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TRACEY GRAHAM, Plaintiff, v. BARRIER TECHNOLOGIES, LLC and MARC GLICKMAN, Defendants.
June 15, 2021, Entered on Docket
June 15, 2021, Decided
For Tracey Graham, Plaintiff: Bryan Louis Arbeit, Morgan & Morgan, P.A., Plantation, FL; Lawrence M. Pearson, Parisis G. Filippatos, PRO HAC VICE, Wigdor LLP, New York, NY.
For Barrier Technologies, LLC, DMD Marc Glickman, in his individual capacity, DMD Marc Glickman, in his professional capacity, Defendants: Alexandra Christine Hayes, Perera Barnhart Aleman, Coral Gables, FL; Brody Max Shulman, PERERA BARNHART ALEMAN, Davie, FL; Jorge Freddy Perera, Perera Barnhart Aleman, Second Floor, Davie, FL.
RAAG SINGHAL, UNITED STATES DISTRICT JUDGE.
ORDER ON MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court on Defendants Barrier Technologies, LLC ("BTL") and Marc Glickman's Motion for Summary Judgment (DE ). Plaintiff Tracey Graham has filed a Response in Opposition (DE ), and Defendants have filed a Reply (DE ). The Court has also considered the parties' supporting documents and all the exhibits in the record. See ( DE , , , , ). For the reasons discussed below, the Court grants Defendants' Motion.
I. MATERIAL FACTS
The sole claim remaining in this action is Graham's claim of retaliation under the Emergency Paid Sick Leave Act ("EPSLA"), Division E of the Families First Coronavirus Response Act ("FFCRA"), Pub. L. No. 116-127 , §§ 5101-11, 134 Stat. 178 , 195-201 (2020).1 Graham alleges in her Amended Complaint that Defendants violated the EPSLA by terminating her "after she developed viral symptoms and self-isolated as she was advised to do by her health care provider because of COVID-19 concerns." Am. Compl. ¶ 4 (DE ). Defendants now move for summary judgment on this claim. The following facts are undisputed.2
A. BTL's Operations
BTL manufactures radiation protection products and offers embroidery services to clients who purchase those products. SOMF ¶ 1 (DE ). Glickman is the sole owner of BTL and is the sole decisionmaker for economic layoffs. Id. ¶¶ 1, 11. BTL's primary clients include medical professionals who perform elective procedures that require the use of ionizing radiation. Id. ¶ 7. To make sales to clients, BTL depends, in part, on its representatives' in-person visits to clients. Id. ¶ 8.
Graham's employment as an embroiderer at BTL began on February 24, 2020, on an at-will, probationary basis. Id. ¶ 2. Graham arrived late, left early, or missed a day of work during six of the seven weeks of her employment at BTL. Id. ¶¶ 25, 27-35. These issues occurred during Graham's 90-day probationary period. Id. ¶ 26.
On March 20, 2020, Governor Ron DeSantis issued Executive Order 20-72, which restricted medically unnecessary procedures:
All hospitals, ambulatory surgical centers, office surgery centers, dental, orthodontic and endodontic offices, and other health care practitioners' offices in the State of Florida are prohibited from providing any medically unnecessary, non-urgent or non-emergency procedure or surgery which, if delayed, does not place a patient's immediate health, safety, or wellbeing at risk, or will, if [*2] delayed, not contribute to the worsening of a serious or life-threatening medical condition. . . .Id. ¶ 6. On March 22, 2020, Broward County issued Emergency Order 20-01, which ordered that "[a]ll nonessential retail and commercial business locations" were to "close except to the extent necessary to perform Minimum Basic Operations." Id. ¶ 9. BTL asserts that many of its clients were "shut down," but Graham disputes this fact because the primary clients were also considered "essential businesses." See OSOMF ¶ 10 (DE ).
Regarding BTL's economic conditions, COVID-19 "had a drastic effect on BTL's revenue." SOMF ¶ 15 (DE ). During some months of 2020, BTL's revenue was down by approximately 40% year-over-year. Id. ¶ 17. BTL's total revenue in 2019 was approximately $3.7 million, and its revenue in 2020 was down to approximately $3 million. Id. ¶ 16. BTL did not have the capacity to operate remotely if the business had to close because employees contracted COVID. RSOMF ¶ 85 (DE ).
