Petition for Writ of Certiorari — Myers v. Central Central Florida Florida Investments, Inc. (No. 07-660)
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Supreme Court, U.S.
07-660 NGV 5 - 2007
No. 1 OFFICE OF THE CLERK
In The
Supreme Court of the Anited States
DAWN GEORGETTE MYERS,
Petitioner,
Le
CENTRAL FLORIDA INVESTMENTS, INC., et al.,
Respondents.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
RICHARD E.. JOHNSON
Counsel of Record
314 WeEsT JEFFERSON ST.
TALLAHASSEE, FLORIDA 32301
(850) 425-1997
richard@nettally.com
Attorneys for Petitioner
Becker Gallagher - Cincinnati, OH + Washington, D.C. - 800.890.500!
i
QUESTIONS PRESENTED
1. Can a reasonable jury find that retaliation by
filing frivolous, unrelated lawsuits against an
employee to punish her complaints of sexual
harassment is adversity enough to meet the standard
for Title VII retaliation?
2. Where a sexual harasser is CEO and sole
shareholder of a company, are his acts the acts of the
company and is a complaint to him a complaint to the
company?
3. Where an employee who refuses sexual advances
demonstrates some likelihood that her employer has
lied in producing a nondiscriminatory reason for her
termination, is she entitled to present her case to a
jury?
ii
LIST OF PARTIES
The parties to the proceedings in the court whose
judgment is sought to be reviewed here are Petitioner
Dawn Georgette Myers and Respondents David Siegel,
Central Florida Investments, Inc., CFI Sales &
Marketing, Ltd., Westgate Kesorts, Inc., Westgate
Resorts, Ltd., Westgate Lakes, Inc., and Westgate
Lakes, Ltd.
in
TABLE OF CONTENTS
epetianhs FUORIRONE «65k 6.5.0 b ke ee eee 1
eT fg Pe eee ee et ii
Se CO a 6 vk ek Ge eee ee ili
Tene Of Cited AamthOritses . ws cc cere ce evens Vv
Cain TIO ao ov oo oe ee 1
Statement of Jurisdiction .................... 1
Pertinent Statutory Provisions................ 1
Statement 6 ie Cee. ea es ee eee ee 2
Reasons for Granting the Writ ................ 7
I. A Jury Must Decide Whether
Reprisals Are Severe Enough To
Meet the Standard For Title VII
EES. 6's ae eee 7
II. A Complaint to The Top Executive
Of A Company Is A Complaint to The
Company, Even Where He Is The
See soso ce eee 12
1V
Ill. A Jury Question Arises Where
Evidence Exists That An Employer’s
Excuse For A Firing Is A Lie, Even
Where The Excuse, If Sincere, Would
Be A Legitimate One ............. 15
PE Looe esha Visco ak ees Oey kee de 20
APPENDIX
APPENDIX A -- ORDER OF THE ELEVENTH
CIRCUIT COURT OF APPEALS DENYING
REHEARING AND REHEARING EN BANC,
PE es Eb he oe ee erie setan la
APPENDIX B -- ORDER OF THE ELEVENTH
CIRCUIT COURT OF APPEALS AFFIRMING
IN PART, VACATING IN PART, AND
REMANDING, JUNE 11, 2007 ............ 3a
APPENDIX C -- JUDGMENT FOR
DEFENDANTS, U.S. DISTRICT COURT FOR
THE MIDDLE DISTRICT OF FLORIDA, April
re pe re eee 16a
APPENDIX D -- ORDER GRANTING
SUMMARY JUDGMENT, U.S. DISTRICT
COURT FOR THE MIDDLE DISTRICT OF
FLORIDA, April 24, 2006 ............... 18a
Vv
TABLE OF CITED AUTHORITIES
CASES CITED PAGE
Berry v. Stevinson Chevrolet,
74 7 .3a O80 (iGth Cir. 1906)... 6 cnn cecaes 9
Browne v. Queen’s College City University of New
York,
202 Fed. Appx. 523 (2d Cir. 2006).......... 11
Burlington Indus., Inc. v. Ellerth,
O26 UB. TES CIGOS) oc cc chess eeveves 13, 14
Burlington Northern & Santa Fe Ry. Co. v. White,
548 U.S. _, 126 S.Ct. 2405 (2006) ...... passim
Csicsmann v. Sallada,
2006 WL 3611729 (4th Cir., Dec. 12, 2006) .. 11
Czekalski v. Peters,
476 F .3G 360 (D:C. Cir. ZO0T) 2. wc ce ccc 12
Carmona-Rivera v. Puerto Rico,
464 F. 3d 14 (Ist Cir. 2006) ............... 10
Dearth v. Collins,
441 F.3d 931 (11th Cir. 2006) ............. 14
Dees v. Johnson Controls World Services, Inc.,
168 F.3d 417 (11th Cir. 1999) ............. 14
DeHart v. Baker Hughes Oilfield Operations,
214 Fed. Appx. 437 (5th Cir. 2007) ......... 11
vi
Faragher v. City of Boca Raton,
ee GM. CPUC RUOOD ov care ccc veccveuse 13, 14
Hanani v. State of New Jersey Dept. of Environmental
Protection,
205 Fed. Appx. 71 (3d Cir.2006) ........... 11
Howard v. BP Oil Co., Inc.,
32 F.3d 520 (11th Cir. 1994) .............. 18
Johnson v. West,
218 F.3d 725 (7th Cir.2000) ............... 14
Katz v. Dole,
709 F.2d 251 (4th Cir. 1983) .............. 14
Kessler v. Westchester County Department of Social
Services,
461 F. 3d 199 (2d Cir. 2006) .............. 11
Mallinson-Montague v. Pocrnick,
224 F.3d 1224 (10th Cir. 2000) ............ 14
Mickelson v. New York Life Insurance Co.,
460 F. 3d 1304 (10th Cir. 2006)............ 11
Moore v. City of Philadelphia,
461 F. 3d 331 (3d Cir. 2006) .............. 12
Ridley v. Costco Wholesale Corp.,
217 Fed. Appx. 130 (3d Cir. 2007) .......... 12
St. Mary’s Honor Center v. Hicks,
eee RE CEO) ov 6 cc ener easesseues 19
Vil
Texas Dept. of Community Affairs v. Burdine,
Se Ue UP CORD | gov ore wewwe ewes vue 18
Torres v. Pisano,
116 F.6d G25 (ae Cir. 1907) .. 2. wc cc ects 14
Reeves v. Sanderson Plumbing,
See Ses See ED + ov ev oo eee aw veeses 19, 20
Velikonja v. Gonzalez,
466 F.36 172 GG. Cir. BO0G) 2. ct eee 12
Wrobel v. County of Erie,
211 Fed. Appx. 71 (2d Cir. 2007) ........... 12
STATUTES CITED
Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e, et seq. .............. passim
a a
1
OPINIONS BELOW
The August 6, 2007, order of the Eleventh Circuit
Court of Appeals, denying motions for rehearing and
rehearing en banc, which is not officially reported, is
reproduced as Appendix A at la. The June 11, 2007,
opinion of the Eleventh Circuit Court. of Appeals
affirming in part, vacating in part, and remanding,
which is not officially reported, is reproduced as
Appendix B at 3a. The April 25, 2006, judgment for
defendants in the U.S. District Court for the Middle
District of Florida, which is not officially reported, is
reproduced as Appendix C at 16a. The April 24, 2006,
order granting summary judgment for defendants in
the U.S. District Court for the Middle District of
Florida, which is not officially reported, is reproduced
as Appendix D at 18a.
STATEMENT OF JURISDICTION
The decision of the court of appeals was entered on
June 11, 2007. A timely petition for rehearing and
rehearing en banc was denied on August 6, 2007. The
Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
PERTINENT STATUTORY PROVISIONS
The pertinent provision of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et
seq., (hereinafter Title VII), is set forth below.
§ 2000e-2. Unlawful employment practices.
(a) Employer practices
2
It shall be an unlawful employment practice for an
employer -
(1) to fail or refuse to hire or to discharge
any individual, or otherwise discriminate
against any individual with respect to his
compensation, terms, conditions, or
privileges of employment, because of such
individual’s race, color, religion, sex, or
national origin.
§ 2000e-3(a), [Retaliation]
It shall be an unlawful employment practice
for an employer to discriminate against any
of his employees... because he has opposed
any practice made an unlawful employment
practice by this subchapter, or because he
has made a charge, testified, assisted or
participated in any manner in an
investigation, proceeding, or hearing under
this subchapter.
STATEMENT OF THE CASE
Petitioner seeks certiorari to establish that the
degree of adversity necessary for a retaliatory action
under Title VII to be actionable is a jury question, that
the acts of a high company official are acts of the
company under Title VII, and that a jury question
exists on a firing where there is evidence that the
employer’s nondiscriminatory reason is a lie.
Defendant Central Florida Investments, Inc., (CFI)
is a corporation that owns and manages timeshare
3
resorts throughout the United States. Defendant
David Siegel (Siegel) is the president and sole
shareholder of CFI and its related entities. In 1986,
Georgette Myers (Myers) started selling timeshare
interests at one Respondents’ resorts. Siegel accepted
Myers’ plan to create Papillon Spa at Westgate Lakes
and eventually named her the initial Executive
Director of the spa.
Starting in 1996 and continuing until Myers’ final
days of employment in December of 2000, Siegel
aggressively pursued a sexual relationship with Myers.
Siegel’s unwelcome acts of harassment included
kissing Myers without her consent, rubbing and
fondling her legs during business meetings, making
sexual comments, slapping her on the butt, soliciting
her for prostitution, pressing his body into hers,
exposing her to full frontal nudity, telling her his
sexual fantasies, pinning her against the wall and
pressuring her to have a menage a trois with him and
his wife.
Myers rejected all of Siegel’s sexual advances and
repeatedly insisted that he stop this conduct. The
Court of Appeals found the harassment sufficient to
warrant reversal of the district court’s summary
judgment on the hostile environment claim. Trial on
that is set for February, 2008.
In April of 2000 Myers started dating a man who
would later become her fiancé. Siegel’s jealousy was
such that the company’s chief operating officer told
Myers that, to Siegel, her relationship with the fiancé
was “waving a red flag in front of a bull.”
4
Fearing adverse action, Myers went to Siegel to
recount the foregoing and ask for a written contract.
Siegel said Myers had his word and that was her
contract -- she was not going to be fired. This was
November, 2000. Myers had rejected Siegel’s sexual
advances for over five years.
Siegel fired Myers on December 12, 2000. Security
escorted her out of the building. In the summary
judgment proceedings, the company offered a lack of
profitability of the Spa as a sole excuse for the firing.
There was much evidence that profitability was a
dishonest reason.
Siegel undermined Myers’ management of the spa,
blocking all the actions she needed to turn a profit. He
restricted marketing to timeshare owners only,
refusing to let Myers market to the local community.
He made Myers give substantial discounts to the
timeshare owners and tocompany executives and their
spouses, despite Myers’ warning that the spa would
lose money on each service performed to those
customers. He told Myers to give Westgate employees
free gym memberships. The company rebuffed Myers’
marketing plans. The company excluded Myers and
the spa from the company’s customer service training
sessions.
Myers’ research in the spa industry revealed that
spas typically do not make money first year. Before the
spa opened, Myers shared her research with Siegel and
explained that the spa would not turn a profit unless
it was marketed to the local community because
timeshare owners are at the resort for a limited
number of days per year, meaning there would be no
9)
repeat business. The company set the staff salaries too
high over Myers’ objection.
After Myers’ firing, the spa continued to lose money
under a male manager for two more years. The male
manager was not fired, despite lack of profitability.
Myers did extensive research of the spa industry,
learning that if a spa is set up properly it will make a
profit after its third year. The spa made its first net
profit in 2003, exactly three years after it opened, just
as Myers had said.
Respondents repeatedly changed their excuse for
Myers’ firing over the course of the litigation. On April
6, 2001, counsel for Respondents informed the EEOC
that Myers was fired because of allegations of
mismanagement made during an investigation of the
complaints of an employee. On other occasions, the
company has offered the excuse that Myers served
wine to employees, sent an employee to clean Siegel’s
condo while she lived there, and made remarks about
Siegel and his wife soliciting her for a _ sexual
threesome. The company abandoned all excuses other
than profitability for purposes of summary judgment.
Even so, district court relied upon the multiple
excuses in finding the firing nondiscriminatory. The
court of appeals conceded this was probably error, but
held that the profitability excuse, standing alone, was
reason enough for the firing. Appendix, 14a. The
court of appeals did not acknowledge or consider that
the ever-changing excuses were themselves evidence
that the profitability story was a lie. Nor did the court
explain why a reasonable jury could not be legitimately
6
persuaded by the massive other evidence that the
profitability excuse was a lie.
The court of appeals did not explain why it gave no
weight to Myers’ complaints to Siegel himself as
protected conduct in the retaliation calculus. The
court discounted her complaints to other executives as
protected conduct because by then the company had
already expressed concerns about profit. Appendix,
13a. A jury would not be allowed to consider a nexus
between protected activity and retaliatory conduct
where the protected conduct came after some initial
expressions of concern about some aspect of employee
performance.
Some ten months after the firing, on September 5,
2001, Respondents sued Myers for the costs of the
home renovations that Myers received in lieu of taking
her vacation time.
On September 14, 2001, Myers filed a sexual
harassment complaint against Respondents with the
Florida Commission on Human Relations (FCHR) and
Equal Employment Opportunity Commission (EEOC).
On April 5, 2004, Siegel sued Myers for an $8,000
loan that she had repaid on June 6, 2000. That suit
morphed into this one with the promissory-note count
dismissed and the sexual harassment counterclaims
remaining after the court realigned the roles of the
parties.
Both of Respondents suits were frivolous. Both cost
suffering and expense to defeat. The court of appeals
did not challenge that the suits were intended as
7
reprisal for protected conduct, but found instead that
they were not harmful enough that they would have
discouraged a reasonable employee from making or
supporting a charge of discrimination. Appendix, 13a
at n.3. The court did not explain why a reasonable jury
could not conclude that the time, expense, and stress
of defending two lawsuits against a powerful adversary
might chill one from making a complaint.
REASONS FOR GRANTING THE WRIT
I. A Jury Must Decide Whether Reprisals Are
Severe Enough To Meet the Standard For
Title VII Retaliation
Myers raised post-employment retaliation in the
form of Respondents filing two frivolous lawsuits
against her. One was for collection of a promissory
note that had already been paid in full long before the
suit. The other was for payment for renovations to
Myers’ home that were supposed to be in lieu of her
vacation. The court of appeals rejected those lawsuits
as a form of retaliation in this cryptic passage:
As to Myers’ post-termination retaliation claim,
we find that her claim fails because she cannot
show that Siegel’s decision to file an unrelated
lawsuit against her was an action that “would
have been materially adverse to a reasonable
employee or job applicant,” such that “that the
employer’s actions [were] harmful to the point
that they could well {have] dissuadel[d] a
reasonable worker from making or supporting a
charge of discrimination,” Burlington N. &
8
Santa Fe Ry. Co. v. White, 548 --- U.S. ----, 126
S.Ct. 2405, 2409 (2006).
Appendix, 13a at n.3.
It is not clear whether the panel’s objection is to the
nature of the retaliation or the severity of it.
Defending lawsuits takes time and money. Win or
lose, the consequences can be ruinous. The prospect of
two lawsuits as part of a wide-ranging campaign of
retaliation for rejecting and protesting sexual
harassment would strike fear into the heart of
practically any employee. Certainly the panel is not
justified in stating an apparent per se rule that
anticipation of litigation as a consequence of engaging
in protected conduct can not “dissuade a reasonable
worker from making or supporting a charge of
discrimination.” The promissory note suit was for
$8,000 plus interest. The renovation suit met the
$15,000 jurisdictional minimum of a Florida circuit
court. An ordinary working person recently thrown
out of a job is disadvantaged even in an unworthy suit
when she is up against an adversary with unlimited
resources and an implacable grudge. Indeed, it is hard
to see how any person would not be discouraged from
filing a charge or making a complaint by the prospect
of having to pay to defend two lawsuits.
Nor is retaliatory litigation outside the type of
reprisal that supports a suit for Title VII retaliation.
The Burlington Northern opinion cited by the panel
recognizes abuse of the judicial system as a form of
actionable retaliation. Burlington Northern & Santa
Fe Ry. Co. v. White, 548 U.S. __, 126 S.Ct. 2405, 2412
9
(2006) citing, Berry v. Stevinson Chevrolet, 74 F.3d
980, 984, 986 (10th Cir. 1996) (finding actionable
retaliation where employer filed false criminal charges
against former employee who complained about
discrimination).
Whether Myers had a retaliation claim for the
frivolous retaliatory suits was for the jury, not the
panel of the court of appeals.
This Court in Burlington Northern held that
whether a reasonable worker would likely be deterred
from protected activity by a retaliatory act (and thus
whether that act is serious enough to be unlawful) is
ordinarily a question of fact to be resolved by the trier
of fact. In most claims under Title VII and other
anti-retaliation statutes the trier of fact will be a jury.
In Burlington Northern, this Court, in “[ajpplying
this standard to the facts of this case,” did not itself
decide whether the two retaliatory acts at issue would
in fact deter protected activity. Instead, the outcome
turned on whether “there was a sufficient evidentiary
basis to support the jury’s verdict.” 126 S.Ct. at 2416.
This Court affirmed the jury verdict because “the jury’s
findings are adequately supported.” id.
