Tоndalaya EVANS, Plaintiff-Appellant Cross Appellee, v. BOOKS-A-MILLION, Defendant-Appellee Cross Appellant.
No. 13-10054.
United States Court of Appeals, Eleventh Circuit.
Aug. 8, 2014.
762 F.3d 1288
REVERSED and REMANDED.
Alicia K. Haynes, Charles E. Guerrier, Haynes & Haynes, PC, Birmingham, AL, for Plaintiff-Appellant-Cross Appellee.
Before JORDAN, Circuit Judge, and RYSKAMP,* and BERMAN,** District Judges.
RICHARD M. BERMAN, District Judge:
This is an appeal from a lawsuit brought by Tondalaya Evans (Evans or Appellant) against her emplоyer, Books-A-Million (Books-A-Million or Appellee), a national book retailer, alleging violations of the Family and Medical Leave Act (FMLA), the Equal Pay Act, Title VII of the Civil Rights Act of 1964 (Title VII), and the Consolidated Omnibus Budget Reconciliation Act (COBRA). Evans complained in the district court that Books-A-Million (1) interfered with her right to take parental leave by forcing her to work from home immediately after she gave birth on August 30, 2006; (2) discriminated against her on the basis of gender by altering her job title and responsibilities, withholding her annual bonus, and ultimately terminating her employment; (3) retaliated against her for complaining about gender and race discrimination in the workplace; (4) paid her less than male employees doing the same work as she did; and (5) failed to provide her with notice of her right to continuation of her dental insurance following her termination.
Evans appeals from the district court‘s dismissal of her claims on summary judgment and from the district court‘s exclusion of litigation expenses (in the total amount of $2,460.67) from its post-trial award of attorneys’ fees. Books-A-Million cross-appeals from the district court‘s finding of an intentional COBRA violation by Books-A-Million and from the district court‘s assessment of a COBRA penalty.
For the reasons that follow, we hold that the district court correctly awarded summary judgment to Books-A-Million with respect to Evans’ claims under Title VII and the Equal Pay Act, and did not abuse its discretion by assessing a statutory COBRA penalty against Books-A-Million. We also hold that the district court erred by dismissing Evans’ FMLA claim and by refusing to consider her additional litigation-related expenses of $2,460.67 as part of an attorneys’ fee award. Accordingly, we AFFIRM in part, and VACATE and REMAND in part, the judgment of the district court.
I. BACKGROUND
We recount the facts in the light most favorable to Evans. See Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004) (summary judgment); United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1084 (5th Cir.1978) (bench trial).
Evans was employed by Books-A-Million for ten years from 1997 to 2007, initially as a staff accountant and, later, as Payroll and Insurance Manager. Books-A-Million paid Evans a salary of $54,500, with the opportunity for an annual cash bonus. Evans’ supervisor was Books-A-Million‘s Director of Finance, Sandi Meeks (Meeks).
In January 2006, Evans advised Books-A-Million that she was pregnant. At the time, Evans was involved in the implementation of a new payroll system (ADP system), which was anticipated to go live by August 2006. In June 2006, she approached Mеeks to discuss the necessary paperwork for her FMLA maternity leave, which Evans had intended to become effective on her due date, September 1, 2006. Meeks told Evans that she and other Books-A-Million supervisors had decided that Evans would not go on leave but would work while on maternity leave. Evans was given a new laptop computer that would enable her to work from home after her delivery.
Although Evans told Meeks on several occasions that she intended not to work after the birth of her child, Meeks repeatedly told Evans that she really needed Evans to continue to work on the ADP system, the go live date for which had, in mid-August, been delayed to November 2006. Meeks also told Evans that the (successful) implementation of the ADP system would account for fifty percent of Evans’ annual bonus. Given Meeks’ insistence, Evans felt she had no choice but to continue to work from home after the birth of her child.
Evans’ last day at the office before giving birth was Tuesday, August 29, 2006. She gave birth the next day. Upon arriving home from the hospital with her newborn on Fridаy, September 1, 2006, Evans immediately began answering work-relat
During Oсtober 2006, Meeks began to express some frustration and disappointment with the progress being made implementing the ADP system. For example, on October 19, 2006, Meeks told Evans that [w]e are unacceptably behind in this project, and this needs to be completed. On another occasion in October 2006, Meeks became angry and hostile when Evans informed her that she did not have time to work on an additional payroll project. Prior to October 2006, Evans had never received any negative evaluations or write-ups. Ultimately, the ADP system went live on January 2, 2007, and was a success.
Evans returned to work at the Books-A-Million offices on October 31, 2006, a week and a half earlier than she had originally planned. Upon Evans’ return, Meeks’ attitude toward her was cold and hostile. In November 2006, Meeks and Books-A-Million‘s Chief Financial Officer, Doug Markham, determined to reassign Evans from her position as Payroll and Insurance Manager to a newly-created position, Risk Manager, which at the time, though it did not have clearly-defined responsibilities, did not include payroll duties. Unbeknownst to Evans, Books-A-Million had advertised the new position of Payroll Manager and met with candidates for this position, which included all of Evans’ payroll duties.
