also told Plaintiff at the meeting that she was not allowed to work another shift until she brought in the note.  (Plf. Dep., p. 29).

A few days after the mandatory employee meeting, Plaintiff presented to Redacted Redacted, Dr. Moffett’s note verifying that she was sick.  (Plf. Dep., pp. 28, 29).  Redacted Redacted, however, did not want the note.  (Plf. Dep., p. 29).

E.            Constructive Discharge from Employment with Defendant

On September 16, 2005, about three or four weeks after her conversation with Redacted Redacted, Plaintiff’s employment ended, when she was constructively discharged.  (Plf. Dep., pp. 14, 45).  That day, Plaintiff gave Redacted Redacted her EEOC charges.  (Plf. Dep., p. 51).  Redacted Redacted took the charges to Redacted Redacted and they finally decided to have a meeting with Plaintiff.  (Plf. Dep., p. 51).  Only Redacted Redacted, Redacted Redacted and Plaintiff were present at the meeting.  (Plf. Dep., p. 51).

During the meeting, Plaintiff told Redacted Redacted and Redacted Redacted that she had been subjected to many things that she should not have to tolerate and, despite her complaints to management, nothing was done.  (Plaintiff Dep., p. 52).  She also told them that she was tired of worrying about how she was going to be treated.  See id.

Redacted Redacted and Redacted Redacted were rude to Plaintiff at the meeting.  (Plf. Dep., pp. 53-54).  In fact, Redacted Redacted lost his temper at the beginning of the meeting and yelled at Plaintiff for the first half of the meeting.  (Plf. Dep., pp. 54-55); (PC Dep., p. 43) (admitting that he may have raised his voice and that he was upset when Plaintiff gave him court papers).  He called Plaintiff a liar and told her she was making everything up.  (Plf. Dep., p. 54).  Redacted Redacted agreed with Redacted Redacted, (Plf. Dep., p. 54), and repeatedly told Plaintiff that Redacted Redacted had done nothing wrong, (Plf. Dep., p. 65).  Redacted Redacted also told Plaintiff that she needed to do what Redacted Redacted said.  (Plf. Dep., p. 54).  They both told Plaintiff that she was asking for it and had no reason to complain, (Plaintiff Dep., p. 54), and that she should expect to have comments made to her because she was a cute girl, (Plf. Dep., p. 52).

During the meeting, Plaintiff cried and told them that she did not want to work the rest of the day because she was too upset.  (Plaintiff Dep., p. 52).  Plaintiff then left work.  (Plf. Dep., p. 52).  Plaintiff’s husband and mother did not want Plaintiff to return due to the stress and for health reasons, and thought it would be better for Plaintiff not to be in that environment.  (Plf. Dep., p. 52).  Plaintiff did not return to work.  (Plf. Dep., p. 52).

II.            PLAINTIFF’S REBUTTAL OF DEFENDANT’S “FACTS”

Although Defendant has not specifically cited to the record, Plaintiff responds as follows:

A.            Defendant’s Original Reason for the Reduction of Plaintiff’s Hours Is False and Is a Pretext.

 

In September, 2006, Redacted Redacted testified in his interrogatory responses that Plaintiff’s hours were reduced in late May or June, 2005 due to a seasonal slowdown in business and that “the hours of all servers were reduced to reflect the seasonal slowdown in business.” (Defendant’s Answers to Plaintiff’s First Interrogatories, No. 3) (emphasis in the original).  Defendant’s own payroll records flatly contradict Redacted Redacted’s testimony.  As shown below in a chart with a sampling of three servers and Plaintiff, only Plaintiff’s hours were reduced, but not until after announcing her pregnancy:

 

(Exhibit “A” to Redacted Redacted Affidavit, payroll records).

B.              Defendant’s Changing and Inconsistent Reasons for the Reduction of Plaintiff’s Hours Are a Pretext.

 

Realizing that its original reason was false and contradicted by its own payroll records, Defendant changed its reasons for reducing Plaintiff’s hours.

