MICHELET ELIASSAINT v. RTG FURNITURE CORP.
Case No. 8:19-cv-3001-KKM-CPT
July 29, 2021
ORDER
Dеfendant RTG Furniture Corporation (RTG) moves for summary judgment against Plaintiff Michelet Eliassaint on all counts. (Doc. 28). After reviewing the motion, Eliassaint‘s response in opposition (Doc. 33), the parties’ statement of undisputed facts (Docs. 29 & 34), RTG‘s reply (Doc. 40), and the record, the Court grants the motion in full for the reasons discussed below.
I. PROCEDURAL HISTORY
On December 6, 2019, Eliassaint filed a ten-count complaint against Rooms To Go Central Corp., alleging a discrimination claim based on race and national origin under
II. FACTUAL BACKGROUND
In 1986, Eliassaint moved to the United States from Haiti. (Doc. 29-1 at 4). He started working for RTG as a truck loader in RTG‘s distribution center in Seffner, Florida, around ten years later. (Id. at 5–6). RTG engages in the retail sale of furniture and operates numerous distribution centers to supply its retailers. (Doc. 34 at 1). After working as a loader, Eliassaint “went to Shop tech to fix furniture.” (Doc. 29-1 at 7). He then “went to Shop,” eventually becoming a Shop Supervisor and transferring to the Lakeland location. (Id. at 8). Not long after his transfer to Lakeland, he started as the Shop Area Supervisor for the second shift. (Id. at 9). Eliassaint worked as the Shop Area Supervisor for the second shift for fifteen years—from 2005 to 2020. (Id. at 9). As Shop Area Supervisor, Eliassaint oversaw furniture repairs; supervised and disciрlined associates; and conducted performance reviews. (Doc. 34 at 3). For most of his time as Shop Area Supervisor, Tony Wilson was Eliassaint‘s supervisor. (Id.).
In his supervisory position, Eliassaint‘s salary increased from $30,000 to $50,000 over the course of fifteen years. (Doc. 29-1 at 10). In addition to his salary, Eliassaint was eligible to earn bonuses through RTG‘s tri-annual bonus plan. (Doc. 34 at 3). Under the plan, employees could earn three bonuses per year based on their performance rating issued by management. (Id. at 4). The performance ratings included “S” (for superior performance), “A” (for excellent performance), “B” (for above average performance), “C” (for average performance), and “D” (for below average performance), and the amounts spanned from zero dollars (for a D rating) to one-thousand dollars (for an S rating). (Id.). Supervisors’ ratings and bonuses turned on several criteria, including performance, work ethic, technical skills, leadership skills, and original ideas. (Id.). Eliassaint most frequently received B and C bonuses. (Doc. 29-1 at 11). Wilson, Eliassaint‘s supervisor, explained that Eliassaint often sent emails and prepared performance reviews with misspellings and other grammatical mistakes that made it difficult for people to understand him. (Doc. 34 at 4). Although his writing skills temporarily improved while he took some college writing classes, Eliassaint‘s mistakes soon resurfaced, and Wilson had to make frequent corrections to the performance reviews that Eliassaint drafted. (Id. at 5). According to Wilson, Eliassaint also did not supervise other employees well and disliked handling issues that came up with employees under his supervision. (Id. at 6). Instead, Eliassaint leaned on other coworkers to resolve those issues for him. (Id.).
Eliassaint‘s claims largely rest on the statements and conduct of Brian Beckham, a shift manager, and Nate Reed, an operаtions manager, who both worked at RTG‘s Lakeland warehouse with Eliassaint. (Doc. 29-1 at 13; Doc. 34 at 10). In his deposition,
On October 9, 2017, Beckham asked Eliassaint to send a technician to Bay 36, an area in the “south side” of the warehouse. (Doc. 34 at 6; Doc. 29-1 at 67). Eliassaint delegated the task to a subordinate. (Doc. 34 at 6). When Beckham and Reed went to Bay 36 shortly thereafter, they noticed a technician had not arrived and again asked Eliassaint to send a technician there. (Id. at 6–7). Eliassaint grew angry with the men and started walking away from them. (Id. at 7). Reed told Eliassaint to stop walking away and to “quit being insubordinate.” (Id.). Eliassaint claims that Beckham and Reed were screaming at him and were “in [his] space.” (Id.). The day after the incident, Eliassaint filed a complaint with the human resources department, alleging he had been harassed and discriminated against by Beckham and Reed. (Doc. 34 at 8). This was the first time Eliassaint approached human resources about Beckham or Reed‘s alleged harassment and discrimination. (Doc. 29-1 at 24). The human resources representative immediately initiated an investigation. (Doc. 34 at 8). She interviewed seventeen employees from the Lakeland warehouse (including Reed, Beckham, and Wilson) in the approximately three-month-long investigation. (Id. at 9). On January 8, 2018, the human resources department sent a letter to Eliassaint, informing him that it found “no evidence to support unlawful discrimination or harassment.” (Id. at 8–9).
