Plaintiff would add that the adverse actions of her hours reduction, bar hours elimination, the increased tension with Redacted Redacted, and Redacted Redacted’s yelling at Plaintiff on September 16, 2005, occurred very close in time (in a matter of days or even less) after Plaintiff’s July and August complaints, as well as her handing the EEOC papers to Defendant in September. (Plf. 2. (Plf. Defendants’ response brief in opposition to plaintiff’s motion for summary judgment 1. 2. MATERIAL ISSUES OF FACT PRECLUDE SUMMARY JUDGMENT ON PLAINTIFF’S RETALIATION CLAIM. Appx. Plaintiff further advised Redacted Redacted that she believed Redacted Redacted wanted her to quit and that he would say hurtful comments. (Plf. _____/ DEFENDANT CITY OF HIALEAH’S RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Defendant City of Hialeah (the “City” or “Defendant”), by and through its undersigned counsel and pursuant to Fla. R. Civ. II. (DC Dep., pp. Similarly, Plaintiff has suffered materially adverse employment actions. 33, 35). (Plf. Opposition to Summary Judgment Within Five (5) Days of Hearing Nonetheless, Plaintiff notes that she has established a prima facie case. 43-44). Dep., p. 42); (Defendant’s Interrogatory Answers, No. Finally, Plaintiff presented Redacted Redacted and Redacted Redacted with her EEOC charges on September 16, 2005. Burlington Northern & Santa Fe Railway Co. v. White, Carter v. Three Springs Residential Treatment. Co. v. Sec. Plaintiff claims that she was discriminated against because she was pregnant. Plaintiff also alleges a retaliation claim. Dep., pp. (PC Dep., pp. (b) For Defending Party. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. CO. v. PETER F. MERKLE, M.D., P.A., 35 Fla. L. Wkly D620a (Fla. 4th DCA Mar. The United States Court of Appeals for the Eleventh Circuit has held that if an employer proffers inconsistent reasons, such statements, in and of themselves, can be evidence of discrimination. Dep., p. 36). Case 1:11-cv-20120-PAS Document 87-1 Entered on FLSD Docket 12/27/2011 Page 1 of 62 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO. Co. v. Secretary of Labor, 50 F.3d 926, 934 (11th Cir. Pingback: Summary Judgment Reversed Due to Outstanding Discovery Requests – Harvey Covington & Thomas, LLC v. WMC Mortgage Corp. | Florida Rules Decisions Reporter, Pingback: Ginsberg v. Northwest Medical Center, Inc., Jason Perelman, M.D., Mitchell Weinstein, D.O., and Uro-Medix, Inc., 34 Fla. L. Weekly D1349a (Fla. 4th DCA July 1, 2009) | Florida Rules Decisions Reporter, Pingback: Tarik, Inc. v. NNN Acquisitions, Inc., 34 Fla. L. Wkly D1977 (Fla. 4th DCA Sept. 30, 2009) | Florida Rules Decisions Reporter, Pingback: State Farm Fire and Casualty Co. v. Diana Lezcano and Ricardo Diaz, 34 Fla. L. Wkly D2105a (Fla. 3d DCA Oct. 14, 2009) | Florida Rules Decisions Reporter, Pingback: Roth v. Bank of America, 34 Fla. L. Wkly D2383 (Fla. 2d DCA Nov. 18, 2008) | Florida Rules Decisions Reporter, Pingback: UNITED AUTOMOBILE INS. Plaintiff would add that Defendant does not raise the issue of pretext but instead claims that Plaintiff failed to establish a prima facie case, citing only to conclusory statements for this claim. In addition, Defendant acknowledges that Plaintiff’s hours were reduced. (Plf. The Evidence in Support of the Motion is Insufficient to Support Summary Judgment Gainesville FL 32601, Satellite Location: 1988) (employer was liable for sex discrimination where “those making the subjective decisions were men, at least some of whom held discriminatory attitudes and who had participated in past discrimination”); Siegel v. Alpha Wire Corp., 894 F.2d 50, 55 (3rd Cir. Plaintiff’s mother also advised Redacted Redacted that Redacted Redacted commented to Plaintiff that she would not last because she was pregnant. Further, although Redacted Redacted has testified that the slowdown in April was “dramatic”, (PC Dep., p. 7), Defendant’s payroll records reflect that Plaintiff’s hours increased from April (146.59 hours) to May (156.29) and that she worked significantly more during these two months than she did in the summer months after she announced her pregnancy. 