In this case, the Plaintiff, Lisa Martinez ("Martinez"), hassued the Defendant, Mercedes Homes Realty, Inc. (the"Defendant"), alleging violations of both the Family and MedicalLeave Act, 29 U.S.C. 2601, et seq. ("FMLA") and Title VII ofthe Civil Rights Act, 42 U.S.C. section 2000e, et seq. ("TitleVII").1 This matter is presently before the Court on theDefendant's Motion for Summary Judgment (Doc. 29), and Martinez'Opposition thereto (Doc. 36).
A. The Parties
Martinez is a former employee of the Defendant. She resides inOrange County, Florida.
The Defendant is a Florida corporation engaged in the businessof selling homes in the state of Florida. The Defendant is an"employer" under the terms of the FMLA and Title VII. TheDefendant sells homes through its sales representatives, who areassigned to, and rotated through, various properties theDefendant owns. B. Facts
The Defendant hired Martinez as a sales representative in Julyof 2000. (Doc. 27, Att. 2 at 6; id. at Att. 4 at17-18).2 When she was hired, she signed a SalesRepresentative Agreement, pursuant to which she agreed that theminimum sales requirement was four homes per month. (Doc. 27,Att. 2 at 7; id. at Att. 8, Ex. 2 at 2). As a salesrepresentative, she was assigned to various communities orproperties as needed, she was subject to customer satisfactionratings, and her earnings were based on commissions. (Doc. 27,Att. 8, Ex. 2 at 2). She was initially assigned to the Sunburstproperty, and was subsequently rotated through various otherproperties. (Doc. 27, Att. 2 at 8; id. at Att. 3 at 7). Fromthe time of her hiring until the end of 2001, Martinez' sales metexpectations.3
At the end of January of 2002, Martinez requested, and wasgranted, eight weeks of maternity leave. (Doc. 27, Att. 2 at 8).Prior to this time, she had been assigned to the Lakeside Reserveproperty.4 (Id.). This community was a "problemcommunity," and Martinez felt that her assignment there impactedher ability to make sales. (Doc. 27, Att. 5 at 1).
Martinez returned from her FMLA leave on April 1,2002.5 (Doc. 27, Att. 2 at 9). She did not have theoption of returning to her position as a sales representative atLakeside Reserve, because another sales representative had been assigned to thatproperty in her absence. (Doc. 27, Att. 4 at 18). At that time,she was considered for a promotion to a managerial position.(Doc. 27, Att. 2 at 9). The process lasted throughout the monthof April, during which time she interviewed with the Defendant'sowners. (Id.). During this time, she helped out by filling infor people who were out on vacation or called in sick. (Id.;Doc. 27, Att. 3 at 7). Ultimately, the management position wasgiven to Cristina Quintana ("Quintana"), to whom Martinez beganto report directly. (Doc. 27, Att. 2 at 10).