On April 30, 2018, Eliassaint submitted two requests to transfer to different positions, citing “better opportunity 3:[00] p.m. to 11:30 p.m.” and “better shift 3:00 p.m. to 11:30 p.m.” as his reasons for his transfer applications and a “family issue” for his reason for leaving the Shop Area Supervisor role. (Doc. 34 at 9; Doc. 29-1 at 166, 168). In his requests, Eliassaint asked to be transferred to the Lift Department in the Annex warehouse and to the CC Department in the Lakeland warehouse. (Doc. 34 at 9). In response, RTG offered him a lift operator position for the second shift at the Annex warehouse or the 5k shift at the Lakeland warehouse. (Doc. 34 at 9). Eliassaint rejected both transfer offers because of the pay differential between them and his Shop Area Supervisor role, where he elected to remain. (Id. at 10). Then, on February 25, 2019, Eliassaint filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). (Doc. 34 at 14). His right-to-sue notice was issued on July 16, 2019, and he timely filed this lawsuit on December 6, 2019. (Doc. 1 at 7).
In April 2020, RTG furloughed Eliassaint for approximately three months.
III. LEGAL STANDARD
Summary judgment is appropriate if no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law.
The party mоving for summary judgment has the initial burden of showing the absence of a genuine issue of material fact. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). When deciding whether the movant has met this burden, “the court must view the movant‘s evidence and all factual inferences arising from it in the light most favorable to the nonmoving party.” Id. Once the movant‘s initial burden is met, the burden shifts to the nonmovant to “come forward with specific facts showing that there is a genuine issue for trial.” Id. (quotation omitted). “The mere existence of a scintilla of evidence in support of the [nonmovant‘s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].” Burger King Corp. v. Weaver, 169 F.3d 1310, 1321 (11th Cir. 1999).
IV. ANALYSIS
a. Race Discrimination under Title VII, the FCRA, and 42 U.S.C. § 1981
Eliassaint brings a claim of race and national origin discrimination under Title VII, the FCRA, and
i. Legal Standard
Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges
When direct evidence of discrimination is unavailable, a Title VII plaintiff may present circumstantial evidence of discrimination under the McDonnell Douglas burden-shifting framework to create a jury question. Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001). “Under this framework, the plaintiff shoulders the initial ‘burden . . . of establishing a prima facie case of racial discrimination.‘” Id. at 1258 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). A prima facie case generally consists of the following elements: “(1) the plaintiff was a member of a protected class; (2) he was qualified to do the job; (3) he was subjected to an adverse employment action; and (4) he was treated less favorably than similarly situated individuals outside his protected class.” Fuller, 598 F. App‘x at 653.
An adverse employment action includes “ultimate employment decisions” like “termination, failure to hire, or demotion.” Blue v. Dunn Const. Co., 453 F. App‘x 881, 884 (11th Cir. 2011) (quotation omitted); Monaghan v. Worldpay US, Inc., 955 F.3d 855, 860 (11th Cir. 2020) (explaining that a “tangible” or “adverse” employment action consists of “things that affect continued employment or pay—things like terminations, demotions, suspensions without pay, and pay raises or cuts—as well as other things that are similarly significant standing alone“). Actions that fall short of ultimate employment decisions are also actionable if the employer‘s actions, “in some substantial way, alter the employee‘s compensation, terms, conditions, or privileges of employment“; “deprive him or her of employment opportunities“; or “adversely affect his or her status as an employee.” Blue, 453 F. App‘x at 884 (quotation omitted); Monaghan, 955 F.3d at 861 (“[M]istreatment based on race or other prohibited characteristics, including subjection to adverse conditions, is actionable even if the mistreatment does not rise to the level of a tangible employment action, but only if the mistreatment is ‘sufficiently severe or pervasive’ that it can be said to alter the terms, conditions, or privileges of employment.“). An employer‘s action is “substantial” when a plaintiff demonstrates that he “suffered a serious and material change in the terms, conditions, or privileges or employment.” Blue, 453 F. App‘x at 884 (quotation omitted).
