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holding supervisor's alleged comments, including telling Hispanic social worker not to help plan African-American coworker's party and to "let the black ones do it," and comment that supervisor did not want to sit next to "that black woman" insufficiently severe or pervasive
Summary of this case from Hutchinson v. Auburn Univ.Opinion
CASE NO. 00-0890-CIV-JORDAN
September 3, 2002
ORDER GRANTING SUMMARY JUDGMENT
Rosie Isaac sues her employer, the School Board of Miami-Dade County, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Federal jurisdiction exists pursuant to 28 U.S.C. § 1331.
The School Board has filed a motion for summary judgment. As explained below, Ms. Isaac has not presented sufficient evidence that the School Board's actions rise to the "threshold level of substantiality" necessary to assert a Title VII discrimination claim. See Wideman v. Wal-Mart Stores, 141 F.3d 1453, 1456 (11th Cir. 1998). Accordingly, the School Board's motion for summary judgment [D.E. 38] is GRANTED.
I. SUMMARY JUDGMENT STANDARD
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A material fact is one that might affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where the non-moving party fails to prove an essential clement of its case for which it has the burden of proof at trial, summary judgment is warranted. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hilburn v. Murata Elecs. North Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). Thus, the task is to determine whether, considering the evidence in the light most favorable to Ms. Isaac, the non-moving party, there is evidence on which the trier of fact could reasonably find a verdict in her favor. See Liberty Lobby, 477 U.S. at 251; Hilburn. 181 F.3d at 1225; Allen v. Tyson Foods, Inc., The 121 F.3d 642, 646 (11th Cir. 1997).
II. RELEVANT FACTS AND ALLEGATIONS
Ms. Isaac, an African American woman, worked for the Dade County public schools as a social worker for approximately 13 years. See Deposition of Rosie Isaac at 10, 11 [DE. 36, 37]. She became the school social work Chairperson (Chair) in the Exceptional Student Education/Student Services (ESE) department for Region I in 1991 and retired from that position on June 30, 2000. See Id. at 13-14. Region I is composed of 34 elementary schools, 9 middle schools, and 5 senior high schools. See Deposition of Olga Miyar at 1 [D.E. 68]. There are four departments in the ESE department in Region I — the school psychologists, the speech pathologists, the staffing specialists, and the social workers — and a department Chair for each group. See Affidavit of Randy Berry at 4 [D.E. 57]. The department Chairs held meetings on a monthly basis, unless there were calendar conflicts. See Berry Affidavit at 2. The Chair of the school psychologists, Randy Berry, was assigned to keep the minutes of the Chair meetings during the 1999-2000 school year. See Id.
Ms. Isaac's complaint states that she was employed by the School Board for "approximately twenty years," though her deposition clearly states that she began work with the school system in 1989.
Ms. Isaac's deposition has been filed as docket entry numbers 36 and 37, but is paginated as one document.
Each Chair is responsible for getting their group together and organizing the schedules for the different staff members. See Miyar Deposition at 14. The Chair also holds monthly meetings or bimonthly meetings with their group. See id. The group members bring any concerns they have to the Chair, who then reports those concerns to his or her supervisor. See id. The Chair is a coordinator of services for the department, and in the social work department, oversees the transfers department, meets with parents as they come in, and acts as the liaison between the group and the district social worker Director. See Miyar Deposition at 25. The Chair also prepares statistical and monthly reports and develops and discusses the schedules with the Director. See Berry Affidavit at 3. The Chair has no authority to hire, fire, evaluate, or discipline any member of the department. See id. at 1.
The submitted deposition has two consecutive pages marked 25, though the text indicates that they are not consecutive. This refers to the second page 25.
Ms. Miyar, a Hispanic woman who has been with the school board since 1968, was assigned in July of 1997 to be the Director of the Exceptional Student Education/Student Services (ESE) at the Region I offices, and to supervise Ms. Isaac and all other school social workers and department Chairs in Region 1. See Affidavit of Olga Miyar at 1 [D.E. 42]. On August 20, 1999, Ms. Isaac filed a claim of race discrimination with the Equal Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations, alleging that Ms. Miyar had discriminated against non Hispanic chairpersons and other staff, and specifically, had discriminated against Ms. Isaac, the only black chairperson. See Defendant's Exh. B [D.E. 37]. Ms. Isaac did not file a discrimination complaint with the school district's Office of Equal Employment and Opportunity. See Isaac Deposition at 180. Ms. Isaac's EEOC complaint states that the earliest discrimination she experienced was on March 19, 1999, and that it continued up until August 18, 1999. Ms. Isaac received a right to sue letter from the EEOC on December 7, 1999.
A. ALLEGATIONS OF RACE DISCRIMINATION
At some point after Ms. Miyar became Ms. Isaac's supervisor, Ms. Isaac told Hector Abad, a Hispanic male and one of the Region I social workers, that she expected him to provide some material for a presentation at an upcoming meeting by a specific deadline. See Isaac Deposition at 115. According to Ms. Isaac, Mr. Abad told her, "you can expect what you want but you won't get it." Id. Mr. Abad has admitted he was angry at being asked to do the assignment because he felt overwhelmed by his caseload and told Ms.Isaac, "you can write my name down but you won't get any cases." See Affidavit of Hector Abad at 3 [D.E. 58]. For purposes of the summary judgment motion, I will assume that the statement at issue took place within the time period alleged in Ms. Isaac's EEOC complaint. Ms. Isaac believed that Mr. Abad's statement was insubordinate. See Id. at 114-15. Ms. Miyar held a meeting with Ms. Isaac and Mr. Abad, and subsequently Mr. Abad apologized at an ESE staff meeting for his unprofessional behavior. See Abad Affidavit at 3. Ms. Miyar also reprimanded Mr. Abad verbally, and he promised Ms. Miyar that it would not happen again. See Id. Mr. Abad also created issues for Ms. Isaac before Ms. Miyar came to Region I. See Isaac Deposition at 28. For example, he had, on occasion, told the social workers not to do something that Ms. Isaac had told them to do. See id. at 29.