B. Graham's Sick Leave
At 8:01 a.m. on April 10, 2020, BTL checked Graham's temperature before her shift, and her temperature was normal. SOMF ¶ 36 (DE ). A "few minutes before" 11:31 a.m., Graham complained that she was "not feeling well," but she did not specify why or identify any symptoms. Id. ¶ 37. No one at BTL asked Graham what was wrong. Id. ¶ 38. After Graham told Glickman she was not feeling well, Glickman gave her permission to leave work at 11:31 a.m. Id. ¶ 39. Shortly afterward on the same day, Graham had a telemedicine consultation. Id. ¶ 40. She told the doctor she was experiencing nausea, diarrhea, sore throat, a stuffy nose, and a possible fever. Id. She also told the doctor she experienced loss of taste, but she did not report this symptom in her deposition. Id. The doctor advised Graham that he could not make a COVID diagnosis via video. Id. The doctor emailed Graham a visit summary the same day, but Defendants did not obtain this document until the litigation. Id. ¶ 41.
Instead, the same day, Graham forwarded to BTL a "sick slip" from the doctor. Id. ¶ 42; see also ( DE [50-22]). The slip simply stated that Graham was experiencing "viral symptoms" and could stop self-isolation and return to work in seven days (on April 17), if certain conditions were met. (DE [50-22]). The sick slip did not mention COVID. See id. Graham did not tell Defendants that she had any COVID-related concerns and did not provide any other information to them that day. SOMF ¶ 42 (DE ). Graham's leaving early on April 10 was not surprising to Glickman because Graham had a history of doing so, and he never thought Graham contracted COVID, especially because the sick slip mentioned self-isolation for only seven days instead of the fourteen days Glickman believed to be the COVID standard. Id. ¶¶ 43-44. Graham disputes these facts because she asserts that a reasonable jury could determine that it was, in fact, surprising that Graham had viral symptoms during a pandemic and could disbelieve Glickman's testimony that he never thought she contracted COVID. See OSOMF ¶¶ 43-44 (DE ). There were never any discussions about Graham's health at BTL after she left work early that day. SOMF ¶ 45 (DE ). Graham has never been [*3] tested for COVID, including on April 10, and has never mentioned having COVID to Defendants. Id. ¶¶ 47, 50. At BTL, if an employee tested positive for COVID, other employees were informed so they could get tested, but no contact tracing was performed in Graham's case. Id. ¶ 46.
C. Graham's Layoff
On April 16, 2020, Defendants ended Graham's employment. Id. ¶ 51. But the parties dispute how this decision came about. Defendants maintain that, on March 23, 2020, Glickman decided to lay off employees and determined that Graham and another employee, Christiana Ciraldo, would be laid off. Id. ¶ 11. Glickman maintains that he told Michael Mazzurco, BTL's vice president of sales, on March 23 about needing to lay off Ciraldo and Graham. Id. ¶¶ 11-12; see also id. ¶ 52. Glickman's plan was to lay off Ciraldo before Graham so that the layoffs were staggered "to minimize employee concerns over job security." Id. ¶ 12. But Glickman wanted to wait two weeks to see if Ciraldo's sales to Brazil justified her retention, as she was hired specifically and exclusively for those sales. Id. ¶ 13. Ciraldo was laid off on April 5, 2020, because no sales were being made to Brazil. Id.
By April 5, Glickman had already decided that Graham would be laid off on Sunday, April 12, so that Graham would not have to take the bus on Monday to come to work. Id. ¶ 52. Early in the week of April 6, Glickman had another conversation with Mazzurco about laying off Graham. Id. But, because Graham had a sick slip and did not have to return to work until April 17, BTL did not have to lay off Graham on April 12; instead, BTL told her on April 16 that she was laid off so she would not come into work the next morning. Id. ¶ 53. Glickman's decision to lay off Graham "had nothing to do" with her leaving early on April 10. Id. ¶ 54.
Glickman maintains that he told Mazzurco on March 23 that Graham would be laid off because "of the lack of work, she's unreliable, and she's still on her probationary period[.]" Id. ¶ 14. Graham was the first employee to be laid off because she was the last one hired, and BTL had other employees who could also perform embroidery. Id.; see also id. ¶ 55. BTL laid off Graham on April 16 through a text message referencing the "current economic conditions related to COVID-19." Id. ¶ 14; see also id. ¶ 51. It is undisputed that BTL used the same language in the text message laying off Ciraldo. RSOMF ¶ 83 (DE ). Graham disputes these facts, contending that a reasonable jury could find that BTL lied about Glickman's conversations with Mazzurco or about the reason BTL laid her off. See OSOMF ¶¶ 11-14, 51-55 (DE ).