White had been reassigned from operating a forklift
to more demanding work in the rail yard. After
reviewing the evidence that “the jury had before it”
regarding the duties of the two jobs, the Court
concluded that “[blased on this record, a jury could
reasonably conclude that the reassignment of
responsibilities would have been materially adverse to
a reasonable employee.” 1268.Ct. at 2417. The Court
10
dealt similarly with the fact that White had been
suspended without pay for thirty-seven days. Again,
the Court summarized the evidence regarding the
impact of that suspension on White, and determined
that “the jury’s conclusion that the 37-day suspension
without pay was materially adverse was a reasonable
one.” 126S.Ct. at 2418.
The majority opinion in Burlington Northern was
notably different from the approach proposed by
Justice Alito in his concurring opinion. Justice Alito
assumed that it was for the courts to decide whether a
retaliatory practice was serious enough to be unlawful.
126 S.Ct. at 2421-22.
After Burlington, some courts, including the court
of appeals in this case, have simply disregarded the
conclusion of the majority. The courts disregarding the
majority holding decide the question themselves and,
in so doing, nearly always find the retaliation not
severe enough to be unlawful. By contrast, the courts
that correctly frame the issue as one for the jury,
almost always find that a reasonable jury could decide
in favor of the employee.
For example, in Carmona-Rivera v. Puerto Rico,
464 F. 3d 14 (1st Cir. 2006), the court of appeals, in
holding the retaliation lawful explained, “We turn to
the retaliatory action alleged ... and test it against
the revised standard.” 464 F. 3d at 20 (emphasis
added). With regard to the question of retaliatory
motive, the court agreed that the issue was whether “a
reasonable jury” could such a motive, but that was
mere recitation because the court itself took the jury’s
place in deciding whether those actions were
11
sufficiently serious to be unlawful. In Browne v.
Queen’s College City University of New York, 202 Fed.
Appx. 523 (2d Cir. 2006), the Second Circuit made the
relevant finding itself, holding that the alleged
retaliatory act “does not, standing alone, constitute
adverse employment action.” Id. at 524. In Hananiv.
State of New Jersey Dept. of Environmental
Protection, 205 Fed. Appx. 71 (3d Cir.2006), the Third
Circuit held that the alleged retaliatory act “does not
rise to the level of material adversity.” See Csicsmann
v. Sallada, 2006 WL 3611729 *4 (4th Cir., Dec. 12,
2006) (“we have never found” such retaliatory acts to
be unlawful) (emphasis added); DeHart v. Baker
Hughes Oilfield Operations, 214 Fed. Appx. 437 (5th
Cir. 2007) (“we conclude that the [alleged retaliatory
act] would not have ‘dissuaded a reasonable worker
from making or supporting a charge of
discrimination.” Ai
York Life Insurance Co., 460 F. 3d 1304, 1316 (10th
Cir. 2006) (“[w]e easily conclude that the [alleged
retaliatory actions] would ‘dissuade[] a reasonable
worker from making or supporting a charge of
discrimination.”). Mickelson departs from the trend of
courts that decide the question themselves finding for
the employer rather than letting a jury decide.
On the other hand, in Kessler v. Westchester
County Department of Social Services, 461 F. 3d 199,
209-10 (2d Cir. 2006), the Second Circuit, in language
closely tracking the holding in Burlington Northern,
overturned an award of summary judgment because “a
rational factfinder could permissibly infer that a
reasonable employee in the position of [the plaintiff]
could well be dissuaded from making a charge of
discrimination if doing so would result in [the alleged
12
retaliatory act.|” The Second Circuit did so again in
Wrobel v. County of Erie, 211 Fed. Appx. 71 (2d Cir.
2007), as did the Third Circuit in Moore v. City of
Philadelphia, 461 F. 3d 331, 346-47 (3d Cir. 2006) and
Ridley v. Costco Wholesale Corp., 217 Fed. Appx. 130
(3d Cir. 2007), and the District of Columbia Circuit in
Velikonja v. Gonzalez, 466 F.3d 122, 124 (D.C. Cir.
2006). In Czekalski v. Peters, 475 F.3d 360, 365 (D.C.
Cir. 2007), the District of Columbia Circuit held that
“[wlhether a particular reassignment of duties
constitutes an adverse action for purposes of Title VII
is generally a jury question.”
It is thus a matter of importance that this Court
resolve an apparent split among the circuits with one
side of that split departing materially from Burlington
Northern scarcely before the ink is even dry on it. The
court below is among those departing from the
precedent. This case is the right vehicle for an early
correction.
Il. A Complaint to The Top Executive Of A
Company Is A Complaint to The Company,
Even Where He Is The Offender
The court of appeals rejected complaints by Myers
to other executives of the Respondent employer as
protected conduct in the retaliation claim because
those complaints post-dated concerns about
' Petitioner is indebted to Professor Eric Schnapper of the
University of Washington for first calling attention to this split in
his unpublished work, Burlington Northern v. White in The Lower
Courts: A Report on The First Year.
13
profitability. That in itself is error because it is a jury
question and no cause for a per se rule that makes a
reprimanded employee automatically ineligible for
retaliation protection for later complaints. But, worse,
the panel completely ignored the numerous complaints
to Siegel himself which occurred before, during, and
after the expression of concerns about profitability.
The panel’s decision to ignore this protected conduct
remains a puzzle.
One assumes the court of appeals relies on the
doctrine that a complaint to the offender himself is not
notice to the employing entity. But that doctrine has
no application where the harasser owns the company.
As CEO and sole shareholder, Siegel is “within that
class of an employer organization’s officials who may
be treated as the organization’s proxy.” Faragher v.
City of Boca Raton, 524 U.S. 775, 789 (1998); see also,
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758
(1998) (employer is liable “where the agent’s high rank
in the company makes him or her the employer’s alter
ego”).
The acts of Siegel to an employee are the acts of the
company, so there can be no issue of notice to the
company. When Siegel fires an employee for telling
him to keep his hands off her, that is, in itself,
actionable retaliation. There is no need to put the
complaint through other channels. That is usually
futile. Indeed, an oft-quoted passage in this case
involves Myers telling the company’s head of human
resources about the ways Siegel stepped over the line
with his comments and actions, only to be told, “What
can you do, he is the President.”
14
Rejection of this Court’s holdings on corporate alter-
egos in sexual harassment cases may be an emerging
trend in the Eleventh Circuit. In Dearth v. Collins,
441 F.3d 931, 935-936 (11th Cir. 2006), that court
went so far as to apply the Faragher/Ellerth
affirmative defense to harassment by the president
and sole shareholder of the employer despite this
Court’s holding in those very cases that that defense
could not apply in such a circumstance -- a holding the
court of appeals itself had previously noted in passing.
Dees v. Johnson Controls World Services, Inc., 168
F.3d 417, 421-22 (11th Cir. 1999).
At least two circuits follow this Court’s guidance
from Faragher/Ellerth on the alter-ego issue.
Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1232
(10th Cir. 2000) (quoting Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 756 (1998)). In Mallinson, the
harasser was a senior vice president, who reported to
the president, who in turn reported to the board of
directors. Id. at 1233. Thus, this was “one of those
rare cases in which an alter ego instruction was
appropriate based on [the harasser’s] high rank.” Id.
at 1232. Johnson v. West, 218 F.3d 725, 730 (7th
Cir.2000), citing and applying this Court’s holdings
quoted above, reached the same conclusion. Other
circuits have been following this approach even before
Faragher/Ellerth. Torres v. Pisano, 116 F.3d 625, 635
n.11 (2d Cir. 1997); Katz v. Dole, 709 F.2d 251, 255
(4th Cir. 1983).
The departure of the Court of Appeals for the
Eleventh Circuit from this Court’s holding and its
apparent split with the other circuits militates in favor
of a grant of certiorari.
15
lil. A Jury Question Arises Where Evidence
Exists That An Employer’s Excuse For A
Firing Is A Lie, Even Where The Excuse, If
Sincere, Would Be A Legitimate One
The court of appeals erred in presuming the spa’s
lack of profitability in its start up year motivated
Siegel to fire Myers. The lack of profitability is itself
not a lie. But the mistake of the court of appeals is in
assuming that because lack of profitability is not a lie,
lack of profitability must be irrebuttable when
Respondents offer it as an excuse for firing Myers. The
court assumed that, if a fact is undisputed, the court
must accept the employer’s claim that this fact alone
motivated him to fire an employee. This is at best, a
naive view of pretext. Experience shows that a more
believable pretext is made from an actual fact than
from a falsehood. It is better to say one fired an
employee because the sun rose in the east than to say
the firing was because the sun rose in the west, though
the true statement may be no less a pretext than the
false one.
The company claimed Siegel fired Myers because
the spa was unprofitable in its first year of operation.
Myers contends that is a lie. The court of appeals
weighed evidence and made this important credibility
determination: “There is no question that the spa’s
profitability was a primary concern of CFI
management and that they questioned Myers’ ability
to run the operation.” Appendix, 14a. But that says
nothing about the motivation to fire Myers.
Myers offered proof more than sufficient to create
a tnable issue of fact that Siegel never cared much if
16
the spa was profitable or not. Siegel pointed out that
the spa was a “speck of sand” in his vast financial
holdings. Siegel’s desire to have sex with Myers,
however, was not small, certainly no speck of sand, but
a major obsession.
Siegel sabotaged the spa’s chance of profitability
while using the lack of profitability as a means of
increasing his power over Myers and preserving a
reason to summon her into his presence, ostensibly to
talk about profitability, but really to further his
sexual designs on her. From the beginning, Siegel
knew the spa would not and could not be profitable in
the start-up phase and never honestly thought it could.
The profitability pretext was a means of securing
contact with and control over Myers.
Siegel put obstacles in the path of profitability and
created uncertainty and instability by refusing to set
goals or provide a budget. This was a campaign to
make Myers more pliable and dependent on Siegel.
His conduct in the spa period was a one-year stretch in
a five-year campaign to get Myers to succumb to his
sexual advances.
On November 15, 1999, near the spa’s inception,
Myers asked Siegel to tell her what he expected from
her and the spa. She asked for an outline of who was
to get discounts. She asked for a realistic date for
when he wanted the spa to make money. Once again,
she told Siegel that he was asking her to operate the
spa as a profit center rather than a spa amenity, but
he was denying her the tools to market the spa as a
profitable entity. That was exactly the Catch-22 Siegel
wanted to create to bring Myers under control.
17
The panel overlooked this in finding, “Myers failed
to offer evidence rebutting CFI’s evidence that she was
terminated because of the spa’s lack of profitability.”
Appendix, 8a. This is simply wrong. Myers offered
ample evidence, as shown above and below.
If Siegel had been serious about the spa’s
profitability he would not have allowed Myers’ male
successor to remain for two additional unprofitable
years with no discipline of any sort, let alone a firing.
Myers’ year was the start-up year where profit is least
likely.
Marketing to the community where a stable base of
repeat business could be built would create profit but
Siegel would not allow it. He restricted marketing
efforts to time-share owners -- a customer base that
visits the Orlando area infrequently.
Over Myers’ objections, Siegel insisted on a system
of 25 % and 50% discounts for most of the spa’s target
customers -- timeshare owners and many employees of
Siegel’s group of companies -- with some services
actually free. This guaranteed a loss on many if not
most services the spa performed for those customers.
Siegel fired Myers in December, 2000, just a few
weeks after telling her she did not need a contract
because he was not going to fire her. Siegel received
regular financial reports. He knew Myers had turned
the spa around even in its first year. The spa had
three profitable months in 2000, including the month
before and the month during which Myers was fired,
November and December. Siegel fired Myers just as
she produced the profits he said he wanted.
18
This undercuts both the profitability pretext and
the panel’s improper reliance on the inference drawn
for the moving party that the firing had been building
up for a long time.
If the firing were about profitability, one might
assume Siegel would have sat down with Myers and
allowed her notice and a graceful exit with a
“resignation” after being a friend, confidante, and loyal
employee for fourteen years. Instead, Myers got a
humiliating, bum’s rush escort from the building,
followed by Respondents’ pursuit into her private life
in an effort to destroy her with investigations and
retaliatory frivolous lawsuits. Common sense tells us
this is the work of a spurned suitor, not a disappointed
employer. A reasonable jury could so find.
After the firing, the company offered a number of
alternative excuses for the firing, excuses not used in
the summary judgment motion -- serving wine on
company property, lying down with a migraine, having
an employee clean Siegel’s condo where Myers was
staying during renovations of her own place,
mismanagement allegations made by a person named
Sandra Duran, and a few others. The record shows
Siegel himself giving contradictory testimony at two
different times on the _ reasons. The shifting
explanations for the firing -- even standing alone -- are
evidence enough of pretext to gct past summary
judgment and on to a jury, even under the circuit's
prior precedent. Howard v. BP Oil Co., Inc., 32 F.3d
520, 526 (11th Cir. 1994), citing Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248 (1981).
19
The panel says there is no support for Myers’ belief
that her engagement pushed Siegel over the edge to
fire her. There actually is some evidence in the
statement by the chief operating officer that Myers’
relationship with her fiancé was, to Siegel, waving a
red flag in front of a bull. But more importantly, the
court of appeals overlooked that Myers need not prove
that her engagement motivated her firing. It is only
necessary for her to present evidence enough to cause
the jury to disbelieve Siegel’s story. That disbelief
alone allows the jury to infer intentional
discrimination in the firing, especially when
accompanied by this much other evidence. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147
(2000). Indeed, juror disbelief with other evidence will
not just defeat summary judgment but sustain a
verdict. St. Mary’s Honor Center v. Hicks, 509 U.S.
502, 511 (1993) (“The factfinder’s disbelief of the
reasons put forward by the defendant (particularly if
disbelief is accompanied by a suspicion of mendacity)
may, together with the elements of the prima facie
case, suffice to show intentional discrimination.”).
Petitioner made a strong circumstantial case that
the profitability excuse is pretext and that a jury, not
a judge, should decide whom to believe. The reason
this Court created a circumstantial evidence model of
proof is that direct evidence is so rare in these cases.
Petitioner presented all the proof of pretext contained
in the paragraphs above to the district court and the
court of appeals panel, yet the panel, instead of
showing where this proof of pretext falls short, merely
misstated the record, saying Myers “failed to offer
evidence rebutting CFI’s evidence that she was
terminated because of the spa’s lack of profitability.”
20
Indeed, CFI offered nothing but a bare assertion of
that as a reason. To be sure, that is all they needed to
do in the circumstantial evidence model, but there is
no fairness in deeming Myers’ extensive circumstantial
case of pretext to be non-existent. There is no reason
to treat the profitability pretext as irrebuttable. On
summary judgment, the court must “disregard all
evidence favorable to the moving party that the jury is
not required to believe.” Reeves _v._ Sanderson
Plumbing, 530 U.S. 133, 135 (2000). The jury is not
required to believe the story about profitability where
so many powerful facts show it to be a lie. This pretext
issue belongs in front of a jury.
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted,
Richard E. Johnson
Counsel of Record
Law Office of Richard E. Johnson
314 West Jefferson St.
Tallahassee, FL 32301
(850) 425-1997
(850) 561-0836 (facsimile)
richard@nettally.com
APPENDIX
la
APPENDIX A
IN THE UNITED STATES
COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 06-13974-BB
[Filed August 6, 2007]
DAWN GEORGETTE MYERS
Plaintiff-Appellant,
versus
CENTRAL FLORIDA INVESTMENTS, INC.,
DAVID SIEGEL,
WESTGATE RESORTS, INC.,
WESTGATE RESORTS LTD,
CFI SALES AID MARKETING, LTD,
Defendants-Appellees.
ee ee ee ee ee ee Le ee
On Appeal from the United States District Court
for the Middle District of Florida
ON PETITION(S) FOR REHEARING AND
PE'TITION(S) FOR REHEARING EN BANC
2a
Before: CARNESand WILSON, Circuit Judges, and
WALTER, District. Judge.
PER CURIAM:
The Petition(s) for Rehearing are DENIED and no
Judge in regular active service on the Court having
requested. that the Court be polled on rehearing en
banc (Rule 35, Federal Rules of Appellate Procedure),
the petition(s) for Rehearing En Banc are DENIED.
ENTERED FOR THE COURT:
sf an = —
UNITED STATES CIRCUIT JUDGE
* Honorable Donald E. Walter, United States District Judge for
the Western District of Louisiana, sitting by designation.
3a
APPENDIX B
IN THE UNITED STATES
COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 06-13974
District Court Docket No.
04-01542-CV-ORL-28-DAB
[Filed June 11, 2007]
DAWN GEORGETTE MYERS
Plaintiff-Appellant,
versus
CENTRAL FLORIDA INVESTMENTS, INC.,
DAVID SIEGEL,
WESTGATE RESORTS, INC.,
WESTGATE RESORTS LTD,
CFI SALES AID MARKETING, LTD,
Defendants-Appellees. )
5 ee ae a ae a a ee ee
WESTGATE LAKES, INC.. et al.
Defendants. )
Appeal from the United States District Court
for the Middle District of Florida
4a
JUDGMENT
It is hereby ordered, adjudged, and decreed that the
attached opinion included herein by reference, is
entered as the judgment of this Court.
Entered: June 11, 2007
For the Court: Thomas K. Kahn, Clerk
By: Gilman, Nancy
[DO NOT PUBLISH]
IN THE UNITED STATES
COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 06-13974
D.C. Docket No. 04-01542-CV-ORL-28-DAB
DAWN GEORGETTE MYERS
Plaintiff-Appellant,
versus
CENTRAL FLORIDA INVESTMENTS, INC.,
DAVID SIEGEL,
WESTGATE RESORTS, INC.,
WESTGATE RESORTS LTD,
CFI SALES AID MARKETING, LTD,
Defendants-Appellees.