As to the fourth element of the prima facia case, to show that he was treated less favorably than other similarly situated individuals, a plaintiff must identify a comparator and show thаt he and his comparator are “similarly situated in all material respects.” Lewis v. City of Union City, 918 F.3d 1213, 1226 (11th Cir. 2019). Although this standard is “worked out on a case-by-case basis, in the context of individual circumstances,” id., ordinarily, a similarly situated comparator “in all material respects” will “(1) have engaged in the same basic conduct as the plaintiff; (2) have been subject to the same employment policy, guideline, or rule as the plaintiff; (3) have been under the jurisdiction of the same supervisor as the plaintiff; (4) and share the plaintiff‘s employment history,” Earle v. Birmingham Bd. of Educ., 843 F. App‘x 164, 166 (11th Cir. 2021) (citing Lewis, 918 F.3d at 1227–28). “A plaintiff‘s failure to produce evidence showing that a single similarly situated employee was
If a plaintiff proves the prima facie case by a preponderance of the evidence, then the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory reason for the [аdverse employment action].” McDonnell Douglas Corp., 411 U.S. at 802; see Texas Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981). If the defendant carries this burden, then the plaintiff may “have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Burdine, 450 U.S. at 253; see Silvera, 244 F.3d at 1258. But of course, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253.
ii. Analysis
In its summary judgment motion, RTG argues that Eliassaint‘s discrimination claims fail because “(1) there is no direct evidence of discrimination, (2) [Eliassaint] cannot establish a prima facie case under the McDonnell Douglas burden-shifting framework, and (3) there is no evidence of pretext.” (Doc. 28 at 7). The Court agrees.
To begin, because Eliassaint neither presents any direct evidence nor makes any argument to that end, the Court looks to circumstantial evidence to establish Eliassaint‘s discrimination claim and аpplies the burden-shifting framework set forth in McDonnell Douglas. Turning to the prima facie case, Eliassaint—who is black and Haitian—is a member of a protected class. And RTG does not dispute that Eliassaint is qualified for his position as a Shop Area Supervisor. Thus, the only remaining issues to establish a prima facie case of discrimination are whether Eliassaint was subject to an adverse employment action and whether similarly situated employees outside his protected class were treated more favorably. See Hall v. Dekalb Cty. Gov‘t, 503 F. App‘x 781, 788 (11th Cir. 2013).
Construing Eliassaint‘s pleadings in the light most favorable to him, Eliassaint contends that he suffered four adverse employment actions: (1) RTG did not provide him a cell phone to conduct business, (Doc. 33 at 14); (2) RTG offered Eliassaint a “proposed pay cut and demotion,” (id. at 3); (3) Eliassaint was furloughed in 2020, (id. at 3, 14); and (4) Eliassaint did not receive the “full Tri Annual Bonuses,” (id. at 3). But not all of these complaints constitute adverse employment actions. The Court will address eaсh action in turn.
First, Eliassaint alleges that he was “the only Shop Supervisor who was not provided a cellular device in order to conduct business” and that “instead [he] was made to use his personal cellular phone when handling [RTG‘s] affairs.” (Doc. 33 at 14). He alleges that all RTG‘s other Shop Area Supervisors, none of whom were black Haitians, “were provided with cellular devices to conduct [RTG‘s] affairs.” (Id.). But Eliassaint has not explained or demonstrated how the failure to have a company cell phone substantially altered the terms or conditions of his employment, deprived him of employment opportunities, or adversely affected his status as an employee. In short, the record fails to support that Eliassaint suffered a serious and material change in the terms, conditions, or privileges or employment because he did not have a company cell phone. Indeed, the only comment Eliassaint made about the cell phone in his deposition merely described his understanding:
Second, Eliassaint claims RTG discriminated against him by “propos[ing a] pay cut and demotion.” (Doc. 33 at 3). Although adverse employment actions can include transfers, pay cuts, and demotions, Eliassaint has failed to show that occurred here. In April 2018, Eliassaint made two transfer requests. RTG responded to his requests for transfer by offering him two lift operator positions. Citing the pay differential between the lift operator position and apparently viewing the position as a demotion, Eliassaint declined to take either position and remained in his role as Shop Area Supervisor. Eliassaint‘s refusal to take an offered position—after he requested a transfer—is distinct from an actual pay cut and demotion. In short, no adverse employment action occurred. See Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821, 829 n.10 (11th Cir. 2000) (explaining that a “proposed[,] uneffectuated transfer is not an adverse employment action“); see Adamson-James v. Fla. Dep‘t of Corr., No. 6:11-cv-628-ORL-36TBS, 2013 WL 6231265, at *10 n.7 (M.D. Fla. Dec. 2, 2013) (noting that the employer‘s offer to remain in the same office but with a lesser title “[did] not amount to an adverse employment action because [the plaintiff] declined [that] option“). Considering that Eliassaint cannot show any tangible harm or that his employment conditions were substantially altered because he declined to accept the proposed transferee positions, Eliassaint‘s “proposed pay cut and demotion” fails to constitute an adverse employment action.