Martinez then requested that she be assigned to the Enclaveproperty, even though she knew that it would be difficult to makesales there. (Doc. 27, Att. 2 at 10; Doc. 27, Att. 4 at 7). Atthat time, construction of model homes at the Enclave was behindschedule. (Doc. 27, Att. 2 at 10). Therefore, during the periodbetween May and June of 2002, Martinez was assigned to variousproperties on an as-needed basis, to fill in for other salesrepresentatives, until the Enclave was ready.6 (Doc. 27,Att. 3 at 7).7 During that time, Martinez made sales atvarious sites, and also pre-sold homes at the Enclave.8 (Doc. 28 at 2).Although Martinez says that other sales representatives were notrequired to work in this "fill-in" fashion, she does notattribute her situation to any ill will on the part of theDefendant.9 (Doc. 27, Att. 3 at 7). She also states thatupon returning from leave, and after the decision was made thatshe would not receive the management position, she would haveliked to have been assigned to a single community. (Doc. 27, Att.5 at 1). Her commissions and income were affected by her beingmoved around. (Doc. 27, Att. 4 at 10).10 Martinezcomplained to Maggie Toro ("Toro"), who told Martinez that shewould eventually get a community. (Id. at 8). In August of2002, Martinez was assigned to the Enclave, where she stayeduntil March of 2003. (Id. at 7). A review of Martinez' sales for the fiscal year ending January31, 2003, shows that Martinez had made only fifteen sales duringthe previous 12 months. (Doc. 27, Att. 3 at 1; id. at Att. 8,Ex. 6).11 Subtracting two months for her maternity leave,and another month for the time during which she was consideredfor a promotion to management, those numbers result in an averageof less than two sales per month.12 Further, customersatisfaction surveys revealed that Martinez was receiving belowthe expected score, and was receiving the second lowest score inthe sales group.13 (Doc. 27, Att. 8, Ex. 5). On February3, 2003, Martinez received a 30-day warning notice.14(Doc. 27, Att. 8, Ex. 6).15 Although Martinez did notmake the required four sales during the next thirty days, she wasnot terminated. (Doc. 37 at 38). Instead, Toro gave her theopportunity to improve her performance. (Id.). Shortly after Martinez received the warning notice, Torovisited the Enclave to meet with Martinez, and asked Martinezwhere she would like to work. (Doc. 27, Att. 3 at 2; Doc. 37 at20). Martinez requested to work at East Park, although she knewthat East Park had not yet been constructed. (Doc. 27, Att. 2 at17; id. at Att. 3 at 2). Martinez indicated that she wanted towork there because of the challenge of selling from blueprintsrather than from a model. (Doc. 27, Att. 2 at 17). She alsobelieved that East Park would be best suited for her, among theoptions available at that time. (Doc. 27, Att. 4 at 7). Martinezwas assigned to East Park in March of 2003. (Doc. 27, Att. 3 at2; Doc. 37 at 20).
Martinez' performance did not improve after her assignment toEast Park. (Doc. 27, Att. 3 at 4; id. at Att. 8, Ex. 7). Forthe period from March to June of 2003, she made only sale at EastPark, and had only nine total sales after February 1,2003.16 In addition, she continued to receive complaintsfrom customers. (Doc. 27, Att. 8, Ex. 8 and 10). Martinez claimsthat during this time, the other sales representative at the sameproperty was given important information that Martinez did notreceive. (Doc. 27, Att. 2 at 17; id. at Att. 4 at 2-3). Duringher time at East Park, on May 19, 2003, Martinez informed Torothat she was pregnant. (Doc. 37 at 33, 44). She did not make arequest for FMLA leave at that time. (Doc. 27, Att. 5 at 3, 4).The Defendant terminated Martinez' employment on June 16, 2003.(Doc. 27, Att. 8, Ex. 11). The letter given to Martinez noted herfailure to make any new sales during the previous two and onehalf months and her failure to improve her sales performancedespite several opportunities to do so, as well as the fact that at the time of her termination, she had only reached fiftyper cent of her year-to-date sales goal.17 (Id.).
Martinez asserts that her poor sales were partly due to thefact that she was not assigned to a community at which to makesales, whereas other new hires were given communities. (Doc. 27,Att. 3 at 6). However, Toro asserts that Martinez was given "sixmonths of total free reign of wherever she wanted to be," butdespite those opportunities, she did not sell like she wassupposed to. (Doc. 37 at 38). Martinez also asserts that othersales representatives failed to meet expectations, but allegesthat they were not terminated.18 (Doc. 27, Att. 5 at 3,13).
C. Claims and Arguments
In Count I of her Complaint, Martinez alleges that theDefendant interfered with her rights under the FMLA by: (1)failing to return her, upon her return from FMLA leave, to thesame position or to an equivalent position; and (2) terminatingher employment after she gave notice of intent to take additionalFMLA leave. In Count II, Martinez asserts a claim for retaliationunder the FMLA, and alleges that her requesting and taking ofFMLA leave constituted a statutorily-protected activity, and thatthe Defendant retaliated against her for engaging in thatactivity by: (1) purposely assigning her to less desirableduties, which affected her compensation; and (2) terminating heremployment after she gave notice of intent to take additionalFMLA leave. Martinez' third count asserts a claim under the PregnancyDiscrimination Act, 42 U.S.C. § 2000e(k). There, she alleges thatthe Defendant discriminated against her on the basis of herpregnancy by: (1) failing to return her, after her pregnancyleave, to the same position or to an equivalent position; (2)purposely assigning her to less desirable duties, which affectedher compensation; and (3) terminating her employment after shegave notice of intent to take a second pregnancy-related leave.Finally, she alleges that, after her termination, either theDefendant hired a male or a non-pregnant female to replace her,or her position remained open.
