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Maiten v. Clara White Mission, Inc.

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

September 26, 2019

ERWIN MAITEN, Plaintiff,


          Marcia Morales Howard United Slates District Judge.

         THIS CAUSE is before the Court on Defendant Clara White Mission, Inc.’s (CWM) Motion to Dismiss Plaintiff’s Second Amended Complaint (Doc. 23, Motion to Dismiss), filed November 1, 2018, and CWM’s Motion for Summary Judgment (Doc. 26, Motion for Summary Judgment), filed July 31, 2019 (collectively, Motions).[1] In the Motions, CWM seeks dismissal of, or alternatively, summary judgment on the claims in pro se Plaintiff Erwin Maiten’s Second Amended Complaint and Demand for Jury Trial (Doc. 21, SA Complaint), filed October 18, 2018. Since Maiten is appearing pro se, the Court advised him of the provisions of Rule 56, Federal Rules of Civil Procedure (Rule(s)), and gave him an opportunity to respond to the CWM’s Motion. See Summary Judgment Notice (Doc. 27) (setting forth the provisions of Rule 56), filed August 2, 2019. Maiten has filed responses to the Motion to Dismiss, see Doc. 24 (Response to Motion to Dismiss), and the Motion for Summary Judgment, see Doc. 28 (Response to Motion for Summary Judgment).[2] Therefore, the Motions are ripe for review. For the reasons set forth below, the Court finds that CWM is entitled to summary judgment, and therefore, the Court will deny the Motion to Dismiss as moot. See Abdullah City of Jacksonville, 242 Fed.Appx. 661, 662 (11th Cir. 2007) (affirming the denial of a “defendants’ motion to dismiss as moot when [the district court] granted their motion for summary judgment.”).


         Rule 56 instructs that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a). The record to be considered on a motion for summary judgment may include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A).[3] An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the non-moving party’s position is insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

         The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When the non-moving party bears the burden of proof on an issue at trial, the moving party need not ‘support its motion with affidavits or other similar material negating the opponent’s claim, ’ Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986), in order to discharge this initial responsibility.” Gonzalez v. Lee Cty. Hous. Auth., 161 F.3d 1290, 1294 (11th Cir. 1998). Instead, the moving party simply may demonstrate “that there is an absence of evidence to support the nonmoving party’s case.” Id.

         “When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir. 1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court “must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

         Of course, “pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, “a pro se litigant does not escape the essential burden under summary judgment standards of establishing that there is a genuine issue as to a fact material to his case in order to avert summary judgment.” Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Although courts show leniency to pro se litigants, courts “will not serve as de facto counsel or ‘rewrite an otherwise deficient pleading in order to sustain an action.’” Nalls v. Coleman Low Fed. Inst., 307 Fed.Appx. 296, 298 (11th Cir. 2009) (quoting GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998)).


         Maiten began working for CWM in 2003. Employment Records at 26. In late July 2017, CWM terminated him from his position. Dismissal Letter at 2. Maiten was fifty-seven years old at the time. EEOC Documentation at 3. In this action, Maiten alleges that CWM discriminated against him on the basis of a disability and his age, and also that it retaliated against him in violation of Title VII of the Civil Rights Act of 1964.

         CWM “has served the Jacksonville[, Florida, ] community since 1904 . . . as a service center for the homeless and disadvantaged persons . . . . [CWM serves] approximately 400-500 men, women, and children in need, daily.” Employee Manual at 6. As explained by Ju’Coby A. Pittman, President and CEO of CWM, “[g]rant funds are very important to the financial stability of CWM. Passing inspections by agencies such as the Department of Veterans Affairs [(VA)] is very important to maintaining access to grant funds.” Pittman Declaration at ¶¶ 1, 19-20.

         When Maiten was first employed at CWM in 2003, he served as a part-time front desk security assistant. Employment Records at 26; Maiten Deposition at 5, 7. Prior to joining CWM, Maiten worked as a mail carrier for the United States Postal Service (USPS), see Employment Records at 43, [4] and served as a member of the United States Navy, see generally VA Documentation. In his deposition, Maiten stated he left the Navy because of injuries to his knees. Maiten Deposition at 3, 13. His VA Documentation reflects Maiten had service related disabilities, but does not specify the nature of those disabilities. VA Documentation at 2.