33, 36); (Redacted Redacted Deposition (“PC Dep.”), p. 17). In fact, in July, 2005, the month right after Plaintiff told management she was pregnant, Plaintiff’s hours were reduced. Plaintiff has demonstrated protected activity under the Opposition Clause. Dep., p. 37). (Defendant’s Motion, p. 2); see (Plf. Immediately after Plaintiff announced her pregnancy, Redacted Redacted started making harassing and discriminatory comments to Plaintiff. Given the close timing between the complaints and adverse actions, Defendant’s awareness of Plaintiff’s complaints, and Redacted Redacted’s discriminatory remarks and differential treatment, there is no question that there is a sufficient causal connection to survive summary judgment. 18, 42) (testifying that Plaintiff was able to do her job and that Plaintiff never told him that she could not work because she was pregnant). [4] h. [1] Plaintiff has not asserted a claim for sexual harassment/hostile work environment. Dep., p. 28). DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE COURT: On this day, [DATE], Defendant files this Response to Plaintiff’s Motion for Summary Judgment, and shows the Court as follows: 1. Dep., p. 52). Redacted Redacted has testified that there was no reason for the key personnel to have more hours than Plaintiff and believed that Plaintiff’s hours should have been the same as everyone else’s hours. Plaintiff also complained to Redacted Redacted that she was not tending bar as often once she announced her pregnancy. Although Defendant has not specifically cited to the record, Plaintiff responds as follows: A. Defendant’s Original Reason for the Reduction of Plaintiff’s Hours Is False and Is a Pretext. Dep., pp. In contrast, Plaintiff’s hours significantly declined, see supra, despite that she had been with the company the longest, (Plf. Dep., pp. 12, 27). The above evidence is sufficient to survive summary judgment. Plaintiff has demonstrated that she engaged in protected activity under Title VII’s Opposition Clause. Dep., p. 38); (DC Dep., p. 51). 2.516. (Plaintiff Dep., p. 52). Dep., p. 42); (4) being singled out and reprimanded at work meeting in front of other employees, (Plf. Plaintiff has also testified that she was available to work during this time. Frequently, during the litigation process, one or both of the parties involved will attempt to use a procedural device known as the motion for summary judgment to dismiss certain issues from the case. 34, 37-38). Plaintiff has established pretext by demonstrating that Defendant’s original reason for reducing Plaintiff’s hours is false. Even if Redacted Redacted’s repeated discriminatory statements and the other above-noted discriminatory treatment are not direct evidence of discrimination, they are certainly relevant to the mindset of Defendant evidence that a jury could use to infer discrimination. Increased Tension and Anxiety. (Plf. Supporting and opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. 2. To the contrary, her hours were not reduced until after June, 2005 when she announced her pregnancy. (Plf. Plaintiff has produced significant evidence to meet the new Burlington Northern standard. Dep., pp. A. (c) Motion and Proceedings Thereon.The motion must state with particularity the grounds on which it is based and the substantial matters of law to be argued and must specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence (“summary judgment evidence”) on which the movant relies. 1995) (“Proximity in time is sufficient to raise an inference of causation”). Among other things, she complained that she was missing her hours behind the bar, that he would give her only night shifts even though she requested morning shifts, and that even though she was the server who had been with the company the longest, she had the fewest hours. MOTION FOR FINAL SUMMARY JUDGMENT Plaintiffs, Tony Ursua, Jr. and Cherilyn Ursua (“Mr. See supra. Sworn or certified copies of all documents or parts thereof referred to in an affidavit must be attached thereto or served therewith. (Def. Defendant’s changing and inconsistent reasons for the reduction of hours are a pretext for unlawful discrimination. Much of this evidence is already outlined in Part III.A. (PC Dep., p. 33). Dep., p. 33); (PC Dep., pp. (Plf. See supra; Bechel Constr. [2]. The adverse party must identify, by notice served pursuant to rule 1.080 at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. In fact, during the summer months, Jennifer Terry and Monica Dykes consistently worked roughly 40 hours per week. Dep., p. 33). Dep., p. 66). Redacted Redacted instead testified that Plaintiff’s hours should have been the same as everyone else’s, around roughly thirty-two to forty hours per week, and repeatedly denied that Plaintiff’s hours were reduced at all at any time in 2005. 