Throughout this record, Ms. Isaac was consistently unable to give dates or even years for various incidents, making it a difficult task to determine what events were to be considered relevant to her EEOC complaint. The handwritten notes attached as Defendants' Exh. C [D.E. 37] seem to indicate that this occurred sometime in 1999, though the full dates are cut off at the margins and these notes were prepared after Ms. Isaac retained her attorney, Ms. Holland. See Isaac Deposition at 199.
Ms. Isaac, however, felt that things changed when Ms. Miyar came on board. See Id. at 31. According to Ms. Isaac, Ms. Miyar sought to diminish Ms. Isaac's role and authority as school social work Chair and to exclude her from the process of interviewing and making recommendations for the hiring of school social workers. See Id. at 72-78. Ms. Isaac also claims that Ms. Miyar was soliciting complaints about her in order to undermine her authority. See Id. at 172-173. An example of this, according to Ms. Isaac, is when Ms. Miyar asked the social workers and the secretaries to "write down what you think is wrong with the department and let me know." See Id. at 31. See also Miyar Deposition at 28. This occurred around the time Ms. Miyar began working at Region I. See id. Ms. Miyar also asked parents to put their complaints in writing when they were unhappy with the results of transfer requests or address verifications handled by Ms. Isaac. See Id. at 173. Ms. Miyar, without exception, asked everyone who had a complaint about a staff member to put the complaint in writing. See Miyar Deposition at 102. According to Ms. Miyar, the contract with the teachers provided that only written complaints could be processed, and she had also learned that when people were asked to put the complaints in writing they did not always pursue their complaint. See Miyar Deposition at 102.
Ms. Isaac was also part of a committee that interviewed social worker applicants. See Id. at 71. When a new social worker, Elizabeth Diaz, was introduced to Ms. Isaac, however, she had already been hired without Ms. Isaac's involvement. See id. Ms. Isaac did not know if the committee interviewed Ms. Diaz, nor was she ever told that Ms. Diaz had been selected prior to being introduced to her. See id. At the monthly Chair's meeting, however, on September 29, 1999, Ms. Miyar announced that Ms. Diaz was to replace a social worker that was transferring out of Region I. See Berry Affidavit at 2. The minutes for the September 29, 1999, meeting indicated that Ms. Isaac was absent. See Id. The minutes from the prior meeting on September 1, 1999, indicated that the next meeting was scheduled for September 29, 1999. See Supplemental Miyar Affidavit at 5 [D.E. 56]. An announcement was made at the October 13, 1999, meeting that two new social workers were joining the department and their start dates were announced. See Berry Affidavit at 2. When Ms. Miyar was interviewing for the two social worker positions, she told an applicant that, if hired, she would report to Ms. Miyar and not to Ms. Isaac. See Issacs Deposition at 175.
Ms. Isaac's testimony is particularly confusing on this issue. Ms. Isaac testified that she never interviewed Ms. Diaz, but then went on to state that she interviewed and helped to select three finalists, and that Delio Diaz told her that the position was going to be filled by either Ms. Diaz or someone else, and that he would let Ms. Isaac know who was selected. Then Ms. Diaz was introduced as the new social worker to Ms. Isaac, though Ms. Isaac was never told beforehand that Ms. Diaz had been selected. See Isaac Deposition at 72. Ms. Isaac then testified about another individual, Isabel Rodriguez, who was interviewed and hired. It appears that Ms. Isaac was involved with interviewing somebody, but it is unclear whether it was Ms. Diaz or Ms. Rodriguez. When Ms. Isaac was asked at her deposition if Ms. Diaz was one of the three finalists, Ms. Isaac said that she was not and that Ms. Rodriguez was one of the finalists. See Id. at 73. Ms. Isaac goes on to state that Ms. Rodriguez was introduced to her as the new social worker, and that she was never told that Ms. Rodriguez was selected. See Id. In any event, a selection was to be made between two female finalists, and Mr. Diaz was to make the final selection. See id. 73, 163.
The social workers submitted a monthly summary of the number of cases they completed each month to Ms. Isaac. See Affidavit of Reinaldo Palacios at 1, 2 [D.E. 61]. Statistical reports were then prepared by Ms. Isaac and distributed at the end of each year. See Id. Ms. Miyar asked Ms. Isaac to begin submitting these accountability reports for the social workers on a monthly basis, but Ms. Isaac submitted very few reports and these were submitted late or not in the correct format. See Supplemental Miyar Affidavit at 3. Ms. Miyar did not discipline Ms. Isaac for this because Ms. Isaac announced that she was retiring at the end of the year. See id.
The minutes attached to Mr. Berry's affidavit indicate the following. The minutes of October 13, 1999, indicate that school social worker statistics had not yet been submitted for the previous school year or the summer session. Mr. Berry's affidavit indicates that he had submitted his as requested by Ms. Miyar. The minutes of the November 3, 1999, meeting indicate that Ms. Isaac had not submitted the accountability form requested at the October 13, 1999, meeting. The minutes of the January 12, 2000, meeting indicate that Ms. Isaac had submitted the monthly report by school and not by social worker as requested. She was to resubmit the report as requested. The minutes of the February 11, 2000, meeting indicate that no monthly report had yet been submitted by Ms. Isaac, but Mr. Berry's had been submitted. The minutes of the March 15, 2000, meeting indicate that both Mr. Berry and Gale Kofsky had submitted their monthly reports but Ms. Isaacs had not.
