ORDER
This matter comes before the Court on Defendant MWH Constructors, Inc.’s Dis-positive Motion for Summary Judgment (Doc.# 56) filed on June 20, 2014. Plaintiff Leigh Wolf filed an Opposition to Defendant’s Motion for Summary Judgment (Doc.# 60) on July 3, 2014. Defendant also filed a Reply to Plaintiffs Opposition (Doc.# 66) on July 18, 2014, and Plaintiff thereafter filed a Surreply to Defendant’s Reply (Doc.# 69) on July 23, 2014. Thus, this matter is ripe for review.
BACKGROUND
I. Plaintiffs employment with Defendant
On April 17, 2000, MWH Americas, Inc. (“MWH Americas”), Defendant’s sister company, hired Plaintiff as an intern. (PL’s Dep. 8:24-9:3). When Plaintiff graduated from college in 2001, MWH Americas hired her full time as a project engineer. (PL’s Dep. 9:4-15). In late 2006, Plaintiff transferred to Defendant and became a senior project engineer. (PL’s Dep. 9:23-10:5). At that time, Defendant was managing the construction of water treatment plants, water reclamation facilities, and wells for the City of Cape Coral, Florida (collectively referred to as “the Cape Coral projects”). (Doc. # 56 at 2). Michael P. Holt served as Defendant’s Eastern Regional Manager for Municipal Construction Services from February 2006 to February 2008, and his office was in Atlanta, Georgia. (Holt Decl., ¶ 1). In this capacity, Holt headed the Cape Coral projects. (Id.). Larry Laws, the Division Construction Manager for the Cape Coral projects, reported to Holt. (Laws Decl., ¶1).
The specific Cape Coral project for which Plaintiff worked was the North Cape RO Water Treatment Plant (the “North Cape project”). (PL’s Dep. 11:18— 20, 12:6-15). The North Cape project entailed Defendant building a reverse osmosis water treatment plant and ancillary weils. (PL’s Dep. 12:10-15). Defendant assigned approximately fifteen to seventeen employees to this project. (Rowley Decl., ¶ 2). Pertinent to this action is Jack Currie, who was the Senior Project Manager for the North Cape project until his discharge on August 29, 2007. (Laws Decl., ¶ 6). Currie reported to both Holt
Officially, Plaintiff worked as a senior project engineer on the North Cape project until her resignation on June 11, 2008. (Pl.’s Dep. 14:3-10). Her primary duties consisted of engineering tasks such as interfacing between the design and construction teams, answering vendors’ information requests, writing change orders, and coordinating other communications between the subcontractors and the client. (Doc. # 56 at 4-5). Plaintiff, however, claims she was a senior project engineer in name only because she unofficially managed projects from design through construction and supervised staff. (Doc. # 60 at 10; Pl.’s Dep. 41:8-12).
Several specific instances of Plaintiffs employment are pertinent in this action, which the Court will detail in turn.
A. The W-2C project
Shortly after Plaintiff started working for the North Cape project, Currie assigned her to the ancillary W-2C project.
B. Plaintiffs internal career development
Defendant has an internal personnel and job classification system, titled “Career-Track.” (Rowley Decl., ¶ 7; PL’s Dep. 77:8-13). Under this system, employees are classified based on objective criteria like job requirements, skills, education level, and experience. (Rowley Decl., ¶ 7). CareerTrack allows Defendant to assign the appropriate employees to projects so the projects’ and clients’ needs are met. It also provides employees transparency on their job requirements and possible career advancements. (Id.).
CareerTrack groups jobs with similar requirements into six “families.” Within each family there are “career levels” that represent the education, experience, and leadership skills required of a job at that level. (Id.). Pertinent here, the “Technology family” is composed of engineering, design, and technical support professionals; whereas the “Project Management” family is composed of employees involved in construction management and actual construction. (Id., ¶ 8). It is common for employees to move between the families. (Doc. #56 at 3). Also, because Defen
When Plaintiff joined Defendant as a senior project engineer, she was assigned to the Technology family. (Id., ¶ 9). Plaintiff, however, requested to be reclassified to the Project Management family sometime in December 2006. (Doc. # 60 at 28). On December 15, 2006, Shon Fandrich emailed Plaintiff to discuss her request. (Doc. # 60 at 28). Defendant decided Plaintiff needed more onsite experience managing construction projects before she qualified for a project manager position. (Rowley, ¶ 9; Holt Decl., ¶¶ 7, 15).