1.            Changing and Contradicting Reasons at Depositions of Defendant’s Managers

 

Specifically, Redacted Redacted admitted at his deposition that his earlier testimony was false and modified his testimony to say that only some servers’ hours were reduced.  (DC Dep., pp. 14-16).  Redacted Redacted then changed his reason for the reduction of Plaintiff’s hours to a new reason, this time saying that only the hours of servers that he considered “key personnel” would not be reduced during a seasonal slowdown and that Plaintiff was not a key person.  (DC Dep., pp. 11, 12).

Redacted Redacted’s new testimony was contradicted, however, during the deposition of Redacted Redacted, who was responsible for actually making the work schedule.   Specifically, during his deposition in February, 2007, Redacted Redacted rejected Redacted Redacted’s “key personnel” theory, testifying that there was no reason for the key personnel to have more hours than Plaintiff.  (PC Dep., pp. 9, 10, 14).  Redacted Redacted instead testified that Plaintiff’s hours should have been the same as everyone else’s, around roughly thirty-two to forty hours per week, and repeatedly denied that Plaintiff’s hours were reduced at all at any time in 2005.  (PC Dep., pp. 9-10, 11, 14, 36) (emphasis added).   Redacted Redacted believed that there was no reason why Plaintiff’s hours would be reduced.  (PC Dep., p. 45).

Thus, as of February, 2007, Defendant already had three different reasons to try to explain the reduction of Plaintiff’s hours:  first, all servers’ hours were reduced, then all servers’ hours were reduced with the exception of certain key personnel, then Plaintiff’s hours actually were not reduced at all.  See supra.

2.            New Reason Stated in Motion for Summary Judgment

Now, in its Motion, Defendant has abandoned its “key personnel” theory and changed its reasons yet again to explain the obvious reduction in Plaintiff’s hours.  Defendant now claims that it had a seasonal business which dropped off in April, instead of May or June contrary to Redacted Redacted’s earlier testimony, and alleges that servers including Plaintiff and others worked fewer hours during the seasonal slowdown.  (Defendant’s Motion, p. 2).  Defendant then cites to select and incomplete excerpts of payroll records for several servers.  See id. at  pp. 2-3.

As already noted, Plaintiff has adduced evidence, including Defendant’s own payroll records, reflecting that her hours were reduced not in April during the purported seasonal slowdown, but rather, they declined only after she announced her pregnancy in late June, 2005, at which time her hours declined sharply:

 

 

(Exhibit “A” to Redacted Redacted Affidavit, payroll records).  Indeed, although Defendant’s Motion states that the seasonal slowdown begins in April, and in fact Redacted Redacted testified that the slowdown in April was “dramatic”, (PC Dep., p. 7), Plaintiff worked significantly more in April and May than she did in the summer months following her announcement that she was pregnant.  See supra (above chart).

Further, in stark comparison to Plaintiff’s hours, several of the other servers to which Defendant refers, had lower hours in the Spring, but their hours actually increased after Plaintiff announced her pregnancy:

 

(Exhibit “A” to Redacted Redacted Affidavit, payroll records) (showing examples of hours of servers, including Plaintiff, and reflecting inversion relationship between hours).   Accordingly, Defendant’s new reason for the reduction of Plaintiff’s hours is false.

III.            MATERIAL ISSUES OF FACT PRECLUDE SUMMARY JUDGMENT ON PLAINTIFF’S PREGNANCY DISCRIMINATION CLAIM.

 

Plaintiff claims, among other things, that she was discriminated against, had her hours reduced, and was constructively discharged because she was pregnant in violation of Title VII.[1]  As demonstrated below, Plaintiff has established a prima facie case of discrimination, has shown that Defendant’s proffered reasons for the reduction of Plaintiff’s hours are false and are a pretext for discrimination, and shown that the real reason for the adverse actions is pregnancy discrimination.

A.            Plaintiff has established a prima facie case of pregnancy discrimination. [2]

 

In its Motion, Defendant does not argue that Plaintiff has failed to establish a prima facie case of pregnancy discrimination, but rather, Defendant seems to claim that it had legitimate non-discriminatory reasons for its discriminatory actions.  (Def. Motion, pp. 10-13).  Nonetheless, Plaintiff notes that she has established a prima facie case.