The Defendant argues that Martinez received all of the rightsto which she was entitled under the FMLA, and that her employmentwas terminated for legitimate, non-discriminatory reasons.
II. Standard of Review
A party is entitled to summary judgment when the party can showthat there is no genuine issue as to any material fact. FED. R.CIV. P. 56(c); Beal v. Paramount Pictures Corp., 20 F.3d 454,458 (11th Cir. 1994). Which facts are material depends on thesubstantive law applicable to the case. Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248 (1986). The moving party bearsthe burden of showing that no genuine issue of material factexists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11thCir. 1991); Watson v. Adecco Employment Svc., Inc.,252 F. Supp. 2d 1347, 1352 (M.D. Fla. 2003).
When a party moving for summary judgment points out an absenceof evidence on a dispositive issue for which the non-moving partybears the burden of proof at trial, the non-moving party must "gobeyond the pleadings and by [his] own affidavits, or by thedepositions, answers to interrogatories, and admissions on file,designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317,324-25 (1986) (internal quotations and citation omitted).Thereafter, summary judgment is mandated against the non-movingparty who fails to make a showing sufficient to establish agenuine issue of fact for trial. Id. at 322, 324-25; Watson,252 F. Supp. 2d at 1352. The party opposing a motion for summaryjudgment must rely on more than conclusory statements orallegations unsupported by facts. Evers v. Gen. Motors Corp.,770 F.2d 984, 986 (11th Cir. 1985) ("conclusory allegationswithout specific supporting facts have no probative value");Broadway v. City of Montgomery, Ala., 530 F.2d 657, 660 (5thCir. 1976).19
The Court must consider all inferences drawn from theunderlying facts in a light most favorable to the party opposingthe motion, and resolve all reasonable doubts against the movingparty. Anderson, 477 U.S. at 255. The Court is not, however,required to accept all of the nonmovant's factualcharacterizations and legal arguments. Beal, 20 F.3d at 458-59.If material issues of fact exist, the Court must not decide them,but rather, must deny the motion and proceed to trial. Envtl.Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981).
III. Legal Analysis
A. Family and Medical Leave Act
The FMLA provides that eligible employees are entitled to atotal of twelve workweeks of leave during any twelve month periodfor, inter alia, the birth of a child of the employee in orderto care for that child. 29 U.S.C. § 2612(a)(1)(A). Where aneligible employee takes leave under section 2612, that employeeis entitled, upon return from leave, to be restored to theposition she held when the leave began, or to an equivalent position withequivalent benefits, pay and terms and conditions of employment.29 U.S.C. § 2614(1). The FMLA "also protects employees from beingdiscriminated against by their employers for exercising orattempting to exercise the rights it provides." Brungart v.Bellsouth Telecomm., Inc., 231 F.3d 791, 798 (11th Cir. 2000).Employers are thus prohibited from discriminating againstemployees who have used FMLA leave. Id.
The FMLA creates two types of claims: interference claims, in which an employee asserts that [her] employer denied or otherwise interfered with [her] substantive rights under the Act, and retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act.Strickland v. Water Works & Sewer Bd. of Birmingham,239 F.3d 1199, 1206 (11th Cir. 2001). To state an interference claim, "anemployee need only demonstrate by a preponderance of the evidencethat [she] was entitled to the benefit denied." Id. at 1206-7.The employee does not have to make allegations regarding heremployer's motives or intentions; she need only demonstrate thatshe was entitled to, but was denied, the right in question. Id.at 1208. "To establish a prima facie case of FMLAdiscrimination, the Plaintiff must establish each of thefollowing elements: (1) that she availed herself of her FMLArights; (2) that she suffered an adverse employment action; and(3) that a causal link exists between the two elements." Rockyv. Columbia Lawnwood Reg'l Med. Ctr., 54 F. Supp. 2d 1159,1169-70 (S.D. Fla. 1999).
