Berman v. Orkin Exterminating Co.
160 F.3d 697
11th Cir.
1998
Check Treatment

*1 Plaintiff-Appellant, BERMAN, Marc COMPANY, EXTERMINATING

ORKIN INC., a Delaware

Defendant-Appellee.

No. Appeals, Court States

United Circuit.

Eleventh 13, 1998.

Nov. 7, 1999. Jan.

Rehearing Denied *2 Walkden,

John L. Lauderdale, FL, Fort for Plaintiff-Appellant.
Stephen Bazinsky, Wolf G. Bartram Billb- rough, Marks, Geoffrey Atlas, B. Pearlman & P.A., Trop, Lauderdale, FL, Ft. for Defen- dant-Appellee. EDMONDSON,
Before Circuit Judge, and CLARK *, and WELLFORD Senior Circuit Judges.

* Wellford, Harry Honorable W. Senior U.S. Cir- nation. Judge Circuit, cuit for the Sixth sitting by desig- promoted February Judge: CLARK, Circuit Senior Beach Palm the West manager of to sales appeals Mare Plaintiff-appellant Palm in West worked While Berman office. defendant-appellee William Beach, coordinator regional sales (“Orkin”) on Inc. Company, Exterminating which comments two Hill made *3 claim. Af- discrimination to be anti-Semitic.4 considered Berman’s Berman promotion to turned down ter Berman reverse. We Miami, Pompano transferred to he was 1993, May while In a salesman.5 as office I. office, a Pompano in the worked Berman home answer- on Berman’s was left message religion, Berman, Jewish a member in lead which concerning a sales ing machine as in 1989 Orkin with began his being Jew- to Berman speaker referred Hallandale, Florida in the salesman a termite on the voice identified ish.6 Berman president’s for the qualified Berman office. Pompano to belonging machine as answering his 1990 on based honor council and club After re- Mark Craven.7 manager branch 1990, questioned Berman May In sales. sales territo- message, Berman’s ceiving this the re- regarding Bernstein manager David Berman June ry eliminated. from his commission in Berman’s duction with the of Discrimination Charge filed a contract, told that and was fumigation sale Opportunity Commission Employment Equal “[yjou’re Jew- was because the reduction on his (EEOC) based alleging discrimination time, Ber- period manager Tom Hill, region ish.” About Miami religion. to Quiroga refer manager manager region Raul Cafiero, Florida man heard and South of Berman’s the Hallan- were aware persons in Joseph Cannariato Jamaican Jewish and comment first EEOC and as “Jewmaieans” office dale money any to- “[tjhe make Jew didn’t that offered Cannariato August On manager Jose that Berman said day.”2 to Fort writing a transfer in Berman “[yjou’re once said Rodriguez supervisor with as a sales office Lauderdale money.”3 August to make Jew; pay.8 know how On you in slight increase Ft. never com- discussed Berman Berman that testified Cannariato Bernstein position, but religious comments Lauderdale him about to plained offer.9 testi- rejected the office. in the Hallandale made a raise.” down you people would turn believe that Berman's testified 24-26. Bernstein 1. R4 at making state- denied Hill also R4 35-36. bearing at on the reduction religion commission, Berman, "you people” to using term a business that was explained ments religion. anj'thing about Berman's knowing at 562-563. or R8 decision. employees Morris and Scott 2. R4 at because was transferred said Hill they had overheard that testified Sean Daniels Beach Palm as the West ineffective multiple at various comments Quiroga make manager. religion. Morris and regarding Berman's times term "Jew- Quiroga’s use said Daniels Ber- speaker to message, the referred On the office, commonplace in became maican” 148, Appen- "[ylou fuck.” R3 man as R6 at during month. several times was used at 100-101. dix D making Quiroga such denied 345-348. comments. Joseph region Cannar- Florida 7. South presi- qualified for tape 31-32. Berman 3. R4 at sound- the voice on iato confirmed yearly his Rodriguez again on 1991 based club Craven, given dent’s explained he had ed like he also heard said sales. Morris report after Cannaria- a corrective Craven times refer- several term "Jewmaican” use the employee Scott Morris tape. Orkin to heard at 310-312. Berman. R6 ence to "[r]ide told him that Craven testified you Marc, how can and he teach he's a Jew break, meeting during a testified that 4. Berman money.” at 292. R6 make said, you to 'I told up to me Hill "came ” fucking people never listen.’ You sit down. at 52. 8. R4 Berman turned weeks after A few atR4 Miami, testified promotion to down chance, 9. R4 and I can't “[y]ou your said that Hill fied that he declined the transfer Jewish to [him].”16 Berman’s Hallandale was afraid that he would not territory be able was cut five blocks on his day, first completely satisfy Cannariato and five would not later, additional blocks a week and to have been able to sell.10 previous After one-half Berman had its May size in 1994. The rejected offer, Cannariato, 16, May August 1994 cut caused Berman <m economic 1993,involuntarily May transferred Berman since to Ft. loss was the “best month of the person.11 year Lauderdale as a sales On termite sales.” In June Ber- 26, 1993, reinstated, cut, man’s a second EEOC and rein- charge alleging again. stated retaliation based on the filing terminated on 15,1994. July of his first charge.12 Within a few days of transfer to the Fort Laud- Berman filed this Orkin al- *4 office, erdale sales territory his was cut in leging religious discrimination and retaliation half, but was later reinstated.13 When Ber- in violations Title of VII of the Rights Civil man complained, he was told branch man- proceeded Act.17 The case to trial. At the “ ager Howard “Sam” if Houston [Ber- close of Berman’s case and at the close of the it, man] d[idn]’t like quit.”14 [Berman] should entire Orkin judgment for moved as a Berman complained never religious of dis- matter of law but the district court reserved crimination to Houston or advised Houston ruling on Orkin’s jury motions. The ren- filed an had EEOC complaint. dered a $18,500.00 for verdict Berman for claim, his retaliation In but for Orkin on October Ber- Berman was transferred religious man’s discrimination claim. from the Fort Lauderdale office to Hal- the office, landale and was told that he would jury After the dismissed, was the court have his territory.15 Hallandale, In ordered Orkin to file a support brief in of its Berman’s sales manager Bacerio, Dennis was for judgment motion as a matter of law as to and his branch manager Alex McKinsey. claim, the retaliation for to Berman re- weekly On a basis or when Berman did not spond. Orkin renewed its motion judg- something, understand Bacerio ask would law, ment as a matter of Berman responded, whether Berman wanted speak Bacerio “to replied. and Orkin grant- district court Houston, region Howard Orkin Appendix service coor A. Cannariato said that he never dinator and former Fort Lauderdale sales man against Berman he had that, ager, although testified spoken he never filed an R8 at 569. concerning with Berman supervisor the sales position, job the of sales have employee Orkin Harvey Bernstein testified only impact a minimal ability on Berman’s territory that Berman’s larger was "much than to sell and ample would have had time to sell. the other territories.” R6 at 422. Cannariato and Orkin branch John Markerson also stated that Berman would have 14. R4 at been able selling to continue accepted if he had supervisor’s R6 at 477; the job. sales R8 at 575. 