1.            Plaintiff was a member of a protected class and was qualified for the job and able to perform her work duties.

 

There is no dispute that Plaintiff was a member of a protected class and that she was qualified for the job and able to perform her work duties.  See, e.g., (Def.’s Motion, p. 8) (admitting that it is undisputed that Plaintiff, a pregnant female, belongs to a protected group); (Defendant’s Interrogatory Answers, No. 5) (Defendant has never taken the position that Plaintiff was incapable of performing the duties of her work due to pregnancy); (PC Dep., pp. 18, 42) (testifying that Plaintiff was able to do her job and that Plaintiff never told him that she could not work because she was pregnant).

2.            Plaintiff suffered adverse employment actions.

 

Likewise, Plaintiff has suffered adverse employment actions.  To qualify as an adverse employment action, the plaintiff much show 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, 1239 (11th Cir. 2001).  A reduction in an employee’s hours, which reduces the employee’s take-home pay, qualifies as a tangible employment action.  See Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir. 2006).

In this case, Plaintiff has produced evidence showing that Defendant reduced her hours following her announcement that she was pregnant including, her own testimony that her hours declined sharply after she announced her pregnancy in June, 2005, (Plf. Dep., p. 36), as well as Defendant’s payroll records reflecting that Plaintiff’s hours were reduced after the announcement, (Chart, Page 3 of this Response).  In addition, Defendant acknowledges that Plaintiff’s hours were reduced.  (Def. Motion , p. 2).

Further, Plaintiff has testified that her bar hours decreased after announcing her pregnancy and, in fact, were completely eliminated, shortly thereafter.  (Plf. Dep., p. 48).  This reduction was significant because servers made more money on the bar than they did working as a normal waitress.  (Plf. Dep., p. 49).  Even Redacted Redacted admitted that servers could make more money bartending than serving.  (PC Dep., p. 17).  Defendant has not even addressed, let alone provided any evidence, refuting this evidence concerning Plaintiff’s bar hours.

Finally, Plaintiff has provided ample evidence that she was constructively discharged.  A constructive discharge occurs when a discriminatory employer imposes working conditions that are so intolerable a reasonable person in the employee’s position would have been compelled to resign.  See Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003).  Courts assume that a reasonable person would have felt compelled to resign when faced with a drastic reduction in hours and hourly pay.  See Monaco v. Fuddruckers, Inc., 789 F. Supp. 944, 950-51 (N.D. Ill. 1992).

In this case, Plaintiff has provided significant evidence that she was constructively discharged.  As already noted, Plaintiff’s hours decreased drastically after she announced her pregnancy and her bar hours were completely eliminated.  See supra.  Indeed, Defendant’s payroll records show that Plaintiff’s hours went from being full-time around 35 to 40 hours per week in the Spring to roughly half that in September at the time of her constructive discharge.  (Chart, Page 3 of this Response). The elimination of Plaintiff’s bar hours had a further significant monetary impact because servers made more money on the bar than they did serving.  (Plf. Dep., p. 49);(PC Dep., p. 17).  This significant financial impact, when added to (1) the daily barrage of harassing discriminatory comments, (2) being singled out from other employees and being more highly scrutinized, and (3) being berated at a meeting where Redacted Redacted sided with the harasser completely, and told Plaintiff she had no reason to complain, (Plf. Dep., pp. 52, 54-55), all provide more than enough evidence from which a jury could conclude that Plaintiff was constructively discharged.  See Farris v. Board of County Comm’rs, 924 F. Supp. 1041, 1047-48 (D. Kan. 1996) (material fact issue whether reasonable person would have continued to work after reporting harassment, where employer refused to place plaintiff in position where she would have no contact with supervisor); see also Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d 1126, 1133 (4th Cir. 1995) (employer’s response must be reasonably calculated to end intolerable environment).