Some of the social workers were unhappy with the distribution of the case load in the department. See Berry Affidavit at 4 [D.E. 57]. Specifically, individual social workers had complained about the inequity of the caseload assignment for several years, even prior to Ms. Miyar being assigned to the Region I office. See Id. According to one social worker in the department, the work load was inequitable because the Hispanic schools needed to have Hispanic caseworkers assigned to them, due to language issues. See Deposition of Isabel Bartol at 28-31 [D.E. 76]. Because the need for social workers and other kinds of student support like psychologists or other placement specialists was "heavier" at a lot of the Hispanic schools than at the "predominantly black schools," the Hispanic social workers often had a heavier workload. See Id. Ms. Miyar asked Ms. Isaac to make adjustments in the social workers' assignments to balance out the workload, but Ms. Isaac did not do so. See Supplemental Miyar Affidavit at 3, 4.
According to Ms. Isaac, in the fall of 1999, some individuals who had previously reported to her, particularly a group of Hispanic social workers — Georgette Martinez, Reinaldo Palacios, Hector Abad and Annette Vitier — began reporting directly to Ms. Miyar. See Isaac Deposition at 88-90, 122-23. Elizabeth Diaz, Isabel Barteaux, and Julio Castellanos continued to report to Ms. Isaac. See Id. at 122-23. Mr. Abad and Reinaldo Palacios reported to Ms. Miyar only after unsuccessfully attempting to have their concerns about what they perceived as their inequitable caseload addressed by Ms. Isaac. See Affidavits of Hector Abad at 3, 4 [D.E. 58]; Reinaldo Palacios at 3 [D.E. 61]. They did not by-pass Ms. Isaac on day-to-day matters. See Id. Also around the fall of 1999, Ms. Miyar revised the social workers' schedules from a previous schedule submitted by Ms. Isaac. See Id. at 136. Ms. Isaac's understanding was that Ms. Miyar and some of the Hispanic social workers went to lunch and came up with the revised schedule. See Id. at 83. Ms. Isaac received the revised schedule at the same time that the other social workers received it, and she felt humiliated by this. See Id. Another incident occurred when a Hispanic social worker, Georgette Martinez, told Ms. Isaac that she would not do an assignment Ms. Isaac asked her to do because she said that another social worker, Sagine Mompremier (who is black), did not do as much work. See Id. at 117, 118. Ms. Isaac did not remember when this happened but thought that it was before the incident with Mr. Abad. See Id. at 117.
Ms. Isaac believed that she was in charge of the department with no authority to get the job done. See id. at 119. She further believed that Ms. Miyar was harsh when she addressed Ms.Isaac' about a typographical error in a schedule that was to be submitted at a principal's meeting. See Id. at 177. Ms. Miyar had asked Ms. Isaac to make sure the social workers' reports had no spelling, typographical or grammatical errors, but the reports continued to have errors. See Supplemental Miyar Affidavit at 4.
The minutes from the March 15, 2000, Chairs' meeting, attached to Mr. Berry's affidavit, indicate that accuracy and professionalism continued to be lacking in some of the Region I reports and that proofreading was to be done by Ms. Isaac and Mr. Berry, as discussed and agreed at the September meeting.
There was also an incident in which Ms. Miyar allegedly told Isabel Bartol, a Hispanic social worker, not to participate in the planning of Ms. Isaac's retirement party and to "let the black ones do it." See Id. at 78. Ms. Bartol testified that Ms. Miyar did not say that, but said "maybe it should be one of her friends" planning her retirement party. See Bartol Deposition at 42. According to Ivonne Rafuls, Ms. Isaac's secretary, Ms. Miyar also stated at a luncheon that she did not want to sit next to "that black woman," referring to Shelly Finklin, another secretary. See Deposition of Ivonne Rafuls at 22 [D.E. 68]. Ms. Rafuls did not recall when this happened or in what school year. See Id. On May 18, 2000, Ms. Miyar wrote a memorandum to the personnel file of Ms. Finklin as a result of disrespectful conduct toward Ms. Miyar. See Supplemental Miyar Affidavit at 5.
Ms. Miyar issued a memorandum to Ms. Isaac regarding her failure to follow the proper procedure established by her collective bargaining agreement in reporting her absence from work due to illness on February 24, 2000, and on February 25, 2000. See Second Supplemental Affidavit of Olga Miyar at 1, 2 (D.E. 653. Ms. Isaac did not contact the school during the first day of her absence, although she did speak with a secretary and another social worker on the second day of her absence. She did not, however, directly notify the supervising administrator or designee as stipulated in the contract between the Miami-Dade County Public Schools and the United Teachers of Dade, Article XIV, Section 2A. See Id., Exh. B. Ms. Isaac stated that she had a sore throat which made it hurt for her to talk, and she had no one to call in for her. See id. Ms. Isaac alleges that being disciplined over this, when compared to the lack of discipline for Mr. Abad's insubordination, is evidence of Ms. Miyar's preference for Hispanics over African Americans. See Id. at 124. Ms. Isaac was also absent previously for five days to attend her son's funeral. See id. Ms Miyar did not give Ms. Isaac any problem at that time. See id. at 125.
Ms. Isaac contends that Ms. Miyar falsely accused Ms. Isaac of violating sick leave policies by not calling in a five day absence, even though she "was aware that [Ms. Isaac] had intended to be absent for the funeral of her murdered son, who had just been murdered." See Response to Motion for Summary Judgment at 3, 4 [D.E. 54]. The record, however, clearly indicates that Ms. Isaac was written up for violating a sick leave policy in February of 2000, and her son was murdered in 1998. Ms. Isaac's testimony was that Ms. Miyar did not give her any problems about being absent for her son's funeral.