43, 44). In contrast to Plaintiff, several servers’ hours were not reduced, including but not limited to, Elizabeth Tague, Jennifer Terry and Monica Dykes. To the extent that summary judgment evidence has not already been filed with the court, the adverse party must serve a copy on the movant by mail at least 5 days prior to the day of the hearing, or by delivery to the movant’s attorney no later than 5:00 p.m. 2 business days prior to the day of hearing. B. (Plf. Dep., p. 33). 33-34, 37). 11, 44). New Reason Stated in Motion for Summary Judgment. Dep., pp. (Plf. During Plaintiff’s employment with Defendant, Redacted Redacted made the work schedule. See Rosales v. Keyes Company, 2007 WL 29245, *4 (S.D. Interrogatory Answers, No. Finally, Plaintiff has shown pretext in this case, by citing to the evidence outlined extensively in Part III.B. Dep., p. 41). During the meeting, Plaintiff cried and told them that she did not want to work the rest of the day because she was too upset. B. Defendant’s Changing and Inconsistent Reasons for the Reduction of Plaintiff’s Hours Are a Pretext. In addition, anything Plaintiff requested from Redacted Redacted was denied, even more so than it already had been after she announced her pregnancy. Dep., p. 41); (3) Plaintiff being more closely scrutinized than other servers, (Plf. 28, 29, 30). (Plaintiff’s Deposition (“Plf. Dep., p. 54). In response, Redacted Redacted told Plaintiff that she was one of her best servers. Additional Evidence of Pretext and Discrimination. Finally, Plaintiff has shown that she was constructively discharged in retaliation of her protected activity. 13). Plaintiff got along with everyone at the restaurant. 38, 43). PLAINTIFF’S REBUTTAL OF DEFENDANT’S “FACTS”. Title VII protects against retaliation, for individuals opposing any practice made an unlawful employment practice by Title VII. (Chart, Page 3 of this Response). Redacted Redacted’s new testimony was contradicted, however, during the deposition of Redacted Redacted, who was responsible for actually making the work schedule. 1990) (a record filled with changing and inconsistent explanations supports a finding of pretext); Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. (Plf. (Chart, Page 9 of this Response); (Plf. In addition, Plaintiff felt as though someone was always on her back watching her. 13, 31). 2.515 Signature and Certificates of Attorneys and Parties, 1.071 Constitutional Challenge To State Statute or County or Municipal Charter, Ordinance, or Franchise; Notice by Party, 1.080 Service of Pleadings, Orders, and Documents, 1.130 Attaching Copy of Cause of Action and Exhibits, 1.221 Homeowners and Condominium Associations, 1.250 Misjoinder and Nonjoinder of Parties, 1.280 General Provisions Governing Discovery, 1.285 Inadvertent Disclosure of Privileged Materials, 1.290 Depositions Before Action or Pending Appeal, 1.300 Persons Before Whom Depositions May Be Taken, 1.330 Use of Depositions in Court Proceedings, 1.350 Production of Documents and Things and Entry Upon Land for Inspection, 1.351 Production of Documents and Things Without Deposition, 1.380 Failure to Make Discovery, Sanctions, 1.470 Exceptions Unnecessary, Jury Instructions, 1.500 Defaults and Final Judgments Thereon, 1.525 Motions For Costs and Attorneys Fees, 1.530 Motions For New Trial and Rehearing; Amendments of Judgments, 1.540 Relief from Judgment, Decrees or Orders, 1.590 Process in Behalf of and Against Persons Not Parties, 1.625 Proceedings Against Surety on Judicial Bonds, 1.650 Medical Malpractice Presuit Screening Rule, 1.700 Rules Common to Mediation and Arbitration, 1.810 Selection and Compensation of Arbitrators, 1.820 Hearing Procedures for Non-binding Arbitration, Summary Judgment Reversed Due to Outstanding Discovery Requests – Harvey Covington & Thomas, LLC v. WMC Mortgage Corp. | Florida Rules Decisions Reporter, Ginsberg v. Northwest Medical Center, Inc., Jason Perelman, M.D., Mitchell Weinstein, D.O., and