To state a claim for retaliation, the employee "mustdemonstrate that [her] employer intentionally discriminatedagainst [her] in the form of an adverse employment action forhaving exercised an FMLA right." Strickland, 239 F.3d at 1207.The employee thus bears the increased burden of demonstratingthat the employer's actions were motivated by an impermissibleanimus. Id. When evaluating claims of retaliation under the FMLA,absent direct evidence of discrimination, courts apply theburden-shifting framework established by the Supreme Court inMcDonnell Douglas.20 Brungart, 231 F.3d at 798. Toestablish a prima facie claim of retaliation, Martinez mustshow that: "(1) she engaged in statutorily protected conduct; (2)she suffered an adverse employment action; and (3) there is acausal connection between the protected conduct and the adverseemployment action."21 Id. at 798. An "adverseemployment action" is any ultimate employment decision, such as adischarge "or other conduct that alters the employee'scompensation, terms, conditions, or privileges of employment,deprives him or her of employment opportunities, or adverselyaffects his or her status as an employee." Gupta v. Fla. Bd. ofRegents, 212 F.3d 571, 587 (11th Cir. 2000). "To establish thecausal connection element, a plaintiff need only show that theprotected activity and the adverse action were not whollyunrelated." Brungart, 231 F.3d at 799 (internal citations andquotations omitted).
Once the plaintiff claiming retaliation establishes a primafacie case, a presumption of discrimination is created.Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11thCir. 1998). The burden then shifts to the defendant "to rebut thepresumption of retaliation by producing legitimate reasons forthe adverse employment action." Sullivan v. Nat'l R.R. PassengerCorp., 170 F.3d 1056, 1059 (11th Cir. 1999) (internal citationand quotation omitted). The defendant does not have to persuadethe court that it was actually motivated by those reasons. Tex.Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Instead,the defendant must only offer sufficient evidence to create agenuine issue of fact as to whether it discriminated against theplaintiff, and may do so by introducing evidence demonstratingthe reasons for the action taken against the plaintiff. Id. at255. The defendant's explanation in this regard must be "legallysufficient to justify a judgment for the defendant."22Id. "If the defendant offers legitimate reasons, thepresumption of retaliation disappears. The plaintiff must thenshow that the employer's proffered reasons for taking the adverseaction were actually a pretext for prohibited retaliatoryconduct." Sullivan, 170 F.3d at 1059 (internal citationsomitted). The plaintiff may do so either by "persuading the courtthat a discriminatory reason more likely motivated the employeror indirectly by showing that the employer's profferedexplanation is unworthy of credence." Burdine, 450 U.S. at 256.
Martinez' claims under the FMLA fall into two categories:first, that she was treated differently upon her return from herfirst pregnancy; and, second, that she was fired upon givingnotice of the need for additional FMLA leave for her secondpregnancy. The Court will address these in reverse order.
For a plaintiff to avail herself of her FMLA rights, she mustcomply with the FMLA's notice requirements. Rocky,54 F. Supp. 2d at 1170. If the leave is foreseeable, "an employee must givean employer at least thirty days notice of her intent to takesuch leave." Id.; see also 29 C.F.R. § 825.302(a). That notice "must state the anticipatedtiming and duration of the leave, and must be sufficient to makean employer aware that the employee needs FMLA-qualifying leave."Rocky, 54 F. Supp. 2d at 1170 (internal citation and quotationomitted); see also Williams v. Air Prods. & Chems., Inc., 2005WL 2007098 at *4 (N.D. Fla. Aug. 16, 2005) (employee must onlymake employer aware that absence is due to potentiallyFMLA-qualifying reason); 29 C.F.R. § 825.302(c). The bottom line,however, is that while the employee need not cite to the FMLA,she must clearly state that leave is necessary. See29 C.F.R. § 825.302(c) ("The employee need not expressly assert rights underthe FMLA or even mention the FMLA, but may only state that leaveis needed for an expected birth. . . .") (emphasis supplied);Peters v. Cmty. Action Comm., Inc. ofChambers-Tallapoosa-Coosa, 977 F. Supp. 1428, 1436 (M.D. Ala.1997) (when giving notice of leave, employee did not have toinvoke FMLA, but did have to give notice of "serious healthcondition for which she was taking leave.") (emphasissupplied).