WESTGATE LAKES, INC., et al.,
Defendants.
‘
Nee meee ee eee ee”
5a
Appeal from the United States District Court
for the Middle District of Florida
(JUNE 11, 2007)
Before CARNES and WILSON, Circuit Judges, and
WALTER, District Judge.
PER CURIAM:
Dawn Georgette Myers sued Central Florida
Investments, Inc. and its various subsidiary companies
(collectively CFI), claiming that she was sexually
harassed by CFI’s president and CEO, David Siegel,
and ultimately fired for rejecting his advances. CFI
develops, manages and sells resort timeshares in
Orlando, Florida, and during her employment with the
company, Myers served as executive director of a new
spa at one of CFI’s resorts.
The district court dismissed three of Myers’ claims’
and then granted summary judgment to CFI on her
remaining claims of sexual harassment and
retaliation, which asserted a violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.,
and the Florida Civil Rights Act of 1992 (FCRA), Fla.
Stat. §§ 509.092, 760.01-.11. The court also remanded
“ Honorable Donald E. Walter, United States District Judge for
the Western District of Louisiana, sitting by designation.
' The other three counts that had already been dismissed raised
claims of retaliation under the Florida Private Whistleblower Act,
inducement to prostitution, and negligent retention and
supervision.
6a
her state law claims of battery and false imprisonment
to state court.” Myers now appeals the district court’s
grant of summary judgment as well as its denial of her
third motion to compel discovery.
The FCRA claims stand or fall with the Title VII
claims, so our analysis focuses on the federal
allegations. Harper v. Blockbuster Entm’t Corp., 139
F.3d 1385, 1387 (11th Cir. 1998). Our review of the
district court’s grant of summary judgment is de novo,
and we are to “view all the evidence, and make all
reasonable factual inferences, in the light most
favorable to the nonmoving party.” Knight v. Baptist
Hosp. of Miami. Inc., 330 F.3d 1313, 1316 (11th Cir.
2003). Additionally, we review the district court’s
decision to grant or deny Myers’ motion to compel
discovery for abuse of discretion. R.M.R. v. Muscogee
County Sch. Dist., 165 F.3d 812, 816 (11th Cir. 1999).
I,
First, we will consider Myers’ sexual harassment
claim. We have made clear that “[t]o prove sexual
harassment under Title VII, a plaintiff must show (1)
that she belongs to a protected group; (2) that she has
been subjected to unwelcome sexual harassment; (3)
that the harassment was based on her sex; (4) that the
harassment was sufficiently severe or pervasive to
alter the terms and conditions of employment and
* In light of our determination that Myers’ FCRA and Title VII
sexual harassment claims survive summary judgment, her
state-law battery and falsc imprisonment claims should be
reinstated
7a
create a discriminatorily abusive working
environment; and (5) that a basis for holding the
employer liable exists.” Hulsey v. Pride Rests., LLC,
367 F.3d 1238, 1244 (11th Cir. 2004). The district court
found that Myers established the first three factors but
failed to prove the fourth. Accordingly, the court did
not address the fifth factor. So our review now centers
on the fourth factor—Myers ability to show the alleged
harassment was sufficiently severe or pervasive. In
attempting to establish this claim, there are two
theories of harassment that a plaintiff can assert, and
Myers asserts both. She contends that she suffered
sexual harassment under both the _ tangible
employment action theory and the hostile environment
theory. We consider each in turn.
To sustain a sexual harassment claim under the
tangible employment action theory, Myers must show
that her refusal of Siegel’s advances resulted in a
“significant change in employment status, such as
hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision
causing a significant change in benefits.” Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct.
2257, 2268 (1998). There is no question that her
termination constituted a “tangible employment
action,” but in order to sustain the claim she must
show that she was terminated because she refused
Siegel’s sexual demands. Hulsey, 367 F.3d at 1245.
After reviewing the evidence in the light most
favorable to Myers, we agree with the district court’s
determination that Myers failed to sufficiently link her
termination to her relationship with Siegel. Under her
version of the facts, she kept Siegel at bay for a full
8a
five years, receiving multiple promotions and pay
raises during that time. Although she claims that
Siegel’s attitude toward her changed when she became
engaged to another man, she offers no evidence that
Siegel was even aware of the engagement.
Furthermore, Myers certainly knew that the CFI
executives were unhappy with the spa’s performance
and were holding her responsible. Myers failed to offer
evidence rebutting CFI’s evidence that she was
terminated because of the spa’s lack of profitability.
See Frederick v. Sprint/United Mgmt. Co., 246 F.3d
1305, 1312-13 (11th Cir. 2001) (affirming grant of
summary judgment on tangible employment sexual
harassment theory because there was “unrebutted
evidence showing that [the plaintiff] was denied the
promotion . . . on grounds independent of the alleged
harassment”). Because Myers could not establish a
connection between her termination and her rejection
of Siegel, her sexual harassment claim cannot survive
summary judgement on the tangible employment
action theory.
Nevertheless, although we reject the tangible
employment action theory, we find that Myers did
present sufficient evidence to create a genuine issue of
material fact as to whether she experienced a hostile
work environment at CFI. The district court found that
Myers was unable to show that the harassment she
suffered was both objectively and subjectively severe or
pervasive. Harris v. Forklift Sys., Inc., 510 U.S. 17,
21-22, 114 S. Ct. 367, 370 (1993) (noting that a
plaintiff must demonstrate both that a reasonable
person would have found the environment to be hostile
and that she _ herself subjectively viewed the
environment as abusive). We disagree. If we read the
9a
evidence, as we must, in the light most favorable to
Myers, it is clear from the record that she has alleged
events sufficient to show both a subjective perception
and an objective basis for a hostile work environment
at CFI.
As to the subjective prong, Myers has set forth
evidence from which a reasonable factfinder could
determine that she personally felt harassed while
working at CFI. Chief among the evidence offered was
her own deposition testimony to that effect. She
claimed that Siegel’s conduct “mortified” and
“embarrassed” her on multiple occasions, and the
district court’s order notes that she was
“uncomfortable” with Siegel’s conduct and asked him
to stop.
Specifically, Myers testified that she asked Siegel
to dispel rumors that they were a couple, but he
refused, reveling in the gossip around the company. He
gave her roses at work on several occasions, and she
was “mortified” that she had to leave the office with
them for everyone to see. At a company banquet, when
Siegel introduced her to the audience, he told everyone
that although she was not his date, he wished she were
and had asked her but been turned down. Again,
Myers claimed she was mortified and humiliated in
front of her colleagues by this conduct. Myers also
testified that Siegel goaded her into serenading him on
stage at a CFI costume benefit and then simulated an
erection under the napkin she had placed on his lap.
Although no one else testified to seeing the improper
hand gesture, two CFI employees submitted affidavits
testifying that Myers tried to maintain her composure
on stage and then left the room crying. Furthermore,
10a
Myers claims that Siegel promised her money and gifts
if she would date him, at one point giving her an
unexplained $10,000 check. She also alleges that
Siegel publically offered her and her boyfriend $1
million on several occasions for one night with her.
Accordingly, there is sufficient record evidence, for
the purposes of overcoming the summary judgment
hurdle, to permit a jury to find that Myers subjectively
perceived an abusive working environment during the
five years in question. Even though there is evidence
to the contrary — she continued to seek out Siegel and
put herselfin compromising positions by traveling with
him — Myers still has created a genuine question of
material fact about her subjective perception.
Likewise, a reasonable person could have
objectively perceived an abusive work environment
based on Siegel’s conduct toward Myers. The Supreme
Court has directed us “to determine whether an
environment is sufficiently hostile or abusive by
looking at all the circumstances, including [1] the
frequency of the discriminatory conduct; {2] its
severity; [3] whether it is physically threatening or
humiliating, or a mere offensive utterance; and [4]
whether it unreasonably interferes with an employee's
work performance.” Faragher v. City of Boca Raton,
524 U.S. 775, 787-88, 118 S. Ct. 2275, 2283 (1998)
(quotations omitted). We are to consider the four
factors under a “totality of the circumstances”
approach, careful not to fixate on a plaintiffs inability
to show a single factor. Miller v. Kenworth of Dothan,
Inc., 277 F.3d 1269, 1276 (11th Cir. 2002).
lla
Regarding the first factor, Myers’ testimony
indicates that the harassing conduct was frequent. The
court’s order states that Myers alleges only ten to
twenty touchings, but the court bases that conclusion
on the portion of Myers’ deposition where she claims
that Siegel touched her legs ten to twenty times while
they were dining at a specific restaurant. She testified
to many morc than ten to twenty touchings over the
five-year period. In addition to the ten to twenty
touchings of her leg that occurred at a particular
restaurant, Myers testified that Siegel touched her
almost every time she came into a room, acting like
she was his girlfriend, putting his arm around her, and
slapping her on the butt. She also alleges that he
would put his hand on her legs and rub her legs while
she was sitting next to him. He would put his arms
around her and let his hands fall to her butt. The
conduct happened so often that she cannot remember
the details of each instance. Myers testified that Siegel
kissed her at least three times, ran his hands up her
legs while she was performing spa treatments on him
on several occasions, and pinned her up against the
wall of the spa lobby at least twice.
Regarding the second factor, Myers alleges conduct
that was sufficiently severe, when taken in light of its
frequency, for a reasonable person to find a hostile
work environment. If her testimony is accepted, she
was hugged, groped and even kissed, often in public,
on multiple occasions while working for CFI. As to the
third factor, Myers did not have to feel physically
threatened by Siegel; humiliation is an equal
consideration. Faragher, 524 U.S. at 787-88, 118S. Ct.
at 2283 (noting that the conduct can be physically
threatening or humiliating). There is no question, that
12a
a reasonable person subjected to this kind of
unwelcome conduct at work would feel humiliated.
Finally, as to the fourth factor, “(t]he Supreme
Court has cautioned that harassment need not be
shown to be so extreme that it produces tangible
effects on job performance in order to be actionable.
Thus, having established the frequency, severity, and
humiliating nature of the conduct, [the plaintiffs]
failure to establish convincingly how [the employer’s]
conduct interfered with his duties is not fatal to his
hostile environment claim, given the totality of the
circumstances.” Miller, 277 F.3d at 1277. Even so, a
jury reasonably could infer that Siegel’s open pursuit
of Myers made it more difficult for her to perform her
job and command the respect of her subordinates at
the spa. See Harris, 510 U.S. at 25 (Ginsburg, J.,
concurring) (“It suffices to prove that a reasonable
person subjected to the discriminatory conduct would
find ... that the harassment so altered working
conditions as to make it more difficult to do the job.”
(quotation and alteration omitted)).
Therefore, Myers has sufficiently demonstrated
both a subjective and an objective perception of
hostility sufficient to overcome summary judgment on
her hostile work environment theory. For summary
judgment purposes she has established the fourth
prong of the test — the harassment was severe or
pervasive enough to alter the conditions of her
employment. Additionally, although the district court
did not reach the fifth prong of the test — the existence
of a basis for holding the employer liable — Myers has
adequately shown, for summary judgment purposes,
that CFI was aware of her allegations of harassment
13a
and failed to take action. See Miller, 277 F.3d at
1278-79 (noting that “[iJn order to establish a basis for
holding [an employer] liable for a hostile work
environment, {the plaintiff] must show that [the
employer} had notice of the alleged harassment and
failed to take immediate and appropriate corrective
action”). Myers, therefore, is entitled to a jury
determination on her federal and FCRA sexual
harassment claims, and the district court’s grant of
summary judgment was improper.
II.
As to Myers’ reiaiiation claim, the district court
properly concluded that she failed to offer evidence
supporting a causal connection between any protected
activity and her termination. Stavropoulous v.
Firestone, 361 F.3d 610, 616 (11th Cir. 2004).* Her
“formal” complaints to management did not occur until
after meetings regarding the spa’s lack of profitability.
And, as the district court noted, even if Myers did
establish a prima facie retaliation case, CFI has met
its burden of offering a legitimate, nondiscriminatory
reason for her termination under the applicable
McDonnell-Douglas burden-shifting framework.
* As to Myers’ post-termination retaliation claim, we find that her
claim fails because she cannot show that Siegel’s decision to file
an unrelated lawsuit against her was an action that “would have
been materially adverse to a reasonable employee or job
applicant,” such that “that the employer's actions {were} harmful
to the point that they could well [have] dissuade[d] a reasonable
worker from making or supporting a charge of discrimination,”
Burlington N. & Santa Fe Ry. Co. v. White, 548 — U.S. —, 126S.
Ct. 2405, 2409 (2006).
l4a
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-03, 93 S. Ct. 1817, 1824 (1973). There is no
question that the spa’s profitability was a primary
concern of CFI management and that they questioned
Myers’ ability to run the operation. Even if the district
court erred in relying on the other proffered reasons for
Myers’ termination (allegations of employee
misconduct and complaints filed against Myers), any
such error was harmless because the spa’s loss of
money was a sufficient nondiscriminatory reason for
her termination. Just as her tangible employment
action theory of sexual harassment fails, Myers cannot
sustain a viable retaliation claim.
III.
Finally, we find that the district court did not abuse
its discretion in denying Myers’ third motion to compel.
Our review here is highly deferential, and “we will not
second-guess the district court’s actions unless they
reflect a ‘clear error of judgment.” Holloman ov.
Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006)
(quoting United States v. Kelly, 888 F.2d 732,745 (11th
Cir. 1989)). There was no such “clear error” here in
refusing to grant a motion to compel filed eighty- eight
days after discovery had closed.
AFFIRMED in part VACATED in part and
REMANDED.
15a
A True Copy - Attested
Clerk U.S. Court of Appeals
Eleventh Circuit
3y:/s/
Deputy Clerk
Atlanta, Georgia
16a
APPENDIX C
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
Case No. 6:04-cv-1542-Orl-28DAB
[Filed April 25, 2006]
DAWN GEORGETTE MYERS
Plaintiff,
-VS-
CENTRAL FLORIDA INVESTMENTS, INC.,
CFI SALES AID MARKETING, LTD,
WESTGATE RESORTS, INC.,
WESTGATE RESORTS LTD,
and DAVID SIEGEL,
Defendants.
|
— ~— — — ~ — — —_— — — —— ~~
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came before the
Court. The issues have been
heard and a decision has been
rendered
17a
IT IS ORDERED AND ADJUDGED
Judgment is entered in favor of Defendants Central
Florida Investments, Inc., CFI Sales & Marketing,
Ltd., Westgate Resorts, Inc., & Westgate Resorts,
Ltd. On Counts I through IV of the Second
Amended Complaint & Counts VII & VIII are
Remanded to the Circuit Court, Ninth Judicial
Circuit, Orange County, Florida.
Date: April 25, 2006
SHERYL L. LOESCH, CLERK
s/l. Cammarota, Deputy Clerk
18a
APPENDIX D
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
Case No. 6:04-cv-1542-Orl-28DAB
[Filed April 24, 2006]
DAWN GEORGETTE MYERS
Plaintiff,
-VS-
CENTRAL FLORIDA INVESTMENTS, INC.,
CFI SALES AID MARKETING, LTD,
WESTGATE RESORTS, INC.,
WESTGATE RESORTS LTD,
and DAVID SIEGEL,
Defendants.
ORDER
Dawn Georgette Myers (“Ms. Myers”) brings the
instant action against Central Florida Investments,
Inc., CFI Sales and Marketing, Ltd., Westgate Resorts,
Inc., and Westgate Resorts, Ltd. (collectively “the
corporate Defendants”) alleging sexual harassment
and retaliation in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
19a
seq. (“Title VII”) and the Florida Civil Rights Act of
1992, Sections 509.092, 760.01.11, Florida Statutes
(“the FCRA”). Ms. Myers also brings claims of battery
and false imprisonment against the corporate
Defendants as well as individual Defendant David
Siegel (“Mr. Siegel”).’
This case is currently before the Court on the
Defendants’ Motion for Summary Judgment (Doc. 93)
and Ms. Myers’s Response in Opposition (Doc. 102)
thereto. Having considered the record, the parties’
arguments, and relevant law, the Court concludes that
the Defendants’ motion must be granted as to Ms.
Myers’s employment discrimination claims.
I. Background’
A. Overview of the Defendants’ Business and
Ms. Myers’s Employment
The Defendants are in the business of developing,
managing, and selling interests in timeshare resorts,
and they operate several timeshare properties in the
Orlando area. Mr. Siegel is the President of, and owns
' See Second Am. Compl., Doc. 47 { 8 (setting forth which counts
are against which Defendants).
* The facts are taken largely from the “Undisputed Facts”
submitted by Defendants (Doc. 93), Ms. Myers’s Response (Doc.
103) thereto, and Ms. Myers’s deposition. Ms. Myers agrees that
many ofthe facts are undisputed, but she disputes others and has
provided a “Counter-Statement of Facts” within her Response.
(See Doc. 103). It is understood that the parties have made these
factual stipulations for the purpose of summary judgment only.
20a
one hundred percent of the stock of, Defendant Central
Florida Investments, Inc. (“CFI”), and CFI in turn
owns subsidiary companies, including Defendants
Westgate Resorts, Inc. and Westgate Resorts, Ltd.
(Dep. of David Siegel, Pl.’s Ex. D, at 7-8).
In 1986, Ms. Myers, who has a high school
education as well as cosmetology and real estate
training, got a job doing front-line sales of timeshares
at one of Defendants’ resorts, Westgate Villas, working
for straight commission as an independent contractor.