II. LEGAL STANDARD
Summary judgment is appropriate "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." Fed. R. Civ. P. 56(a) . "A district court must grant a motion for summary judgment only 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 a judgment as a matter of law." Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d 1292 , 1299 (11th Cir. 2018). An issue is "genuine" if a reasonable [*4] trier of fact, viewing all of the record evidence, could rationally find in favor of the nonmoving party in light of his burden of proof. Harrison v. Culliver, 746 F.3d 1288 , 1298 (11th Cir. 2014). And a fact is "material" if, "under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256 , 1259-60 (11th Cir. 2004). "[W]here the material facts are undisputed and do not support a reasonable inference in favor of the non-movant, summary judgment may properly be granted as a matter of law." DA Realty Holdings, LLC v. Tenn. Land Consultants, 631 F. App'x 817 , 820 (11th Cir. 2015).Nakava, LLC v. S. Pac. Elixir Co., [2020 BL 300965], 2020 U.S. Dist. LEXIS 142471 , [2020 BL 300965], 2020 WL 4601641 , at *1 (S.D. Fla. Aug. 10, 2020).
Defendants argue that they are entitled to summary judgment because the evidence shows that (1) the decision to lay off Graham was made weeks before she took sick leave; (2) Graham never told Defendants she suspected a COVID infection; and (3) Graham cannot rebut Defendants' legitimate reasons for termination. Graham responds that: (1) Defendants were given sufficient information in the sick slip to determine that her sick leave was covered by the EPSLA; (2) factual issues exist about whether Glickman actually believed Graham's sick leave was related to COVID and whether Glickman decided to terminate Graham on March 23; and (3) factual issues exist about whether Defendants' proffered reasons for terminating Graham are pretextual.
A. The EPSLA
Division E of the FFCRA—the EPSLA—requires employers to provide paid sick time under six COVID-related conditions, one of which is relevant here:
(a) IN GENERAL.—An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:
. . .
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
. . .Pub. L. No. 116-127 , § 5102 (a)(2), 134 Stat. at 195. An employer who violates this section shall "be considered to have failed to pay minimum wages in violation of section 6 " of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 206 , and is subject to the penalties in 29 U.S.C. §§ 16 and 17 . Pub. L. No. 116-127 , § 5105 (a)(1), 134 Stat. at 197.
Next, section 5104 of the EPSLA—the retaliation provision—makes it unlawful for an employer to "discharge . . . or in any other manner discriminate against" an employee who "takes leave in accordance with" the EPSLA. Id. § 5104 (1), 134 Stat. at 196-97. An employer who willfully violates this section shall "be considered to be in violation of section 15(a)(3) " of the FLSA, 29 U.S.C. § 215(a)(3) . Pub. L. No. 116-127 , § 5105 (b)(1), 134 Stat. at 197. The Department of Labor also promulgated implementing regulations for the EPSLA. See 29 C.F.R. §§ 826.10 -.160 (effective Apr. 10, 2020 to Sept. 15, 2020).3
Because the EPSLA is patterned after the FLSA, FLSA case law is instructive. See O'Bryan v. Joe Taylor Restoration, Inc., 2021 U.S. Dist. LEXIS 1710 , [2021 BL 3073], 2021 WL 53281 , at*1 n.1 (S.D. Fla. Jan. 6, 2021). To establish a prima facie case of retaliation under section 15(a)(3) of the FLSA , a plaintiff must show that: "(1) she engaged in a statutorily protected activity; (2) she subsequently suffered adverse action by the employer; and (3) a causal connection existed between the employee's activity and the adverse action." Keith v. Univ. of Miami, 437 F. Supp. 3d 1167 , 1171 (S.D. Fla. 2020) (citing Wolf v. Coca-Cola [*5] Co., 200 F.3d 1337 , 1342-43 (11th Cir. 2000)). To satisfy the causation element, the plaintiff must show that "she would not have suffered an adverse action 'but for her assertion of FLSA rights.'" Everett v. Grady Mem'l Hosp. Corp., 703 F. App'x 938 , 950 (11th Cir. 2017) (emphasis added) (citing Wolf, 200 F.3d at 1343 ).
"When . . . a plaintiff does not present any direct evidence of retaliatory discharge, circumstantial evidence may be evaluated under the burden shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 802 , 93 S. Ct. 1817 , 36 L. Ed. 2d 668 (1973)." Raspanti v. Four Amigos Travel, Inc., 266 F. App'x 820 , 822 (11th Cir. 2008). "Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the employer to proffer a legitimate reason for the adverse action." Hornsby-Culpepper v. Ware, 906 F.3d 1302 , 1314 (11th Cir. 2018) (citing Wolf, 200 F.3d at 1342-43 ). "If the employer offers a legitimate reason, the plaintiff must then establish that the proffered reason was pretextual." Id. (citing Wolf, 200 F.3d at 1343 ). "To show pretext, a plaintiff must 'demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.'" Everett, 703 F. App'x at 948 (quoting Rioux v. City of Atlanta, 520 F.3d 1269 , 1275 (11th Cir. 2008)).