On May 18, 2007, Holt emailed Dana Dorr, a member of Defendant’s Human Resources department, asking what he needed to do to transfer Plaintiff to the Project Management family because it was “certainly appropriate that she be reclassified.” (Doc. # 56-3 at 6). Plaintiff was carbon copied on this email. (Doc. # 56-8 at 6). On June 1, 2007, Plaintiff followed-up with Holt about her reclassification because she had not received a response from Dorr. (Doc. # 56-3 at 5). Holt responded, “[d]ue to the myriad of America’s classifications I was having trouble flang-ing up your title with the appropriate Constructor’s title in the technical family. I will try to talk to Jack [Currie] and Dana [Dorr] today to get this flattened out.” (Doc. # 56-3 at 5).
On June 13, 2007, Plaintiff met with Holt to discuss her career goals and her request to transfer to the Project Management family. (Doc. # 60 at 26). According to Plaintiff, Holt denied her transfer request but encouraged her to pursue a career in project management and participate in project management training. (Doc. # 60 at 26; Holt Deck, ¶ 7). Sometime after this meeting with Holt, Plaintiff apparently contacted Ed Hernandez from Defendant’s Human Resources department to inquire about transferring to the Project Management family. (Doc. # 60 at 26). According to Plaintiff, Hernandez explained to her, because of her experience and qualifications, she should be part of the Project Management family and manage projects. (Doc. # 60 at 26).
C. Plaintiff’s “Executive Risk Call” presentation
Sometime around June 2007, Plaintiff presented, for the first time, at an “Executive Risk Call” with upper management. (Pl.’s Dep. 157:14-16). Some managers participated remotely and others participated in-person at the Cape Coral, Florida location with Plaintiff. Holt participated by telephone. (Holt Decl., ¶ 16). When Holt heard Plaintiff begin to present, he telephoned Mike Kaner, who was participating in-person, and said something to the effect of “[w]hat the hell is Leigh Wolf doing leading this presentation? Get her off the call and get Jack Currie on the call.” (Holt Dep. 63:19-18). Plaintiff and the in-person participants heard Holt’s comment. (Pl.’s Dep. 148:13-25).’ Holt was surprised and upset that Plaintiff, and not Currie, was leading the call because Currie was the assigned Senior Project Manager. (Holt Decl., ¶¶ 5, 16; Pl.’s Dep. 159:20-23). Although embarrassed by Holt’s statement, Plaintiff continued her presentation. (Pl.’s Dep. 148:13-149:7). Holt later apologized for his unprofessional behavior but Plaintiff does not recall the apology. (PL’s Dep. 159:4-7; Holt Dep. 65:15-66:9).
D. Plaintiffs training opportunities
In or around May 2007, Holt met with various male individuals from the Cape
Additionally, around July 2007, Defendant released the fourth module of its internal “Manage the Project” training program (“MTP”), which was a multi-day training session intended for existing project managers. (PL’s Dep. 50:9-18, 52:14-20; Rowley Dec!., ¶¶ 10, 12; Holt Dec!., ¶ 4). Although Defendant invited Plaintiff to attend the first three, she was not invited to the fourth. (PL’s Dep. 51:10-14).
II. Plaintiffs sex discrimination complaint and the aftermath
On August 17, 2007, Plaintiff emailed Holt to discuss why she had not been invited to participate in the fourth MTP module and removed from the W-2C project. (Doc. # 60 at 26). Plaintiff wrote, in pertinent part:
I cannot help but feel I am being blatantly discriminated against by being stripped of project management duties (on the W-2C project which I had been successfully managing since my transfer into Constructors, and from which I was removed as project manager and a person with far less qualifications was given responsibility for), as well as being denied training opportunities on more than one occasion.
(Doc. # 60 at 26). Plaintiff continued “in the nine months I have been with Constructors I believe my opportunities for advancement and success are being limited by the fact that my qualifications, skills and experience are being disregarded, and that my career goals are not being taken seriously by you.” (Doc. # 60 at 26). This was the first time Plaintiff complained of sex discrimination to Defendant. (PL’s Dep. 143:3-9). Shortly thereafter, Plaintiff met with Dana Dorr and they spoke briefly about her email to Holt. (PL’s Dep. 108:15:20,111:1-112:12).
On August 29, 2007, Plaintiff met with Dorr and Larry Laws, where they asked Plaintiff about her personal relationship with Currie.
After the meeting, Plaintiff called Dorr and asked if Currie’s dismissal was Defendant’s response to her sex discrimination concerns. (PL’s Dep. 109:4-10; Doc. # 60 at 11). Dorr explained that Currie’s dismissal had nothing to do with her concerns and he would contact her later to further discuss that matter. (PL’s Dep. 109:4-9). Dorr did not follow up with Plaintiff. (PL’s Dep. 109:9-10).