(Dep. of Dawn Georgette Myers, Attach. to Doc. 93, at
32, 39, 41, 45; Undisputed Facts, Doc. 93 at 2 & Doc.
103 at 1). Ms. Myers did not enjoy her front-line sales
job and left after about a year. (Myers Dep. at 44, 46).
However, a few years later, in 1988 or 1989, Ms. Myers
returned to Westgate, doing in-house sales of
timeshares at Westgate Villas. (/d. at 51, 55).°
Ms. Myers remained in her in-house sales position
at Westgate Villas for five or six years, and in 1994 or
1995 David Siegel transferred her to another local
resort, Westgate Lakes, where she continued to do
in-house sales. (/d. at 59-60; Undisputed Facts, Doc. 93
at 2 & Doc. 103 at 1). While still working at Westgate
Villas, Ms. Myers had ideas about creating a spa at
Westgate which she shared with Mr. Siegel. (Myers
Dep. at 74, 76). Eventually Mr. Siegel became
supportive of the idea of creating a spa at Westgate
Lakes. (Id. at 77-78). Although Ms. Myers had
> Ms. Myers explained that in-house sales differ from front-line
sales in that in-house sales involve sales to existing timeshare
owners. (Myers Dep. at 55).
2la
previously worked in a hair salon, she had never
worked in a spa and she had no background or
experience with spa design or management. (Id. at 87).
In January of 1998, Mr. Siegel named Ms. Myers
Executive Spa Director of the yet-tobe-built spa — a
promotion that came with an increase in pay. (/d. at
257). By that time, Ms. Myers’s pay structure had
already been changed from commission-based to a
salary of $1000 per week. (/d. at 161). After she
stopped selling timeshare and began working solely on
the spa, her salary increased over time — from $1000 to
$1200 per week, and then to $1500 per week, and
finally to $2000 per week. (Jd. at 162). These increases
— that is, the doubling of her salary from $52,000 per
year to $104,000 per year — occurred over a twoyear
period, from 1998 to 2000. (Jd. at 162-63).
The spa — named the Papillon Spa — opened in
November 1999. (Ud. at 152-53). Ms. Myers, as the
Executive Spa Director, was the direct supervisor of
the entire staff of the spa. (/d. at 265). On December
13, 2000, — just over a year after the spa had opened
for business — the Defendants term’ nated Ms. Myers’s
employment. (Undisputed Facts, Doc. 93 at 2 & Doc.
103 at 1).
B. Ms. Myers’s Relationship with David Siegel
Ms. Myers met Defendant David Siegel and his
second wife, Bettie, while Ms. Myers was working at
Westgate Villas doing in-house sales. (Myers Dep. at
66). It is undisputed that Ms. Myers and Mr. Siegel
svon became friends and that the friendship never
evolved into a romantic relationship. It is also
22a
undisputed that Mr. Siegel, at least for a time, was
romantically interested in Ms. Myers and that she did
not reciprocate his feelings. (See, e.g., Dep. of David
Siegel at 13-15). However, there is dispute regarding
Mr. Siegel’s treatment of Ms. Myers and whether it
constitutes sexual harassment, as well as whether Ms.
Myers was terminated from her job for an unlawful,
discriminatory reason. Ms. Myers contends that Mr.
Siegel was obsessed with her and that she was
terminated in retaliation for refusing his advances and
for complaining about his harassment. She also claims
that his treatment of her created a hostile work
environment. Although Mr. Siegel acknowledges
having had a romantic interest in Ms. Myers, he denies
many of the events alleged by Ms. Myers; however, for
purposes of summary judgment the Court must accept
Ms. Myers’s version of the facts as true.*
The first incident which Ms. Myers cites occurred at
a Westgate Christmas party in 1995; Mr. Siegel asked
Ms. Myers to dance, and while they were dancing he
suddenly kissed her. (Myers Dep. at 66-67; Undisputed
Facts, Doc. 93 at 8 & Doc. 103 at 5). The next night
Mr. Siegel called Ms. Myers at home and apologized for
kissing her. (Myers Dep. at 67-68). They became good
friends after this dance-floor kiss incident. (Undisputed
Facts, Doc. 93 at 8 & Doc. 103 at 5). “Myers and David
Siegel began to talk frequently, sometimes daily. The
friendship flourished during David Siegel’s separation
from his wife, Bettie, in 1995.” (Undisputed Facts, Doc.
93 at 3 & Doc. 103 at 2) (record citations omitted). Mr.
Siegel tried to get Ms. Myers to date him, but Ms.
"See Anderson v. Liberty Lobby, Inc., 477 US. 242 (1986)
23a
Myers was not interested; because Mr. Siegel had been
so kind to her and had given her an opportunity to
prove herself, it was very difficult for her to tell Mr.
Siegel that she did not want to date him. (Myers Dep.
at 92). Ms. Myers told Mr. Siegel that she was sorry,
that she wished she felt differently about him, but that
there was too much of an age difference between them.
(Id. at 92-93; see also Undisputed Ficts, Doc. 93 at 3 &
Doc. 103 at 2).
“Myers and Siegel talked about personal matters,
as friends do, such as Myers’[s} caring for her mother
and Siegel’s separation from his wife. Myers gave
Siegel her cell phone number.” (Undisputed Facts, Doc.
93 at 3 & Doc. 103 at 2) (record citations omitted). “On
one occasion, David Siegel visited Myers’|s] Conway
area home; she described to him the changes and
renovations she would like to make to the house.
Shortly thereafter, David Siegel arranged for the
renovations to be completed at no cost to Myers. Myers
commented, ‘wow, there are really great perks to being
your friend’ and they both laughed.” /d. (record
citations omitted).
The second time’ — the dance-floor kiss being the
first — that Mr. Siegel made what Ms. Myers describes
as a sexual advance toward her was in a meeting in
Mr. Siegel’s office at CFI. (/d. at 121). Ms. Myers was
wearing a baseball cap, and Mr. Siegel removed the
cap and kissed her. (/d.). Mr. Siegel also gave her
* Ms. Myers does not provide a date for this incident, but she
believes it occurred during a meeting regarding the spa. (Myers
Dep at 121)
24a
yellow roses that day, and Ms. Myers was mortified
because she had to walk out of the office with the
roses. (Id. at 122). Mr. Siegel gave her yellow roses one
other time as well, but she does not remember the
circumstances. (Jd. at 179). Ms. Myers understood that
“typically, yellow roses mean friendship.” (/d. at 180).
Early in the friendship, Ms. Myers greeted Mr.
Siegel with a hug and a peck on the cheek, as she did
her other friends. (Jd. at 123-24). However, after a
while she stopped greeting him that way so as not to
“givle] him any sort of false hope.” (/d. at 123). There
came a point where Ms. Myers realized “it was no
longer [her] friend pursuing [her]” but “was, like, this
really angry person who wasn’t getting what he
wanted pursuing [her] and he treated [her] like crap.
He treated [her] badly in front of a lot of different
people.” (Ud. at 125). It was at that point that she
stopped giving him hugs. (Myers Dep. at 125; see also
Doc. 93 at 3; Doc. 103 at 2).
Mr. Siegel would often stop by Westgate Lakes
while Ms. Myers was still doing inhouse sales there,
and a rumor began circulating that Mr. Siegehand Ms.
Myers were having an affair. (Myers Dep. at 93). Ms.
Myers denied the rumor and defended herself. (/d.).
Ms. Myers claims that at some point — she could not
recall the year — Mr. Siegel gave her an envelope with
a check for $10,000 in it while she sat at her sales
table. (/d. at 94, 96). Ms. Myers was angry about the
check and refused to accept it. (/d. at 98). Mr. Siegel
told her that he was just trying to help her out, and
Ms. Myers supposes he thought he was doing a good
thing by giving her the check. (/d.).
25a
Mr. Siegel started offering things to Ms. Myers a
few months after he started pursuing his interest in
dating her. (/d. at 98). For example, if Ms. Myers said
that she liked a Porsche, Mr. Siegel “would say, ‘[W]ell,
you could have that Porsche if you were with me.” (d.
at 99). Mr. Siegel also told Ms. Myers that the two of
them were “soul mates” and he gave her a book on
“soul mates.” Ud. at 99, 105-06).
Ms. Myers testified in her deposition that Jim
Gissy, the executive vice president of sales and
marketing, encouraged her to date Mr. Siegel,°® but she
told Mr. Gissy that she was not interested in dating
him because of the age difference but that she “loved
him as [her] friend.” (dd. at 249-50). Ms. Myers
described this conversation with Mr. Gissy as one
between friends, and she was not angry with Mr. Gissy
about it. 7d. at 251-52). Ms. Myers has also submitted
the declaration of Gail Miller, who worked with Ms.
° In her Counter-Statement of Facts, Ms. Myers, citing her
deposition testimony, states that “Siegel asked Jim Gissy to
convince Plaintiff to go out with him.” (Doc. 103 at 14 | 82).
However, Ms. Myers did not testify to this at her deposition, nor
is there any other evidence of it; she testified that Jim Gissy tried
to convince her to date him, not that David Siegel asked Jim
Gissy to convince her to date him. In any event, as noted in the
text, there is evidence in the record that Mr. Siegel asked another
Westgate employee, Gail Miller, to convince Ms. Myers to date
him.
26a
Myers in sales at Westgate;’ Ms. Miller states that Mr.
Siegel asked Ms. Miller several times “to convince
Myers to date him.” (Decl. of Gail Miller, Pl.’s Ex. C).
In May of 1997, Mr. Siegel called Ms. Myers and
asked her if she would accompany him to the
Bahamas. (Myers Dep. at 180, 202). Ms. Myers — who
had a boyfriend at that time, as she did during most of
the timeframe at issue — told Mr. Siegel that she could
not go to the Bahamas with him; however, after Mr.
Siegel told her he was going to be looking at some
property and a spa would possibly be built there, Ms.
Myers agreed to go. (U/d. at 181). They flew to the
Bahamas on a private jet with several other
gentlemen, and once they arrived Ms. Myers confirmed
that she had her own, separate room at the resort
property where they were staying. (/d. at 181-82, 184).
After they had drinks at the bar by the pool, they
drove to the potential timeshare site with the other
gentlemen and then returned to the resort. (/d. at 182,
186). At dinner Mr. Siegel seemed very angry and did
not speak to her, treating her “like [she] was just a
piece of dirt.” Ud. at 187). The next day they returned
to Orlando. Ud. at 191).
Later in May of 1997, Mr. Siegel and Ms. Myers
traveled to New York City together. (Jd. at 202). Ms.
Myers was planning to attend a fitness show there,
and coincidentally Mr. Siegel called and said he would
‘The declaration of Ms. Miller does not provide the dates that Ms.
Miller worked at Westgate but states that she worked with Ms.
Myers in sales at Westgate Lakes. (Decl. of Gail Miller, Pl.’s Ex.
C qq 3-4).
27a
like to go to New York City for the weekend to see
Yanni. (/d. at 203-04). They flew there on a commercial
airplane, and Ms. Myers did not pay her own way. (/d.
at 206). On the airplane, Mr. Siegel told her that their
accommodations in New York would be a two-room
suite; however, Mr. Siegel’s secretary had assured her
beforehand that there were two separate rooms. (/d. at
206-07).
When they arrived at the hotel in New York City,
Ms. Myers’s “skin started to crawl” “[blecause [she
was] a young girl with an older gentleman. Everybody
was looking at me like here we go, we’ve seen this
before.” (/d. at 209-10). When they got to the room, Ms.
Myers started opening doors looking for a second
bedroom. (/d. at 210-11). The bellman told her there
was only one bedroom. (/d. at 211). Ms. Myers went
into the bathroom and cried. (/d.). Eventually Ms.
Myers emerged from the bathroom and “let [Mr.
Siegel] have it,” telling him that she was disgusted
with him and that he knew she would not be
comfortable being in the same room with him. (/d. at
213). She told him he would not be sleeping in the
bedroom, and he sat there with a “Walter Matthau”
expression on his face, as if he knew he had been
“busted.” Ud. at 214).
Ms. Myers and Mr. Siegel then went shopping, to
dinner, and to a show. (/d. at 215-220). Ms. Myers
“was miserable” and throughout the dinner looked at
him thinking, “I hate you.” (/d. at 218). However, she
“felt bad feeling like that about someone that |she] was
grateful to, that had given [her] great opportunity at
work, that there were a lot of parts about him that
[she] really admired and cared about.” (/d. at 218-19).
28a
Ms. Myers became upset when a friend of Mr. Siegel’s
called and wanted them to meet up with him and his
mistress. (Jd. at 221-22). Mr. Siegel returned her to the
hotel, and Ms. Myers demanded that he give her her
plane ticket. (id. at 222). Ms. Myers flew back to
Orlando early the next morning without Mr. Siegel.
(Id. at 222-23). In his deposition, Mr. Siegel testified,
“J assumed we were going to sleep together. When you
ask somebody to go on a trip out of town, you assume
that you’re going to spend day and night together.”
(Dep. of David Siegel, Pl.’s Ex. D at 22).
Ms. Myers claims that on several occasions Mr.
Siegel offered her or her boyfriend a million dollars for
a night with her. The first of these incidents occurred
in 1995,° when Ms. Myers was dating Rick Pierce; Mr.
Siegel told Mr. Pierce, in Ms. Myers’s presence, that
Pierce was “so lucky” and that Mr. Siegel “would give
[him] a million dollars to spend one night with her.”
(Myers Dep. at 335). In response to this comment, Ms.
Myers “just looked at him and... said, “David.” (/d. at
337). Then there was a rumor around the company
that Mr. Siegel had offered her a million dollars to
have sex with him.® (/d. at 336). Mr. Siegel repeated
this million-dollar offer to Pierce at an awards
banquet, telling him that he was “one lucky man” and
“{jJust remember, my offer still stands.” Ud. at 346).
® (See Pl.’s Resp. to Def. Westgate Resorts, Ltd.’s First Set of
Interrogs., Pl.’s Ex. H at 4).
9 Mr. Siegel made the same million-dollar offer to a salesman at
Westgate regarding the salesman’s wife, and there were then
rumors around the company about that comment. (Myers Dep. at
341-42)
29a
Mr. Siegel made the offer directly to Ms. Myers at
another banquet. (/d. at 344). The last mention of the
million dollars occurred after the spa had opened and
Ms. Myers was giving Mr. Siegel a spa treatment; Ms.
Myers commented that she should be compensated for
the treatments she provided him, and Mr. Siegel
commented that he had already told her how she could
make a million dollars. (Jd. at 345).
In July 1997, Ms. Myers began dating Mr. Siegel’s
son, Richard. ([d. at 113, 238). Ms. Myers and Richard
kept their relationship a secret for about three months
so as not to upset Mr. Siegel. (/d. at 113). During the
time that Ms. Myers and Richard Siegel were secretly
dating, Ms. Myers accompanied David Siegel, as a
friend, to Miami for a bar mitzvah. (Jd. at 238-40). Ms.
Myers explained that she went on this trip because Mr.
Siegel “absolutely begged her to” go. (/d. at 242). But,
she “was David's friend first. He was [her] friend... .
He was a friend that offended [her] and a friend that
disrespected [her] and a friend that, you know, yeah,
made [her] angry. But he was also [her] boss.” (/d. at
242-43). Ms. Myers discussed the issue with Richard
Siegel, and they decided that she should go to the bar
mitzvah with Mr. Siegel so that he would not get hurt
or angry and so that neither Ms. Myers or Richard
Siegel would get fired. (/d. at 243). Ms. Myers “felt
sorry for” Mr. Siegel and “didn’t know what to do.” (Ud.
at 252).
They traveled to Miami and stayed at a Westgate
property; Ms. Myers had her own room. (/d. at 239-40).
They went to the bar mitzvah and reception, and
nothing offensive happened at the reception. (/d. at
243). However, after the reception Mr. Siegel asked her
30a
if she would like to take a romantic walk on the beach,
and she refused and told him she was there with him
as his friend, not his date. (/d. at 244). Mr. Siegel got
angry and walked away. (Jd. at 244-45). The next
morning, they ate breakfast by the pool and Mr. Siegel
“just had that air that he’s mad at [Ms. Myers] because
[she] didn’t walk on the beach.” (Jd. at 246). They
returned to Orlando and Ms. Myers went to work on
Monday as usual. (/d. at 247).
Ms. Myers asked Mr. Siegel to send out an e-mail or
memo discrediting the rumor around Westgate that
they were having an affair, but he would not. (Jd. at
232). When Ms. Myers brought the rumor to his
attention, he told her that he liked for people to think
she was his girlfriend. (dd. at 233). However, Ms.
Myers acknowledges that during an awards banquet,
Mr. Siegel introduced her as the spa director and
pointed out that she was not there as his date, even
though he would like for her to be; he explained to the
crowd that he had asked her but she would not go out
with him. (/d. at 234-36). Despite her prior requests
that Mr. Siegel dispel the rumors, Ms. Myers was
mortified by this, claiming that Mr. Siegel humiliated
her and made a fool of himself. (Jd. at 237).
Eventually, Richard Siegel told Mr. Siegel that he
and Ms. Myers were dating. (/d. at 254). Mr. Siegel
called Ms. Myers and told her that he knew about the
relationship and that he had told Richard that if Mr.
Siegel could not have her, he would want Richard to
have her. (Ud. at 255).
sla
In April 1999, Mr. Siegel — by then divorced from
his second wife, Bettie’ — began dating Jackie Mallory.
(Id. at 262). Ms. Myers claims that Ms. Mallory made
sexual advances toward her on several occasions. For
example, during a party in May 1999, Jackie Mallory
made comments about Ms. Myers’s breasts and kissed
her on the lips when saying goodnight. (/d. at 282).
