Curry v. HSBC Tech. & Servs., LLC, Case No: 6:11-cv-963-Orl-36GJK

JACQUELINE CURRY, Plaintiff,

v.HSBC TECHNOLOGY & SERVICES, LLC, Defendant.

Case No: 6:11-cv-963-Orl-36GJK

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

Dated: May 15, 2013

ORDER

This cause comes before the Court upon Defendant HSBC Technology & Services, LLC's ("Defendant") Motion for Summary Judgment ("Motion for Summary Judgment") (Doc. 64). Plaintiff Jacqueline Curry ("Plaintiff"), proceeding pro se, filed a Response in Opposition to Defendant's Motion for Summary Judgment ("Response") (Doc. 67),¹ to which Defendant replied ("Reply") (Doc. 71).² Upon consideration of the parties' submissions, including memoranda, affidavits, depositions and accompanying exhibits, and for the reasons that follow, the Court will grant Defendant's Motion for Summary Judgment.

I. BACKGROUND

A. Statement of Facts³

Plaintiff is an African-American woman, married to an allegedly disabled man. Doc. 65, ¶ 1; Doc. 9, ¶ 4. At the time of the filing of the Amended Complaint, Plaintiff resided in Longwood, Florida, although she has apparently relocated to Asheboro, North Carolina. Doc. 9, ¶ 5; see Doc. 72. Defendant is a multi-national banking and financial services organization. Doc. 64, p. 3.

Plaintiff began working for Defendant around October 6, 2003 as a Business Systems Analyst. Doc. 9, ¶ 12. Plaintiff's employment with Defendant concluded on June 2, 2008.⁴

B. Procedural History

Plaintiff's Amended Complaint, filed on October 4, 2011, asserts three causes of action against Defendant: (1) Count I - Unlawful Retaliation pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) et seq. ("Title VII"); (2) Count II - Unlawful Discrimination in Violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); and (3) Count III - Negligent and Intentional Infliction of Emotional Distress. Doc. 9, ¶¶ 20-69.

Plaintiff's former counsel, Eric Frommer ("Frommer"), filed several Motions to Withdraw as Attorney (Docs. 24, 28, 35), which were denied by the Court without prejudice (Docs. 25, 32, 36). Frommer's fourth Motion to Withdraw as Attorney (Doc. 54), was granted in part and denied in part (Doc. 57). The Court determined, given Plaintiff's representation that the only address at which she can receive mail is P.O. Box 916284, Longwood, FL 32791, that any mail served on Plaintiff at this P.O. Box to be proper mail service. Id. at 4. Second, the Court noted that despite having had more than 112 days since its Order denying Frommer's AmendedMotion to Withdraw, Plaintiff had not retained substitute counsel. Id.; see Doc. 32. Accordingly, the Court granted Frommer's request to be dismissed as Plaintiff's attorney and Plaintiff proceeds pro se.

II. STANDARD

Summary judgment should only be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986) (emphasis in original). A fact is "material" if it may affect the outcome of the suit under governing law. Id. at 248.

The moving party bears the initial burden of stating the basis for its motion and identifying those portions of the record demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be discharged if the moving party can show the court that there is "an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. In determining whether a genuine issue of material fact exists, the court must consider all the evidence in the light most favorable to the nonmoving party. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003).

III. ANALYSIS

A. Plaintiff's Title VII and ADA claims are untimely

Defendant maintains that it is entitled to summary judgment on Plaintiff's Title VII and ADA claims, because Plaintiff cannot establish that she filed suit within ninety (90) days of her receipt of the Notice of Right to Sue from the Equal Employment Opportunity Commission ("EEOC") ("Right to Sue"). Doc. 64, p. 6. In Response, Plaintiff appears to argue that Frommer, her former counsel, indicated he would file within the required ninety days. Doc. 67, p. 1.

Indeed, as Defendant argues, in order for Plaintiff to maintain her Title VII and ADA claims against Defendant, she must demonstrate that she filed her complaint within ninety days of receipt of the Right to Sue. See 42 U.S.C. § 2000e-5(f)(1); Bryant v. U.S. Steel Corp., 428 Fed. Appx. 895, 897 (11th Cir. 2011) ("Dismissal is appropriate when the plaintiff fails to file her lawsuit within 90 days of receiving a right-to-sue letter, unless she shows that the delay was through no fault of her own."); Green v. Union Foundry Co., 281 F.3d 1229, 1233-34 (11th Cir. 2002).