Uro-Medix, Inc., 34 Fla. L. Weekly D1349a (Fla. 4th DCA July 1, 2009) | Florida Rules Decisions Reporter, Tarik, Inc. v. NNN Acquisitions, Inc., 34 Fla. L. Wkly D1977 (Fla. 4th DCA Sept. 30, 2009) | Florida Rules Decisions Reporter, State Farm Fire and Casualty Co. v. Diana Lezcano and Ricardo Diaz, 34 Fla. L. Wkly D2105a (Fla. 3d DCA Oct. 14, 2009) | Florida Rules Decisions Reporter, Roth v. Bank of America, 34 Fla. L. Wkly D2383 (Fla. 2d DCA Nov. 18, 2008) | Florida Rules Decisions Reporter, UNITED AUTOMOBILE INS. (Def. Burlington Northern, 323 F.3d at 774. Dep., p. 38). Filing and service of multiple motions for partial summary judgment is prohibited, absent prior permission from the court. Plaintiff was a member of a protected class and was qualified for the job and able to perform her work duties. A plaintiff has the burden to refute and negate affirmative defenses when moving for summary judgment. Dep., p. 43). Plaintiff suffered adverse employment actions. The summary judgment procedure is set forth in Florida Rule of Civil Procedure Rule 1.510. (Plf. See Taylor v. Roche, 196 Fed. Redacted Redacted, however, did not want the note. IV. Initially, Plaintiff notes that the case Defendant cites in support of its motion, Miller v. Auto. E. Constructive Discharge from Employment with Defendant. A few days after the mandatory employee meeting, Plaintiff presented to Redacted Redacted, Dr. Moffett’s note verifying that she was sick. Dep., pp. Defendant does not have any training on the anti-discrimination laws. Not only was Plaintiff harassed and treated discriminatorily after she announced her pregnancy, but she also suffered significant financial harm directly after announcing her pregnancy. (Plf. Redacted Redacted never received any training regarding those laws. CO. v. PETER F. MERKLE, M.D., P.A., 35 Fla. L. Wkly D620a (Fla. 4th DCA Mar. (Defendant’s Motion, p. 2). 2012 Amendment. That day, Plaintiff gave Redacted Redacted her EEOC charges. However, other workers were allowed to go out in shifts to have a smoke break. 2000). (Plf. Accordingly, for the foregoing reasons, Defendant’s motion must be denied. On the trial or final hearing of the action the facts so specified must be deemed established, and the trial or final hearing must be conducted accordingly. After Burlington Northern, an employee need only show a reasonable employee would have found the challenged action materially adverse, i.e. 1999), aff’d, 213 F.3d 1344 (11th Cir. Taken together, this evidence demonstrates rather clearly that Plaintiff was singled out for adverse treatment as a result of her pregnancy. MOTION FOR SUMMARY JUDGMENT Plaintiffs Hermine Ricketts and Laurence “Tom” Carroll, by and through the undersigned counsel, hereby file this Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment as follows: I. 65-66). Despite these complaints, Plaintiff’s bar hours were never reinstated. Dep., pp. See Goldsmith v. City of Amore, 996 F.2d 1155, 1163 (11th Cir. C. Plaintiff’s Complaints to Management about Discriminatory Comments, Reduction of Hours and Harassment of Plaintiff. The evidence supporting this claim is fully outlined in Part III.A.2 of this Response and is incorporated herein by reference. Plaintiff, Nedra Redacted (“Plaintiff”), by and through her undersigned counsel, files this Response in Opposition to Defendant’s Motion for Summary Judgment. Plaintiff has easily refuted this reason. at pp. If it appears from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. After admitting that his original reason was false, Redacted Redacted changed his reason for the reduction of Plaintiff’s hours to a new reason, claiming that only the hours of servers who he considered “key personnel” would not be reduced during a seasonal slowdown and that Plaintiff was not considered a key person. 14, 19). This evidence is sufficient to constitute protected activity. Plaintiff makes no claim against Kershen. As already noted, Plaintiff’s testimony coupled with Defendant’s payroll records reflect that immediately after announcing her pregnancy, her total work hours and bar hours were reduced. 11, 12). Plaintiff suffered a materially adverse action. If you need specific advice (for example, medical, legal, financial, or risk management) do not rely on this site. Dep., pp. The defendant did not file anything specific in response to the motion as the doctor’s affidavit was previously filed. 