Additionally, at a December 1999 wine-tasting event
that Ms. Myers attended with Richard Siegel, David
Siegel, and Jackie Mallory, Jackie Mallory whispered
for Ms. Myers to ask David Siegel why he was smiling,
and she did so. (/d. at 305-06). Mr. Siegel did not say
anything, but Jackie Mallory then said, “I asked
[David] what would his fantasy be, and his fantasy
was to have the two of us together.” (/d. at 306). Ms.
Myers was sickened and thought to herself at the time,
“IT need out of this crazy family.” (/d.). Later that
evening in the parking lot, Ms. Myers broke up with
Richard Siegel, but a couple of months later they
began dating again. (/d. at 307-08). Mallory repeated
the suggestion of a ménage 4 trois on other occasions,
including during David Siegel’s spa treatments after
the spa had opened. (See Pl.’s Ex. H at 2). On January
2, 2000, David Siegel and Jackie Mallory got married.
(Myers Dep. at 309).
Another incident during which Ms. Myers claims
Mr. Siegel acted inappropriately occurred in November
1999 at a United Way benefit where Westgate
employees dressed up as celebrities. (/d. at 287-88).
Ms. Myers, who was still dating Richard Siegel at that
time, attended the benefit dressed as Marilyn Monroe.
' See Dep. of David Siegel at 5
32a
(Id. at 289). During the event, Mr. Siegel asked Ms.
Myers — as Marilyn Monroe — to sing to him because he
was “the president.” (dd. at 290). Ms. Myers was
reluctant to sing, but Mr. Siegel then solicited bids
from the crowd, for charity, to get Ms. Myers to sing.
(Id.). After someone in the crowd bid $500, Ms. Myers
went up on the stage and sang “Happy Birthday” to
Mr. Siegel, mimicking Marilyn Monroe’s breathy voice
as best she could. (Jd. at 291-92, 295-96). Mr. Siegel
asked her to sit on his lap while she sang, and she did.
(Id. at 294, 296-97). Ms. Myers grabbed a napkin and
put it on Mr. Siegel’s lap before she sat down so that
she “wasn’t sitting directly on his lap.” Ud. at 296-97).
When Ms. Myers put the napkin on Mr. Siegel’s lap,
Mr. Siegel put his hand under the napkin and
simulated an erection. (/d. at 299-300). Ms. Myers does
not know if anyone else saw this. (Jd. at 300).
When Ms. Myers was finished singing, she “rushed
off the stage and started crying.” Ud. at 297). Ms.
Myers claims that she had no choice but to sing and
that she was “just being a sport.” Ud. at 298). Ms.
Myers was mortified because people already thought
the two of them were having an affair, and Mr. Siegel
put her in a situation where they looked like John F.
Kennedy and Marilyn Monroe. (/d. at 301). By this
time, she had been dating Richard Siegel for over two
years. (Jd.). However, there was still a rumor going
around that she and Mr. Siegel were having an affair,
meaning that people thought she was dating both
father and son at the same time. (/d.).
Sometime in the Spring of 2000, Ms. Myers again
broke up with Richard Siegel. (/d. at 316). Just after
the breakup, she and David Siegel made an agreement
33a
about renovations to her home. (/d. at 322). Ms. Myers
moved into a condominium at Bay Hill that Mr. Siegel
owned while her own condominium was _ being
renovated. (Id. at 324). She did not pay rent for Mr.
Siegel’s condominium. (Jd. at 325). In April 2000,
approximately four weeks after she broke up with
Richard Siegel, Ms. Myers began dating a real estate
agent named Cleve Loveland. (/d. at 324).
Ms. Myers testified in her deposition that during
her employment Mr. Siegel would put his hand on her
leg and rub her legs while she was sitting next to him,
would put his arm around her and let his hand drop to
her butt, and on one occasion after the spa had opened
he slapped her butt as she was walking into her office.
(Id. at 352-56). Mr. Siegel also ran his hands up her
legs to her butt during spa treatments. From 1995 to
2000, Mr. Siegel touched her legs or butt a total of
more than ten but less than twenty times. (Jd. at
352-53). Ms. Myers also claims that after the spa
opened Mr. Siegel would drop his towel before getting
into the shower instead of following her instructions to
remain fully draped until he got to the shower; she
does not quantify how many times this occurred. (Decl.
of Georgette Myers, Pl.’s Ex. O).
Ms. Myers also complains that Mr. Siegel glared at
her and yelled at her and showed her no respect.
However, Ms. Myers acknowledged that she was not
the only target of occasional screaming and yelling;
“(hJe screams and yells at everybody.” (Myers Dep. at
128-29). In fact, “Mr. Siegel daily would scream and
yell at everyone if he was in a bad mood.” (/d. at 129;
see also Undisputed Facts, Doc. 93 at 3-4 & Doc. 103 at
2 (“But at times, Myers angered Siegel, who then
34a
‘treated me [Myers] like crap’ in front of others. But, as
Myers readily acknowledged [in her deposition], she
‘was not targeted and Siegel’s bad moods were visited
on everyone.’ Nor were Siegel’s rejections of Myers’(s]}
business requests targeted; Siegel said no to
everyone.”)).’? Other Westgate executives were also
disrespectful to Ms. Myers; it “appears to be part of the
corporate culture at Westgate.” (Myers Dep. at
159-60). She has witnessed Mr. Siegel yell at
everybody, and she has heard Mr. Siegel’s brother,
Barry Siegel, yell; “they all have acted extremely
unprofessional.” (Jd. at 160).
C. The Development of the Spa and Ms.
Myers’s Termination
“Myers first envisioned a spa at a Westgate resort
while working part time at an Orlando area spa
facility in 1994 or 1995, [while she was also] selling
timeshare interests for Westgate. Myers proposed the
idea to Siegel. By this time, Myers and Siegel were
confirmed friends. Myers well knew that Siegel was ‘all
about dollars,’ so Myers knew that the spa she
envisioned must make money for Westgate. So[,] she
emphasized the financial rewards, both directly and
indirectly, of having a spa at one of Westgate’s resorts.
The idea floated around for about a year. Siegel then
"In her Response to Defendants’ Statement of Facts (Doc. 103),
Ms. Myers expressly disputes some facts, agrees that some are
undisputed, and fails to address others. Where she fails to
expressly dispute a fact, the Court construes her silence as a lack
of dispute; indeed, the facts are taken from her deposition
testimony.
35a
told Myers that a spa would be built at Westgate
Lakes Resort .. . . Since Myers had no background or
experience designing or managing a spa, for the next
year, she researched spa design and management.”
(Undisputed Facts, Doc. 93 at 4-5 & Doc. 103 at 3)
(record citations omitted).
“Although Myers selected the Spa’s name and
pioneered the project, Westgate hired Trisha Eckoff for
the interior design of the spa. While Myers and Ms.
Eckoff worked together, Myers concluded that she and
Ms. Eckoff had very different visions for the spa. Ms.
Eckoff sought to oversee the project, which angered
Myers who thought she had been tasked with
overseeing the spa project in its entircty. Because of
frequent disagreements between Myers and Eckoff,
Myers asked Siegel to exclude Eckoff, which he did.”
(Undisputed Facts, Doc. 93 at 4-5 & Doc. 103 at 3)
(record citations omitted) (emphasis removed). Despite
the disagreements with Mr. Siegel and Trisha Eckoff,
Ms. Myers was still able to “deliver the spa that [she]
wanted to deliver”; the spa opened in November 1999.
(Myers Dep. at 152-53). She was able to complete her
tasks and get the spa built. (/d. at 157).
Although Mr. Siegel supported the idea of the spa,
other Westgate employees — including Mr. Siegel’s
brother, Barry Siegel, and Mr. Siegel’s son, Steve
Siegel — were not supportive, and, according to Myers,
“a war started” when they found out about the spa. (Jd.
at 83). Ms. Myers “had to fight for the spa, and the
only person who supported [her] was David” Siegel.
(Id.; see also Undisputed Facts, Doc. 93 at 4-5 & Doc.
103 at 3 (“But not all Westgate executives were as
supportive of the spa as Siegel. Barry Siegel, for
36a
instance, was vocal in his opposition and tried,
unsuccessfully, to undermine [Ms. Myers]. He failed.
David Siegel remained steadfast in his support of
Myers and her vision of the spa.”) (record citations
omitted)).'”
According to Ms. Myers, “David Siegel knew
nothing about the spa business. Trisha Eckoff knew
nothing about the spa business. Mark Waltrip knew
nothing about the spa business. No one in that
company — I’m not saying in the world — I’m saying in
that timeshare development company knew anything
about the spa business other than myself at that
particular time.” (Myers Dep. at 146). Therefore, “it
was imperative that they ask” Ms. Myers what she
needed to make the treatment rooms functional. (Jd.).
When Ms. Myers was the spa director, she reported
to the general manager of Westgate Lakes, Bob
Normington. (Waltrip Dep. at 9). Normington reported
to the director of resort operation, Paul Bosch, and
Bosch in turn reported to Mark Waltrip, who reported
to David Siegel. Ud. at 10). “Myers and Mark Waitrip
disagreed about many aspects of the Spa. Myers
portrayed Waltrip as an opportunist, getting involved
with a project at its late stages and then taking credit
for its success. But Myers defied Waltrip; things were
'? Ms. Myers has stipulated to the statement quoted in the text
that Mr. Siege! “remained steadfast in his support of Myers and
her vision of the spa,” but she also testified in her deposition that
at one point during the construction of the spa, Mr. Siegel told Ms.
Myers that the spa was not important to him, that it was just “a
speck of sand in [his] world” and he did not want to be bothered
with it. (Myers Dep. at 263).
37a
going to be done her way. There was an exception; over
Myers|(‘s] objections, Waltrip authorized fabrication of
the steam rooms without proper specifications. After
the spa opened, the spa was flooded. The leakage
resulted from the faulty fabrication of the steam
rooms. Myers told Siegel that Waltrip was responsible,
for which Waltrip got ‘called on the carpet.’ From that
point on, Myers became a target for Waltrip and his
reputation of eliminating people who sidestep him and
develop a direct relationship with Siegel.” (Undisputed
Facts, Doc. 93 at 7 & Doc. 103 at 4). Other people also
have been made targets by Mark Waltrip. (Myers Dep.
at 270).
“Well before the Spa opened, Myers knew that
Siegel expected, even demanded, that the Spa be
profitable.” (Undisputed Facts, Doc. 93 at 6 & Doc. 103
at 3). However, the spa was not profitable at first and
Mr. Siegel and Mr. Waltrip discussed profitability with
Ms. Myers. (See id.)
Sometime prior to November 2000, Mark Waltrip
called Ms. Myers to his office for a meeting. (/d. at
329). Mr. Waltrip “started right in on [her] about the
spa not being profitable.” (Jd. at 330). She tried to
explain her view of why it was not profitable, but Mr.
Waltrip criticized her management skills and told her
that she would be better off just designing spas for the
company rather than managing them. (/d. at 331). Ms.
Myers told Mr. Waltrip that her agreement with Mr.
Siegel was that as the spas expanded to more resorts
she would make more money and that she was not
going to take on additional design responsibility
without more pay. (/d.). Mr. Waltrip suggested to her
that it was “a little ridiculous” for a spa director to
38a
make an annual salary of $104,000, but Ms. Myers
responded that he “obviously {had not] done [his]
research very well.” (Ud. at 332).
Ms. Myers told Mr. Waltrip that if Mr. Siegel
agreed to cut her salary then “it’s not about anything
other than it’s personal.” (/d.). She started to cry and
said, “This isn’t fair. This is obviously because I’m in
love with Cleve [Loveland] and we’re talking about
getting married, and you know, this isn’t right.” (/d. at
332-33). Mr. Waltrip then told her that she was
antagonizing Mr. Siegel, saying that she knew how Mr.
Siegel felt about her and it was “like waving a red flag
in front of a bull” for her to sponsor a golf tournament
with Cleve Loveland. (/d. at 333).
Ms. Myers did not have a written employment
agreement. (/d. at 360). In approximately November
2000, she told Mr. Siegel, “Something crazy’s going on.
I do not trust Mark Waltrip.” Ud.). She asked Mr.
Siegel for an employment contract — “something in
writing saying that [she is} protected” — but he refused
to give her a contract and told her that his word was
her contract. (U/d. at 360-61). By that time, Ms. Myers
had repeatedly been yelled at about the profitability of
the spa, but no one ever sat her down and talked
specifically about profitability. Jd. at 362). The spa
was showing a loss overall at that time. (/d.).
In late November or early December 2000, the lead
massage therapist at the spa since its inception, Bill
39a
Toth,’ attempted to turn in his resignation to Bob
Normington because Toth was “very unhappy there
and was not being treated with great respect.” (Toth
Dep at 16-17). Ms. Myers was insulting to him; was
absent from the spa a lot; and had a “very demeaning”
attitude, acting like Toth had no understanding at all
of the spa industry. (/d. at 17-18). Additionally, when
Ms. Myers and Richard Siegel broke up, Ms. Myers
“was very emotional and did not come to the spa for
quite awhile.” (/d. at 21). Ms. Myers then asked the
spa employees to “sign a card apologizing for making
her work so much and taking her time away from”
Richard Siegel. (/d.). Ms. Myers also told the spa
employees that they were required to provide one free
spa service per week — for example, to Ms. Myers’s
boyfriend, Cleve Loveland. (Jd. at 22). One time Ms.
Myers came in intoxicated and not feeling well; they
had her lie down and sleep on a massage table in a
treatment room. (/d. at 32). A few times, Ms. Myers
drank wine on the job and gave wine to others,
including him. (/d. at 33). On occasion, Ms. Myers took
naps at the spa. (/d. at 40). Toth also reported that she
openly gossiped about other employees, especially
David and Jackie Siegel. Ud. at 41). Ms. Myers also
sent a spa employee to clean her home during business
hours. (/d. at 39).
'’ Toth now works as the associate director of the Canyon Ranch
Spa at Gaylord Palms Resort in Kissimmee. (Toth Dep. at 7,9). As
noted by Ms. Myers in her opposition memorandum, “[t]he court
should give credence to... evidence supporting the moving party
that is uncontradicted and unimpeached, at least to the extent
that that evidence comes from disinterested witnesses.” (Doc. 102
at 3)(quoting Reeves v. Sanderson Plumbing Prods., Inc. ,530 U.S.
133, 151 (2000)). Toth is a disinterested witness.
40a
Toth also talked to Mark Waltrip either the same day
of the next day; Waltrip “was very proactive on the
situation.” (Ud. at 35). After Toth’s attempted
resignation, an investigation was conducted and other
spa employees were asked to provide statements. Mark
Waltrip testified in his deposition that after he talked
to Toth and learned of the low morale of the spa staff,
Waltrip called David Siegel and told him there was an
issue about the spa; Mr. Siegel assumed that Waltrip
was referring to profitability, but Waltrip told him of
Toth’s allegations and recommended immediate
suspension and an investigation. (Waltrip Dep. at 30).
Mr. Siegel agreed, so Ms. Myers was suspended and an
investigation was conducted. (/d.). Ateam from human
resources and security conducted an investigation, and
the spa employees were interviewed. (Ud. at 31).
According to Waltrip, “a substantial number’ of the
spa employees supported Toth’s allegations. (/d.).
There was corroboration of Ms. Myers being hung over,
sleeping in a treatment room, drinking on the job, and
using employees for personal tasks. (/d.; see also Dep.
of Kelly Mazzarella).
After the investigation, the next step was discussed
during a telephone meeting of Waltrip, David Siegel,
Gary Pearce of human resources, and corporate
counsel. (Waltrip Dep. at 31). They decided to
interview Ms. Myers and agreed that if she admitted
to the allegations they would terminate her. (/d.). Ms.
Myers was interviewed and admitted to most of the
4la
allegations,'* and she was terminated. (Id. at 31-32).
According to Waltrip, ultimately it was David Siegel’s
decision to terminate Ms. Myers, but everyone in the
meeting agreed that she should be terminated. (/d. at
32). Ms. Myers was terminated on December 13, 2000.
After Ms. Myers was terminated, evidence of
financial misconduct by Ms. Myers came to light. (/d.).
A vendor came around seeking payment for a bed that
Ms. Myers had bartered. (/d.). Apparently a furniture
salesman was looking for spa gift certificates that Ms.
Myers had promised him in exchange for a bed for her
personal home. (/d. at 35; see also Toth Dep. at 51).
D. Procedural Background
In her Second Amended Complaint (Doc. 47), Ms.
Myers alleges nine counts, six of which remain”: sex
'S In her opposition papers, Ms. Myers contests some but not all
of the allegations regarding improper conduct at the spa. She
admits to lying down in the treatment rooms but attributes the
need to do so to recurring migraine headaches. In a declaration
submitted by Ms. Myers in opposition to the summary judgment
motion, former spa employee Kelly Oehrle states, “I cleaned the
house Georgette was staying in (Siegel’s condo) on Fridays for
several weeks... . I had been having financial difficulties and
Myers looked out for me by sending me to do the job when I would
otherwise have been sent home without pay.~ (Decl. of Kelly
Oehrle, Pl.’s Ex. B at 2 7] 29-30).
'° The other three counts — retaliation under the Florida Private
Whistleblower Act (Count V), inducement to prostitution (Count
V1), and negligent retention and supervision (Count IX) — have
been dismissed. (See Docs. 63 & 76).