Ms. Miyar also convened a retirement committee meeting without notifying Ms. Isaac that the date for the meeting had been rescheduled. See Id. at 150. Ms. Isaac saw the members of the committee going in for the meeting, but did not attend. See Id. at 151. Ms. Miyar also met with at least two of the four ESE chairpersons to plan activities for ESE week — an event where parents are invited and students are given awards. See Id. at 152, 158. Ms. Isaac was not in attendance at this meeting and this created problems for her later by creating confusion. See Id. at 152. Ms. Isaac did not attend the ESE week activities. See Id. at 159.
Ms. Isaac met with Mr. Deho Diaz, the regional superintendent at Region I from July of 1997 to April of 2000, and discussed her concerns about the way that Ms. Miyar was running her department. See Id. at 43. Mr. Diaz told Ms. Isaac that he knew that Ms. Miyar was difficult to get along with and that Ms. Isaac could find a way to get along with her. See Id.
Ms. Miyar agreed that the staff was divided along ethnic lines. See Miyar Deposition at 122.
B. ALLEGATIONS OF RETALIATION
Ms. Isaac has not set out the elements of her retaliation claim in her second amended complaint, but merely re-alleges everything in paragraphs 1-25 of the complaint and declares that these actions were intentionally committed because of the "plaintiffs complaint's (sic) concerning her discriminatory treatment by defendant..." Ms. Isaac's testimony in her deposition, however, and her response to the motion for summary judgment, detail allegations that took place both before and after her initial complaint was filed with the EEOC. However, Ms. Isaac could not recall specific dates for various incidents. Accordingly, I will utilize the allegations in the EEOC complaint filed on December 17, 1999, as a basis to determine what to include in Ms. Isaac's retaliation count.
On December 17, 1999, Ms. Isaac filed a claim of retaliation with the EEOC alleging that after she filed the original EEOC complaint, she was subjected to more flagrant disparate treatment, including being openly humiliated in staff meetings, having her authority with her subordinates challenged and undermined, being excluded from meetings and important decision making, and not being supported by Ms. Miyar in her efforts to effectively perform her job. See EEOC Complaint at Defendant's Exh. D [D.E. 37]. She further alleged that Mr. Diaz openly refused to speak to her or greet her in response to her greeting him, and that her employer engaged in intentional conduct to isolate and degrade her even among those she supervised. See Id.
As an example of being openly humiliated in staff meetings, Ms. Isaac says that when she was at a meeting with the other chairpersons and Ms. Miyar to discuss the schedule that had been prepared for the social workers, Ms. Miyar said "Virginia gave me her schedule before she left, and Randy — you got yours, or you have yours, and I did yours Rosie." See Id. at 83. Another example that Ms. Isaac cites to is that Ivonne Rafuls, Ms. Isaac's secretary, applied for and took another job at a different school on a Wednesday and Ms. Miyar told her she could start the new job on that Friday. See Id. at 82. On the Thursday before Ms. Rafuls left, Ms. Miyar asked her to do something for her, and this left no time for Ms. Rafuls to do anything for the transfer department, i.e., Ms. Isaac's department. See Id. at 82. This left Ms. Isaac without secretarial assistance and she felt humiliated by the situation. See Id. at 81, 82. Ms. Rafuls sought the job of her own volition and she understood that the principal of the new school needed someone right away. See Rafuls Deposition at 41-42. A replacement was hired by the middle of the next month, see Second Supplemental Miyar Affidavit at 4, and six secretaries at the office were available to assist where needed. See Affidavit of Vilma Gonzalez at 2 [D.E. 62].
At another staff meeting, Hector Abad, Rey Palacios and Annette Vitier started questioning Ms. Isaac about a parent that they had spent a lot of time dealing with. See Isaac Deposition at 139. They wanted to know what they should say to the principal when asked certain questions. See Id. at 140. The three social workers continue questioning Ms. Isaac and she felt it was "like a little attack." See Id. Ms. Miyar sat there and did not back up what Ms. Isaac was telling them. See Id. Ms. Isaac thought that this took place in April or May of 2000. See Id. at 142.
At another staff meeting, the schedule of Ben Hooks, a black social worker, came up. See Id. at 144. Previously, because the Hispanic social workers were unhappy with the distribution of the case load, a new process had been devised to schedule the social workers' summer weeks. Ms. Isaac had, however, scheduled Mr. Hooks to work the first two weeks of the summer, a popular slot among the social workers, and Georgette Martinez, another social worker, wanted to know why he had been scheduled for those two weeks and why he hadn't participated in the new process that had been agreed upon by the department. See Id. Ms. Martinez did not think that it was right to have Mr. Hooks scheduled that way, and said that some of the other social workers wanted that slot and should have had the opportunity to get it. See Id. at 145. Ms. Isaac explained that in previous years they had often selected someone for those first two weeks, and that this had happened even after they had created the new scheduling committee. See Id. Ms. Isaac went on to explain that she had already submitted the schedule with Mr. Hooks name on it to Mr. Ferrer, the school superintendent. See Id. Ms. Miyar told Ms. Isaac that "some of the social workers went to Mr. Ferrer about this." See Id. at 146. This shocked Ms. Isaac, and in her view encouraged a rift between Hispanic and non-Hispanic social workers, because she felt that if there had been a problem with the schedule, she should have heard about it directly from Ms. Miyar or Mr. Ferrer before this staff meeting. See Id. at 146. Ms. Isaac believed that this encouraged open hostility and insubordination. See Id.
In Ms. Isaac's statement of disputed facts (in her response to the summary judgment motion), she states that she scheduled Mr. Hooks to take his vacation during the first two weeks of the summer vacation, but at her deposition she stated that she scheduled Mr. Hooks to work the first two weeks of summer vacation and explained that she scheduled Mr. Hooks because she thought he would be very helpful in the office those first two weeks of summer.