3.            Plaintiff has suffered from differential application of work or disciplinary rules.

 

As to the fourth prong, Plaintiff has established that she suffered from differential application of work or disciplinary rules.  To establish this fourth prong in the pregnancy discrimination context, Plaintiff need only show that she was singled out for adverse treatment and need not prove that non-pregnant employees were treated better to survive summary judgment.  See Cross v. Southwest Recreational Indus., 17 F.Supp.2d 1362, 1374 (N.D. Ga. 1998) (citing Byrd v. Lakeshore Hosp., 30 F.3d 1380, 1383 (11th Cir. 1994)); see also Asmo v. Keane, Inc., 471 F.3d 588, 592 (6th Cir. 2006) (fourth prong requires plaintiff to show only a nexus between her pregnancy and adverse decision).

In this case, Plaintiff has provided extensive evidence showing that she was singled out for adverse treatment based on her pregnancy and that there was a substantial nexus between her pregnancy and the adverse employment decisions.   As already noted, Plaintiff’s testimony coupled with Defendant’s payroll records reflect that immediately after announcing her pregnancy, her total work hours and bar hours were reduced.  See supra; Bechel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 934 (11th Cir. 1995) (“Proximity in time is sufficient to raise an inference of causation”).  In contrast to Plaintiff, several servers’ hours were not reduced, including but not limited to, Elizabeth Tague, Jennifer Terry and Monica Dykes.  (Chart, Page 9 of this Response); (Plf. Dep., p. 46) (testifying that she could not recall a single server whose hours were reduced from June, 2005 through September, 2005).  In fact, during the summer months, Jennifer Terry and Monica Dykes consistently worked roughly 40 hours per week.  (Chart, Page 9 of this Response).  On the other hand, Plaintiff’s hours significantly declined, see supra, despite that she had been there the longest, (Plf. Dep., pp. 12, 27), and that her supervisor believed that there was no better employee than Plaintiff, (PC Dep., pp., 11, 44).

Further, Plaintiff has shown many other instances where she was singled out for adverse treatment as a result of her pregnancy, including, but not limited to the following:  (1) being subjected by her supervisor to repeated discriminatory comments concerning her pregnancy on a daily basis, including his comments to Plaintiff that her breasts looked funny because she was pregnant, that she would look funny pregnant, that he questioned whether she would be a good mother, that she would look funny because she had a lopsided butt and a big pregnant belly, and similar comments, (Plf. Dep., p. 33); see (PC Dep., pp. 33-34) (admitting that he made comments to Plaintiff about the shape of her rear-end); (2) being treated differently from other servers by not being allowed to take breaks while the other servers were, (Plf. Dep., p. 41); (3) being more closely scrutinized than other servers and, being reprimanded for getting a snack even though other servers did and were not reprimanded, (Plf. Dep., p. 42); (4) being singled out and reprimanded at work meeting in front of other employees, (Plf. Dep., p. 28); and (5) being yelled at by her supervisor during a meeting and being told during that meeting that she should expect to have comments made to her because she was a cute girl, (Plf. Dep., p. 52).

Taken together, this evidence demonstrates rather clearly that Plaintiff was singled out for adverse treatment as a result of her pregnancy.  See Cross supra.  Accordingly, Plaintiff has established a prima facie case of discrimination, sufficient to survive summary judgment.  See Rosales v. Keyes Company, 2007 WL 29245, *4 (S.D. Fla. 2007) (burden of establishing prima facie case of discrimination is “not onerous”); see also EEOC v. W& O, Inc., 213 F.3d 600 (11th Cir. 2000) (two waitress were granted summary judgment on liability after being terminated since restaurant manager thought pregnant women were “too big” and “too fat” to be waiting tables).

B.            Plaintiff has established pretext by demonstrating that Defendant’s original reason for reducing Plaintiff’s hours is false.

 

Plaintiff claims that she was discriminated against because she was pregnant.  Defendant claims that Plaintiff’s hours were reduced for non-discriminatory reasons unrelated to her pregnancy (i.e., a seasonal slowdown).  A plaintiff can raise an issue of pretext by establishing evidence that the employer’s articulated reason for the adverse action is false.  See Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997).  Where a plaintiff shows evidence that the employer’s reason for the adverse action is false, no other evidence is generally needed to support a claim of intentional discrimination.  See Reeves v. Sanderson Plumbing Products, 120 S. Ct. 2097, 2108 (2000).  Here, Plaintiff has established pretext by adducing evidence showing that Defendant’s changing and inconsistent reasons for the reduction of Plaintiff’s hours are false.