B. Causation Element
First, the Court agrees with Defendants that Graham fails to establish but-for causation because Defendants made the decision to lay her off before she took the sick leave. The EPSLA regulations provide that an employer shall provide paid sick leave if the employee is "unable to work due to" being "advised by a health care provider to self-quarantine due to concerns related to COVID-19." 29 C.F.R. § 826.20(a)(1)(ii) (emphasis added); see also id. § 826.150(a) ("An Employer is prohibited from discharging, disciplining, or discriminating against any Employee because such Employee took Paid Sick Leave under the EPSLA." (emphasis added)).
There is no doubt that Graham's layoff on April 16 was close in time to her leave on April 10. But the Eleventh Circuit has held that "when an employer contemplates an adverse employment action before an employee engages in protected activity, temporal proximity between the protected activity and the subsequent adverse employment action does not suffice to show causation." Salem v. City of Port St. Lucie, 788 F. App'x 692 , 696 (11th Cir. 2019) (emphasis added) (quoting Drago v. Jenne, 453 F.3d 1301 , 1308 (11th Cir. 2006)). For example, because the record evidence in Drago showed that the employer contemplated demoting the employee before he ever complained of the employer's interference with his Family and Medical Leave Act rights, the employee was unable to show that a jury question existed for his retaliation claims under the FMLA, Age Discrimination in Employment Act, and Florida Civil Rights Act. 453 F.3d at 1308 ; see also Salem, 788 F. App'x at 696 (holding that, even though employee was terminated while on FMLA leave, he failed to establish causation because the evidence showed that employer contemplated employee's termination before he requested his FMLA leave).
Here, the Court agrees with Defendants that Graham cannot establish the prima facie element of causation. Defendants' evidence shows that Glickman told Mazzurco on March [*6] 23 and early in the week of April 6—before Graham said she was not feeling well and forwarded the sick slip on April 10—that Graham and Ciraldo were selected for layoffs. Graham does not point to any evidence disputing this fact; her Response in Opposition appears to imply that Defendants are required to produce documentary memorialization of their conversations, but she cites no authority to support this proposition. See Resp. in Opp'n 5-6 (DE ).
Graham also unpersuasively attacks Glickman's and Mazzurco's credibility by stating that they have known each other for more than twenty-five years and that Mazzurco received a raise in 2021 before his deposition; thus, Graham asserts, a jury could determine that Glickman and Mazzurco's conversations about Graham on March 23 and early in the week of April 6 never occurred. Id. at 6.4 Graham is essentially asking the Court to determine that a factual issue exists because Defendants' witnesses are not credible. This, the Court cannot do. See Earle v. Birmingham Bd. of Educ., 843 F. App'x 164 , 165-66 (11th Cir. 2021) (stating that, on summary judgment, courts cannot make their own credibility determinations (quoting Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295 , 1304 (11th Cir. 2016))); Fed. Trade Comm'n v. Lanier Law, LLC, 715 F. App'x 970 , 979 (11th Cir. 2017) ("A general objection that an opposing party's evidence is incredible . . . is insufficient to overcome summary judgment."). Graham's conclusory assertions—that Glickman's and Mazzurco's deposition testimony or affidavits are untrustworthy because of their bias—do not create a factual issue. See, e.g., Lanier Law, LLC, 715 F. App'x at 979 ("[The defendant] has cited no authority that a party can create a disputed issue of material fact simply by asserting that the opposing party's declarations are untrustworthy."). Thus, the Court finds that Graham cannot prove causation.
Further, even if there were a factual issue about when Glickman contemplated laying off Graham, Graham still cannot prevail because the evidence shows that Glickman was not aware of any COVID-related concerns when Graham was laid off on April 16. To establish causation, the plaintiff must show "that the decision maker was aware of the protected conduct at the time of the adverse employment action." Melvin v. Fed. Express Corp., 814 F. App'x 506 , 519 (11th Cir. 2020) (quoting Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791 , 799 (11th Cir. 2000)). "That requirement rests on the common-sense notion that '[a] decision maker cannot have been motivated to retaliate by something unknown to him.'" Id. (alteration in original) (quoting Brungart, 231 F.3d at 799 ).