Here, the EEOC issued Plaintiff's Right to Sue on February 24, 2011. See Doc. 64-Ex. 7, p. 25. It is undisputed that Plaintiff filed this action on June 9, 2011, more than ninety days later. See Doc. 1. In her deposition, Plaintiff indicated that she believed she received the Right to Sue on March 9, 2011, but that it may have been on March 15. Plaintiff acknowledges that she does not recall when she received the Right to Sue, but that it was sometime in early March. See Deposition of Jacqueline Curry, August 21, 2012, Doc. 64-Ex. 2 ("Curry Dep."), pp. 126 - 130. In her Response, Plaintiff provides no proof of receipt of the Right to Sue, but attaches a partially redacted email from Frommer, dated May 21, 2011, indicating he believed she had three weeks left to file. See Doc. 67-Ex. 1. Plaintiff also argues that if her claim was time barred, this problem "would have surfaced as soon as Mr. Frommer attempted to file, not nearly a year and ahalf later." Doc. 67, p. 1, ¶ 1. Finally, Plaintiff reiterates that she does not recall the exact date in March 2011 that she received her Right to Sue. Id.

Upon consideration, the Court agrees that Plaintiff has not met her burden of satisfying the ninety day filing requirement. See Green, 281 F.3d at 1234; Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1982). Indeed, other courts have granted summary judgment, where, as here, the plaintiff did not recall their exact date of receipt of the right-to-sue and could not affirmatively demonstrate it was within the statutory period. See Green, 281 F.3d at 1234 ("because Green is unable to present evidence of the date of his wife's receipt of the letter, or to otherwise rebut the fact that ninety-seven days elapsed from the date of mailing to the date of filing, we conclude Green has failed to satisfy his burden."); see also Martinez v. United States Sugar Corp., 880 F. Supp. 773 (M.D. Fla. 1995) (noting that the court had reason to grant judgment for defendant where plaintiff had not met his burden of proof regarding timeliness). Here, Plaintiff does not recall when she received the Right to Sue, except that it was in early March 2011. Further, Plaintiff has not provided sufficient evidence that she was unduly prejudiced by relying upon Frommer's miscalculation of the deadline. Plaintiff has failed to establish that any delay in filing her Title VII and ADA claims was through no fault of her own. Nevertheless, the Court will address the merits of this action and examine the sufficiency of Plaintiff's claims.

B. Plaintiff has not established a prima facie case of Title VII discrimination

In Count I, Plaintiff alleges that Defendant unlawfully retaliated against her in violation of Title VII of the Civil Rights Act. Doc. 9, ¶¶ 20-35. In its Motion for Summary Judgment, Defendant argues that Plaintiff failed to establish a prima facie case of retaliation, andfurthermore, cannot show that the legitimate reason for cessation of her employment was pretext for unlawful discrimination. Doc. 64, pp. 8-12.

To prevail on a claim of Title VII race discrimination, a plaintiff must demonstrate either direct evidence of discrimination or present circumstantial evidence through the burden-shifting analysis set forth in McDonnell-Douglas v. Green, 411 U.S. 792 (1973). Given Plaintiff has not provided any direct evidence of discrimination, she must establish her prima facie case by the preponderance of the evidence under the McDonnell-Douglas framework. Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000); Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013). To make a prima facie case for retaliation, Plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was treated differently than similarly situated persons outside of her protected class; and (4) she was qualified to do her job. Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). Defendant maintains that Plaintiff cannot establish either that she suffered an adverse employment action or that she was treated differently from those outside of her protected class. Doc. 64, pp. 9-11.

First, Plaintiff appears to allege that being left out of meetings starting in 2007, and the end of her employment with Defendant, which she characterizes as being forced to resign, are the adverse employment actions at issue.⁵ With respect to being left out of meetings, Plaintiff has provided no detailed factual allegations that support this claim. Moreover, the Eleventh Circuit has held that adverse employment actions are limited to employer's conduct that negatively affects an employee's salary, title, position, or job duties. See ...