1.            Defendant’s original reason for the reduction of Plaintiff’s hours is false and is a pretext.

 

In September, 2006, Redacted Redacted testified in his interrogatory responses that Plaintiff’s hours were reduced in late May or June, 2005 due to a seasonal slowdown and that “the hours of all servers were reduced to reflect the seasonal slowdown in business.” (Defendant’s Answers, No. 3) (emphasis in the original).   Plaintiff has easily refuted this reason.  The chart of Defendant’s payroll records on Page 9 of this Response, demonstrates that the hours of several servers were not reduced.  Moreover, Redacted Redacted admitted at his deposition that his testimony that “the hours of all servers were reduced to reflect the seasonal slowdown in business,” was false.  (DC Dep., pp. 14-16).

2.              Defendant’s changing and inconsistent reasons for the reduction of Plaintiff’s hours are false and are a pretext.

 

a.            Plaintiff has refuted Defendant’s “key personnel” theory.

After admitting that his original reason was false, Redacted Redacted changed his reason for the reduction of Plaintiff’s hours to a new reason, claiming that only the hours of servers who he considered “key personnel” would not be reduced during a seasonal slowdown and that Plaintiff was not considered a key person.  ( Dep., pp. 11, 12).

In response to Defendant’s Motion, Plaintiff has cited to the testimony of Redacted Redacted, the person responsible for actually making the work schedule, who rejected Redacted Redacted’s “key personnel” theory.  (PC Dep., pp. 9, 10, 14).  Redacted Redacted has testified that there was no reason for the key personnel to have more hours than Plaintiff and believed that Plaintiff’s hours should have been the same as everyone else’s hours.  (PC Dep., pp. 9-10, 14, 36).  In addition, Redacted Redacted repeatedly denied that Plaintiff’s hours were reduced at all at any time in 2005 and stated that there was no reason why Plaintiff’s hours would be reduced.  (PC Dep., pp. 9-10, 11, 14, 36, 45).  Finally, Redacted Redacted testified that Plaintiff was a great waitress and that he did not think anyone was a better employee than Plaintiff.  (PC Dep., pp. 11, 44).

b.            Plaintiff has refuted Redacted Redacted’s testimony.

 

Plaintiff has easily refuted Redacted Redacted’s testimony that her hours were not reduced.  Plaintiff has testified that her hours declined sharply after she announced her pregnancy in June, 2005, (Plf. Dep., p. 36), and has cited to Defendant’s payroll records, which support her testimony.  (Chart, Page 3 of this Response).  Moreover, even Defendant acknowledges that Plaintiff’s hours were reduced.  (Def. Motion, p. 2).

c.            Plaintiff has refuted Defendant’s reason stated in its Motion.

 

Finally, Plaintiff has refuted Defendant’s new reason provided in its Motion, wherein Defendant has abandoned its “key personnel” theory, and now claims that it had a seasonal business which dropped off in April and, that servers, including Plaintiff and others, worked fewer hours during the seasonal slowdown.  (Def. Motion, p. 2).

To disprove this theory, Plaintiff has cited to Redacted Redacted’s testimony that the seasonal slowdown began in May or June and not April, (Defendant’s Answers to Plaintiff’s First Interrogatories, No. 3), and has pointed to Defendant’s own payroll records, reflecting that her hours were reduced not in April during the purported seasonal slowdown, but rather, after she announced her pregnancy in late June, 2005.  See (Chart, Page 11 of this Response (taken from Defendant’s payroll records)).

Further, although Redacted Redacted has testified that the slowdown in April was “dramatic”, (PC Dep., p. 7), Defendant’s payroll records reflect that Plaintiff’s hours increased from April (146.59 hours) to May (156.29) and that she worked significantly more during these two months than she did in the summer months after she announced her pregnancy.  See supra.  Consistent with this, Plaintiff has provided her testimony that she worked from 35 to 40 hours per week, sometimes overtime, prior to announcing her pregnancy, and that after announcing her pregnancy, she worked only 25 to 30 hours per week in July, 2005 and even less in August and September, 2005, (Plf. Dep., pp. 65-66).