Mr. Diaz, the regional superintendent at Region I from July of 1997 to April of 2000, failed to acknowledge Ms. Isaac one morning while he was speaking with two other people. See Isaac Deposition at 53. Mr. Diaz stated that he does not recall an incident of failing to greet Ms. Isaac, but stated that if it occurred it was not intentional and if he did not respond to her greeting it was because he did not hear it. See Affidavit of Delio Diaz at 1, 2 [D.E. 60].
III. TITLE VII DISCRIMINATION A. RACE DISCRIMINATION
In Count I, Ms. Isaac alleges she was subjected to racial discrimination in violation of 42 U.S.C. § 2000e, et seq. She contends that the School Board treated her differently than other similarly situated social workers and department chairpersons.
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating on the basis of an individual's race color religion, sex, or national origin. See 42 U.S.C. § 2000e-2 (a). Title VII further provides that it shall be an unlawful employment practice for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Id.
The presentation of proof required to establish a Title VII disparate treatment claim was set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under McDonnell Douglas, the plaintiff has the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. See Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11th Cir. 1994). A plaintiff may establish a prima facie case of discrimination by demonstrating: (1) that she is qualified; (2) that she suffered an adverse employment action; and (3) that she was subjected to differential treatment. See Wright v. Southland Corp., 187 F.3d 1287, 1291 (11th Cir. 1999). Once a prima facie case has been established, a presumption of discriminatory intent on the part of the employer arises. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). An employer rebuts this inference of discriminatory intent by producing a legitimate, nondiscriminatory reason for the employment action. See Coutu v. Martin County Bd. of Comm'rs, 47 F.3d 1068, 1073 (11th Cir. 1995). The employer's burden at this stage is only one of production and is "exceedingly light." Turnes, 36 F.3d at 1061 (quoting Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994) (internal quotation marks omitted)). The ultimate burden of persuading the trier of fact that the employer engaged in intentional discrimination remains with the plaintiff throughout the case. See Hicks, 509 U.S. at 507. Once a defendant rebuts the presumption of discrimination, the plaintiff must come forth with evidence, including the previously produced evidence establishing a prima facie case, sufficient to permit a reasonable fact-finder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). Ms. Isaac can establish pretext by showing either that the legitimate, nondiscriminatory reason is not to be believed, or that, in light of all the evidence, discriminatory reasons more likely motivated the decision than the proffered reasons. See Id. (citing Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996)). At that stage, I would determine whether Ms. Isaac has shown "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could find them unworthy of credence." Combs, 106 F.3d at 1539.
Ms. Isaac, however, has failed to make out a prima facie case of racial discrimination. The Eleventh Circuit has cautioned that "not everything that makes an employee unhappy is an actionable adverse employment action.'" Doe v. DeKalb County Sch. Dist., 145 F.3d 1441, 1449 (11th Cir. 1998) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)). Generally, an employment action must be materially adverse to be actionable. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (citations omitted); Ribando v. United Airlines, Inc., 200 F.3d 507, 510 (7th Cir. 1999) (holding that an adverse action must be "materially" adverse, involving more than "mere inconvenience or alteration of job responsibilities"); DeKalb County Sch. Dist., 145 F.3d at 1453 (finding that adversity must be material, and that de minimus inconvenience or alteration of responsibilities is insufficient). This is not to say that an action must be an "ultimate employment decision, " i.e., a termination or demotion, to be actionable as an adverse employment action. To the contrary, the Eleventh Circuit has noted that Title VII's protection "extends to adverse actions which fall short of legitimate employment decisions." Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998). When evaluating whether employment decisions meet the substantiality requirement and therefore constitute "ultimate" employment decisions, courts must recognize that "`Title VII is neither a general civility code, nor a statute making actionable the ordinary tribulations of the workplace.'" Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000) (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999)) (internal quotation marks omitted). Rather, the operative inquiry is whether the employee has shown "a serious and material change in the terms, conditions, and privileges of employment." Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis original). The inquiry is framed by an objective viewpoint — whether a reasonable person in the circumstances would view the employment action as materially adverse. See id. See also Hawkins v. Pepsico, Inc., 203 F.3d 274-282 (4th Cir. 2000) ("Law does not blindly ascribe to race all personal conflicts between individuals of different races. To do so would turn the workplace into a litigious cauldron of racial suspicion").
Ms. Isaac alleges that the School Board discriminated against her because her supervisor, Ms. Miyar, discriminated against her and other non-Hispanic staff. Specifically, Ms. Isaac claims she was discriminated against in the following ways: certain social workers did not acknowledge her authority and began to report directly to Ms. Miyar, Ms. Miyar pitted Hispanic staff against non-Hispanic staff, and created conflict amongst the staff, particularly Hispanics against non-Hispanics, Ms. Miyar assigned duties to Ms. Isaac that were Ms. Miyar's responsibility and allowed Hispanic staff to be openly insubordinate to Ms. Isaac, Ms. Miyar took away responsibility such as the preparation of scheduling and recommendation and hiring decisions, and demonstrated negative behavior to non Hispanic social workers, particularly black social workers. Ms. Isaac also claims that she reported this treatment to Mr. Diaz but no significant action was taken to address her complaints.
The School Board contends that Ms. Isaac has not actually suffered an alteration in the terms and conditions of her employment. I agree. Under controlling Eleventh Circuit precedent, the allegations can be considered collectively to determine whether or not they constitute prohibited discrimination. See Wideman, 141 F.3d at 1456. But Ms. Isaac's allegations, even when considered collectively, do not rise to the required level of substantiality. No significant change in her employment status, such as hiring, firing, failure to promote, reassignment with significantly different responsibilities, or any other significant change in Ms. Isaac's benefits occurred. See Davis, 245 F.3d at 1239.