Sometime after August 29, 2007, Fand-rich did not give Plaintiff a performance evaluation. (PL’s Dep. 138:14-21). After Plaintiff complained about not receiving the evaluation, Roy Bumpass, the facilities manager on the North Cape project, evaluated her. (Id. 135:22-23). According to Plaintiff, “Bumpass was unprepared for the evaluation, did not review [her work],
Also of note is that sometime after February 2008 Plaintiff was randomly selected for a drug test. (Pl.’s Dep. 289:19-24; Doc. # 56-2 at 6), Defendant has a substance abuse policy that involves quarterly drug tests, and a third-party company randomly selects and tests the employees. (Rowley Decl., ¶ 14; Doc. # 56 at 4).
On June 11, 2008, Plaintiff resigned from her position with Defendant. (Doc. # 56-2 at 5). Almost one month later, she joined Black and Veatch, a global engineering consultant company, and began working in Afghanistan. (Pl.’s Dep. 146:24-147:1).
III. Charge of Discrimination and federal lawsuit
On December 22, 2008, Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”), alleging sex discrimination and retaliation. (Doc. # 60 at 29-31). On March 12, 2012, the EEOC issued’Plaintiff a right to sue letter. (Doc. # 12 at 17). Plaintiff thereafter commenced this employment discrimination action on June 11, 2012. (Doc.# 1). In the two-count complaint, Plaintiff alleges Defendant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. (“Title VII”), and the Florida Civil Rights Act of 1992, Ch. 760, Fla. Stat. (“FCRA”)
» STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and [she] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue is genuine if there is sufficient evidence such that a reasonable jury could return a verdict for either party. See Anderson v. Liberty Lobby, Inc.,
The moving party bears the burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett,
DISCUSSION
Defendant moves for summary judgment on the following grounds: (1) many of the discriminatory and retaliatory acts on which Plaintiff brings this action are time-barred; (2) Plaintiff cannot establish a prima facie case of sex discrimination; and (3) Plaintiff cannot establish a prima facie case of retaliation. (Doc. # 56 at 1-2). The Court will address each argument in turn.
I. Timeliness
Before commencing a Title VII action in federal court, a plaintiff in a deferral state like Florida must file an administrative charge of discrimination within 300 days of the last discriminatory act. See 42 U.S.C. § 2000e-5; E.E.O.C. v. Joe’s Stone Crabs, Inc.,
The continuing violation doctrine offers an exception to this limitation period and allows a plaintiff to sue on otherwise time-barred claims where at least one violation occurred within the period. See Hipp v. Liberty Nat. Life Ins. Co.,
Plaintiff filed her EEOC charge on December 22, 2008. Consequently, all discrete discriminatory and retaliatory acts that occurred before March 3, 2008, for Title VII purposes, and December 22, 2007, for FCRA purposes are untimely filed, no longer actionable, and outside the scope of the action. See Joe’s Stone Crabs,
Plaintiff turns to the continuing violation doctrine in an attempt to rescue the above alleged discriminatory and retaliatory acts. (Doc. # 56 at 17). The Court finds Plaintiffs attempt unpersuasive because she simply labels those acts as “continuing violations” and declares victory. See Jacobs,
Accordingly, in assessing whether Plaintiffs sex discrimination and retaliation claims survive summary judgment, the Court will only consider those alleged acts that fall within the actionable periods set forth above.
II. Sex discrimination under Title VII and FCRA
In Count I of the Amended Complaint, Plaintiff alleges Defendant intentionally discriminated against her on the basis of her sex in violation of Title VII and the FCRA.
Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a
If the plaintiff establishes a prima facie ease, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. See Holland,
In this case, Defendant argues Plaintiff cannot meet the last two elements of her prima facie case, ie., she did not suffer an adverse employment action and she was not treated less favorably than a similarly situated employee outside her protected class.