Finally, Plaintiff has cited to the hours of servers, who had lower hours in the Spring, but whose hours increased after Plaintiff announced her pregnancy.  (Chart, Page 12 of this Response).  In fact, two servers, Jennifer Terry and Monica Dykes, actually worked roughly 40 hours per week consistently during the summer.  See id.  In contrast, Plaintiff’s hours significantly declined, see supra, despite that she had been with the company the longest, (Plf. Dep., pp. 12, 27), and despite that Redacted Redacted believed that there was no better employee than Plaintiff, (PC Dep., pp., 11, 44).  Plaintiff has also testified that she was available to work during this time.  (Page 4 of this Response).

Based on this record, it is clear that Defendant’s changing and inconsistent reasons for the reduction of Plaintiff’s hours are false.  Plaintiff’s hours were not reduced due to an alleged seasonal slowdown.  To the contrary, her hours were not reduced until after June, 2005 when she announced her pregnancy.

3.            Defendant’s changing and inconsistent reasons for the reduction of hours are a pretext for unlawful discrimination.

 

Further, Defendant’s changing and inconsistent explanations for the reduction in hours, alone, support a finding of pretext.  The United States Court of Appeals for the Eleventh Circuit has held that if an employer proffers inconsistent reasons, such statements, in and of themselves, can be evidence of discrimination.  See Tidwell v. Carter Prods., 135 F.3d 1422, 1428 (11th Cir. 1998).  This is particularly true on summary judgment where the law mandates consideration of evidence in the light most favorable to the plaintiff.  See also Edwards v. United States Postal Serv., 909 F.2d 320, 324 (8th Cir. 1990) (a record filled with changing and inconsistent explanations supports a finding of pretext); Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (plaintiff can show pretext by pointing to inconsistencies or contradictions in employer’s proffered reasons for its actions); Reeves, 120 S. Ct. at 1208 (“The fact finder is entitled to consider a party’s dishonesty about a material fact as ‘affirmative evidence of guilt’”).

In this case, the record is replete with inconsistencies and contradictions by Defendant.  Defendant has changed its reasons at least three times and Plaintiff has provided extensive evidence disproving each of these reasons.  See supra.

4.            Additional Evidence of Pretext and Discrimination

Finally, Plaintiff has shown additional evidence of discrimination for a jury to disbelieve Defendant’s articulated reason.[3]  This evidence includes:  (1) Redacted Redacted’s repeated discriminatory comments, (Plf. Dep., p. 33); (PC Dep., pp. 33-34); (2) disparate treatment, including other workers being allowed to take breaks but not Plaintiff, (Plf. Dep., p. 41); (3) Plaintiff being more closely scrutinized than other servers, (Plf. Dep., p. 42); (4)  Plaintiff being singled out at a mandatory meeting where she was reprimanded in front of other employees, (Plf. Dep., p. 28); and (5) Plaintiff being yelled at by her immediate supervisor during meeting, where she was told that she should expect to hear comments because she was a cute girl, (Plf. Dep., p. 52).

IV.            MATERIAL ISSUES OF FACT PRECLUDE SUMMARY JUDGMENT ON PLAINTIFF’S RETALIATION CLAIM.

 

Plaintiff also alleges a retaliation claim.  Title VII protects against retaliation, for individuals opposing any practice made an unlawful employment practice by Title VII.  See 42 U.S.C. 2000e-3.

A.            Plaintiff has demonstrated protected activity under the Opposition Clause.

 

Plaintiff has demonstrated that she engaged in protected activity under Title VII’s Opposition Clause.  The question is not whether a formal accusation of discrimination is made but whether the employee’s communications to the employer sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.  See Reynolds v. Golden Corral Corp., 106 F.Supp.2d 1243, 1253 (M.D.Ala. 1999), aff’d, 213 F.3d 1344 (11th Cir. 2000).