In this case, the only thing of which Martinez gave notice tothe Defendant regarding her second pregnancy was that she waspregnant, and she only did that when she was "only a couple ofmonths pregnant." (Doc. 27, Att. 5 at 4). Martinez states clearlythat she did not ask for FMLA leave for this second pregnancy,and gives no indication that, prior to the time she was fired,she ever asked for, or stated an intention to take, any sort ofleave in relation to the birth of her second child. (Doc. 27,Att. 5 at 3-4).23 Without requesting leave, Martinezcannot have engaged in statutorily protected conduct or attempted to avail herself ofher rights under the FMLA. Therefore, she has failed to establishthe first element of a claim under the FMLA, for eitherdiscrimination or retaliation, as it relates to hertermination.24
2) Differential treatment and retaliation upon return fromFMLA leave
Martinez claims that, upon her return from FMLA leave, theDefendant failed to return her to the same or an equivalentposition, and instead assigned her to less desirable duties. Sheasserts that she was discriminated against because before herfirst pregnancy, she had done a good job, but that when shereturned from leave, she was not returned to an equivalentposition with equivalent pay, benefits, and working conditionsbecause on her return, she was "bounced around from place to place," which prevented her from setting up a customer base.(Doc. 27, Att. 4 at 8, Att. 5 at 2). She also asserts that thisbeing "bounced around" means that she was treated less favorablythan other similarly situated employees. (Doc. 27, Att. 4 at 11).While she admits that her benefits, such as insurance, did notchange, she indicates that her pay changed because she wasn'tmaking as many sales. (Doc. 27, Att. 4 at 8, Att. 5 at 2). Thus,although both before and after her first pregnancy, she wasassigned to a "problem community," she attempts to distinguishher post-pregnancy assignment on the grounds that the Defendanttried to blame her poor performance post-pregnancy on her becauseshe was the full time sales representative at that property.(Doc. 27, Att. 5 at 2).
The FMLA does not require that an employee be returned to theexact position that she held prior to taking leave. Brown v.J.C. Penney Corp., 924 F. Supp. 1158, 1163 (S.D. Fla. 1996).Instead, the FMLA entitles a restored employee to only thoserights, benefits or positions "to which the employee would havebeen entitled had the employee not taken the leave." Lempres v.CBS Inc., 916 F. Supp. 15, 20 (D.D.C. 1996) (citing29 U.S.C. § 2614(a)(3)(B)). Indeed, the "`equivalent position' provisionunder § 2614(a)(1)(B) recognizes the dynamic needs of employersand permits them to restore employees to positions other than theexact one they left. . . ." Hoge v. Honda of Am. Mfg., Inc.,384 F.3d 238, 245 (6th Cir. 2004). Therefore, the "equivalentposition" requirement means "that which is substantially equal orsimilar, not necessarily identical or exactly the same." Watkinsv. J&S Oil Co., Inc., 164 F.3d 55, 59 (1st Cir. 1998); see alsoHunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 767 (5thCir. 2001) ("An equivalent position is virtually identical to theemployee's former position in terms of pay, benefits and workingconditions, including privileges, prerequisites and status.");Cross v. S.W. Recreational Indus., Inc., 17 F. Supp. 2d 1362, 1370 n. 1 (N.D. Ga. 1998) ("Anequivalent position must have the same or substantially similarduties and responsibilities, skill requirements, and authority asan employee's existing position.") (internal citation andquotation omitted).