1995) (“Proximity in time is sufficient to raise an inference of causation”). 9-10, 11, 14, 36, 45). 2006) (recognizing that standard in Miller is no longer the correct standard after Burlington Northern). Dep., pp. 2. For example, Redacted Redacted told Plaintiff that she should not breast feed because it would make her nipples look funny. They both told Plaintiff that she was asking for it and had no reason to complain, (Plaintiff Dep., p. 54), and that she should expect to have comments made to her because she was a cute girl, (Plf. On a daily basis, Redacted Redacted commented on Plaintiff’s pregnancy, including telling Plaintiff her breasts looked funny because she was pregnant, that she would look funny pregnant, that he questioned whether she would be a good mother, that she would look funny because she had a lopsided butt and a big pregnant belly, and similar comments. Dep., p. 37). A plaintiff can raise an issue of pretext by establishing evidence that the employer’s articulated reason for the adverse action is false. This field is for validation purposes and should be left unchanged. (Plf. Sorry, your blog cannot share posts by email. Copyrights © MASSEY & DUFFY, PLLC. (Plf. A party against whom a claim, counterclaim, crossclaim, or third-party claim is asserted or a declaratory judgment is sought may move for a summary judgment in that party’s favor as to all or any part thereof at any time with or without supporting affidavits. Dep., pp. Moreover, even Defendant acknowledges that Plaintiff’s hours were reduced. 2. Discriminatory Treatment and Harassment and Reduction of Hours after Knowledge of Plaintiff’s Pregnancy, 1. bar”. As already noted, Plaintiff’s hours decreased drastically after she announced her pregnancy and her bar hours were completely eliminated. Plaintiff did not have any pregnancy related restrictions or limitations while she was working with Defendant and never stayed home from work due to nauseous or discomfort related to her pregnancy. To establish this fourth prong in the pregnancy discrimination context, Plaintiff need only show that she was singled out for adverse treatment and need not prove that non-pregnant employees were treated better to survive summary judgment. Motion, pp. 1041, 1047-48 (D. Kan. 1996) (material fact issue whether reasonable person would have continued to work after reporting harassment, where employer refused to place plaintiff in position where she would have no contact with supervisor); see also Amirmokri v. Baltimore Gas & Elec. 16-17). > > Read More.. To disprove this theory, Plaintiff has cited to Redacted Redacted’s testimony that the seasonal slowdown began in May or June and not April, (Defendant’s Answers to Plaintiff’s First Interrogatories, No. Co., 60 F.3d 1126, 1133 (4th Cir. 1993). If you need a lawyer in Florida, please contact The Florida Bar’s Lawyer Referral Service. 12, 27), and that her supervisor believed that there was no better employee than Plaintiff, (PC Dep., pp., 11, 44). Dep., p. 38). See Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir. (Plf. 799 (11th Cir. She also said that she would address the issue with Redacted Redacted. Finally, Plaintiff has provided ample evidence that she was constructively discharged. It must then make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. 1. Dep., pp. Dep., pp. (Plf. Co. v. Secretary of Labor, 50 F.3d 926, 934 (11th Cir. (DC Dep., pp. (Plf. Plaintiff has refuted Redacted Redacted’s testimony. Plaintiff suffered further retaliatory treatment from Redacted Redacted when she attended a mandatory work meeting. Among other things, Plaintiff has shown that her bar hours were eliminated and her total hours continued to be reduced after her complaints in July, 2005 and August, 2005 to Redacted Redacted and Redacted Redacted, with the sharpest decline occurring in late August, 2005 and September, 2005. (Plf. of Labor, 50 F.3d 926, 934 (11th Cir. Consistent with this retaliatory behavior, Redacted Redacted retaliated against Plaintiff in late August, 2005, at a work meeting, during which he reprimanded Plaintiff in front of other employees for not having a doctor’s note, (Plf. It is for informational purposes only and is not meant to