The record reflects that Plaintiff complained repeatedly to Redacted Redacted and Redacted Redacted in July, 2005, regarding Redacted Redacted’s harassing and discriminatory comments and of the discriminatory reduction of her bar hours.  (Plf. Dep., pp. 33, 35, 49).   The following month, Plaintiff again complained to Redacted Redacted that she was treated differently and that ever since she got pregnant, her hours had been cut.  (Plf. Dep., pp., 33-34, 37).  Likewise, Plaintiff’s mother called Redacted Redacted in late August, 2005, to complain of the discrimination toward Plaintiff.  (Plf. Dep., p. 38); (DC Dep., p. 51).  Finally, Plaintiff presented Redacted Redacted and Redacted Redacted with her EEOC charges on September 16, 2005.  (Plf. Dep., pp. 14, 45, 51, 52).  This evidence is sufficient to constitute protected activity.  See Reynolds supra.

B.            Plaintiff suffered a materially adverse action.

 

Similarly, Plaintiff has suffered materially adverse employment actions.  Initially, Plaintiff notes that the case Defendant cites in support of its motion, Miller v. Auto. Club of N.M., 420 F.3d 1098, 1119 (10th Cir. 2005), is no longer good law.  See also Scott v. Kempthorne, 191 Fed. Appx. 622, 626 n.3 (10th Cir. 2006) (recognizing that standard in Miller is no longer the correct standard after Burlington Northern).  Thus, the Court should disregard that portion of the Motion.

The Supreme Court has adopted a new standard for analyzing adverse actions in retaliation claims, in Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (June 22, 2006).  After Burlington Northern, an employee need only show a reasonable employee would have found the challenged action materially adverse, i.e. “it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination”.  Id. at 2415.  The Eleventh Circuit has recognized this standard.  See Crosby v. Mobile County Personnel Board, 2007 WL 245126 (2007) (per curiam) (noting that anit-retaliation provision is not limited to discriminatory actions that affect terms and conditions of employment and holding that employee need not show adverse employment action (which was this circuit’s pre-Burlington Northern standard), but rather, must show that a reasonable employee would have found the challenged action materially adverse).

Plaintiff has produced significant evidence to meet the new Burlington Northern standard.  Among other things, Plaintiff has shown that her bar hours were eliminated and her total hours continued to be reduced after her complaints in July, 2005 and August, 2005 to Redacted Redacted and Redacted Redacted, with the sharpest decline occurring in late August, 2005 and September, 2005.  See supra (this Response, pp. 3-4).

Plaintiff also has shown that immediately after her complaints in late August, 2005, Plaintiff feared that Redacted Redacted would retaliate against her and that her fear was realized, as Redacted Redacted acted angry toward Plaintiff and there was increased anxiety, stress and tension.  (Plf. Dep., pp. 42-43).  In fact, for about two weeks, Redacted Redacted treated Plaintiff as though she was not there and would ask other servers to relay his comments to Plaintiff.  (Plf. Dep., pp. 43-44).  After Plaintiff’s complaints in August, 2005, Redacted Redacted also continued to make discriminatory comments to Plaintiff and denied any of Plaintiff’s requests, even more so than he already had done after she announced her pregnancy.  (Plf. Dep., pp. 43-44).  Consistent with this retaliatory behavior, Redacted Redacted retaliated against Plaintiff in late August, 2005, at a work meeting, during which he reprimanded Plaintiff in front of other employees for not having a doctor’s note, (Plf. Dep., pp. 28-30) and by losing his temper, yelling at Plaintiff and calling her a liar during her meeting in September, 2005, (Plf. Dep., 54-55).

Finally, Plaintiff has shown that she was constructively discharged in retaliation of her protected activity.  The evidence supporting this claim is fully outlined in Part III.A.2 of this Response and is incorporated herein by reference.

The above evidence is sufficient to survive summary judgment.  See Taylor v. Roche, 196 Fed. Appx. 799 (11th Cir. 2006) (per curiam, unpublished) (summary judgment for employer vacated where plaintiff offered evidence that employer denied his request to transfer to night shift to get away from tense relationship with supervisor and to be available to drive his children to school).