Third, being furloughed—i.e., being put on leave without pay—generates a tangible harm and materially alters an employee‘s status with his employer. Thus, it qualifies as an adverse employment action. Fourth, in a cursory manner, Eliassaint mentions that he did nоt receive “the full Tri Annual
Although being furloughed and failing to receive the full tri-annual bonuses might constitute adverse employment actions, Eliassaint fails to show that he was treated less favorably than similarly situated people outside of his protected class. Namely, Eliassaint fails to sufficiently allege any comparator related to each employment action. A meaningful comparator analysis is a necessary part of the prima facie case that a plaintiff must prove under the McDonnell Douglas framework. Lewis, 918 F.3d at 1224. Thus, to order to defeat summary judgment, a Title VII plaintiff proceeding under McDonnell Douglas must show that he was treated less favorably than “similarly situated” individuals outside of his protected class. Id.
In a conclusory manner, Eliassaint alleges that he was “the solе Shop Supervisor furloughed despite his tenure with [RTG]“; that his “non-black, non-Haitian Shop Supervisors were not furloughed during this time“; and that “[RTG] did not furlough some associates with less experience than [Eliassaint].” (Doc. 33 at 14–15). Yet Eliassaint does not identify any comparator or explain how Eliassaint and his comparator are “similarly situated in all material respects.”2 Lewis, 918 F.3d at 1226.
As for the tri-annual bonuses, Eliassaint again identifies no comparator in any of his pleadings. See generally (Docs. 1 & 33). He fails to point to any other employee that received a higher bonus than he did, much less one “similarly situated in all material respects.” Lewis, 918 F.3d at 1226. Without any showing that he was treated less favorably than other similarly situated employees outside his protected class, Eliassaint cannot prove a prima facie case of discrimination. See Earle, 843 F. App‘x at 166 (“A plaintiff‘s failure to produce evidence showing that a single similarly situated employee was treated more favorably will рreclude the establishment of a prima facie case.“). This fatal omission of a similarly situated comparator warrants judgment on these claims in favor of RTG.
Still, even if the Court were to decide that Eliassaint had shown a sufficient comparator and met his burden of proving a prima facie case, Eliassaint has not shown that RTG‘s nondiscriminatory reasons for furloughing Eliassaint or awarding him certain bonuses were mere pretext. RTG presented evidence that Eliassaint was furloughed due to a reduction in its staff caused by COVID-19 and its seniority policy. Specifically, RTG furloughed many associates; RTG made furlough decisions based on seniority; and RTG furloughed Eliassaint over the other Shop Area Supervisor who worked on second shift because she was more senior than Eliassaint. (Doc. 29-3 at 80). RTG also
b. Hostile Work Environment under Title VII and 42 U.S.C. § 1981
Eliassaint brings a hostile work environment claim under Title VII and
i. Legal Standard
Title VII is violated when “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim‘s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quotation omitted). To establish a hostile work environment claim, a plaintiff must show: “(1) that he belongs to a protected group; (2) that he has been subject to unwelcome harassment; (3) that the harassment must have been based on a protected characteristiс of the employee, such as national origin; (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) that the employer is responsible for such environment under either a theory of vicarious or of direct liability.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
“The fourth element requires a plaintiff to show that his work environment is both subjectively and objectively hostile.” Fortson v. Carlson, 618 F. App‘x 601, 606 (11th Cir. 2015). “A plaintiff must subjectively perceive the harassment as sufficiently severe or pervasive to alter the terms or conditions of his employment, while the objective severity of harassment is judged from the perspective of a reasonable person in the plaintiff‘s position.” Id. “In determining the objective element, a court looks to ‘all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically
ii. Analysis
RTG argues that Eliassaint cannot establish the fourth element of the hostile work environment claim—that he faced severe or pervasive harassment that altered the conditions of his employment. (Doc. 28 at 13). The Court agrees. The record and pleadings reveal that approximately eight comments were made over the course of 2016 (or prior) and 2017 that Eliassaint alleges constituted a hostile work environment. Those comments include: (1) “[w]hen you go back to Haiti you should sell [your wife] for $50.00,” (Doc. 1 at 4; Doc. 29-1 at 95–96); (2) “dumb,” (Doc. 28 at 15); (3) “Haitians always use machetes to cut people‘s heads off,” (Doc. 1 at 4; Doc. 29-1 at 94); (4) “the Haitian,” (Doc. 28 at 15); (5) “don‘t do voodoo on me,” (Doc. 29-1 at 94); (6) “I am a white man, I can‘t write your name,” (Doc. 28 at 15); (7) in reference to Eliassaint‘s jersey, “[w]hy you wear that, Haiti does not have a socсer team,” (Doc. 1 at 4; Doc. 29-1 at 66–67); and (8) “[b]ecause you‘re Haitian it is hard for you to speak English and write,” (Doc. 1 at 4).