         After starting at CWM as a part-time front desk assistant, Maiten was promoted several times “including to a full-time Residence Advisor, Case Manager and Director of Residents and Drop-in Center (‘Director’).” Pittman Declaration at ¶ 4. See also Maiten Deposition at 7-8; Maiten Deposition Attach. at 5. Maiten’s various titles during his tenure with CWM also included Director of Residents and Drop-In & Fleet Services, as well as Manager of Residential/Admissions. Maiten Deposition Attach. at 27; Pittman Declaration at ¶ 17.

         While working at CWM, Maiten had periodic performance reviews. Maiten Deposition at 9. His October 2015 Performance Review was generally positive, but did include some constructive feedback regarding areas in which he could improve. For example, the evaluator commented that Maiten often forgot meetings or tasks. See October 2015 Performance Review at 3, 4, 7. As a means to address this issue, Maiten’s supervisor at the time, Kevin Carrico, recommended that Maiten use a planner or the calendar on his iPad to “keep things in [his] memory.” Id. at 3, 7. Maiten viewed Carrico’s recommendation that he use an iPad to help him “keep on track” as a “suggestion.” Maiten Deposition at 13, 14. Although CWM did not provide Maiten with an iPad, he did use his own device. Maiten also noted that at one point in time another CWM employee, Myrtle Wright, was assigned to help Maiten “be on track.” Id. at 13, 14.[5] Maiten’s supervisor also commented that “sometimes [Maiten’s] frustration with [CWM clients] comes out as negative interaction. The administration has received complaints that Mr. Maiten talks down to the residents at times.” October 2015 Performance Review at 4. Accordingly, Carrico recommended that Maiten “be conscious of how you come across to residents. It’s not what you say but how you say it.” Id. at 7.

         In January of 2016, Carrico, the then Vice President of Operations, left CWM, and his position remained unfilled for many months. Pittman Declaration at ¶ 13-14; Wright Declaration at ¶¶ 9-10. In August of 2016, after the position had been vacant for at least six months, Sharon Wright decided to apply because she believed the lengthy “vacancy had negatively impacted the operations of CWM.” Wright Declaration at ¶ 10. That same month, Pittman appointed Wright as the new VP of Operations. Pittman Declaration at ¶ 13; Wright Declaration at ¶ 11. At the time of her appointment, the record suggests Wright was fifty-two or fifty-three years old. Wright Declaration at ¶ 1 (indicating Wright was fifty-five years old in July of 2019). Wright had “served on the CWM Board of Directors from 2009 to 2013 and became knowledgeable about the day-to-day operations of CWM.” Id. at ¶ 8. Prior to being promoted to Vice President of Operations, Wright had also worked for CWM since 2013 as its instructor for the Janitorial/Custodial program. Pittman Declaration at ¶ 16; Wright Declaration at ¶ 9.

         Maiten neither applied for nor expressed an interest in the Vice President of Operations position. Maiten Deposition at 22; Pittman Declaration at ¶ 14. Although he complains that CWM never advertised the position, Maiten Deposition at 22, Maiten does not deny that he was aware that the position was vacant from January 2016 until it was filled in August 2016. Pittman Declaration at ¶ 14. When CWM appointed Wright, rather than Maiten, to be Vice President of Operations, Maiten perceived that he had been “passed over.” Maiten Deposition at 22. He believed he had more seniority than Wright, and that she was younger than he. EEOC Documentation at 3. However, Maiten did not complain about the decision at the time. Maiten Deposition at 22.

         In September of 2016, and in an effort to be more efficient, “CWM reorganized its organizational hierarchy . . . .” Pittman Declaration at ¶ 17. Wright’s title was changed to “Vice President of Facilities and Operations [and] incorporate[ed] additional responsibilities related to facility management.” Wright Declaration at ¶ 18. At the same time, Maiten’s title was changed from “Director of Residents and Drop-In Center” to the “Manager of Residential/Admissions.” Pittman Declaration at ¶ 17. Under this reorganization, Maiten’s duties and responsibilities largely remained the same and his compensation did not change. Id.; Wright Declaration at ¶ 19.