Ms. Isaac further claims that Ms. Miyar solicited complaints about her, but nothing in the record shows this to be the case. Ms. Miyar asked the social workers and the secretaries when she first came to Region I in 1997 to "write down what you think is wrong with the department and let me know." As an initial matter, under Title VII, a claimant must file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment action, or if the claimant has already filed the charge with a state or local equal employment agency, within 300 days of the alleged discriminatory action. 42 U.S.C. § 2000e-5 (e) (1991); Dudley v. Metro-Dade County, 989 F. Supp. 1192, 1198 (S.D. Fla. 1997). Thus, because Ms. Isaac filed her initial complaint with the EEOC and the Florida Commission on Human Relations on August 20, 1999, only events that happened after October 27, 1998, are relevant to Ms. Isaac' complaint. Whether Ms. Miyar was soliciting complaints about Ms. Isaac back in 1997 when she asked for input from the department staff— and it does not appear to be anything other than an effort on Ms. Miyar's part to understand the issues in her new job — it happened long before the relevant time period.
Ms. Miyar also allegedly solicited complaints from parents, presumably within the relevant time period. Ms. Miyar testified that she asked that all complaints, without exception, be put in writing. But even taking this in the light most favorable to Ms. Isaac, and assuming that Ms. Miyar only asked for complaints about Ms. Isaac, nothing in the record shows that this resulted in any adverse employment action, i.e. a significant change in Ms. Isaac's responsibilities or compensation.
Ms. Isaac also claims that Ms. Miyar assigned to her duties that were Ms. Miyar's responsibilities. Specifically, Ms. Miyar told parents to take their transfer appeals back to Ms. Isaac, even though Ms. Miyar was supposed to deal with transfer request appeals. See Isaac Deposition at 181-82. But Title VII does not prohibit an employer from interpreting its rules as it chooses, or "to make determinations as it sees fit under those rules." Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984). Ms. Miyar's asking Ms. Isaac to meet with parents whose requests she had already turned down does not rise to the level of a substantial and material adverse employment action. "Title VII addresses discrimination," see id. (quoting Ferguson v. Veterans Administration, 723 F.2d 871, 872 (11th Cir. 1984)), and "federal courts "do not sit as a super-personnel department that reexamines an entity's business decisions." Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991).
Ms. Isaac assents that she was unaware before the hiring decision was made that a social worker had been chosen to join the staff, and that Ms. Miyar diminished her authority and responsibilities and caused her inconvenience by revising the schedule Ms. Isaac submitted. This claim is meritless. First, it is undisputed that Ms. Isaac's job responsibilities never included making any final hiring decisions — that selection was done by Mr. Diaz. Second, there is evidence in the record that the schedule, though made up by the Chair of the department, always went to the Director for approval and changes. See Deposition of Isabel Bartol at 7, 8 [D.E. 76]. And though Ms. Isaac felt that if the schedule she made up was not going to be used, she should not have had to take the time to prepare it, see Isaac Deposition at 91, such incidents do not rise to the threshold level of a substantial and material adverse employment action. Ms. Isaac's subjective view of the situation is not controlling. See Graham v. State Farm Mutual Insurance Co., 193 F.3d 1274, 1284 (11th Cir. 1999) ("Plaintiffs subjective feelings about [the defendant's] actions, whatever they may have been, are not determinative"). Otherwise, every dissatisfied employee with slightly diminished responsibility would be able to bring Title VII claims against their employers, which was clearly not the purpose of the statute. See Davis, 245 F.3d at 1239 ("[T]he employee's subjective view of the significance and adversity of the employer's action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances"). See also Halloway v. Milwaukee County, 180 F.3d 820, 826 (7th Cir. 1999) (holding that the plaintiff failed to establish an adverse employment action from the alleged failure to provide adequate support staff where the alleged failure was no "more disruptive than a mere inconvenience").
Once again, Ms. Isaac's testimony is conflicting. First she testified that Mr. Diaz was going to select the new social worker. See Isaac Deposition at 72. Then she testified that she was told that Ms. Miyar was to make the selection but she really did not know. See id. at 76.
Ms. Isaac says that Ms. Miyar made known her intention to create more job opportunities for Hispanics. See Response to Summary Judgment Motion at 2. Nothing in the record supports this conclusion. She also contends that Ms. Miyar has never hired a black or non-Hispanic social worker at Region I. Whether or not this is true, Ms. Isaac did not include a claim of discriminatory hiring practices in her EEOC complaint. She therefore cannot now complain of such practices. See Evans v. US. Pipe Foundry Co., 696 F.2d 925, 929 (11th Cir. 1983) ("The judicial complaint is limited to the scope of the administrative investigation which could reasonably be expected to grow out of the charge of discrimination). See also Plaisance v. Travelers Inx. Co., 880 F. supp. 798, 806-807 (N.D. Ga.) (unless claims asserted in a judicial complaint are "reasonably related" to allegations set forth in the charge of discrimination, the district court is precluded from hearing those claims), aff'd, 56 F.3d 1391 (11th Cir. 1994).
Ms. Isaac cites to Ms. Miyar's deposition for this proposition, but there is nothing that could possibly reflect such a conclusion in the cited pages. Ms. Miyar's testimony there is about her educational background and previous jobs. See Miyar Deposition at 4-5.
Again, the deposition testimony conflicts with this claim. Ms. Isaac has only submitted excerpts from Ms. Miyar's deposition, despite my request to submit the entire deposition. Ms. Miyar's testimony in the record is that she hired four social workers at Region I. Those individuals have last names that suggest they are Hispanic, but the record is incomplete. It is also unclear whether those individuals are Caucasian or black. Moreover, Ms. Isaac recounted speaking to Ms. Curry, a former secretary of Ms. Miyar's, who told Ms. Isaac that Ms. Miyar had hired three people, one of whom was black. See Isaac Deposition at 61.