A. Adverse employment action
For purposes of Title VII discrimination, an adverse employment action occurs when an employer’s action affects the compensation, terms, conditions, or privileges of the plaintiffs employment in a real and demonstrable way. See 42 U.S.C. § 2000e-2(a)(l); Davis v. Town of Lake Park, Fla.,
As discussed previously, Plaintiff has alleged a myriad of ways in which Defendant adversely treated her because of her sex: (1) denied her training opportunities; (2) stripped of her unofficial managerial duties for the W-2C project; (3) denied her objective job progression criteria and formal job descriptions; and (4) constructively discharged her. (PL’s Dep. 46:16-47:20, 76:23-77:4, 85:24-86:6, 95:5-15, 198:16-23). Except for constructive discharge, these
For a plaintiff to demonstrate constructive discharge, she must show “the work environment and conditions of employment were so unbearable that a reasonable person in that person’s position would be compelled to resign.” Johnson v. Woodruff,
According to Plaintiff, “leaving the United States for the war zone that was and still is Afghanistan was preferable to the intolerable working conditions at [Defendant].” (Doc. # 60 at 19). The record evidence, however, directly contradicts this inciting declaration. First, in response to Defendant’s interrogatories, Plaintiff stated she “[l]eft MWH Constructors voluntarily to pursue career with another company with advancement opportunities.” (Def.’s Ex. F at 9) (emphasis added). Her response is consistent with her letter of resignation in which she wrote, in pertinent part,
[m]y eight years of experience with [Defendant] has been extremely rewarding and challenging both personally and professionally. There are many people I have worked closely with over the years that I have come to regard as a second family. I sincerely appreciate the effort, experience and knowledge that you [her supervisor] have brought to our team ... and regret that my opportunity to work with and learn from you will be cut short. I wish all of the project team and MWH great success.
(Doc. # 56-2 at 5). Such evidence refutes the involuntariness of her resignation.
Second, Plaintiff made an informed and calculated decision to leave Defendant and begin working for Black & Yeatch in Afghanistan. In or around November 2007, Plaintiff and Currie began a romantic relationship. (Pl.’s Dep. 124:9-12). As a result, she vacationed to Afghanistan from mid-December 2007 to early January 2008 to visit Currie who was working there at that time. (Id.). The purpose of her trip was to understand whether their “relationship was going to be viable” because “[i]t’s an awful long distance to be apart from each other and ... to be trying to hav[e] a long distance relationship if it’s not going to be viable.” (Pl.’s Dep. 124:12-18). Approximately two months later, Plaintiff returned to Afghanistan in hopes of deciding whether she wanted to move there and
"Finally, Plaintiff portrays Holt as the principal offender. Interestingly, however, Holt ceased working for Defendant in February 2008, nearly five months prior to Plaintiffs resignation. (Doc. # 56-3 at 1). The only evidence Plaintiff has presented is that Holt may have been guilty of poor management, which is not the same as him treating her differently than her male counterparts. See generally Douglas-Slade v. LaHood,
In sum, even viewing the evidence in a light most favorable to Plaintiff, she -has failed to adduce any facts that her work environment had become so unbearable a reasonable person in her position would have been compelled to resign. Since Plaintiff has failed to demonstrate a constructive discharged, she has not, as a matter of law,- suffered an adverse employment action. Accordingly, Plaintiff has not met the third element of her prima facie case of sex discrimination. See Celotex,
B. Similarly-situated employee
Even if Plaintiff suffered an adverse employment action, Defendant is still entitled to summary judgment because she has failed to • adduce any evidence Defendant treated similarly situated male employees more favorably. When a plaintiff alleges discrimination, she must show the employer treated similarly situated employees who are not in the protected class more favorably. See Maniccia v. Brown,
In conclusion, Plaintiff was required, but ultimately failed, to offer specific evidence showing a genuine issue of material fact that warrants trial on her claim. Stating in conclusory fashion Defendant discriminated against her on the basis of sex, without more, does not simply make it so. Accordingly, the Court grants Defendant’s Motion for Summary Judgment as to Count I of the Amended Complaint.
In Count II of the Amended Complaint, Plaintiff alleges Defendant retaliated against her after she emailed Holt on August 17, 2007, complaining of sex discrimination (Doc. # 60 at 26 ).