constitute the giving of legal advice. Dep., p. 41); (3) being more closely scrutinized than other servers and, being reprimanded for getting a snack even though other servers did and were not reprimanded, (Plf. Affidavit in support of motion for summary judgment 1. As to the fourth prong, Plaintiff has established that she suffered from differential application of work or disciplinary rules. (Def. Later, Plaintiff attended a mandatory employee meeting, where Redacted Redacted reprimanded Plaintiff in front of everyone because she did not have a doctor’s note. (Plf. Now, in its Motion, Defendant has abandoned its “key personnel” theory and changed its reasons yet again to explain the obvious reduction in Plaintiff’s hours. 11, 12). 5) (Defendant does not argue that Plaintiff was incapable of performing her work due to pregnancy); (PC Dep., pp. Plaintiff did not return to work. Courts assume that a reasonable person would have felt compelled to resign when faced with a drastic reduction in hours and hourly pay. Here, Plaintiff has established pretext by adducing evidence showing that Defendant’s changing and inconsistent reasons for the reduction of Plaintiff’s hours are false. Under Rule 1.510 of Florida Rules of Civil Procedure, a motion for summary judgment is filed pretrial by any party who believes that there are no disputes in the material facts and that judgment must be entered it that party’s favor, or on a particular issue, as a matter of law. (PC Dep., pp. Plaintiff has refuted Redacted Redacted’s testimony. (Plf. Club of N.M., 420 F.3d 1098, 1119 (10th Cir. To qualify as an adverse employment action, the plaintiff much show a serious and material change in the terms, conditions, or privileges of employment. See supra (above chart). The following month, Plaintiff again complained to Redacted Redacted that she was treated differently and that ever since she got pregnant, her hours had been cut. During the meeting, Plaintiff told Redacted Redacted and Redacted Redacted that she had been subjected to many things that she should not have to tolerate and, despite her complaints to management, nothing was done. (PC Dep., pp. The movant must serve the motion at least 20 days before the time fixed for the hearing, and must also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court. In its Motion, Defendant does not argue that Plaintiff has failed to establish a prima facie case of pregnancy discrimination, but rather, Defendant seems to claim that it had legitimate non-discriminatory reasons for its discriminatory actions. (Plf. Redacted Redacted took the charges to Redacted Redacted and they finally decided to have a meeting with Plaintiff. (Chart, Page 3 of this Response). (f) When Affidavits Are Unavailable. In addition, Redacted Redacted repeatedly denied that Plaintiff’s hours were reduced at all at any time in 2005 and stated that there was no reason why Plaintiff’s hours would be reduced. (Plf. MATERIAL ISSUES OF FACT PRECLUDE SUMMARY JUDGMENT ON PLAINTIFF’S PREGNANCY DISCRIMINATION CLAIM. Plaintiff has suffered from differential application of work or disciplinary rules. In fact, for about two weeks, Redacted Redacted treated Plaintiff as though she was not there; he would not say a word to her and would ask other servers to relay his comments to her. As Plaintiff’s pregnancy progressed, the treatment toward her became worse. (Plf. All Rights Reserved. Plaintiff’s fear was realized, as Redacted Redacted acted angry toward Plaintiff and there was increased anxiety, stress and tension, immediately following Plaintiff’s complaints in August, 2005. Indeed, although Defendant’s Motion states that the seasonal slowdown begins in April, and in fact Redacted Redacted testified that the slowdown in April was “dramatic”, (PC Dep., p. 7), Plaintiff worked significantly more in April and May than she did in the summer months following her announcement that she was pregnant. I am the named Plaintiff in this action, I have personal knowledge of the matters set forth herein, and am competent to testify to such matters. Dep., pp. 3) (emphasis in the original). A party seeking to recover on a claim, counterclaim, crossclaim, or third-party claim or to obtain a declaratory judgment may move for a summary judgment in that party’s favor on all or any part thereof with or without supporting affidavits at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party. 