United States District Court, S.D. Florida
OPINION AND ORDER
KENNETH A. MARRA, UNITED STATES DISTRICT JUDGE.
cause is before the Court upon Defendant's Motion for
Summary Judgment (DE 27). The Motion is fully briefed and
ripe for review. The Court has carefully considered the
Motion and is otherwise fully advised in the premises.
facts, as culled from affidavits, exhibits, depositions,
answers, answers to interrogatories and reasonably inferred
therefrom in the light most favorable to the non-moving
party, for the purpose of this motion, are as follows:
2010, Plaintiff Jennifer Williams ("Plaintiff), who is
African-American, was hired by Defendant Pediatric
Alternative Treatment Care ("Defendant") as a
certified nursing assistant in Fort Pierce, Florida. (Pl.
Statement of Facts ¶ 1, DE 35.) In 2011, Gail Steward
was promoted to director of nursing and administrator of
Defendant's Fort Pierce facility and became Plaintiffs
immediate supervisor. (Pl. Statement of Facts ¶ 2.)
to Plaintiff, she and Ms. Steward were "always at
it" and Ms. Steward was "disrespectful, "
"rude" and "nasty." (Pl. Dep. 44, 48, 69,
DE 29-1.) Ms. Steward would get more upset with the workers
who worked with the children as opposed to the office staff,
and the child care workers were predominately
African-American. (Pl. Dep. 48-49.) Once Ms. Steward was
promoted to the directorship, Plaintiff felt her own job
would be in jeopardy. (Pl. Dep. 52-53.)
January 2014, Plaintiff received a five-day suspension and 90
day probation period, for among other reasons, attendance.
(Pl. Dep. 82.) The form was drafted by Ms. Steward nearly a
year after the alleged disciplinary violation occurred. (Ex.
3, DE 29-1.) Next, according to Plaintiff, when she returned
from maternity leave in October of 2014, her schedule
changed. (Pl. Dep. 29; Steward Aff ¶ 5.) During her
deposition, Plaintiff testified, "That's what this
whole allegation about because she changed my schedule."
(Pl. Dep. 31.) Plaintiff testified no one else's schedule
was changed. (Pl. Dep. 34.)
November 13, 2014, Plaintiff received another written warning
regarding her attendance and hours. (Pl. Dep. 84-85; Ex. 4,
DE 29-1.) Plaintiff claims she was not able to meet her
hours, however, due to the schedule changes and because she
was asked to leave early when there were no children present
at the facility. (Pl. Dep. 88-90.) On November 25, 2014,
Plaintiff received another disciplinary/counseling writeup
concerning her attendance. (Pl. Dep. 86; Ex. 5, DE 29-1.)
Plaintiff testified that she was not able to make her hours
because she was sent home when there were no more children
left at the facility. (Pl. Dep. 90.)
on these issues with Plaintiffs hours and attendance,
Defendant's chief executive officer and the human
resources director decided a final warning should be given to
Plaintiff. They directed Mary Ellmore, an employee in Florida
City, to prepare the final warning document. The final
warning document did not contain Ms. Ellmore's signature.
Instead, it had the signature of Ms. Steward. (Steward Decl.
¶ 7; Ex. 6, DE 29-2.) The final warning provided that
Plaintiff must work Monday through Wednesday one week and
Wednesday through Friday the alternate week. The final
warning provided that if Plaintiff could not follow this
schedule she would be terminated immediately. (Pl. Statement
of Fact ¶ 15.)
received the final warning regarding her hours and attendance
on December 18, 2014. (Pl. Statement of Fact ¶ 17.) The day
after being given the final warning, on December 19, 2014,
Plaintiff told Ms. Steward that she could not work her
schedule because of her baby's doctor appointments. (Pl.
Dep. 70-72.) At that meeting, which included the
attendance of a witness (Cary Hazellief),  Ms. Steward
notified Plaintiff that she was terminated for failure to
comply with the final warning. (Steward Decl. ¶11.)
contrast, Plaintiff claims that Ms. Steward notified her of
her termination over the telephone and called Plaintiff a
"stupid nigger." (Pl. Dep. 64-69.) Ms. Steward
denies the termination was over the phone or that she used
that slur. (Steward Decl. ¶ 12.) Plaintiff does not know
who decided to terminate her. (Pl. Dep. 74.) No other
employee was terminated for attendance issues during the time
period of 2010 through 2014. (Def. Resp. to Pl. Second Set of
Interrog. No. 1, DE 34-4.)
headquarters is in Florida City and no one in Fort Pierce,
including Ms. Steward, has the authority to terminate any
employee without direction from headquarters. (Steward Decl.
¶ 3.) According to Defendant, Ms. Steward did not make
the decision to put Plaintiff on a final warning, or prepare
the final warning, or make the decision to terminate
Williams. (Steward Decl. ¶ 13.)
moves for summary judgment on the following ground: (1)
Plaintiff has no direct evidence of discrimination by any
decision maker: (2) neither the final warning nor the change
in schedule constitutes an adverse employment action: (3)
Plaintiff fails to identify a comparator and (4) Plaintiff
cannot rebut Defendant's legitimate, non-discriminatory
reason for her termination; namely, Plaintiffs failure to
work the required schedule.