A prima facie case of retaliation under Title VII requires the plaintiff to show that (1) she engaged in an activity protected under Title VII; (2) she suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. See Crawford v. Carroll,
Here, the undisputed record evidence, viewed in the light most favorable to Plaintiff, does not establish a prima facie case for retaliation. The instances of alleged retaliatory conduct Plaintiff points to, most of which are untimely, are nothing more than a series of ordinary workplace tribulations and do not raise to the level of an adverse employment action. For example, at some point, Fandrich instructed Plaintiff that a certain amount of rock had to be installed every day in order to meet the project’s design and told her “this is how much progress you need to get, you’re not managing the contractor.” (Pl.’s Dep. 133:14-134:15). Although Plaintiff interrupted Fandrich’s instructions as him overriding her decisions and purposely embarrassing her, a reasonable jury would not. Also, Plaintiff contends Fandrich refused to give her an annual performance evaluation at the end of 2007. (PL’s Dep. 135:11-21). Although Roy Bumpass ultimately gave her an in-person review, Plaintiff remained unsatisfied because he was apparently unprepared and called her “arrogant and unapproachable.” (PL’s
Plaintiffs best argument in favor of unlawful retaliation is being subjected to a drug test. Her position, however, is attenuated at best. Defendant presented evidence that an independent third-party company selects employees at random and administers drug tests on a quarterly basis. (Rowley Decl., ¶ 14; Doe. # 56-2 at 6). At the same time Plaintiff was selected for the drug test, nine other employees were randomly selected. (Doc. #56 at 19). Plaintiff also testified that she had no knowledge of the drug testing protocols or who even selected the employees to be tested. (Pi’s. Dep. 241:7-22). Plaintiff has unconvincingly attempted to link the drug test and the discrimination complaint she had made more than five (5) months earlier. See Thomas v. Cooper Lighting, Inc.,
In any event, Plaintiff has not established that any “unlawful retaliation would not have occurred in the absence of the alleged wrongful action or action of the [Defendant].” Nassar,
Accordingly, for the reasons stated, summary judgment in favor of Defendant is appropriate on Count II of the Amended Complaint.
IV. Backpay damages
Finally, Defendant argues Plaintiff is not entitled to backpay damages, as she was immediately employed after she resigned from her position with Defendant. (Doc. # 56 at 2). Since the Court dismisses Plaintiffs discrimination and retaliation claims as a matter of law, it need not address the merits of Plaintiffs claim for backpay.
Accordingly, it is now ORDERED:
(1) Defendant MWH Constructors, Inc.’s Dispositive Motion for Summary Judgment (Doc.# 56) is GRANTED.
(2) Defendant MWH Constructors, Inc.’s Motion to Strike Any Plaintiff Claim for “Compensation Discrimination” (Doc.# 62) is DENIED as moot.
*1229 (3) Defendant MWH Constructors, Inc.’s Motion In Limine (Doc.# 71) is DENIED as moot.
(4) The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions, and close the file.
Notes
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. The W-2C wells project entailed drilling raw water production wells that would serve as the water sources for the North Cape RO Water Treatment Plant. (PL's Dep. 69:3-24). When Plaintiff joined this project, approximately seventy-five percent (75%) of the wells had been drilled. (PL’s Dep. 69:25-70:13).
. Rumors had circulated around April 2007 that Currie and Plaintiff had a romantic relationship, which they denied. (Doc. # 60 at 27; PL’s Dep. 118:10-18; Holt Deck, ¶ 12; Fandrich Decl., ¶ 5). Sometime later, Defendant obtained evidence confirming their relationship and they discharged Currie on August 29, 2007. (Doc. # 56 at 7 ).
. In the Amended Complaint, Plaintiff also alleges this action arises under 42 U.S.C. § 1981a. (Doc. # 12 at 1). Section 1981a protects against race discrimination. See 42 U.S.C. § 1981a ("All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, ...”). Since Plaintiff has not alleged race discrimination, she has no claim under 42 U.S.C. § 1981a.
. The Court's analysis of Plaintiff's sex discrimination claim under Title VII applies equally to her claim under the FCRA. See Alvarez v. Royal Atl. Developers, Inc.,
. Plaintiff has neither offered direct evidence of sex discrimination nor argued that such evidence exists.
. Even if the Court were to ignore Title VII’s limitations period, which it will not, Plaintiff concedes Defendant never decreased her compensation and benefits, she never applied for a promotion, and Holt encouraged her to pursue a career in project management. (Pl.'s Dep. 219:7-24; Doc. # 60 at 26). Defendant also never reassigned or demoted Plaintiff to a position with significantly different responsibilities, as she remained a senior project engineer throughout her career with Defendant. (Pl.’s Dep. 14:3-10). Moreover, Plaintiff cannot rely on Currie’s statements to her about what Holt had allegedly said to him to argue Holt was bias against female employees. (Pl.’s Dep. 181:7-183:15, 186:20-187:9). Such anecdotal evidence of discrimination is based upon inadmissible hearsay and/or a lack of personal knowledge that the Court cannot consider in determining a motion for summary judgment. See Fed.R.Civ.P. 56(c); Avirgan v. Hull,
. On July 11, 2014, Defendant moved to strike any "compensation discrimination" claim Plaintiff attempted to raise, for the first time, in her opposition to summary judgment.
. The Court’s analysis of Plaintiff’s retaliation claim under Title VII applies equally to her claim under the FCRA. See Harper,
. Plaintiff has neither offered direct evidence of retaliation nor argued that such evidence exists.