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Fonseca v. Ferman Motor Car Co., Inc.

United States District Court, M.D. Florida, Tampa Division

July 27, 2018




         This cause comes before the Court upon the parties' motions for summary judgment (Dkts. 48, 50) and their respective responses in opposition (Dkts. 54, 56). Upon review of these filings, the record evidence, and upon being otherwise advised in the premises, the Court concludes that Plaintiff's motion should be denied and Defendant's motion should be denied in part and granted in part.


         Plaintiff Tracy Fonseca alleges that her former employer Defendant Ferman Motor Car Company, Inc. violated the Equal Pay Act and the Florida Whistleblower Act. Both parties believe they are entitled to summary judgment on Plaintiff's claim under the Equal Pay Act but the record reflects a genuine issue for trial on whether the pay differentials between Plaintiff and her male co-workers were based on a factor other than sex.

         Defendant also moves for summary judgment on Plaintiff's Florida Whistleblower Act claim. The Court grants judgment in Defendant's favor on this claim because most of Plaintiff's objections—other than her complaints about her pay—were not about a violation of law. With respect to Plaintiff's objections about her unequal pay, Plaintiff has not established pretext, i.e., that the real reason for her termination was due to her unequal pay complaints.


         In January 2016, Plaintiff Tracy Fonseca began her employment at Defendant Ferman Motor Car Company, Inc. in the position of service advisor at the Ferman Buick-GMC dealership, located in Lutz, Florida. Ferman Buick-GMC (“Ferman”) is a new car dealership that sells and services vehicles. As part of its operations, Ferman employs service advisors who work with a team of technicians to perform service repair work. The service advisors and technicians are managed by a service manager. The service advisors' duties include writing customer repair orders/tickets (“ROs”), selling repair work, providing assistance to customers, and finalizing work orders. Service advisors are responsible for all gross service and parts sales and maintaining customer satisfaction index (“CSI”) levels at or above region.

         Service advisors are compensated pursuant to a pay plan. Included in the plan is a commission schedule based on benchmarks for certain services and parts sold by the service advisors and department. The pay plan includes a monthly bonus if the three month rolling CSI score for service advisors as a group is above region. Plaintiff agreed to a pay plan that provided: a commission schedule of 15% on the first $10, 000 gross service written, 4.5% for additional service labor above the initial $10, 000, 3% for all parts gross written, and 0.3% for total combined Buick-GMC parts and service department gross. Plaintiff was also entitled to a $750 monthly bonus if the three month rolling CSI score was above region.

         Once certain services were completed for a Ferman customer, a third party for General Motors (“GM”) or Buick provided the customer with a CSI form to complete. Ferman received a copy of the CSI scores. Maintaining CSI above region is an essential function of the service advisor position.

         When Plaintiff began her employment in January 2016, Bob Cooper was the service manager. In March 2016, Ron Scott replaced Cooper. Plaintiff testified during her deposition that her claims in this case relate to the time that Scott was the service manager. Scott hired two male service advisors, Matthew Keith and Ty Robinson, in July 2016, and August 2016, respectively. Plaintiff, Keith, and Robinson were the only service advisors during the relevant time. The record reflects that Plaintiff, Keith, and Robinson executed the same pay plan.[1] However, when Scott hired Keith and Robinson, he made the business decision to provide them with supplemental “training pay, ” i.e., a guarantee of a minimum dollar amount, while Keith and Robinson learned Ferman's systems.

         With respect to Keith, Scott agreed that if Keith made less than $5, 000 under the pay plan, he received the difference in training pay. With respect to Robinson, if Robinson made less than $4, 000 a month, Scott would pay him the difference in training pay. Scott admitted that he did not provide Plaintiff training pay because she had a full team of four technicians and was familiar with Ferman's systems. Scott testified during his deposition that the training pay to Keith and Robinson was pursuant to a handshake deal and to secure their employment. The training pay was charged to Ferman's General Ledger account.

         Kimberly Wright, Ferman's Human Resources (“HR”) Director at the time had “no idea” why the male service advisors were awarded this additional compensation. Wright testified that training pay is when the service advisor is required to go or do training at the store level; it is when the employee is “pulled away from work, ” for a required course or to complete “certain certifications.” The record is undisputed that Keith and Robinson did not attend training during the relevant time.

         Because Keith and Robinson were being compensated the additional training pay, they ended up making more money than what was provided for in their pay plans. As reflected in the below chart, (Dkt. 50 at 5), Keith and Robinson were also making more than Plaintiff for several months, despite the fact that her production was always higher.

MS. FONSECA (Began 1/16)

MR. KEITH (Began 7/15/16)

MR. ROBINSON (Began 8/23/16)

July Per Pay Plan

$3, 864.00

$2, 158.00

July Training Pay


$ 900.00

Aug. Per Pay Plan

$3, 751.00

$3, 359.00


Aug. Training Pay


$1, 641.00

$1, 092.00

Sept. Per Pay Plan

$4, 001, 00

$3, 459, 00

$2, 458.00

Sept. Training Pay


$1, 541.00

$1, 542.00

Oct. Per Pay Plan

$4, 036, 00

$3, 675, 00

$2, 819, 00

Oct. Training Pay


$1, 325, 00

$1, 181.00

Nov. Per Pay Plan

$4, 435, 00

$3, 807, 00

$2, 848, 00

Nov. Training Pay


$1, 193.00

$1, 152, 00

Dec. Pay Per Plan

$3, 309.00

$3, 305, 00

$2, 787, 00

Dec. Training Pay


$1, 387.00

$1, 192.00

         Scott testified that Plaintiffs performance was “very good.” When Plaintiff complained to Scott about the disparity in pay, Scott claimed that the training pay was a “one time” deal and that “moving forward” Plaintiff would be on the same pay plan. The record reflects that the additional training pay to Keith and Robinson continued for six months and five months, respectively. Scott admitted during his deposition that he did not discuss the training pay he gave to Keith and Robinson with HR.

         According to Plaintiff, she complained constantly to Scott about the pay disparity. The record reflects that Plaintiff, Keith, and Robinson performed the same work and had the same job requirements. They also worked the same hours.

         Plaintiff testified that she also complained to Scott about what she believed were violations of the law. According to Plaintiff, Ferman was engaged in “consumer fraud” and warranty fraud. She testified during her deposition that in June 2016, Darlene Davis-Lloyd brought her vehicle in for water damage and windshield leaks. Plaintiff claims that her technician told her the repairs could not be done under warranty because the windshield had previously been replaced. The record reflects that it is ultimately Scott's decision to determine whether repairs are covered under warranty. Even if the repairs are not made under warranty, Scott can cover the repairs under “customer enthusiasm, ” which GM supports.

         Scott concluded that the repairs for Davis-Lloyd's vehicle were covered under warranty. The warranty repair ticket was closed by GM in August 2016. ...

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