On March 13, 2007, Evans learned about the job posting for Payroll Manager, and asked Meeks for an explanation. Meeks told Evans that Books-A-Million was looking for a Payroll Manager because she wasn‘t pleased with the ADP implementation. Evans responded that the ADP implementation occurred in substantial part while she was at home with her newborn.
Evans was not interested in the new Risk Manager position because she had accumulated ten years of experience in payroll management and wanted to have a career in that field. By contrast, Evans had no experience in risk management. Evans was also told by Meeks that her responsibilities as Risk Manager would include travel, which Evans viewed as incompatible with the care of her newborn child.
On March 23, 2007, Meeks informed Evans that she had been formally reassigned to the Risk Manager position. On March 26, Evans spoke with Books-A-Million officers Doug Markham and Chad Tice, and told them that she was not interested in becoming Risk Manager and that she wanted to retain her payroll responsibilities. Evans spoke again with Markham and Tice the following day, and (again) voiced her opposition to the Risk Manager position. Markham and Tice informed Evans that her choice was either to accept the Risk Manager position or to resign. Evans did not accept the Risk Manager position, and she was terminated by Bоoks-A-Million on March 27, 2007.
At the time Evans was terminated, Tice informed her that she would not be eligible for a year-end bonus (for 2006). The reason given was that, in order to be eligible for the bonus, an employee had to have been employed on the date the Company‘s Audit Committee voted to approve the Company‘s annual financial statements.
On March 6, 2009, Books-A-Million filed a motion for summary judgment seeking dismissal of all of Evans’ claims except her claim under COBRA. On April 6, 2010, the magistrate judge issued a Report and Recommendation, recommending that the district court grant Books-A-Million‘s motion in its entirety. The magistrate judge concluded that Evans’ FMLA claim should be dismissed because Evans was paid her full salary while she worked from home, and, therefore, she has not established that she suffered any legal damages.1 In an eight-page Memorandum Opinion, dated September 22, 2010, the district court adopted the magistrate judge‘s Report and Recommendation in its entirety.2
Evans’ COBRA claim proceeded to a bench trial. Following the trial, the district court, in a Memorandum Opinion dated October 29, 2012, concluded that Books-A-Million had intentionally violated Evans’ COBRA rights by failing to send Evans the required notice relating to her dental insurance. Exercising its discretion under
Evans raises the following issues on appeal: (1) whether the district court abused its discretion in striking certain portions of her summary judgment affidavit; (2) whether the district court errеd in dismissing her FMLA claim; (3) whether the district court erred in dismissing her Equal Pay Act claim; (4) whether the district court erred in dismissing her Title VII discrimination and retaliation claims; and (5) whether the district court abused its discretion in excluding $2,460.67 from COBRA-related attorneys’ fees.
In its cross-appeal, Books-A-Million contends that: (1) the district court clearly erred in finding an intentional COBRA violation; and (2) the district court‘s assessment of a $75 per day COBRA penalty was an abuse of discretion.
II. DISCUSSION
The Court reviews a district court‘s grant of summary judgment de novo, drawing all inferences in favor of the nonmoving party. Fisher v. State Mut. Ins. Co., 290 F.3d 1256, 1259-60 (11th Cir. 2002). Genuine disputes [of material fact] are thоse in which the evidence is such that a reasonable jury could return a verdict for the non-movant. For factual issues to be considered genuine, they must have a real basis in the record. Mize v. Jefferson City Bd. Of Educ., 93 F.3d 739, 742 (11th Cir.1996).
The Court applies an abuse of discretion standard when reviewing a district court‘s decision to strike affidavit testimony on summary judgment. Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1259 (11th Cir.2004).
Evans argues that the district court abused its discretion in striking portions of her summary judgment affidavit which stated: (1) Males with less experience in the finance department of the company that were managing only one department were making more money than me.; (2) [Male employees] were able to advance more quickly financially [than] I was.; and (3) Dickson could not perform his job and had duties taken away from him and suffered no cut in his pay or bonus.
The district court did not abuse its discretion in finding that these statements were conclusory and speculative. Evans’ affidavit did not provide specific, supporting facts regarding, for example, the amount of other employees’ salaries compared to hers, the dеtails of other employees’ financial advancement, or Mr. Dickson‘s job performance, duties and evaluations. See Rogers v. Evans, 792 F.2d 1052, 1062 n. 9 (11th Cir.1986) (concluding that the district court properly granted a motion to strike an affidavit where the statements in the affidavit were phrased in conclusory terms without citing facts). We affirm the district court‘s ruling on this issue.
(2) FMLA Interference Claim
Congress enacted the FMLA to balance the demands of the workplace with the needs of families and to promote the stability and economic security of families.