Martinez' assertion that she was denied a substantially similarposition upon her return from FMLA leave is tenuous. When sheleft, and when she returned, she worked as a salesrepresentative. She has offered no evidence that her benefitschanged and, indeed, admits that they did not. She has presentedno evidence that the manner in which she was compensated changed,such as by demonstrating that her salary or commission rate wasmodified. Further, the fact that she earned less in commissionswould necessarily result from her failure to make sales, not fromthe defendant changing the manner in which she was paid. At best,Martinez has shown that, prior to taking leave, she worked from(or was based at) a single property, but that after taking leave,she was moved from property to property with some regularity.Because this may be considered different working conditions, theCourt will presume for the purposes of this analysis (whilenoting that this presumption is a stretch) that Martinez hasstated a prima facie case of FMLA discrimination.
However, as the Defendant points out, one must take intoconsideration the fact that Martinez' moves were based on acombination of two factors: first, she temporarily filled in forother sales representatives while she was interviewing for amanagement position, a better position than that which she left,and one about which she cannot realistically complain as beingunequal; and, second, she was assigned to various properties asneeded while she was awaiting permanent assignment at a propertyto which she requested to be assigned. These are legitimatenon-discriminatory reasons for the manner in which Martinez wastreated upon her return from FMLA leave, and Martinez has failed to either rebut these reasons orshow that they are merely pretextual. Martinez has thereforefailed to carry her burden of persuasion regarding her claim of adenial of FMLA benefits. A claim for denial of FMLA rights (andthus an employer's liability) simply cannot rest on differentworking conditions caused by either the employer's attempt topromote the employee, or the employee's efforts to accommodatethe employee's wishes, once the employee returns from leave.
Martinez also claims that she was retaliated against afterreturning from maternity leave by being sent from community tocommunity.25 (Doc. 27, Att. 4 at 9). She asserts that noone else was being "bounced around" the way she was, and sheimplies that she was treated that way because she had takenmaternity leave. (Id. at 10). She concedes, however, that thefirst thing that happened upon her return from maternity leavewas that she was considered for a management position, and thatshe wasn't assigned to a single community because "they wanted towait and see about the interview process." (Id. at 10). Shealso admits that being considered for a management position wouldnot constitute retaliation. (Id.). She claims that after beinginterviewed, she could have been assigned to a community, butinstead, she was asked to help out by going "from place toplace," while new hires were being given new communities at whichto work.26 (Id.). She also asserts that although theDefendant honored her request to be assigned to the Enclave, theyknew that the Enclave "had problems" such as overpricing on houses asa result of unfavorable deals with the developer. (Doc. 27, Att.5 at 14). However, she admits that these pricing decisions werenot made to retaliate against, or punish her, but instead that itwas simply an unfavorable circumstance that made her sales godown, a circumstance about which no one was happy. (Id.).
The Court presumes that Martinez has stated a prima facieclaim of retaliation.27 Nevertheless, her claim must failbecause the Defendant has offered legitimate, non-discriminatoryreasons for the manner in which Martinez was treated, whichreasons she has failed to rebut. As with the discriminationclaim, the Defendant points to the fact that Martinez' temporaryassignments to various properties were due to two circumstances:first, she was interviewing for a management position (which evenMartinez concedes is not retaliation); and, second, she wastemporarily assigned to those communities while waiting for amore permanent assignment to a community that she requested.Martinez' argument that she was "floating" while other, newersales representatives received more permanent assignments, andwas thus treated differently and unfairly, simply ignores thesetwo circumstances. Therefore, Martinez has failed to carry herburden of persuasion with regard to her FMLA retaliation claim.
C. Pregnancy Discrimination28
Congress amended Title VII by enacting the PregnancyDiscrimination Act, which expands the definition of sexualdiscrimination and states, in relevant part: The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise.