RTG argues that “all of these alleged comments are time-barred for purposes of Eliassaint‘s Title VII hostile work environment claim and should not be considered in analyzing the claim.” (Doc. 28 at 15). Unlike discrete discriminatory acts, a hostile work environment claim consists of a series of separate acts that collectively constitute one “unlawful employment practice.” Morgan, 536 U.S. at 117 (quoting
Even if Eliassaint‘s hostile work environment claim was timely, his claim still fails because Eliassaint makes no allegation that his workplace was permeated with discriminatory intimidation, ridicule, and insult, such that the terms and conditions of his emрloyment were altered. Applying a subjective standard, Eliassaint makes no allegation that he perceived the harassment as severe or pervasive enough to alter the terms of his employment. Indeed, in his deposition, Eliassaint flatly denied that Beckham and Reed‘s comments changed the conditions of his employment or affected his job performance. (Doc. 29-1 at 38). Eliassaint stated that he
Eliassaint has also fails to show that his alleged harassment was objectively severe or pervasive enough to support a hostile work environment claim under Title VII. Evaluating the circumstances from the perspective of a reasonable person in Eliassaint‘s position and considering the frequency of the conduct; the severity of the conduct; whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and, whether the conduct unreasonably interferes with the employee‘s job performance, the Court determines that Eliassaint‘s allegations fail to create a hostile work environment. See Fortson, 618 F. App‘x at 606. Given that offensive utterances—rather than physically threatening or humiliating conduct are at issue, the severity of the conduct is low.3 The frequency is also low considering that these eight or so statements spanned at least two years. Compare Guthrie v. Waffle House, Inc., 460 F. App‘x 803, 807 (11th Cir. 2012) (holding that the plaintiff failed to show the alleged harassment was sufficiently frequent to support her claim where “only a few dozen comments . . . that could arguably be construed as harassment” occurred “over a period of eleven months“), and McCann, 526 F.3d at 1379 (holding that the evidence presented by the plaintiff was insufficient to support a claim of hostile work environment, explaining that the instances of racially derogatory language, which extended “over a period of more than two years . . . are too sporadic and isolated to establish that her employers’ conduct wаs so objectively severe or pervasive as to alter the terms and conditions of her employment“), with Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1251-55 (11th Cir. 2014) (concluding the record presented a genuine dispute of material fact for certain plaintiffs’ hostile work environment claims where racist graffiti appeared in employee bathrooms “daily“; employees and supervisors wore Confederate flags “every day“; racist slurs were used “every day“; and nooses were hung in the workplace on multiple occasions). And, as discussed, the record fails to reveal evidence that shows the conduct unreasonably interfered with Eliassaint‘s job performance. See (Doc. 29-1 at 38). Thus, even taking all the statements as
c. Retaliation under Title VII, the FCRA, and 42 U.S.C. § 1981
Eliassaint brings a claim of retaliation under Title VII, the FCRA, and
i. Legal Standard
“Under the anti-retaliation provision in Title VII of the Civil Rights Act, an employer may not retaliate against an employee because the employee ‘has opposed any practice made an unlawful employment practice’ or ‘has made a charge’ about an unlawful employment practice under Title VII.” Debe v. State Farm Mut. Auto. Ins. Co., No. 20-11331, 2021 WL 2333521, at *1–2 (11th Cir. June 8, 2021) (quoting
Turning to the first step in the McDonnell Douglas framework, “[t]o establish a prima facie case of retaliation, a plaintiff must show: (1) that he engaged in statutorily protected expression; (2) that he suffered an adverse employment action; and (3) that there is some causal relationship between the two events.” Id. (quotation omitted). In a retaliation claim, a materially adverse employment action is an action that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation omitted). And to prove a causal connection, a plaintiff must demonstrate only “that the protected activity and the adverse action were not wholly unrelated.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999) (quotation omitted). This element is to be construed broadly, and “a plaintiff satisfies this element if he provides sufficient evidence that the decision-maker became aware of the protected conduct, and that there was close temporal proximity between this
