Given the opportunity, most defense lawyers will remove an employment discrimination case filed in state court to federal court because federal judges are more inclined to grant summary judgment, i.e. a judgment in favor of one party before the case goes to trial. But as a recent case from Florida’s Third District Court of Appeal illustrates, an employer can win summary judgment on a discrimination claim in state court given the right set of facts.
In Johnson v. Great Expressions Dental Centers of Florida, P.A., Case No. 3D13-794 (Fla. 3d DCA, January 8, 2014), the plaintiff, Cynethia Johnson, had been a patient coordinator for the defendant’s dental practice. From the start of her employment, Johnson had a poor relationship with the primary dentist, Dr. Jessica Papir, and also had various disputes with co-workers and with Great Expressions’ patients. After being issued two formal warnings, she was terminated in December 2009 when she showed up to work late, inappropriately dressed, and with a bad attitude.
Johnson sued under the Florida Civil Rights Act claiming racial discrimination. She claimed that her supervisor refused to transfer her to another Great Expressions location after she continued to have problems with Dr. Papir. She also claimed that three of four black employees in the office had either quit or were fired in 2009, and that the fourth quit in 2011. Johnson asserted that these allegations were circumstantial evidence from which a jury could infer that she was fired because of her race. The trial court disagreed and granted summary judgment to the employer on the grounds that Johnson had failed to meet an essential element of her prima facie case – namely, that the employer treated similarly situated, non-black employees more favorably.
The Third DCA affirmed the trial court’s decision. The court noted that it was undisputed that Johnson had poor relations with patients and co-workers and that she had reported to work on the day of her termination with a bad attitude. Johnson could not point to any non-black co-worker who behaved similarly and was not terminated. Johnson argued on appeal that it was not necessary for her to produce evidence of a non-black comparator – that it was sufficient if she presented a “convincing mosaic” of circumstantial evidence that Great Expressions terminated her employment based on her race. But the court noted that no Florida court had adopted the “convincing mosaic” standard. And, even assuming such a standard applied, Johnson could not meet it because there was no convincing evidence of racial discrimination. Great Expressions had declined to transfer Johnson to the other office because that position required a Spanish speaker, and Johnson does not speak Spanish. And the turnover in Johnson’s position was quite high, so the fact that other black employees had been terminated or resigned was not significant.
Florida state court judges are generally reluctant to grant summary judgment. But employers should take heart from the Johnson case. It shows that under the right set of facts, an employer can defeat a discrimination claim in state court without bearing the risk and expense of a trial.