Here, it is undisputed that Glickman was the sole decisionmaker for Graham's layoff. Graham's temperature was normal when she came into work on the morning of April 10. After Graham reported "not feeling well" a couple hours later, Glickman allowed her to leave work early. The only information Glickman had about Graham's illness was the sick slip forwarded to BTL on April 10.5 The sick slip simply stated that Graham had "viral symptoms" and that she may discontinue self-isolation and return to work seven days later if certain conditions were met. It is undisputed that Graham never informed Glickman [*7] that she had concerns related to COVID, nor does the sick slip mention anything about a potential COVID illness. Glickman never suspected Graham had COVID, especially because Graham was ordered to isolate for only seven days instead of the fourteen days Glickman understood was required for COVID. At BTL, when an employee tested positive for COVID, other employees were informed so they could get tested, but no contact tracing was performed in Graham's case.
In short, Defendants' overwhelming evidence indicates that Glickman had no knowledge—before laying off Graham—of her protected conduct of taking leave because of COVID-related concerns. See Mihoubi v. Caribou Coffee Co., 288 F. App'x 551 , 557 (11th Cir. 2008) ("There is no causal connection . . . if the person who made the decision to terminate the employee learned of the protected activity after he fired the employee." (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 , 273 , 121 S. Ct. 1508 , 149 L. Ed. 2d 509 (2001))). To defeat this evidence, Graham again simply attacks Glickman's credibility and argues that a reasonable jury could find that Glickman did, in fact, suspect that Graham's viral symptoms during a global pandemic were related to COVID. Although the Court is required to draw all reasonable inferences in Graham's favor, see DA Realty Holdings, 631 F. App'x at 820 , there is no evidence from which the Court may draw the inference that Glickman knew that Graham was ordered to self-isolate because of a COVID-related concern. To the contrary, all the evidence shows that Glickman had no such knowledge. Most importantly, the EPSLA's plain language protects an employee who was advised to quarantine because of "concerns related to COVID-19," not because of concerns related to any viral symptoms. See Pub. L. No. 116-127 , § 5102 (a)(2), 134 Stat. at 195. It is this Court's job "to interpret the words consistent with their 'ordinary meaning . . . at the time Congress enacted the statute.'" Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067 , 2070 , 201 L. Ed. 2d 490 (2018) (omission in original) (quoting Perrin v. United States, 444 U.S. 37 , 42 , 100 S. Ct. 311 , 62 L. Ed. 2d 199 (1979)). Consequently, because Graham cannot establish the prima facie element of causation, the Court finds that Defendants are entitled to summary judgment in their favor on Graham's retaliation claim under the EPSLA. The Court need not reach the parties' other arguments. It is therefore
ORDERED AND ADJUDGED that Defendants' Motion for Summary Judgment (DE ) is GRANTED as to count II of the Amended Complaint. Final judgment will be entered separately.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 15th day of June 2021.
/s/ Raag Singhal
UNITED STATES DISTRICT JUDGE
Graham's Amended Complaint (DE ) states a claim for "retaliation or interference" under the EPSLA. But Graham concedes in her Response in Opposition that the proper claim is one for retaliation, not interference. See Resp. in Opp'n 1 n.1 (DE ). Thus, summary judgment on the interference claim is moot, and this Order discusses only the retaliation claim. Counts I and III have already been resolved. See ( DE , ).
Because this Order addresses only part of Defendants' arguments, some extraneous facts have been omitted in the interest of brevity.
There are three different versions of the regulations that were in effect at different times. See Colombe v. SGN, Inc., [2021 BL 113639], 2021 WL 1198304 , at*2 n.3 (E.D. Ky. Mar. 29, 2021). All references to the regulations in this Order are to the version that was in effect between April 10, 2020 and September 15, 2020 because Graham's leaving work early, self-isolation, and termination all occurred between April 10 and April 16, 2020. Effective January 1, 2021, the pertinent regulations have been reserved by 85 Federal Register 19,347-57 (Apr. 6, 2020). See Gracia v. Law Offs. of Alexander E. Borell, P.A., 2021 U.S. Dist. LEXIS 90825 , [2021 BL 177277], 2021 WL 1881664 , at*3 n.5 (M.D. Fla. Apr. 19, 2021).
Defendants do not dispute these facts about Mazzurco. See RSOMF ¶¶ 77, 79 (DE ).
Although Graham has produced a more detailed physician's report indicating that she was "diagnosed with a viral respiratory infection that may be due to coronavirus," see (DE [61-1]), it is undisputed that the report was not given to Defendants until after Graham initiated litigation.