         In February of 2017, Maiten received another performance review for his work from September 2016 to February 2017. February 2017 Performance Review at 2.[6] In contrast to the generally positive feedback Maiten received in his October 2015 Performance Review, the February 2017 review was less positive and identified numerous areas in which he needed to improve. For example, the review included negative comments in ten of the seventeen different evaluation categories. Id. at 3-4, 5. Some of the comments were general in nature, referencing Maiten’s inconsistency in completing his work in a timely and attentive manner. See id. at 3 (“Employee knows the technical parts of his job, but fails to accomplish job duties in a timely manner . . . “); id. (“employee is not perceived as consistent in job responsibilities, and not consistent in responding.”); id. (“Employee is aware of policies and procedures of CWM, but has not followed to ensure continuingly [sic] and enforcement updates.”); id. at 4 (“The employee shows a deficit” in “the ability to identify problems, potential problems, develop[ing] solutions, and evaluat[ing] decision effectiveness.”). Others identified specific examples of instances where Maiten’s work performance was poor or mediocre, including instances of negative interpersonal interactions with CWM staff and clients. See id. at 3 (detailing specific instances of failing to have an established plan or activities for veterans); id. (specific examples of Maiten’s failure to fully implement CWM policies and procedures); id. at 4 (negative interactions with staff and clients); id. at 5 (same).

         The February 2017 evaluation also referenced Maiten’s performance at a recent VA inspection. Under the heading of “Employee need[s] to be aware of policies to ensure correct decisions/reasoning from day to day polices & procedures, ” was the comment that “[e]mployee mentioned the storage of medication and food in the same refrigerator during an inspection.” Id. at 5. As explained in more depth by Maiten in his deposition, it was his responsibility to make sure that veterans’ medications were stored appropriately. Maiten Deposition at 11. During a November 2016 VA inspection,

one of the inspectors asked what was in the refrigerator. And she also asked for the keys. We had it locked. So I told her the clients medication and the clients special diet food that they had in there. Then she got the key and she looked in it. Then we went upstairs for debrief. She stated that I told her what was in the refrigerator

Id. As a result of the inspection, CWM received two to three negative notes from the VA, including that they needed to “get[] another refrigerator . . . [and] separat[e] the medication from the food.” Id. As reported by Maiten, Pittman was upset with him for telling the VA inspector what was stored in the refrigerator. Id. “She even wrote it in my eval . . . that I said something inappropriate to the inspector . . . . Her word[] is that I voluntarily gave information I shouldn’t have. That’s the part that’s in the evaluation.” Id. Following the November 2017 inspection, Maiten felt that he and Pittman were “disconnected, so to speak.” Id. Maiten nonetheless clarified that Pittman “never treated him bad” but that their “connection got farther apart” after the VA inspection. Id. at 12. For her part, Pittman stated that Maiten did not raise any concerns with her regarding “the Department of Veterans Affairs inspection in November 2016.” Pittman Declaration at ¶ 21.

         As a result of his February 2017 Performance Review, CWM placed Maiten on a 90-day Performance Improvement Plan (PIP). See February 2017 Performance Review at 6-7; Maiten Deposition at 26. In the PIP, Wright directed Maiten to

[s]et goals for projects and tasks. Improve communication with all viable technology. When given instructions from or by CWM CEO they need to be completed in a timely manner and if uncertain of the task, then ask questions. Develop a strategic plan for the next 90 days and communicate said plan to Mrs. Sharon Wright by 2017.

Id. at 6. However, as discussed below, there were ongoing communication issues between Maiten and his supervisors regarding how, and in what manner, he was supposed to proceed with his PIP.

         In early June of 2017, it appears Wright communicated and met with Maiten regarding his PIP. Maiten Deposition at 26; Maiten Deposition Attach. at 57. In Wright’s communication with Maiten, she noted that since placing Maiten on the PIP in February, he had either failed to complete a variety of his PIP assignments, or was late in doing so. Maiten Deposition Attach. at 57. Additionally, in an e-mail dated June 5, 2017, Wright informed Pittman that Wright had communicated with Maiten about his performance plan, but that Maiten expressed his belief that the incomplete plan he submitted earlier in the year was sufficient, and that he otherwise believed his PIP was unwarranted. Id. at 55.