42 U.S.C. § 2000e(k).29 Pregnancy is therefore aprotected classification under the statute. Maddox v. GrandviewCare Ctr., Inc., 780 F.2d 987, 989 (11th Cir. 1986). Title VII'ssubstantive rules regarding sex-based employment discriminationthus apply with equal force to employment discrimination based onpregnancy, and the "analysis required for a pregnancydiscrimination claim is the same type of analysis used in otherTitle VII sex discrimination suits." Armstrong v. Flowers Hosp.,Inc., 33 F.3d 1308, 1312-13 (11th Cir. 1994). Thus, to state aprima facie case of pregnancy discrimination under Title VII,the plaintiff must show that: "1) she was a member of a protectedclass, 2) she was qualified for her position, 3) she suffered anadverse effect upon her employment, and 4) she suffered fromdifferential application of work or disciplinary rules." Armindov. Padlocker, Inc., 71 F. Supp. 2d 1238, 1239 (S.D. Fla. 1998);see also Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1312(11th Cir. 1999). In a disparate treatment case, the plaintiff must show"discriminatory animus on the part of the defendant[,]" Edwardsv. Wallace Cmty. Coll., 49 F.3d 1517, 1520 (11th Cir. 1995), or,in other words, "must prove that the employer intentionallydiscriminated against her." Mitchell v. Jefferson County Bd. ofEduc., 936 F.2d 539, 546 (11th Cir. 1991). If the plaintiffcannot present direct evidence of discriminatory intent, she mayoffer "circumstantial evidence from which an inference ofintentional discrimination may be drawn." Armstrong v. FlowersHosp., Inc., 33 F.3d 1308, 1313 (11th Cir. 1994).
The Court will not rehash its findings regarding the majorityof Martinez' claims in this regard. For the reasons stated above,her claims of discrimination on the grounds that the Defendantfailed to return her to an equivalent position, gave her lessdesirable assignments, and terminated her when she gave notice ofintent to take pregnancy leave a second time, all fail. Thus, theonly claim that the Court analyzes here is Martinez' assertionthat she was treated differently than other employees. In thisregard, Martinez asserts that she was treated differently on twogrounds: first, new employees were assigned to new communitieswhereas she was required to "float;" and, second, other employeesalso failed to meet the sales requirements but were notterminated.
1) Assignments to new communities
Martinez' assertions in this regard are baffling at best.First, it is notable that both of the communities to whichMartinez was assigned (at her request), the Enclave and EastPark, were new communities at the time she was assigned there.(Doc. 27, Att. 2 at 17; Doc. 37 at 20, 26; Doc. 41, Att. 2 at 6).In addition, there were no new communities available prior to herassignment to the Enclave, and she was the first person assignedto that new community. (Doc. 41, Att. 2 at 5; Doc. 37 at 26). Martinez also admits that, uponher return from FMLA leave, she was not immediately assigned toany community in particular because she first interviewed for amanagement position and then was filling in while she waited forassignment to the Enclave (which she had requested). (Doc. 27,Att. 3 at 7). Finally, in her Memorandum, to support herassertions in this regard, Martinez makes only the conclusoryassertion that "a number of new hires were being given newcommunities at around the time the Plaintiff returned from FMLAleave."30 (Doc. 36 at 6). This assertion is notsufficient, and Martinez' evidence in this regard does not createan issue of fact suggesting that Martinez was treated differentlyupon her return on the basis of assignments to new communities.
2) Lack of sales
To determine whether employees are "similarly situated" forestablishing a prima facie case of discrimination, courts areto consider "whether the employees are involved in or accused ofthe same or similar conduct and are disciplined in differentways." Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).The plaintiff must show "that [she] and the employees aresimilarly situated in all relevant respects," id., such as"performance, qualifications and conduct, without suchdifferentiating or mitigating circumstances that woulddistinguish their situations." Smith v. Stratus Computer, Inc.,40 F.3d 11, 17 (1st Cir. 1994) (internal citation and quotationomitted); see also Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992) ("[T]o be deemed `similarly-situated,' the individuals withwhom the plaintiff seeks to compare his/her treatment must havedealt with the same supervisor, have been subject to the samestandards and have engaged in the same conduct without suchdifferentiating or mitigating circumstances that woulddistinguish their conduct or the employer's treatment of them forit."). "The most important factors in the disciplinary contextare the nature of the offenses committed and the nature of thepunishments imposed." Maniccia v. Brown, 171 F.3d 1364, 1368(11th Cir. 1999). The "quantity and quality of the comparator'smisconduct [must] be nearly identical to prevent courts fromsecond-guessing employers' reasonable decisions and confusingapples with oranges." Id.