42a
discrimination and harassment under Title VII (Count
I); retaliation under Title VI{ (Count II); sex
discrimination and harassment under the FCRA
(Count III); retaliation under the FCRA (Count IV);
battery under Florida law (Count VII); and false
imprisonment under Florida law (Count VIII).
Defendants’ current motion (Doc. 93) seeks summary
judgment on all of these remaining counts.
Il. Discussion
A. Summary Judgment Standards
Summary judgment “shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The moving party bears the burden of establishing
that no genuine issues of material fact remain. Celotex
Corp. v. Catrett, 477 U.S. 317 (1986).
When faced with a “properly supported motion for
summary judgment, [the nonmoving party] must come
forward with specific factual evidence, presenting more
than mere allegations.” Gargiulo v. G.M. Sales, Inc.,
131 F.3d 995, 999 (11th Cir. 1997). “The evidence
presented cannot consist of conclusory allegations or
legal conclusions.” Avirgan v. Hull, 932 F.2d 1572,
1577 (11th Cir. 1991); see also Fed. R. Civ. P. 56(e)
(providing that nonmovant’s response “must set forth
specific facts showing that there is a genuine issue
for trial”).
43a
In ruling on a motion for summary judgment, the
Court construes the facts and all reasonable inferences
therefrom in the light most favorable to the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986). However, 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 at trial.” Celotex, 477 U.S. at 322.
Moreover, “at the summary judgment stage the judge’s
function is not himself to weigh the evidence and
determine the truth of the matter but to determine
whether there is a genuine issue for trial.” Anderson,
477 US. at 249.
“Summary judgment may be granted if the
non-moving party’s evidence is merely colorable or is
not significantly probative.” Sawyer v. Southwest
Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan.
2003) (citing Anderson, 477 U.S. at 250-51). “In a
response to a motion for summary judgment, a party
cannot rely on ignorance of facts, on speculation, or on
suspicion, and may not escape summary judgment in
the mere hope that something will turn up at trial.’
Essentially, the inquiry is ‘whether the evidence
presents a_ sufficient disagreement to require
submission to the jury or whether it is so one-sided
that one party must prevail as a matter of law.” Id.
(quoting Conaway v. Smith, 853 F.2d 789, 794 (10th
Cir. 1988) and Anderson, 477 U.S. at 251-52): see also
LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371
(S.D. Fla. 1999) (“The law is clear . .. that suspicion,
perception, opinion, and belief cannot be used to defeat
a motion for summary judgment.”). “[T]he summary
judgment rule applies in job discrimination cases just
44a
as in other cases. No thumb is to be placed on either
side of the scale.” Chapman v. Al Transp., 229 F.3d
1012, 1026 (11th Cir. 2000).
B. The Merits of Defendants’ Motion
Before turning to analysis of the Defendants’
motion, the Court notes that it is apparent from just a
paper record that there is much acrimony between the
parties and between counsel in this case. Moreover,
both sides have at times engaged in what may be
charitably called stretching of the record to suit their
purposes, and in assessing the motion papers the
Court has taken great care to review the evidence itself
rather than the parties’ characterizations of it."° The
© Cf Primas v. Bd. of Regents of the Univ. Sys. of Ga., No.
5:04CV342(DF), 2006 WL 839242, at *12-13 (M.D. Ga. Mar. 30,
2006) (“The Court should point out before concluding that its task
in considering this motion has been needlessly frustrated by the
parties’ inability to separate the wheat from the chaff in
determining which facts are material to its resolution and which
are not.... The Court has nevertheless thoroughly examined the
evidence presented and concludes that [the plaintiff} has failed to
demonstrate a genuine issue of material fact on any of her
claims... .”).
45a
parties and their counsel would do well in the future to
avoid unnecessary sniping.”
The Defendants make several arguments in their
summary judgment motion, some of which have been
combined or restated for the sake of discussion herein.
First, they contend that Ms. Myers was an
independent contractor rather than an employee and
7 The Court notes that the parties’ sniping is not limited to one
another but extends, at least in the case of defense counsel, to the
Court itself. During Ms. Myers’s deposition, the following
exchange occurred:
Q [by defense counsel]: Okay. So she wasn’t ~ she
wasn’t subjugated — well, that’s not a good word. That’s
too big a word for you. The fact that she was a woman
didn’t make any difference? She was rewarded for her
hard work and her good ideas; isn’t that right?
A [by Ms. Myers]: I'm sorry. Rephrase the question. I was-
Q: I apologize. That wasn’t intended to be denigrating.
A: That’s okay.
Q: It’s a word that doesn’t — I was using a word that
really isn’t a good deposition word because you want a
deposition to be simple that, you know, everyone,
including a federal jwdge, can understand it.
(Myers Dep. at 173-74)‘emphasis added). The Court is unsure as
to whether defense sowmsel was making reference to the
undersigned federal judge, one of the judges on the Eleventh
Circuit Court of Appeals, a Justice of the United States Supreme
Court, or federal judges in general, but the Court assures defense
counsel that the undersigned understands the word “subjugated”
and suggests that counsel be mindful that their deposition
comments are likely to appear in the record that will later be
reviewed by the Court
46a
that therefore she cannot bring a claim under Title VII
or the FCRA. Second, they aver that Ms. Myers did not
timely exhaust the Title VII and FCRA administrative
procedures. Third, they assert that Ms. Myers’s sexual
harassment claims fail as a matter of law. Fourth, the
corporate Defendants argue that Ms. Myers cannot
state a prima facie case of retaliation and that the
retaliation claims fail on the issue of pretext as well.
Finally, the Defendants assert that Ms. Myers’s
state-law battery and false imprisonment claims are
time-barred and otherwise fail. These arguments are
addressed in turn.
1. Independent Contractor or Employee
Title VII and the FCRA apply to claims by an
“employee” against an “employer.” See 42 U.S.C.
§ 2000e-2(a); § 760.10(1), Fla. Stat.'* The corporate
Defendants contend that Ms. Myers was an
independent contractor rather than an employee and
that therefore she is not a proper Title VII or FCRA
plaintiff.
In the Eleventh Circuit, “the term ‘employee’ in
cases under Title VII is to be construed in light of
general common law concepts.” Cobb v. Sun Papers,
Inc., 673 F.2d 337, 340-41 (11th Cir. 1982). “[I]t is the
'’ Ms. Myers brings claims under both Title VII and the FCRA.
Courts consistently apply case law interpreting Title VII toclaims
under the FCRA because the FCRA is patterned on Title VII. See,
e.g., Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1195 n.1 (11th
Cir. 2004). Hence, the discussion of the Title VII claims in this
Order applies equally to the FCRA claims, and the FCRA claims
will not be addressed separately.
47a
economic realities of the relationship viewed in light of
the common law principles of agency and the right of
the employer to control the employee that are
determinative.” Jd. at 341; accord Cuddeback v. Fla.
Bd. of Educ., 381 F.3d 1230, 1234 (11th Cir. 2004).
In Cobb, the Eleventh Circuit endorsed the
approach taken by the D.C. Circuit in Spirides uv.
Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), and the
Ninth Circuit in Lutcher v. Musicians Union Local 47,
633 F.2d 880 (9th Cir. 1980), in resolving the issue of
whether a worker was an employee or an independent
contractor:
This test calls for application of general
principles of the law of agency to undisputed or
established facts. Consideration of all of the
circumstances surrounding the work
relationship is essential, and no one factor is
determinative. Nevertheless, the extent of the
employer’s right to control the “means and
manner” of the worker’s performance is the
most important factor to review here, as it is at
common law ....Ifan employer has the right to
control and direct the work of an individual, not
only as to the result to be achieved, but also as
to the details by which that result is achieved,
an employer/employee relationship is likely to
exist.
Spirides, 613 F.2d at 831-32, quoted in Cobb, 673 F.2d
at 340 (alteration in original). “[A]dditional factors
which are relevant to the consideration of this issue”
are.
48a
“(1) the kind of occupation, with reference to
whether the work usually is done under the
direction of a supervisor or is done by a
specialist without supervision; (2) the skill
required in the particular occupation; (3)
whether the ‘employer’ or the individual in
question furnishes the equipment used and the
place of work; the length of time during which
the individual has worked; (5) the method of
payment, whether by time or by the job; (6) the
manner in which the work relationship is
terminated; i.e., by one or both parties, with or
without notice and explanation; (7) whether
annual leave is afforded; (8) whether the work
is an integral part of the business of the
‘employer’; (9) whether the worker accumulates
retirement benefits; (10) whether the ‘employer’
pays social security taxes; and (11) the intention
of the parties.”
Cobb, 673 F.2d at 340 (quoting Spirides, 613 F.2d at
832).
The corporate Defendants contend that “the totality
of the evidence shows that [Ms.] Myers was an
independent contractor, not Westgate’s employee as
she now claims.” (Defs.’ Mem. of Law in Supp. of Mot.
for Summ. J., Doc. 94 at 4). Although it is undisputed
that at the beginning of Ms. Myers’s employment with
Westgate she was an independent contractor,’ as to
the final years of her employment there are some
factors weighing each way and as to other factors, the
'? See Undisputed Facts, Doc. 93 at 2 & Doc. 103 at 1.
49a
evidence is in dispute, including, but not limited to, the
intention of the parties regarding the nature of the
employment relationship and, importantly, the amount
of control the Defendants exercised over Ms. Myers.
Construing the evidence in favor of the Ms. Myers as
the nonmoving party, summary judgment is not
appropriate on this issue. See, eg., Garcia v.
Copenhaver, Bell & Assocs., 104 F.3d 1256, 1266-67
(11th Cir. 1997) (reversing magistrate judge’s ruling on
independent contractor issue and remanding for a jury
trial in light of disputed facts on, inter alia, degree of
control).
2. Exhaustion of Administrative Procedures
A plaintiff must exhaust administrative remedies
before bringing a lawsuit alleging a violation of Title
VII. See 42 U.S.C. § 2000e-5; EEOC v. Joe’s Stone
Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002). In
Florida, a plaintiff must file a charge of discrimination
with an administrative agency “within three hundred
days after the alleged unlawful employment practice
occurred.” 42 U.S.C. § 2000e-5(e)(1); see also Joe’s
Stone Crabs, 296 F.3d at 1271. The Defendants seek
summary judgment “as to all incidents predating
November 19, 2000,” (Doc. 94 at 10) — three hundred
days before Ms. Myers filed her charge.”” However, the
© In the Second Amended Complaint, Ms. Myers alleges that she
filed her charge on September 12, 2001 (Doc. 47 4 271). In their
motion, the Defendants state the date of filing as September 14,
2001. (Doc. 94 at 9). In her Response to Interrogatories, Ms.
Myers gives the date of filing as September 14. (Pl.’s Ex. H at 6).
For the purposes of this Order, this two-day difference is not
significant.
50a
Defendants’ arguments on this point — which seem
halfheartedly made — are not well-taken.
Ms. Myers’s Title VII claims relate to her
termination, which occurred in December 2000, and to
an allegedly ongoing hostile work environment. Her
administrative charge was clearly filed within three
hundred days of the discrete event of her termination,
and thus the charge is not untimely as to her
termination claims.
With respect to Ms. Myers’s hostile environment
claim, the corporate Defendants are incorrect that she
is limited to events occurring three hundred days prior
to the filing of her charge. In National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002),
the United States Supreme Court explained that
“(hlostile environment claims are different in kind
from discrete acts. Their very nature involves repeated
conduct. . . . The ‘unlawful employment practice’
therefore cannot be said to occur on any particular day.
It occurs over a series of days or perhaps years and, in
direct contrast to discrete acts, a single act of
harassment may not be actionable on its own.” The
Morgan court held:
The timely filing provision only requires that a
Title VII plaintiff file a charge within a certain
number of days after the unlawful practice
happened. It does not matter, for purposes of
the statute, that some of the component acts of
the hostile work environment fall outside the
statutory time period. Provided that an act
contributing to the claim occurs within the filing
period, the entire time period of the hostile
Sla
environment may be considered by a court for
the purposes of determining liability.
536 U.S. at 117. in sum, “[i]n order for the charge to be
timely, the employee need only file a charge within...
300 days of any act that is part of the hostile work
environment.” /d. at 118.
Ms. Myers claims that she was touched and
grabbed by Mr. Siegel as late as Thanksgiving 2000 —
after November 19, 2000. This is sufficient to render
her hostile work environment charge timely. The
corporate Defendants are not entitled to summary
judgment on Ms. Myers’s Title VII or FCRA claims on
the basis of untimely administrative filing.
52a
3. Sexual Harassment Claims (Counts I and
III)”
*! In their motion, the Defendants argue that Ms. Myers cannot
establish a prima facie case of disparate treatment based on sex
because, inter alia, she cannot show that she was replaced by a
male. However, this portion of the summary judgment motion is
denied as moot because Ms. Myers has now clarified that she is
not alleging claims of disparate treatment based on her gender.
In the Second Amended Complaint (Doc. 47), Ms. Myers sets
forth many paragraphs of allegations and then incorporates those
paragraphs in the enumerated counts in which she states her
claims. Counts I and III, which are brought under Title VII and
the FCRA, respectively, are entitled “Sex Discrimination and
Harassment” and make reference to disparate treatment based on
Ms. Myers’s sex. (See Doc. 47 at 27, 28). In the Joint Pretrial
Statement, however, the parties refer to claims of “harassment
and retaliation.” (See Doc. 120 at 2). Moreover, in her response to
the summary judgment motion, Ms. Myers responds that “the
applicable prima facie case is the one . . . for firings for refusing
a superior’s sexual advances” rather than one that includes
replacement by a male as an element. (See P1.’s Resp. in Opp’n to
Def.’s Mot. for Summ. J., Doc. 102 at 10).
From these filings, it is clear to the Court that Ms. Myers is
not bringing a claim of disparate treatment based on gender.
Instead, in Counts I and III of the Second Amended Complaint,
Ms. Myers is alleging both of the two types of actionable sexual
harassment — “hostile work environment” sexual harassment and
“tangible employment action” sexual harassment. Counts II and
IV of the Amended Complaint allege retaliation in response to Ms.
Myers’s opposition to sexual harassment. This reading of the
counts is consistent with Paragraph 270 of the Amended
Complaint, which alleges that Ms. Myers “was terminated in
retaliation for objecting to the sexual harassment she suffered
and for refusing Defendant Siegel's sexual advances.” (Doc. 47
q 270). The record in this case makes clear that this is, if
anything, a sexual harassment case rather than a
53a
In Counts I and III of the Second Amended
Complaint, Ms. Myers alleges both types of actionable
sexual harzs.ment — “tangible employment action”
sexual harassment and “hostile work environment”
sexual harassment. The corporate Defendants contend
that they are entitled to summary judgment on these
claims.
The two types of actionable harassment differ in
their elements and manner of proof. As the Supreme
Court has explained, “Title VII is violated by either
explicit or constructive alterations in the terms of
employment,” Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 752 (1998); “tangible employment action”
harassment claims involve explicit alterations in the
terms of employment, and “hostile work environment”
harassment claims involve constructive alterations in
the terms of employment, see id.; see also Hulsey v.
Pride Rests., LLC, 367 F.3d 1238, 1245 (11th Cir.
2004) (“Sexual harassment in the workplace can alter
the terms and conditions of employment in either of
two ways. One way is if the employee’s refusal to
submit to a supervisor’s sexual demands results in a
tangible employment action being taken against her.
... The second way ... is if it is sufficiently severe
and pervasive to effectively result in a change
(sometimes referred to as a constructive change) in the
disparate-treatment-based-on-gender case. Thus, to the extent
that the Defendants argue in their summary judgment motion
that Ms. Myers’s disparate treatment gender-based claim fails,
the motion is denied as moot. The two types of sexual harassment
claims that Ms Myers raises, as well as her retaliation claims, are
addressed in the text.
54a
terms and conditions of employment, even though the
employee is not discharged, demoted, or reassigned.
This is hostile work environment harassment.”)
(citations and footnote omitted).
“When a plaintiff proves that a_ tangible
employment action resulted from a refusal to submit to
a supervisor’s sexual demands, he or she establishes
that the employment decision itself constitutes a
change in the terms and conditions of employment that
is actionable under Title VII. For any sexual
harassment preceding the employment decision to be
actionable, however, the conduct must be severe or
pervasive.” Ellerth, 524 U.S. at 753-54. The Court
addresses Ms. Myers’s two types of sexual harassment
claims separately.
a. Hostile Work Environment Sexual Harassment
The Eleventh Circuit has explained:
[Tlo establish a claim of hostile-environment
based on harassment by a supervisor, an
employee 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 discriminatorily abusive’ working
environment; and (5) a basis for holding the
erm plover hable.
55a
Williams v. Motorola, Inc., 303 F.3d 1284, 1292-93
(11th Cir. 2002) (citing Mendoza v.Borden, Inc., 195
F.3d 1238, 1245 (11th Cir. 1999)). In their summary
judgment motion, the corporate Defendants challenge
whether Ms. Myers can satisfy the second, third, and
fourth elements.
Regarding the second element, although the
corporate Defendants contend that any sexual conduct
to which Ms. Myers was subjected was not
“unwelcome” and that therefore Ms. Myers’s claim
fails, the Court cannot resolve this question on
summary judgment. Ms. Myers has_ submitted
evidence that Mr. Siegel’s conduct made her
uncomfortable and that she told him to stop. (See, e.g.,
Decl. of Mary Fetzner, Pl.’s Ex. A J 13 (“It was obvious
the touching lof Ms. Myers’s legs by Mr. Siegel] was
unwanted by Myers. She pushed his hands away and
had a disapproving look on her face.”); see also Myers
Dep.). Construing the evidence in the light most
favorable to Ms. Myers, the issue of unwelcomeness is
a question of fact.