15. Cannariato told being Berman memorandum, inter-office Cannariato transferred disruptive. because he was R4 at 63. stated that the “reason for the transfer the personality constant conflict you between 92-93; 16. R5 at R6 at 276-278. Morris testified Mark Craven." Cannariato testified that initi- he that he had heard Bacerio and other several ated the transfer "great based on the conflict of managers statement, make or the state- interest” between and Craven. atR8 speak ment "Do I need to you,” Yiddish to to 573. Berman testified that transferred 303-304, Berman. R6 at 331-332. also Morris Pompano from the office to the Fort Lauderdale testified that say, he heard Bacerio in reference 48, 52-53; office on 1993. R4 at R5 Berman, to giving that he was "not that Jewish to,” bastard leads I don’t have and "I'm tired ” arguing with that that, bastard.... R6 at alleged filing after his first charge, leads; given he was not despite complaints, his supervisors failed to leads; give correct the failure to 17. 42 §§ him sales U.S.C. 2000e-2 and 2000e-3. Berman was offered a transfer which alleged would have resulted also a state law defamation claim. The being in his not able to sell or satisfy to district court granted Orkin’s motion dismiss regional manager; was claim, Ft transferred to Lauder- the defamation and Berman does not chal- dale; and his territory was cut in lenge half. R3- appeal this dismissal on light “pre- view all evidence in the most favor- finding Orkin’s motion ed nonmoving party third all satisfy ele- able draw no evidence sented “any adverse prima a facie case” that inferences in favor of the nonmov- ment of reasonable causally related to ing party considering when motion for with grievance filing judgment [Berman’s] as a of law.21 The court matter that Berman had acknowl- It noted only EEOC.” should it finds that motion provide him that Orkin’s failure to edged impartial people exercising judg- reasonable filing predated Berman’s verdict, sales leads with contrary ment not at a could arrive noted complaint with the EEOC.18 It weigh may or decide evidence retaliat- although Berman claimed credibility of the witnesses.22 To survive size of his by reducing him against ed law, a motion for as a matter of in the Fort Laud- while he worked party provide nonmoving must more than offices, pre- and Hallandale erdale there is a scintilla of evidence that “substan- managers that “the sented no evidence support tial conflict evidence to making these charged decisions question.”23 in, [Berman’s] aware of involved or even prove discriminatory To treatment Pompano office.”19 complaint VII, violating Title must first es timely appealed. *5 prima tablish a facie case of discrimination.24 plaintiff a presents If the II. direct evidence “discriminatory played significant a animus there appeal, argues that On employment role in or substantial the deci a evidence for reasonable sufficient sion, employer to the the burden shifts proven prima a facie case of that he had find the show that the decision have been alleged that the court retaliation. He district A discrimination.”25 statement absent and reduction only focused on the leads person part by played a who in the ad territory, failed to consider the of his personnel verse decision is not evi direct involuntary “illusory promotion” and the of dence discrimination.26 the adverse em- transfers. He stated after he had filed ployment acts occurred direct evidence of discrimi Absent charges. his initial and second EEOC both nation, must plaintiff a retaliation case a regional maintains that Orkin’s He by prima showing case establish a facie transfers, the responsible for the assistant (1) statutorily pro plaintiff engaged the in a regional regional manager, (2) employer an activity; tected aware coordinator were of him; and employment adverse charges. (3) is a causal connection between there protected activity action.27 This novo the and the adverse court reviews de dis prong is the evidence of as a matter of The third satisfied trict court’s protected activity law, applies the same as that shows that standard If totally are unrelated.28 by A court adverse action applied the district court.20 must Co., 928, Haynes Caye 52 931 25. W.C. & F.3d at v. 18. R3-179 5. Cir.1995). (11th at 19. R3-179 Hardy F.2d See v. The 825 26. Mauter 1519, Patterns, v. 106 F.3d 20. Combs Plantation 1554, (11th Cir.1987). 1557 (11thCir.1997). 1526 Miami, Id., City 1497, Albertsons, Inc., quoting v. 870 F.2d Carter Bigge F.2d 1501 v. 894 of 578, (11th 1989) (11th 1990). 581 Cir. Cir. Carter, Combs, 1526, citing 870 106 F.3d Id., County citing Board Simmons v. Camden F.2d at 581. (11th Cir.), Education, 757 1189 F.2d of cert. denied, 88 106 S.Ct. 474 U.S. Combs, 106 F.3d 1073; Coutu, (1985); 47 F.3d at 338 L.Ed.2d Green, Douglas Corp. County 411 U.S. County McDonnell 24. Coutu v. Martin Board Com (1973). missioners, (11th Cir.1995). 36 L.Ed.2d 668 93 S.Ct. 47 F.3d established, ease is infer- prima a facie But the district court failed to consider that discriminatory transfer, ence raised that intent mo- involuntary coupled is an when with a action, employment sharp corresponding the adverse in territory tivated reduction employer “clearly size, shifts to the the burden can employment constitute adverse ac- reasonably specific causation, in a articulate manner On tion. the court overlooked tes- non-discriminatory legitimate timony for the managers, Joseph reason” one Cannariato, credible- If evidence.29 adverse involved the transfers was not burden, only this bur- employer complaint, satisfies aware of Berman’s EEOC plaintiff again den shifts to the to show that but—according to Cannariato—was motivat- pretext proffered chiefly by reason is for the true ed “conflict of interest” be- discriminatory reason.30 transfer an tween Berman and his alleged harasser. Also, employee which in a results substantial re- the first within transfer occurred five employee’s duction in the income is ad- after weeks Berman had charge verse action.31 and both transfers occurred within a couple of the complaint. months of Based on In a retaliation case where the evidence, appears this that Berman estab- plaintiff produce has failed to direct evidence prima lished a case facie of retaliation There- discrimination, employer may rebut fore, the district court in granting erred prima facie case of retaliation articu judgment as a matter of law to Orkin on the legitimate lating nondiscriminatory reason retaliation claim. for the action with credible evid reasons, For these the district court’s or- claim, ence.32 order to state retaliation granting judgment der as a matter law to only need show that Orkin on Berman’s retaliation claim RE- employ belief’ that an “reasonable unlawful VERSED, jury’s and the verdict for Berman *6 practice occurring, ment was and is not re is REINSTATED. quired show employer actually engaged in employment pract an unlawful WELLFORD, Judge, Senior Circuit ice.33 concurring in part dissenting in part: and undisputed It engaged that Berman in a vigorously In this jury contested statutorily protected activity by filing EEOC in found favor of the defendant on Berman’s charges alleging religious on discrimination discrimination claim. The district court en- 15, 1993, August June and on Al- tered final in defendant’s favor though ultimately not prevail, did it on this claim we and have affirmed this ac- appears regard- based on the comments Plaintiff tion. filed his discrimination claim ing religion his and the transfers reduc- and 1315,1993. on or about complained June He territory, tions in his he had a “reasonable about adverse against actions taken him employment belief’ an practice unlawful religion paragraphs reason of his in 14 occurring. was through inclusive, place that took before