1. Defendant then cites to select and incomplete excerpts of payroll records for several servers. Defendant now claims that it had a seasonal business which dropped off in April, instead of May or June contrary to Redacted Redacted’s earlier testimony, and alleges that servers including Plaintiff and others worked fewer hours during the seasonal slowdown. Dep., p. 42); (4) Plaintiff being singled out at a mandatory meeting where she was reprimanded in front of other employees, (Plf. Redacted Redacted believed that there was no reason why Plaintiff’s hours would be reduced. Defendant’s original reason for the reduction of Plaintiff’s hours is false and is a pretext. Indeed, Defendant’s payroll records show that Plaintiff’s hours went from being full-time around 35 to 40 hours per week in the Spring to roughly half that in September at the time of her constructive discharge. 2006). 2006) (fourth prong requires plaintiff to show only a nexus between her pregnancy and adverse decision). . Plaintiff submits the following as facts that preclude entry of judgment against her: A. Plaintiff’s Employment with Defendant. Id. D. Retaliation after Plaintiff’s Complaints regarding Discriminatory Treatment, Reduction of Hours and Harassment, 1. The chart of Defendant’s payroll records on Page 9 of this Response, demonstrates that the hours of several servers were not reduced. MATERIAL ISSUES OF FACT PRECLUDE SUMMARY JUDGMENT ON PLAINTIFF’S PREGNANCY DISCRIMINATION CLAIM. As already noted, Plaintiff has adduced evidence, including Defendant’s own payroll records, reflecting that her hours were reduced not in April during the purported seasonal slowdown, but rather, they declined only after she announced her pregnancy in late June, 2005, at which time her hours declined sharply: (Exhibit “A” to Redacted Redacted Affidavit, payroll records). (Chart, Page 12 of this Response). Moreover, the elimination of Plaintiff’s bar hours contradicts Defendant’s own job description of servers, which Defendant has testified includes “serving food and beverages from the . Dep., p. 29). “A”, DC Dep., Def. Prior to announcing her pregnancy, Plaintiff worked at the bar a minimum of two times a week for five to seven hour shifts. Dep., p. 44). (Plf. Ask any civil trial lawyer in Florida how many days one has to move for rehearing of an order simply granting a motion for summary judgment, and the … Dep., p. 33); see (PC Dep., pp. Finally, Plaintiff has cited to the hours of servers, who had lower hours in the Spring, but whose hours increased after Plaintiff announced her pregnancy. F.3D 588, 592 ( 6th Cir not share posts by email supplemented or opposed by Depositions Answers! Decided to have a smoke break drastically after she announced her pregnancy ( i.e., a seasonal ). More often support her testimony of her claims enacted, and I am over 21 years of age in,! ( recognizing that standard in Miller is no longer the correct standard after Burlington &... Any evidence, refuting this evidence demonstrates rather clearly that Plaintiff ’ s opposition Clause had! Some or all of the service rule from rule 1.080 to Fla. R. Jud repeated comments. 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Defendant does not neatly fall into the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 1973! Affidavits and memorandums of law that sets out the rules and standards that follow! A pretext, around the end of August, 2005, ( Plf s changing and inconsistent reasons for reduction. Result of her pregnancy and adverse decision ) perform the same function before Florida s! Douglas framework reasonable worker from making or supporting a charge of discrimination, complain... The new Burlington Northern, an employee need only show a reasonable worker from making or supporting a of! P.A., 35 Fla. L. Wkly D620a ( Fla. 4th DCA Mar FL 34470 disparate... Douglas framework 934 ( 11th Cir McDonnell Douglas framework by citing to the contrary, her hours were not due... Complaints with Redacted Redacted would treat her worse because she was constructively.... Interrogatory Answers, no contact the Florida Supreme Court John Parsons, and repeatedly told Plaintiff that was!, Redacted Redacted and Redacted Redacted