The third element of a hostile environment claim is
that the harassment was based on the plaintiff's sex.
The corporate Defendants assert that any harassment
that Ms. Myers suffered was not because of her sex but
instead was “the venting of strong emotions between
friends.” (Doc. 94 at 18). The corporate Defendants rely
on Succar v. Dade County School Board, 229 F.3d
1343, 1345 (Lith Cir. 2600), wherein the Eleventh
Circuit agreed with the district court’s assessment that
the harassment in that case — which was inflicted by
plaintiffs co-worker, with whom the plaintiff had
56a
previously engaged in a consensual sexual
relationship — “was not the result of Plaintiff's gender
‘but of responses to an individual because of her former
intimate place in [that individual’s] life.” (quoting the
district court opinion) (alteration in original). In other
words, “[plersonal animosity is not the equivalent of
sex discrimination,” even where the parties have a
past intimate relationship. Jd. However, the Succar
court did not hold that any time the parties have a
personal relationship there can be no_ sexual
harassment claim, and notably the harassment in that
case was not of a sexual nature. See Lipphardt v.
Durango Steakhouse of Brandon, Inc., 267 F.3d 1183,
1188-89 (11th Cir. 2001) (noting that the plaintiffs
“personal relationship with {her harassing supervisor]
was definitely a factor to be considered by the jury in
its analysis of whether the discrimination was based
on sex” and that “[i]t is also important that [the
supervisor’s] conduct towards [the plaintiff] was sexual
in nature, while the harassment that Succar suffered
was not”). Moreover, in this case the parties agree that
Mr. Siegel and Ms. Myers were friends but not lovers.
At a minimum, the issue of whether the harassment of
Ms. Myers was based on her sex is a jury issue in this
case.
The fourth element requires that the harassment
be both objectively and subjectively severe or
pervasive, alter the terms and conditions of
employment, and create a discriminatorily abusive
working environment in order to be actionable. See
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)
(“Conduct that is not severe or pervasive enough to
create an objectively hostile or abusive work
environment an environment that a reasonable
nia i iil i
57a
person would find hostile or abusive — is beyond Title
VIl’s purview. Likewise, if the victim does not
subjectively perceive the environment to be abusive,
the conduct has not actually altered the conditions of
the victim’s employment, and there is no Title VII
violation.”). “[W]hether an environment is ‘hostile’ or
‘abusive’ can be determined only by looking at all the
circumstances These may include the frequency of the
discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Jd.
at 23; accord Gupta v. Fla. Bd. of Regents, 212 F.3d
571, 584 (11th Cir. 2000) (listing factors to be used in
assessing severity and pervasiveness).
Ms. Myers’s hostile environment claim fails at the
“severe or pervasive” element because she did not
perceive her working environment as hostile or
abusive, and a reasonable person would not have
perceived it as such either. Ms. Myers’s own deposition
testimony establishes that the harassment was not
“sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily
abusive working environment” as required for an
actionable hostile environment claim. Ms. Myers
testified that she did not feel threatened by Mr. Siegel.
(See, e.g., Myers Dep. at 354 (“He was not threatening
me.”)). There is no evidence that Mr. Siegel’s conduct
negatively impacted Ms. Myers’s work performance or
career progression at all; in fact, she rose from an
apparently entry-level sales position to executive spa
director, and her salary steadily rose, even doubling
during the final two years of her employment. (See,
e.g., id. at 323 (testimony that Ms. Myers was
58a
embarrassed by the rumors around the company but
that she did not suffer in compensation or title). She
completed her duties and the spa opened on time — a
point of pride for Ms. Myers. (See id. at 157). Further —
as will be discussed in more detail in connection with
Ms. Myers’s termination claims — although Ms. Myers
disagrees with the Defendants’ assessment of her
performance managing the spa, she does not attribute
any problems with the spa’s profitability to the
harassment. She complains about being yelled at on
the job but she acknowledges that Mr. Siegel yelled at
everyone. Moreover, there is no evidence that Ms.
Myers sought counseling or suffered psychological
harm. See Harris, 510 U.S. at 23 (“The effect on the
employee’s psychological well-being is, of course,
relevant to determining whether the plaintiff actually
found the environment abusive.”). Thus, Ms. Myers’s
own testimony establishes that Ms. Myers did not
subjectively perceive the harassment to be so severe or
pervasive that it created a hostile work environment.
Additionally, from an_ objective standpoint,
consideration of the factors noted above does not
support severity or pervasiveness in this case. First,
the harassing conduct, considered as a whole, cannot
be said to have occurred with great frequency. Ms.
Myers alleges ten to twenty touchings — mostly of her
legs, but sometimes of her butt — over a period of
approximately five years — two to four per year; thus,
the touchings were infrequent. She alleges that
comments were made with more frequency, but these
were “merely offensive utterances” and some of them
consisted of Mr. Siegel telling her she “looked
beautiful” that day. Moreover, many of the comments
were made in social settings outside the workplace
59a
altogether — including Siegel family gatherings which
Ms. Myers voluntarily” attended while dating Richard
Siegel — and throughout her employment Ms. Myers
considered Mr. Siegel a friend. In sum, considering the
totality of the circumstances, from an objective
standpoint the harassment did not rise to the requisite
level of severity or pervasiveness. Cf, e.g., Weiss v.
Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337
(7th Cir. 1993) (noting authority “that a grant of
summary judgment was appropriate despite the
plaintiff being subjected to propositions, lewd
comments and a slap on the buttocks when these were
relatively isolated instances”).
2 Cf. Devlin v. Teachers’ Ins. & Annuity Ass’n of Am., No. 02 Civ.
3228(JSR), 2003 WL 1738969, at *2 (S.D.N.Y. Apr. 2, 2003)
(noting that generally “employers are not responsible under Title
VII for hostile sexual acts resulting from nonwork-related,
off-duty interactions between co-employees,’ because those actions
are not part of the work environment” but that in some
circumstances, such as “where a supervisor uses his authority to
compel the victim of harassment to meet outside the office, the
harassing acts might be imputed to the employer”) (citations
omitted). In this case, Ms. Myers has not alleged any acts by Mr.
Siege! compelling her to go on trips with him or to socialize with
his family.
For the purposes of ruling on this motion, the Court has taken
as true Ms. Myers’s allegations as to the conduct of Jackie Mallory
and has considered it in the assessment of the severity of the
environment. However, these instances were largely outside the
workplace, and it is far from clear that the conduct of a girlfriend
or wife is attributable to the boyfriend or husband in a sexual
harassment case. The parties have not presented authority with
respect to this, and the Court need not resolve this issue
60a
Because the harassment was not, subjectively or
objectively, “sufficiently severe or pervasive to alter the
terms and conditions of employment and create a
discriminatorily abusive working environment,” Ms.
Myers’s hostile work environment claims fail.
Summary judgment is granted to the corporate
Defendants on these Title VII and FCRA claims.
b. Tangible Employment Action Sexual
Harassment
As discussed earlier, Ms. Myers also brings claims
of “tangible employment action” sexual harassment. To
establish a claim of such harassment, Ms. Myers must
show that: “(1) [she] belongs to a protected group; (2)
(she] was subject to unwelcome sexual harassment; (3)
the harassment complained of was based on sex; and
(4) {her} reaction to the unwelcome behavior affected
tangible aspects of fher] compensation, or terms,
conditions or privileges of employment.” Brown v.
Snow, 440 F.3d 1259, 1265 (11th Cir. (quoting Virgo v.
Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1361 (11th
Cir. 1994)). Ms. Myers clearly satisfies the first
element, and as noted in the prior section there is at.
least a jury issue as to the second and third elements.
However, the corporate Defendants vigorously contest
whether Ms. Myers can satisfy the fourth element —
that her resistance of Mr. Siegel’s advances resulted in
a tangible employment action.
It is undisputed that Ms. Myers was terminated,
but the parties dispute whether her termination was
causally related to her rebuff of Mr. Siegel se as to
satisfy the fourth element of this claim. See Cotton uv.
Cracker Barrel Old Country Store, 434 F.3d 1227, 1231
6la
(11th Cir. 2006) (“There also must be a causal link
between the tangible employment action and the
sexual harassment.”). The corporate Defendants assert
that there is no causal connection because Ms. Myers’s
rejections of Mr. Siegel last occurred, say Defendants,
in 1995 or 1996 — several years before her termination
in December 2000. However, as Ms. Myers points out,
the Defendants ignore that Ms. Myers has testified to
incidents occurring much later than 1995 or 1996;
indeed, she alleges that incidents occurred at the spa
as late as Thanksgiving 2000. It is unclear to the Court
why the Defendants have focused only on the 1995 and
1996 timeframe; although Mr. Siegel’s explicit requests
to date Ms. Myers occurred years earlier, the allegedly
unwanted touchings and comments were not so remote
in time.
Nevertheless, Ms. Myers has failed to present
evidence supporting a causal connection between any
harassment she suffered and her termination. Ms.
Myers contends in her memorandum that “even if it
were true that a long time passed between rejection of
Siegel’s advances and Plaintiffs firing, the court would
not be permitted to weigh that evidence on summary
judgment.” (Doc. 102 at 12). However, the Court need
not weigh evidence in order to find a lack of evidence of
a causal connection. “Although temporal proximity
between the harassment and a tangible employment
action can give rise to a genuine issue of fact as to
causation,” it does not always do so and does not do so
in this case. See Cotton, 434 F.3d at 1232. Although
the Defendants are incorrect in relying only on the
earlier rejections of Mr. Siegel’s advanices, the earlier
advances were more explicit, and Ms. Myers
acknowledged throughout her deposition that she
62a
never suffered any adverse consequence at work after
her express rejections of Mr. Siegel’s interest in a
relationship with her. Some offensive conduct
continued, but it certainly cannot be said to have
escalated in the time leading up to her termination. As
the Defendants correctly note, despite rejecting Mr.
Siegel — in 1995, 1996, and thereafter — throughout
that time Ms. Myers advanced at the company rather
than suffering. From March or April 2000 until
November 2000, Mr. Siegel allowed Ms. Myers to stay
at a condominium he owned while her own
condominium was being renovated. Ms. Myers does not
allege any change in Mr. Siegel’s behavior over this
time; she merelv speculates that Mr. Siegel became
upset and jealous when she became engaged to her
boyfriend in late 2000. However, her speculation is
insufficient to establish a causal connection between
her rejection of Mr. Siegel and her termination,
especially considering the overwhelming evidence of
longstanding issues regarding Ms. Myers’s
management of the spa — concerns of which Ms. Myers
was aware before she even met Cleve Loveland.
As will be discussed at greater length in the next
section, there is undisputed evidence that Ms. Myers
was terminated following an investigation that was
initiated by the complaint of Bill Toth, and there is
also undisputed evidence — including, importantly, the
testimony of Ms. Myers herself — that upper
management was not pleased with Ms. Myers’s
running of the spa and not been pleased with it for
quite some time. Ms. Myers admitted to at least some
of the allegations that were made against her in
connection with the investigation, and she was then
terminated. Even accepting as true Ms. Myers’s
63a
evidence of harassment in the fall of 2000, there is no
reasonable inference of a causal connection between
her rejections of that harassment and her termination.
See Dearth v. Collins, 441 F.3d 931, 936 n.6 (11th Cir.
2006) (noting that the plaintiffs wrongful termination
claim failed because the employer “presented
unrebutted evidence that other . . . employees
complained repeatedly about [the plaintiff's] rude
behavior and attitude and that [the alleged harasser,
who was the president and sole shareholder of the
company] had originally intended to terminate [the
plaintiff}” nine months earlier; the plaintiff was
terminated after complaints about the plaintiff
increased, and a receptionist “reportedly quit because
she could no longer work with [the plairtiff]”; and the
employer “established that [the plaintiff] was
terminated for her job performance, and the evidence
did not establish any causal link between her
termination and the alleged sexual harassment”);
Frederick v. Sprint/ United Mgmt. Co., 246 F.3d 1305,
131213 (llth Cir. 2001) (affirming district court’s
grant of summary judgment on tangible employment
action sexual harassment claim “liJn light of the
unrebutted evidence showing that [the plaintiff] was
denied the promotion . . . on grounds independent of
the alleged harassment”); cf. Cotton, 434 F.3d at 1232
(“When an employer contemplates a given action
before the harassment takes place, temporal proximity
between the action and the incident or harassment
alone will not suffice to show causation.”). Thus, the
corporate Defendants are entitled to summary
judgmenton Ms. Myers’s “tangible employment action”
harassment claims.
64a
4. Retaliation Claims (Counts II and IV)
In Counts II and IV of her Second Amended
Complaint, Ms. Myers brings claims of retaliation
under Title VII and the FCRA. The anti-retaliation
provision of Title VII provides in part:
It shall be an unlawful employment practice
for an employer to discriminate against any of
his employees or applicants for employment...
because he has opposed any practice made an
unlawful employment practice by this
subchapter, or because he has made a charge,
testified, assisted, or participated in any
manner in an investigation, proceeding, or
hearing under this subchapter.
42 U.S.C. § 2000e-3(a).” Ms. Myers contends that she
was terminated in retaliation for complaining about
Mr. Siegel’s harassment.
Ms. Myers’s retaliation claim is appropriately
analyzed using the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792
*% See also § 760.10{7), Fla. Stat. (providing that “[ijt is an
unlawful employment practice for an employer... to discriminate
against any person because that person has opposed any practice
which is an unlawful employment practice under this section, or
because that person has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this section”).
65a
(1973), and its progeny.“Under this framework, the
plaintiff has the initial burden to establish a prima
facie case of retaliation by a preponderance of the
evidence. As the Eleventh Circuit has _ noted,
“(dJemonstrating a prima facie case is not onerous; it
requires only that the plaintiffestablish facts adequate
to permit an inference of discrimination.” Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). If the
plaintiff establishes a prima facie case, a presumption
of discrimination arises. See, e.g., Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248 (1981).
If the plaintiff presents a prima facie case, the
burden “shift[s] to the employer to articulate some
legitimate, nondiscriminatory reason” for its actions.
McDonnell Douglas, 411 U.S. at 802. The employer's
* This framework does not apply to Ms. Myers’s sexual
harassment claims. See Johnson v. Rooker T. Washington Broad.
Serv., Inc., 234 F.3d 501, 510-11 (11th Cir. 2000) (criticizing the
district court for applying the McDonnell Douglas analysis to
sexual harassment case and holding, “We are unwilling to read
the McDonnell Douglas-Burdine framework into non-retaliation
sexual harassment cases at this point. These types of cases have
evolved quite separately from other Title VII cases, and applying
a burden-shifting analysis to them would be a departure from
precedent.”) (citing Henson v. City of Dundee, 682 F.2d 897, 905
n.11 (11th Cir. 1982)) (footnote omitted). Sexual harassment
claims are analyzed using “normal principles of pleading and
proof allocation.” Henson, 682 F.2d at 905 n.11); accord McAward
v. Sanibel Fire & Rescue Dist., No. 2:04cv627FTM29DNF, 2005
WL 1126657, at *2 (M.D. Fla. May 9, 2005). Regardless of the
different analyses, however, there is some overlap in the
consideration of the claims and in the issues of causation and
pretext.
66a
“burden is one of production, not persuasion; it ‘can
involve no _ credibility assessment.” Reeves ov.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142
(2000) (quoting St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 509 (1993)). “If the employer satisfies its
burden by articulating one or more reasons, then the
presumption of discrimination is rebutted, and the
burden of production shifts to the plaintiff to offer
evidence that the alleged reason of the employer is a
pretext for illegal discrimination.” Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004).
“To establish a prima facie case of retaliation, a
plaintiff must show that (1) she engaged in protected
activity, (2) she suffered an adverse employment
action, and (3) there was a causal link between the
protected activity and the adverse employment action.”
Stavropoulos v. Firestone, 361 F.3d 610, 616 (11th Cir.
2004). The Defendants dispute Ms. Myers’s
satisfaction of a prima facie case of retaliation, and
they also assert that Ms. Myers has not presented
evidence of pretext.
First, the Defendants contend that Ms. Myers has
not shown that she engaged in protected activity. The
Defendants assert that Ms. Myers did not complain
about harassment and that even if she did complain,
she did not have a reasonable belief that the
Defendants were engaging in unlawful employment
practices. See, e.g., Weeks v. Harden Mfg. Corp., 291
F.3d 1307, 1311 (11th Cir. 2002) (“To establish that a
plaintiff engaged in statutorily protected expression,
we have held that a plaintiff must show that she ‘had
a good faith, reasonable belief that the employer was
engaged in unlawful employment practices.) (quoting
Little v. United Tech., Carrier Transicold Div., 103
67a
F.3d 956, 960 (11th Cir. 1997)). Ms. Myers responds,
however, that she complained to Human Resources
director Sandra Jones, CEO Mark Waltrip, and
operations director Paul Bosch about Mr. Siegel’s
actions.
As correctly noted by Ms. Myers, the fact that these
witnesses might deny that Ms. Myers complained to
them creates a credibility issue which must be resolved
in her favor at the summary judgment stage. Ms.
Myers cites several portions of the record for her
contention that she reported the harassment, some of
which give absolutely no time frame for her
complaints. (See Pl.s’ Resp. to Def. Westgate Resorts,
Ltd.’s First Set of Interrogs., Pl.’s Ex. H at 7).” Ms.
Myers also relies on he deposition testimony of Sandy
Jones; in the testimony that Ms. Myers cites, Ms.
Jones states that during a conversation that she had
with Ms. Myers regarding a complaint that another
employee made against Ms. Myers, Ms. Myers told Ms.