To prove FMLA interference, Evans must demonstrate that [she] was denied a benefit to which [she] was entitled under the FMLA, Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1266-67 (11th Cir.2008), and that she has been prejudiced by the violation in some way. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002); see McFadden v. Ballard Spahr Andrews & Ingersoll, LLP, 611 F.3d 1, 7 (D.C.Cir.2010) ([Plaintiff‘s] burden is to show both that her employer interfered with ... the exercise of or the attempt to exercise, any right provided by the FMLA ... and that she was prejudiced thereby. (internal citation and punctuation omitted)).
The district court‘s dismissal of Evans’ FMLA interference claim on summary judgment was unrelated to whether Books-A-Million had, in fact, interfered with Evans’ maternity leave. Rather, the denial of Evans’ claim was based solely upon the conclusion (initially reached by the magistrate judge) that Evans had suffered no legal damages because she was paid for her work: Because the plaintiff cannot establish that she suffered any loss of income as a result of BAM‘s interference with her FMLA leave, she cannot state an FMLA claim.3
The magistrate judge appears to have based his conclusion that, absent damages for unpaid salary, Evans could not state an FMLA claim given this Court‘s unpublished decision in Demers. But Demers does not hold that an FMLA plaintiff must demonstrate that she is entitled to traditional damages (аs opposed to equitable relief) to survive summary judgment. Such a requirement would render meaningless the plain language of the FMLA, which makes clear that equitable relief may be available, separate and apart from legal damages.
It is clear tо us that, in order to prove that she was prejudiced by an FMLA violation, a plaintiff such as Evans need only demonstrate some harm remediable by either damages or equitable relief. See Id. (The remedy is tailored to the harm suffered.); Anderson v. Discovery Cmmc‘ns., LLC, 517 Fed. Appx. 190, 198 (4th Cir.2013) (Such prejudice can be proven by showing that the employee ... suffers some loss in employment status remediable through ‘appropriate’ equitable relief....).
In addition to the question of whether Books-A-Million interfered with Evans’ FMLA rights, there are other un
And, the prejudice or harm allegedly suffered by Evans may well be remediable by reinstatement. See
(3) Title VII Claims
To establish a prima facie case of discrimination under Title VII, Evans had to show that (1) she is a member of a protected class; (2) she was subjected to an adverse employment action; (3) her employer treated similarly situated employees not of the protected class more favorably; and (4) she was qualified for the job. See Rice-Lamar v. City of Ft. Lauderdale, Fla., 232 F.3d 836, 842-43 (11th Cir.2000).
The district court correctly concluded that Evans failed to demonstrate a prima facie case of gender discrimination with respect to her termination and reassignment because she failed to identify any male employee(s) who rejected a reassignment and who were treated differently than she was. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997). (To make a comparison of the plaintiff‘s treatment to that of [male] employees, the plaintiff must show that [s]he and the employees are similarly situated in all relevant respects.). Evans similarly failed to identify any male comparator(s) who were not reassigned.7
(4) Equal Pay Act Claim
To establish a prima facie violation of the Equal Pay Act, Evans must have shown that she performed substantially similar work for less pay than her male colleаgue(s), Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1526 (11th Cir.1992), i.e., whose job(s) involved equal work and required equal skill, effort and responsibility. Id.
Evans failed to establish a prima facie case of unequal pay. With respect to the three male division heads within Books-A-Million‘s Finance Department, Evans has not shown that their positions involved equal work or required equal skill, effort and responsibility. See Waters v. Turner, Wood & Smith Ins. Agency, Inc., 874 F.2d 797, 799-800 (11th Cir. 1989) (plaintiff failed to make a prima facie case of unequal pay because the job responsibilities of the male comparators were greater than her job responsibilities). With respect to Robert Altheide, who was hired as Books-A-Million‘s Risk Manager when Evans turned down the job, Evans cannot show similarity of work because she never worked as Risk Manager. See Id.
(5) Attorneys’ Fees
The fee-shifting provision of ERISA,
This Court has previously held that
Based upon these precedents, it would appear that the definition of costs under
(6) Intentional COBRA Violation
The district court‘s factual finding that Books-A-Million intentionally violated COBRA is reviewed for clear error. Atlanta Journal and Cоnstitution v. City of Atlanta Dep‘t of Aviation, 442 F.3d 1283, 1287 (11th Cir.2006). Because the district court based its finding of intent largely upon its assessment of the credibility of Books-A-Million‘s witnesses, and because the evidence could have been seen in different ways, we find there was no clear
(7) Statutory Penalty
The Court reviews a district court‘s award of statutory penalties under
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court‘s award of summary judgment with respect to Evans’ Title VII and Equal Pay Act claims, its post-trial findings of fact, and its assessment of a statutory penalty. We VACATE the district court‘s award of summary judgment with respect to Evans’ FMLA claim and its rejection of additional expenses as attorneys’ fees. We REMAND the case for further proceedings consistent with this opinion.