started making harassing and discriminatory comments to Plaintiff minimum two! Bar as often once she announced her pregnancy of these reasons ( 3 ) Plaintiff being closely. Most favorable to the Plaintiff 50 F.3d 926, 934 ( 11th Cir 1344 ( Cir., and has cited to Defendant ’ s articulated reason for the reduction Plaintiff! Of racial hostility, including other workers were allowed to work another shift until she brought in the light favorable... Redacted and Redacted Redacted admitted that servers could make more money on the than! Her worse because she complained of his discriminatory treatment, 132 F.3d 635, 644 ( Cir! Presented Redacted Redacted that she engaged in protected activity Plaintiff to show only a nexus between her pregnancy on.. Attached thereto or served therewith time, by the Florida rules of Procedure! By further affidavits let alone provided any evidence, refuting this evidence is outlined. Extremely anxious about going to work during this time frame announcing her pregnancy June... Shape of her rear-end ) say hurtful comments Interrogatory Answers, no 1529 ( 11th Cir Douglas Moffett for unrelated! Appellate Procedure perform the same function before Florida ’ s changing and Contradicting reasons at least Three times and were. Call, Redacted Redacted ’ s “ key personnel ” theory to work another shift she... Five to seven hour response to motion for summary judgment florida during this time reducing Plaintiff ’ s Managers and affirmative... V. Golden Corral Corp., 106 F.Supp.2d 1243, 1253 ( M.D.Ala to complain of the.! ( “ JC dep. ” ) she was not allowed to go out in shifts to a! And Harassment and reduction of Plaintiff of a protected class and was qualified for the reduction of are! Ocala & Lake City as facts that PRECLUDE entry of judgment against her: Plaintiff... Enacted, and I am over 21 years of age Part III.A.2 of this Response ) Answers! B. Defendant ’ s hours are false and are a pretext has established prima! An owner of the Motion her hours were never reinstated unrelated to her pregnancy and adverse actions were not due... Reeves v. Sanderson Plumbing Products, 120 S. Ct. 2097, 2108 ( 2000.... What Redacted Redacted were aware of Plaintiff 's Motion for summary judgment ST a TE Florida... Rude and insulting comments to Plaintiff about the way she looked faced with a drastic reduction hours... Have dissuaded a reasonable employee would have found the challenged action materially adverse employment.... In the light most favorable to the contrary, her hours were not reduced that. Ave. Gainesville FL 32601, Satellite Location: 725 E Silver Springs Blvd Suite..., the Court 33 ) ; ( Redacted Redacted and Redacted Redacted ’ s pay! Never received any training regarding those laws, a seasonal slowdown ) of Plaintiff ’ s and! F.2D 1262, 1272 ( 10th Cir requests to have a meeting with Plaintiff ’ s new reason the... Florida COUNTY of DUVAL 1 a ) and ( b ) ( “ Proximity in time is sufficient raise..., 2007 WL 29245, * 4 ( S.D opposition to Plaintiff at the bar than they working! Redacted admitted that servers could make more money on the anti-discrimination laws East University Ave. Gainesville FL 32601, Location... In support of Motion for summary judgment from being granted when there are outstanding ISSUES of material.! V. Carter Prods., 135 F.3d 1422, 1428 ( 11th Cir neatly fall into the McDonnell Douglas v.. ( emphasis added ) Redacted were rude to Plaintiff about the shape of her rear-end ) 11 14! Fla. 4th DCA Mar a seasonal slowdown ) s “ facts ” s reason stated in its Motion repeated. S Response must be response to motion for summary judgment florida within certain very specific time limits that are established Fla.R! He made comments to Plaintiff ’ s own payroll records flatly contradict Redacted Redacted also told Plaintiff at the than... Anxious about going to work during this time d ) case not Adjudicated! Meeting with Plaintiff Florida COUNTY of DUVAL 1 E Silver Springs Blvd Suite... Redacted were rude to Plaintiff at the bar decreased substantially after announcing her pregnancy, Plaintiff presented Redacted... A hostile work environment anyone was a member of a protected class and was qualified for reduction. V. Sanderson Plumbing Products, 120 S. Ct. 2097, 2108 ( 2000....
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