C.            Plaintiff has shown a causal connection.

 

To show causation, the Plaintiff need only show that the protected activity and adverse actions were not “wholly unrelated”.  Wideman v. Wal-Mart Stores, 141 F.3d 1453, 1457 (11th Cir. 1998).  A plaintiff satisfies this element if he shows that the decision maker was aware of the protected conduct at the time of the adverse action.  See Goldsmith v. City of Amore, 996 F.2d 1155, 1163 (11th Cir. 1993).  The question of timing is factual if conflicting evidence is shown.  See Kim, 123 F.3d at 1060-61.

In this case, the adverse actions cited above followed closely on the heels of Plaintiff’s complaints of discrimination.  Much of this evidence is already outlined in Part III.A. and Part IV.B. of this Response.  Plaintiff would add that the adverse actions of her hours reduction, bar hours elimination, the increased tension with Redacted Redacted, and Redacted Redacted’s yelling at Plaintiff on September 16, 2005, occurred very close in time (in a matter of days or even less) after Plaintiff’s July and August complaints, as well as her handing the EEOC papers to Defendant in September.  See supra.  In addition, Redacted Redacted, Redacted Redacted and Redacted Redacted were aware of Plaintiff’s complaints.  See, e.g., (PC Dep., p. 47) (Redacted Redacted discussed Plaintiff’s complaints with him); (Plf. Dep., pp. 33, 35) (Plaintiff complained to Redacted Redacted and Redacted Redacted about Redacted Redacted’s discriminatory comments).  Given the close timing between the complaints and adverse actions, Defendant’s awareness of Plaintiff’s complaints, and Redacted Redacted’s discriminatory remarks and differential treatment, there is no question that there is a sufficient causal connection to survive summary judgment.  See Bechtel Constr. Co. v. Sec. of Labor, 50 F.3d 926, 934 (11th Cir. 1995) (“Proximity in time is sufficient to raise an inference of causation”).

D.            Plaintiff has shown pretext.

 

Finally, Plaintiff has shown pretext in this case, by citing to the evidence outlined extensively in Part III.B. of this Response.  Plaintiff would add that Defendant does not raise the issue of pretext but instead claims that Plaintiff failed to establish a prima facie case, citing only to conclusory statements for this claim.  (Def. Motion, pp. 16-17).

V.            CONCLUSION

 

Accordingly, for the foregoing reasons, Defendant’s motion must be denied.[4] h



[1] Plaintiff has not asserted a claim for sexual harassment/hostile work environment.  As a result, the Court should disregard Defendant’s discussion of a hostile work environment claim.

[2] To establish a prima facie case of pregnancy discrimination under Title VII, the employee must show that (1) she is a member of a protected class; (2) that she was qualified for her position; (3) that she suffered an adverse affect on her employment; and (4) that she suffered from differential application of work or disciplinary rules.  See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973).

[3] Arguably, the evidence of Redacted Redacted’s repeated statements concerning Plaintiff’s pregnancy added to the other discriminatory treatment, are direct evidence of discrimination.  See EEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1072 (11th Cir. 1990) (evidence of racial hostility, including barrage of racial slurs, was direct evidence); Pitre v. Western Elec. Co., 843 F.2d 1262, 1272 (10th Cir. 1988) (employer was liable for sex discrimination where “those making the subjective decisions were men, at least some of whom held discriminatory attitudes and who had participated in past discrimination”); Siegel v. Alpha Wire Corp., 894 F.2d 50, 55 (3rd Cir. 1990) (reversing summary judgment for employer in light of company’s president’s repeated use of the phrase “old dogs won’t hunt”).

Even if Redacted Redacted’s repeated discriminatory statements and the other above-noted discriminatory treatment are not direct evidence of discrimination, they are certainly relevant to the mindset of Defendant evidence that a jury could use to infer discrimination.  See Carter v. Three Springs Residential Treatment, 132 F.3d 635, 644 (11th Cir. 1998) (“circumstantial evidence that does not neatly fall into the McDonnell Douglas framework . . . is relevant to the issue of pretext”).  Moreover, the reduction of Plaintiff’s hours, following so closely on the heels of announcing her pregnancy, is at the very least, evidence which the jury could use to infer discrimination.  Cf. Bechel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 934 (11th Cir. 1995) (“Proximity in time is sufficient to raise an inference of causation”).

[4] Plaintiff has decided not to pursue punitive damages for either of her claims.