The district court found that Ber- he filed his charge.1 discrimination He sets man had failed to show that Orkin had taken discriminatory religious forth asserted con- against adverse him after duct under through paragraph Title VII 70 of he charge, his complaint. and had failed his Plaintiff failed to sustain all to show that adverse charges, of these some of which entailed causally was 15,1993. his related to conduct after June Thomas, id. (11th 33. Wu v. 863 F.2d 1549 Cir.), reh'g (1989) (finding denied 871 F.2d 122 irrelevant that the had lost an earlier sex 30. Id. employer). discrimination claim her Sears, Co., v. Baker & Roebuck 903 F.2d Paragraphs through 1. In 57 50 54 and (11th Cir.1990). charges some reiterated of these same pertaining alleged discriminatory conduct of Id. prior defendant that occurred to June complaints many about other that Berman’s re- but that question is no There being while mistreated pay increases promotions ceived by the any substance not to have were found He declined working for defendant. EEOC). (nor by the (or pay in- awith promotion offered in crease) position of sales to a opinion that we join the Reluctantly, I office Miami Orkin’s respect court reverse the district should time, pro- such declined, another later at a award of and the claim to the retaliation Pompano office. to Orkin’s motion however, not, rein- I damages. would on the jury verdict challenge this does the circum- under statement claim. discrimination of this case. stances charge, filed retaliation 26,1993, these claims: asserted others,