ii. Analysis
As best as the Court can decipher from Eliassaint‘s pleadings, he alleges that RTG retaliated against him for filing a complaint with the human resources department and for filing a charge with the EEOC by offering him a “significant pay cut and a demotion in response to his complaints of race and national origin discrimination” and by furloughing him. (Doc. 33 at 19–20). But both alleged retaliatory actions lack the sufficient temporal proximity to establish a causal connection.4
The Court is left to conjecture in the absence of clarity from Eliassaint‘s response, but it appears that his mention of RTG‘s offer of “demotion” and “pay сuts” refers to the positions that RTG offered him in response to Eliassaint‘s requests for transfer. RTG‘s conduct—offering Eliassaint other employment positions (which he ultimately declined) in response to his requests for transfer—can hardly be considered retaliatory.5 Thus, RTG‘s response
d. Negligent Retention and Negligent Infliction of Emotional Distress
In his complaint, Eliassaint brings a negligent retention claim, alleging that RTG had a duty to protect Eliassaint from employees that it knew or should have known created a risk of injury to Eliassaint; that RTG was on notice of Beckham and Reed‘s harassment of Eliassaint; and that RTG breached its duty by continuing to employ Beckham and Reed and by failing to adequately supervise the workplace. (Doc. 1 at 22-23). Eliassaint also brings a negligent infliction of emotional distress claim, alleging that RTG had a duty to protect Eliassaint from attacks, harassment, and retaliation; that RTG was on notice of Eliassaint‘s complaints of harassment and a hostile work environment; and that RTG breached its duty by failing to prevent the harassment against Eliassaint. (Doc. 1 at 23–24). Because the Court determines that these claims have been abandoned and are meritless, the Court grants RTG‘s motion for summary judgment on these claims.
First, although Eliassaint brings these two claims in his complaint, he never addresses them in his opposition to summary judgment. See (Doc. 33). RTG argues that Eliassaint abandoned his negligent retention and negligent infliction of emotional distress claims by failing to address them in his opposition to summary judgment response. (Doc. 40 at 2). The Court agrees and therefore grants summary judgment on Eliassaint‘s negligent retention and negligent infliction of emotional distress claims. See Gooden, 679 F. App‘x at 966 (“[W]e will not consider this alleged adverse employment actions because [the plaintiff] abandoned it by not addressing it in her response to summary judgment.“).
Alternatively, even if Eliassaint had not abandoned his claims, both claims fail. Under Florida law, negligent
Additionally, Eliassaint cannot establish a negligent infliction of emotional distress claim. Under Florida law, the a plaintiff must establish the following elements to succeed on such a cause of action: “(1) the plaintiff must suffer a physical injury; (2) the plaintiff‘s physical injury must be caused by the psychological trauma; (3) the plaintiff must be involved in some way in the event causing the negligent injury to another; and (4) the plaintiff must have a close personal relationship to the directly injured person.” Zell v. Meek, 665 So. 2d 1048, 1054 (Fla. 1995). Eliassaint fails to proffer any facts which would support the third element of the claim: involvement in an event that caused a negligent injury to another. Indeed, Eliassaint has made no allegation that another person was injured. Further, the claim is time barred by the action‘s four-year statute of limitations.
Accordingly, it is ORDERED:
- Defendant RTG Furniture Corporation‘s motion for summary judgment (Doc. 28) is GRANTED in full.
- The Clerk is directed to enter judgment for RTG Furniture Corporation on all counts; terminate any pending motions and hearings; and to close the case.
DONE in Tampa, Florida, on July 29, 2021.
Kathryn Kimball Mizelle
United States District Judge