Jones “about a time when she went out with [Mr.
Siegel] socially together on a date, and that she just
realized that she didn’t have feelings for him that were
more than friendship.” (Dep. of Sandra Jones at
24:12-15; see Pl.’s Resp. to Def.’s Statement of Facts,
Doc. 103 at 17 4 104 (citing this testimony)). In the
other testimony of Ms. Jones upon which Ms. Myers
relies, Ms. Jones states that Ms. Myers told her that
she had gone to New York with Mr. Siegel and that she
did not expect that they would be in the same room
* Although the interrogatory asked Ms. Myers to give the date
she made these complaints, she did not provide dates in her
answers. (PI.’s Ex. H at 7 J 22).
68a
and she was unhappy about it. (Jones Dep. at
25:11-17; see Pl.’s Resp. to Def.’s Statement of Facts,
Doc. 103 at 17 9 105 (citing this testimony”)). Ms.
Jones testified in her deposition that these statements
by Ms. Myers were made in the context of “chitchat”
that Ms. Myers made about her personal life and her
boyfriends. (See Jones Dep. at 23-25).
Ms. Myers also cites her own deposition testimony
regarding reports she made to Mark Waltrip and Paul
Bosch. Ms. Myers testified in her deposition that in
October or November 2000, Mark Waltrip asked her to
meet with him and Paul Bosch, and during the
meeting Waltrip “started right in on [her] about the
spa not being profitable.” (Myers Dep. at 330). Ms.
Myers defended herself about why she felt the spa was
not profitable, and Mr. Waltrip then began to criticize
her management skills and suggested that she focus on
designing spas for Westgate rather than managing
them. (/d. at 331). Ms. Myers told Mr. Waltrip that
that was not the agreement she had with Mr. Siege!
and that she was not willing to take on more
responsibility without additional compensation. (/d.).
Mr. Waltrip then criticized Ms. Myers’s salary and told
her he had spoken to Mr. Siegel about halving it. Ud
at 332). At that point Ms. Myers told Waltrip that if
Mr. Siegel had “agreed to cut {her} salary in half,
it’s not about anything other than it’s personal,” and
she started to cry. (Jd. at 332-33). Ms. Myers told
Waltrip that it was “obviously because [she was] in
26 , ,
Ms. M ers’s Statement of Fact: actually omits the deposition
}
page number, but the Court was able to locate the testimony on
page 25
69a
love with Cleve and [they were] talking about getting
married”; Waltrip then told her it was “like waving a
red flag in front of a bull” for her to sponsor a golf
tournament with Cleve Loveland. (Jd. at 333). Mr.
Waltrip then left the meeting, and Ms. Myers “spilled
her guts” to Paul Bosch about how there were rumors
of an affair and how she did not “get any support from
this company regarding the spa.” (Ud. at 334).
According to Ms. Myers, Mr. Bosch responded by
saying, “I don’t know anything about all the nepotism
here... . all I know is that you might want to consider
leaving the company. Maybe you can’t handle it. You
might want to consider leaving.” (Id. at 335).””
Although Ms. Myers’s own account of what she told
these people reflects that her complaint may have
fallen short of what is required by the law to put an
a , ,
*7 Mr. Bosch denies having any such conversation with Ms. Myers.
(See Aff. of Paul Bosch). However, for the purposes of summary
judgment Ms. Myers’s version of events must be taken as true.
70a
employer on notice of an alleged Title VII violation,”
the Court will assume for summary judgment purposes
that Ms. Myers’s complaints were sufficient. See, e.g.,
Primas v. Bd. of Regents of the Univ. Sys. of Ga., No.
5:04CV342(DF), 2006 WL 839242, at *11 (M.D. Ga.
Mar. 30, 2006) (“[T]he Court will assume that her
actions constitute statutorily protected activity, though
it is less than clear that they do.”). Additionally,
notwithstanding that the Court has already concluded
that Ms. Myers’s harassment claims fail, the Court will
also give Ms. Myers the benefit of the doubt that she
had a reasonable belief that an unlawful employment
practice had been committed at the time she
complained.
Although Ms. Myers’s termination satisfies the
second element of her retaliation claim, she has not
presented evidence supporting a causal connection
between any protected activity and her termination.
*8 Ms. Myers states that she told Waltrip that “it was personal,”
and she states that Mr. Bosch told her that perhaps she should
leave because she could not handle nepotism at the company.
Title VII does not provide a cause of action against personal
animosity or nepotism, and the testimony upon which Ms. Myers
relies regarding her complaint to Sandra Jones also does not
clearly reflect a harassment complaint. See Dieser v. Gloucester
County Office of the Sheriff, No. Civ. 03-2039, 2006 WL 827788, at
*5 (D.N.J. Mar. 29, 2006) (noting that “[clomplaints that are too
vague or that make a genera! complaint about unfair treatment
without alleging that the employer engaged in unlawful
discriminatory conduct do not qualify as protected activity”)
(internal quotation omitted). Ilowever, as noted in the text the
Court will assume arguendo that the complaints were made and
that they were complaints of an unlawful employment practice.
T7la
Notably, each of Ms. Myers’s complaints — to Waltrip,
Bosch, and Jones — was made by Ms. Myers after these
employees had brought up to Ms. Myers a problem
with her performance or a complaint against her. The
complaints to Waltrip and Bosch were made after a
meeting regarding spa profitability, and the complaint
to Jones occurred after Jones had a discussion with
Ms. Myers about a complaint made against Ms. Myers
by another employee. An inference of a causal
connection based on temporal proximity is negated
where there are performance issues that predate
protected activity. See Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 272 (2001) (“[The employer]
concededly was contemplating the transfer before it
learned of the suit. Employers need not suspend
previously planned transfers upon discovering that a
Title VII suit has been filed, and their proceeding
along lines previously contemplated, though not yet
definitively determined, is no evidence whatever of
causality.”); Kasper v. Federated Mut. Ins. Co., 425
F.3d 496, 504 (8th Cir. 2005) (“Ev-dence of an
employer’s concerns about an employee's performance
before the employee’s protected activity undercuts a
finding of causation.”); Pipkins v. City of Temple
Terrace, Fla., 267 F.3d 1197, 1201 (11th Cir. 2001)
(“[AJny protected expression on [the plaintiffs] part
occurred only after the commencement of the adverse
employment actions of which she complains.”);
Marcelin uv. Eckeré Corp. of Fla., No.
8:04-CV-491-T-17MAP, 2006 WL 923745, at *10(M.D.
Fla. Apr. 10, 2006) (“[T]he significance of temporal
proximity is negated where, as is the case here, the
employee has concerns about the employee’s
performance that predate protected conduct.”). Thus,
72a
Ms. Myers has not stated a prima facie case of
retaliatory termination.
Moreover, assuming arguendo that Ms. Myers had
stated a prima facie case of retaliation, the corporate
Defendants have met their burden of articulating a
legitimate, nondiscriminatory reason for their
termination of Ms. Myers — the poor financial
performance of the spa of which Ms. Myers was the
Executive Director, as well as_ substantiated
allegations of misconduct by Ms. Myers. Thus, the
corporate Defendants are entitled to summary
judgment on the retaliatory termination claims unless
Ms. Myers presents evidence creating a genuine issue
of material fact regarding whether these reasons are a
mere pretext for discrimination. See, e.g., Chapman v.
Al Transp. , 229 F.3d 1012, 1024-25 (11th Cir.2000) (“If
the plaintiff does not proffer sufficient evidence to
create a genuine issue of material fact regarding
whether each of the defendant employer’s articulated
reasons is pretextual, the employer is entitled to
summary judgment on the plaintiff's claim.”); accord
Evans v. McClain of Ga., Inc., 1381 F.3d 957, 964-65
(11th Cir. 1997) (“Under the established rule of law in
this Circuit, a plaintiff can survive a motion for
summary judgment or for judgment as a matter of law
simply by presenting evidence sufficient to
demonstrate a genuinc issue of material fact as to the
truth or falsity of the employer’s legitimate,
nondiscriminatory reasons.”).
“To show that the employer’s reasons were
pretextual, the plaintiff must demonstrate ‘such
weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's
73a
proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of
credence.” Cooper v. S. Co., 390 F.3d 695, 725 (11th
Cir. 2004) (quoting Combs v. Plantation Patterns, 106
F.3d 1519, 1538 (11th Cir. 1997)). Ms. Myers has not
done so. Cf. Tidwell v. Carter Prods., 135 F.3d 1422,
1427 (11th Cir. 1998) (finding no issue raised as to
pretext where the plaintiff did “not provide the needed
‘more than a scintilla of evidence’ to survive a motion
for judgment as a matter of law” and did “not present
a substantial conflict in evidence as to [the employer’s]
purported reason for terminating [the plaintiff] ...as
to support a jury question”).
Although Ms. Myers contends that there is no way
that the spa could have been profitable in the first year
and that the Defendants tied her hands by not
allowing her to market the spa locally, it is not for the
Court do reexamine the Defendants’ business
judgment. Ms. Myers acknowledges in her deposition
that how to market and run the spa had been an issue
since even before it opened — more than a year before
she was terminated. Ms. Myers was aware of Mr.
Siegel’s concerns and unhappiness with her
management well before she was terminated. Indeed,
in a memorandum dated November 15, 1999, that Ms.
Myers has submitted with her opposition papers, Ms.
Myers wrote to Mr. Siegel in part: “I give up! Since it
is apparent you do not trust my management ability
and you have once again put an obstacle in front of me
this time unfortunately I do not know how I will
overcome. [sic] To expect a brand new business to
make money in the first two weeks of operation is not
only unrealistic, but unheard of.” In that same memo,
Ms. Myers told Mr. Siegel:
74a
So as I said before I give up! You have insulted
me yet once again and you know what the funny
thing is David, everyone told me this is exactly
what I should expect. But you know what, I[ did
not believe them.
I have a meeting scheduled with you on
Wednesday at 2 PM and I would appreciate it if
you would have prepared for me exactly what
you expect from my department and me. ... It
is apparent you do not trust my judgment, so I
need those answers on Wednesday. .. .
... Unfortunately I cannot trust what you say
and I need to have it all in writing to protect my
department and myself. It is sad even at this
point after everything that I have accomplished,
under the most ridiculous of circumstances, that
you sti!l do not trust my judgment. However,
you have not all along, so although this is
hurtful, it is nothing new.
... As always, as I have said in the past, this is
your spa and from now on if you insist on
micromanaging, you need to make sure
everything is outlined for detail for me in
writing.
(Fax Mem. from Georgette Myers to David Siegel of
11/15/99, Pl.’s Ex. L). Ms. Myers acknowledges that
she was faulted for the spa’s financial woes before she
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complained about harassment,” and this memo was
written while she was still dating Richard Siegel,
months before she had begun dating Cleve Loveland.
She also explained at length in her deposition that she
and Mark Waltrip never saw eye to eye and that she
had a target on her back as far as Waltrip was
concerned; he did not like her or anyone else who
bypassed him and got into favor with Mr. Siegel.
Indeed, after Waltrip discussed the profitability of the
spa with her in October 2000 and suggested she focus
on design rather than management, Ms. Myers went
to Mr. Siegel seeking reassurance for her job because
she didn’t trust Waltrip. In the face of this evidence —
which comes from Ms. Myers herself, not the
Defendants — Ms. Myers’s theory that she was
terminated because Mr. Siegel was jealous of her
engagement to Cleve Loveland does not hold up.
Ms. Myers also contends that the Defendants have
been inconsistent in their reasons for her termination
and that this inconsistency shows pretext. However,
the Court discerns no such inconsistency. First of all,
Ms. Myers states in her opposition memorandum that
“Defendants have repeatedly changed their story about
the reasons Plaintiff was terminated” and that
“allegations [regarding the Toth-initiated
investigation] are completely abandoned in this
2° The fact that there was nothing in writing issued to Ms. Myers
regarding her performance prior to her termination is of no
moment given that Ms. Myers acknowledges that Mr. Siegel and
Waltrip had repeated discussions with her about the spa’s
performance and in light of other evidence reflecting that Ms.
Myers was aware of their concerns.
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summary judgment motion.” (Doc. 102 at 13).
However, in their motion papers the Defendants state
“[w]hile her termination was justified for several
reasons, the main reason for Myers ’[s] termination was
her inability to make a profit, or, at least, reduce the
Spa’s losses.” (Doc. 94 at 14). The Court does not read
this as an abandonment of the investigation results as
an additional reason.
Moreover, the deposition testimony upon which Ms.
Myers relies for the proposition that the Defendants’
reasons for her termination are inconsistent does not
reflect inconsistency. True, Gary Pearce, who worked
in the human resources department and was involved
in the investigation that was conducted after the Toth
complaint, testified in his deposition that the main
reason that Ms. Myers was terminated was
“misappropriation of company funds by allowing an
employee to run her errands and clean her house while
the company was paying for it and violation of our
drug-free workplace policy, which is drinking alcohol
while punched in and on the clock in the office.” (Dep.
of Gary Pearce, Pl.’s Ex. G, at 28). On the other hand,
David Siegel testified in his deposition that the
primary reason that Ms. Myers was terminated was
the fact that the spa continued to lose money; he
identified secondary reasons as misuse of spa
certificates, using spa personnel to run errands for her
and clean her house, arriving at the spa intoxicated,
and offering alcohol to spa employees. (Dep. of David
Siegel at 37-38). Mr. Siegel explained that if Ms. Myers
had been doing a better of job of running the spa, he
probably would have disciplined her rather than
terminated her for the other problems. (David Siegel
Dep. at 38).
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As Ms. Myers has acknowledged, Mr. Siegel was
“ail about dollars,” and thus it is not surprising that he
would emphasize “the numbers” when asked why Ms.
Myers was terminated. Moreover, he explained that
the results of the investigation were secondary reasons
for the termination and that his response to the
outcome of the investigation might have been different
if not for the preexisting problems at the spa. Mr.
Siegel’s explanation is not inconsistent with that of the
witnesses who were involved in the investigation of the
Toth complaint; it is clear that the investigation was
the last straw as far as Ms. Myers’s employment was
concerned, no matter how it is characterized. And
again, Ms. Myers has admitted to at least some of the
misconduct that was turned up in that investigation.
As the Eleventh Circuit has explained, “[t]he
inquiry into pretext centers upon the employer’s
beliefs, and not the employee’s own perceptions of [her]
performance.” Holifield, 115 F.3d at 1565; accord
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1332-33 (11th Cir. 1998). “Title VII is not designed to
make federal courts sit as a _super-personne!l
department that reexamines an entity's business
decisions.” Davis v. Town of Lake Park, 245 F.3d 1232,
1244 (11th Cir. 2001) (internal quotation omitted).
“(Al plaintiff may not establish that an employer's
proffered reason is pretextual merely by questioning
the wisdom of the employer’s reason, at least not
where, as here, the reason is one that might motivate
a reasonable employer.” Tidwell v. Carter Prods., 135
F.3d 1422, 1427 (11th Cir. 1998) (quoting Combs v.
Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.
1997)). Ms. Myers has not presented “such
weaknesses, implausibilities, inconsistencies,
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incohere ..s, or contradictions in the employer's
proffered .«gitimate reasons for its action that a
reasonable factfinder could find them unworthy of
credence.” Cooper v. S. Co., 390 F.3d 695, 725 (11th
Cir. 2004) (quoting Combs v. Plantation Patterns, 106
F.3d 1519, 1538 (11th Cir. 1997)). Thus, the corporate
Defendants are entitled to summary judgment on Ms.
Myers’s retaliation claims.
5. Battery and False Imprisonment
Finally, the Defendants assert that Ms. Myers’s
state-law battery and false imprisonment claims fail as
a matter of law. In light of the Court’s disposition of
Ms. Myers’s federal claims, these state law claims will
be remanded to the state court from which this case
was removed. See 28 U.S.C. § 1367(c).
Ill. Conclusion
As noted earlier, the Court’s task in reviewing the
merits of the instant motion has been made difficult by
the parties’ personal attacks and failure to objectively
present the record. However, the Court has thoroughly
reviewed the record evidence and concludes, based on
that record evidence rather than either side’s
characterization of it, that as a matter of law Ms.
Myers cannot prevail on her discrimination claims.
Therefore, it is ORDERED and ADJUDGED as
follows:
1. Defendants’ Motion for Summary Judgment
(Doc. 93) is GRANTED as to Ms. Myers’s claims under
Title VII (Counts I and II) and the FCRA (Counts III
and IV).
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2. Defendants’ Motion for Summary Judgment
(Doc. 93) is DENIED without prejudice as to Ms.
Myers’s state law battery and false imprisonment
claims (Counts VII and VIII). Pursuant to 28 U.S.C.
§ 1367(c), these claims (Counts VII and VIII) are
REMANDED to the Circuit Court, Ninth Judicial
Circuit, in and for Orange County, Florida, Case No.
2004CA-6566, Div. 37, Dawn Georgette Myers uv.
Central Florida Investments, Inc. et al.
3. All other pending motions are DENIED as
moot.
4. The Clerk is directed to enter judgment for
Defendants Central Florida Investments, Inc., CFI
Sales and Marketing, Ltd., Westgate Resorts, Inc., and
Westgate Resorts, Ltd. on Counts I through IV of the
Second Amended Complaint in accordance with this
Order. Thereafter, the Clerk shall close this file.
DONE and ORDERED in Orlando, Florida this
24" day of April, 2006.
/s/
JOHN ANTOON II
United States District Judge
Copies furnished to:
Counsel of Record
Unrepresented Party
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