(1) given to sales leads unanswered; went complaints

his

(2) territory which new promised a half; cut in

(3) a branch hearsay information him a mana- offer manager will never Ellis, ELLIS, their Peggy Ann R. Paul again. position gerial similarly all others own on behalf there to believe no basis EEOC found The Plaintiffs-Appellants, situated, been, fact, violation statute 18,1994. July court, opportunity which had The district ACCEPTANCE MOTORS GENERAL evidence, judg- granted proof and

to hear the CORPORATION, Motors d.b.a. General law to defendant. ment as a matter Defendant-Ap Acceptance toas contention finding made a court district pellee. (1) acknowledged that defen- No. 97-6963. him sales leads give alleged failure dant’s charge on June place before Appeals, States Court United *7 by the borne out This is Eleventh Circuit. complaint. 13, 1998. Nov. “plaintiff ac- court found that The district times, at all knowledged of other sales- large as that least

was at as knowledge

people, territory changes resulted

whether or not staff,” as defen- size of changes

from maintained.

dant assumed arguendo if

Even changes, the for these basis

there were a “plaintiff failed concluded that

district court any adverse

to establish that filing of the causally related to EEOC.”

plaintiffs grievance best, thin was a one. of the offer troubling was

Especially refusal testi- light of uncontradicted promotion accepted had he officials that

mony of Orkin position supervisory this promotion,

this little, on his any, impact have had troubling Also ability to sell.

continued