         On June 7, 2017, the CWM staff participated in a mock inspection in order to prepare for an upcoming visit from the VA in association with grants CWM received from the federal agency. Maiten Deposition at 26. The inspection was not a surprise. Indeed, several days before the mock inspection, Pittman e-mailed Maiten telling him that she would be doing it on June 7th. Id. Following the mock inspection, Pittman sent an e-mail to Maiten stating she “was very disappointed of what [she] observed during the inspection, ” stating her belief that CWM would have failed the inspection if it had been performed by the VA. Maiten Deposition Attach. at 58. Pittman detailed over sixteen specific deficiencies and areas requiring improvement prior to the upcoming VA inspection, and she noted that “it appears that the follow-through hasn’t taken place . . . or completed on a regular [basis].” Id. Pittman further stated the inspection was “unacceptable and dangerous to our staff, volunteer and residents. Immediate[] action is required . . . .” Id. Finally, Pittman complained that Maiten “stepped away, several times, during the inspection . . . . You disengaged yourself, I had to get your attention and engage you back in the process and that is unacceptable.” Id. at 59. In response, Maiten contacted his team members to acknowledge that his department let CWM “down in a big way, ” and that their day-to-day operations did not meet the required standards. He called upon his team to “stand up and take control of our Department. [I]f we need more time we will work this weekend but I am sure we can make it happen . . . .” Id. at 60.

         Additionally, in the latter part July of 2017, there was a conflict between Maiten and Pittman about his ability to access and remove certain files from her office. Pittman sent a message to the CWM team noting that several boxes of VA files had been removed from her office without permission or any communication indicating that the files were going to be removed. Id. at 61. Maiten acknowledged that he had removed the files, and apologized. Id. He later explained in his deposition that it was his common practice to take files out of Pittman’s office whenever he needed them to fulfill his job duties. Maiten Deposition at 27. He stated that

I apologized that I may have offended her, but that’s the practice . . . . – I had been in her office many times and got files out of the office if I needed them. If for some reason I needed them that day, I went and got them out of the office so we can complete the files that we had. But that was normal practice, especially if her assistant was there and gave us an authorization.


         Later that month, on July 28, 2017, Maiten’s supervisors informed him he was being terminated from his employment at CWM. Maiten’s termination letter stated that he was being dismissed because of his inconsistency in “communication and follow through on job responsibility and performance.” Dismissal Letter at 2. According to Pittman and Wright, Maiten “was not fulfilling the essential functions of his position when he was terminated. [His] termination was the result of poor performance and communication. [He] failed to compete the duties, essential functions, and responsibilities of his position.” Pittman Declaration at ¶¶ 22-24; Wright Declaration at ¶¶ 21-22. Both Pittman and Wright also noted that Maiten “was counselled about his performance issues on numerous occasions from November 2016 until his termination in July 2017.” Pittman Declaration at ¶ 18; Wright Declaration at ¶ 20. Nonetheless, his work performance did not improve. Wright Declaration at ¶ 20. CWM eventually replaced Maiten with a sixty-two year old male. Pittman Declaration at ¶ 25.

         Maiten believes that CWM terminated him for discriminatory and retaliatory reasons. In his deposition, Maiten testified that he suffered from memory problems, and that CWM terminated him, in part, because of his memory issues. Maiten Deposition at 13. While Maiten is not entirely specific as to the root or cause of his memory issues, he testified that when he was a child he was in a car accident which temporarily left him in a coma. Id. Additionally, in his early 20s, Maiten had an accident in which he ran “headfirst into a telephone pole” while playing softball, which he suggests resulted in facial fractures. Id. His medical records from the softball accident noted a laceration on his left eyebrow and eyelid and a contusion under his eye, along with leg and arm injuries. Medical Records at 1-2, 5. The medical records noted that Maiten’s neurological exam was “unremarkable.” Id. at 2. Maiten also testified that he suffered from a variety of other medical problems, including artificial knees, PTSD, depression and anxiety, a fused disk in his back, and a pin in his right hand which limited function. Maiten Deposition at 13.

         Notably, in 2013, CWM worked with Maiten regarding his anxiety, which often arose when Maiten was in crowded and noisy rooms. Maiten Deposition at 14; EEOC Documentation at 3. In an effort to help Maiten, management at CWM excused him from attending staff meetings while Maiten worked with his doctor to alter his medications and temper his anxiety. Maiten Deposition at 14. Once Maiten and his health care providers ...

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