Ms. Isaac's allegation that Ms. Miyar permitted insubordination on the part of Mr. Abad also fails to meet the required threshold of a substantial and material adverse employment action. Ms. Isaac claims that Mr. Abad was never disciplined for his behavior, and when compared with the discipline she received for not calling in when she was absent due to illness — being written up and having something placed in her personnel file — this is evidence of preferential and racially discriminatory treatment. But the record shows that Ms. Miyar did reprimand Mr. Abad verbally for his behavior toward Ms. Isaac, and that Mr. Abad apologized for his behavior. Even taking the facts in the light most favorable to Ms. Isaac, she still suffered no adverse employment action and moreover, cannot compare the discipline she received with that received by Mr. Abad because their conduct was not similar. "In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." See Silvera v. Orange County School Board, 244 F.3d 1253, 1259 (11th Cir. 2001) (quoting Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir. 1998) (citations omitted)). "The most important factors in the disciplinary context are the nature of the offenses committed and the nature of the punishments imposed." Id. The misconduct of the comparator must be nearly identical to the plaintiffs in order "to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges." See id. (quoting Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999)). Mr. Abad's conduct and resulting discipline or lack of discipline can not be compared with Ms. Isaac's conduct, for Ms. Isaac's behavior in not calling in when she was out of the office was entirely different than Mr. Abad's behavior of refusing to take an assignment. Ms. Isaac has not suggested that there was any other employee who, when absent on sick leave, failed to call in (or called in but did not comply with the terms of the collective bargaining agreement when doing so) but was not disciplined. Ms. Isaac has therefore not met her initial burden of a showing that she suffered an adverse employment action from Mr. Abad's insubordination, or from the fact that he was not formally disciplined, nor has she shown that she was similarly situated to him or to others that engaged in the same behavior but who were not disciplined in the same manner that she was. She has therefore failed to establish a prima facie case of discrimination based on this allegation.
Ms. Isaac's claim that Ms. Miyar demonstrated negative behavior to non-Hispanic social workers, particularly black social workers, appears to be based, at least in part, on two incidents. First, the alleged incident in which Ms. Miyar told Isabel Bartol, a Hispanic social worker, not to participate in the planning of Ms. Isaac's retirement party and to "let the black ones do it," and second, Ms. Miyar's alleged statement at a luncheon that she did not want to sit next to "that black woman," referring to Shelly Finklin, another secretary.
Title VII is not limited in scope to economic or tangible discrimination only, but covers "environmental" claims as well. See Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998). Thus, racial harassment is actionable if it is so "severe or pervasive" as to "alter the conditions of the victim's employment and create an abusive working environment." See id. But "discourtesy or rudeness should not be confused with racial harassment" and "a lack of racial sensitivity does not, alone, amount to actionable harassment." See id. at 787 (citing 1 B. Lindemann P. Grossman, Employment Discrimination Law 349, and nn. 36-37 (3d ed. 1996)). Thus, demonstrating negative behavior and making stray comments will not implicate a Title VII claim of racial discrimination, unless that behavior or those comments are related to some employment decision at issue, or the harassment is pervasive. See Barber v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, District Lodge No. 57, 778 F.2d 750, 761 (11th Cir. 1985) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) ("[t]he mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" will not sufficiently alter the terms and conditions of employment to violate Title VII because the harassment must be pervasive)). The Eleventh Circuit established the following among the factors to be considered in evaluating the objective pervasiveness of discriminatory harassment: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002).
Though Faragher was a case involving sexual harassment, and "racial and sexual harassment will often take different forms, and standards may not be entirely interchangeable," the Court noted that in holding environmental sexual harassment claims actionable under Title VII, it had drawn upon cases recognizing liability for discriminatory harassment based on race and national origin, because "there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment." 524 U.S. at 786-87, n. 1.
In this case, only one of the two comments at issue was directed at Ms. Isaac, and neither comment was made to her or within her presence. Both comments related to social events, the first with regard to a retirement party and the second to a luncheon. As only two comments are alleged, the quantity or regularity of the comments was small. Neither comment was physically threatening, though Ms. Isaac felt that the comments were humiliating. Neither comment unreasonably interfered with Ms. Isaac's job performance. Ms. Bartols disputed that the comment — "let the black ones do it" — which was allegedly made to her, was ever made. And Ms. Miyar had disciplined Ms. Finkel for disrespectful behavior at some point, but it is not clear from the record when the disrespectful behavior took place in relation to the alleged comment about sitting next to Ms. Finkel. Taking the facts in the light most favorable to Ms. Isaac and assuming that both comments were made as alleged by Ms. Isaac, and even assuming that both comments were racially offensive, I find that no reasonable jury could find the comments in question were so severe or pervasive as to alter the terms of Ms. Isaac's employment and create a discriminatorily abusive environment. See Miller, 277 F.3d at 1276-77 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (Title VII is only implicated in the case of a workplace that is "permeated with discriminatory intimidation, ridicule and insult," and not where there is the "mere utterance of an ...epithet.")).
B. RETALIATION
Under Title VII, an employer may not discriminate against an employee because the employee opposes any practice by the employer made unlawful by Title VII. See 42 U.S.C.A. § 2000e-3(a). Thus, to show that she was retaliated against for her race discrimination complaint, Ms. Isaac must show that (1) she engaged in statutorily protected expression; (2) that she suffered an adverse employment action; and (3) that there is some causal relationship between the two events. See Holifield, 115 F.3d at 1566; Raney v. Vinson Guard Serv., 120 F.3d 1192, 1196 (11th Cir. 1997).
Opposing an unlawful employment practice or participating in any way in an investigation, proceeding or hearing regarding a discrimination claim constitutes engaging in statutorily protected expression. See Clover v. Total System Servs., Inc. 176 F.3d 1346, 1351 (11th Cir. 1999). The Eleventh Circuit has held that, "[a]t a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took adverse employment action." See Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). Ms. Isaac testified that Mr. Diaz, the regional superintendent, told her that she did not help herself when she filed the retaliation charges stating that he had refused to speak to her. Though this comment would have been made after the retaliation charge was filed, I will assume for purposes of the summary judgment motion that it is undisputed that the employer knew of the protected expression, that is, that the employer knew of the original EEOC charge of racial discrimination.