Both Toro and Quintana, in discussing the Defendant'sdisciplinary actions, noted the following: (1) decisions arebased on both sales and customer satisfaction ratings, (Doc. 37at 14); (2) sales are reviewed on a monthly basis for an entireyear, (id. at 16, 37); (3) the sales requirement is partiallydependent upon the particular community at issue, (id. at 21);and (4) once an employee receives a thirty-day warning, they maybe terminated after that, or the warning period may be extended,depending upon the nature of the situation. (Doc. 41, Att. 2 at4).
Martinez asserts that a number of similarly situatedindividuals, none of whom took FMLA leave for pregnancies, failedto meet sales goals yet were not terminated. She points to thefollowing individuals: Quintana, Erin Merola ("Merola"), JenniferWarlick ("Warlick"), Richard Vega ("Vega") and Twiggy Reyes("Reyes").31 Martinez asserts that Quintana fell below the sales requirementin both February and March of 2003, yet was not terminated.However, Quintana sold three and four homes, respectively, inthose months, and made those sales in a close-out community.(Doc. 37 at 46). Quintana had also been promoted to a managementposition at that time. Martinez was neither a manager nor workingin a close-out community, and thus Quintana is not similarlysituated.
Martinez asserts that Merola failed to achieve the salesrequirement from September through December of 2002. During thattime, Merola sold eleven homes, whereas the requirement, at fourhomes per month, would have been sixteen homes. (Doc. 37 at 48).During this time, Martinez sold five homes, and thus the natureof their "misconduct" is not essentially the same. (Doc. 42, Att.1). Furthermore, Martinez has not demonstrated how she and Merolawere similarly situated, particularly as it appears that Merolaonly began working for the Defendant in September, and thus wouldnot be similarly situated with Martinez in terms ofexperience.32
Next, Martinez points to Warlick, and asserts that Warlickfailed to meet the sales requirement for the year 2002, yet wasnot terminated thereafter. Much like Martinez, Warlick didreceive a written warning based on her deficient performance, andwas not immediately terminated. (Doc. 37 at 29). Unlike Martinez,however, Warlick's performance improved after receiving that warning. (Id.; see also Doc. 28 at 2). Warlickis thus not an appropriate comparator.
Fourth, Martinez asserts that Vega failed to meet the salesrequirement for the year 2002, yet was not terminated. Vega,however, was a new hire, who was likely in training for as manyas three months, during which time he might not have made sales.(Doc. 41, Att. 2 at 10). Thus he and Martinez are not similarlysituated.
Finally, Martinez asserts that Reyes failed to meet the salesrequirement for the year 2002, yet is still employed by theDefendant. During that time, however, Reyes had a 95% customersatisfaction rating (far higher than Martinez' rating), and thuswas not fired because of her high scores in that area. (Doc. 41,Att. 2 at 10). Reyes also sold more than double the number ofhouses that Martinez sold during 2002. (Doc. 42, Att. 2). Forboth of those reasons, Reyes and Martinez were not similarlysituated.33
Martinez has failed to identify a single similarly situatedemployee. She has not pointed to anyone who shared similarqualifications or experience with her, has not shown how herexperience and assignments compared to those of any other salesrepresentatives, nor has she identified anyone who engaged innearly identical misconduct. Therefore, Martinez has failed to establish a prima facie case of discrimination,34 andthe Defendant is entitled to summary judgment on this claim.Holifield, 115 F.3d at 1562-63.
For the reasons stated herein, Martinez has failed to supporther claims of discrimination and retaliation under the FMLA, aswell as her claim of discrimination under the PregnancyDiscrimination Act. Accordingly, it is
ORDERED THAT the Defendant's Motion for Summary Judgment isGRANTED. This case is removed from the January 2006 trial docket,and the Clerk is directed to close the file.
DONE and ORDERED.