But as I mentioned in my November 20, 2000 order, an adverse employment action is also one of the elements of a prima facie case for retaliation. The actions complained of by Ms. Isaac in support of her retaliation claim fail to meet the adverse employment action standard as set forth above. See Gupta, 212 F.3d at 587. Ms. Isaac contends that she was openly humiliated in staff meetings, and gives the example of Ms. Miyar telling her that she had done Ms. Isaac's schedule. But Ms. Isaacs' testimony was vague, as she was not sure if another Chair, Randy Berry, was not also told, "you got yours." In any event, Ms. Miyar was the supervisor in charge of approving a final schedule, and as I mentioned above, "not everything that makes an employee unhappy is an actionable adverse employment action." Doe, 145 F.3d at 1449 (quoting Smart, 89 F.3d at 441). Adjusting or revising Ms. Isaac's schedule was in the category of a "mere inconvenience or alteration of job responsibilities," and not an adverse employment action. Ribando, 200 F.3d at 510 ; See also DeKalb County Sch. Dist., 145 F.3d at 1453 (adversity must be material, and de minimus inconvenience or alteration of responsibilities is insufficient).
Similarly, the fact that Ms. Miyar informed Ms. Isaac at a staff meeting that some of the Hispanic social workers complained to Mr. Ferrer about her scheduling Mr. Hooks to work the first two weeks of summer does not rise to the threshold of a significant and material adverse employment action. Rather, taking the evidence in the light most favorable to Ms. Isaac, it appears at most to be only more evidence that there was a personality conflict between Ms. Miyar and Ms. Isaac. As explained in Hawkins:
[The types of difficulties that [the employee] encountered with [her supervisor] arise routinely in employment relationships. They are the inevitable by product of the rough edges and foibles that individuals bring to the table of their interactions. Law does not blindly ascribe to race all personal conflicts between individuals of different races.
203 F.3d at 282. Federal courts do not second guess an employer's management decisions. "No matter how medieval a firm's practices, no matter how highhanded its decisional process, no matter how mistaken the firm's managers, the [law] does not interfere." Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Thus, Ms. Miyar's decision to inform Ms. Isaac about the complaint to Mr. Ferrer at the staff meeting does not constitute a Title VII adverse employment action.
Ms. Isaac also asserts that Ms. Miyar removed her secretarial support with one or two days notice when Ms. Rafuls took another job at a different school. It is undisputed, however, that Ms. Rafuls left of her own volition, and there is evidence in the record from both Ms. Miyar and Ms. Rafuls that the principal at the new school requested Ms. Raful's services immediately. While the loss of secretarial support might have been an inconvenience to Ms. Isaac, another secretary was hired by the next month, and there were other secretaries available to help out if necessary. This therefore does not rise to the level of an adverse employment action. See Halloway, 180 F.3d at 826 (7th Cir. 1999) (holding that the plaintiff failed to establish an adverse employment action from the alleged failure to provide adequate support staff where the alleged failure was no "more disruptive than a mere inconvenience").
Ms. Isaac's allegation that her immediate supervisor failed to support her in her efforts to perform her job appear to be based, at least in part, on a meeting in which some of the social workers started questioning her about a parent that they had spent a lot of time dealing with and asked her what they should say to the principal when asked certain questions. Ms. Isaac thought that Ms. Miyar should have backed up what she told the social workers, but instead said nothing. As with much of what Ms. Isaac claims, she cannot clearly state when this incident took place, but she thought it happened in April or May of 2000. If true, then this incident happened four to five months after Ms. Isaac filed her retaliation claim, and can not be the basis of that claim. It also fails to constitute an adverse employment action.
Ms. Isaac contends that after she filed her claim of discrimination with the EEOC, Mr. Diaz failed to acknowledge her one morning while he was speaking with two other people. Mr. Diaz stated that he does not recall an incident of failing to greet Ms. Isaac, but stated that if it occurred it was not intentional and if he did not respond to her greeting it was because he did not hear it. Viewing the evidence in the light most favorable to Ms. Isaac, however, Mr. Diaz' failure to greet Ms. Isaac does not reach the level of an adverse employment action. See Burger v. City of Daytona Beach, 1996 WL 673144, *9 (M.D. Fla.) (granting summary judgment on retaliation claim where reprimands, ostracism, and computer removal caused the employee no tangible, economic harm). In her second amended complaint, Ms. Isaac claims that Mr. Diaz stated that her filing of the charge of discrimination had not helped her and repeatedly and emphatically sought to confirm that she was planning to retire. But her testimony regarding her conversation with Mr. Diaz indicates that she understood Mr. Diaz to be referring at that time to her retaliation claim, not to her initial discrimination claim, because he was not happy with the fact that Ms. Isaac had stated that he had not greeted her. Accordingly, this comment can not be the basis of the retaliation claim, as it must have occurred after the retaliation claim was filed.
Finally, I note that Ms. Isaac was named school social worker of the year in 2000. This further supports the conclusion that, rather than being rendered ineffective in her ability to perform her job, as she contends, she was considered by others to have performed better than any other social worker in the last, and unfortunately contentious, year with Region I.
The minutes of the February 11, 2000, meeting offer congratulations to Ms. Isaac for receiving the 1999-2000 Dade Counseling Association Award for school social worker, but it is unclear whether this is the same award referred to as school social worker of the year by Ms. Isaac.
IV. CONCLUSION
For the reasons stated above, me School Board's motion for summary judgment is GRANTED. A final judgment will issue by separate order.
DONE and ORDERED in chambers at Miami, Florida, this 3rd day of September, 2002.