MARC P. OSSINSKY ATTORNEY AT LAW WRITING SAMPLE 3

DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AS TO ALL OF PLAINTIFF’S CLAIMS

The Defendant, HOWARD PANDO, D.M.D., P.A. and JOHN C. YOCUM, JR., D.D.S., P.A., a Partnership of Professional Associations d/b/a ORANGE DENTAL ASSOCIATES, (hereinafter "PANDO & YOCUM"), by and through its undersigned attorneys hereby moves this Court for summary judgment pursuant to Rule 56 and as grounds therefore would show:

1. The pleadings herein have closed. PANDO & YOCUM moves the Court for summary judgment in its favor upon the grounds that on the undisputed facts appearing from the pleadings, depositions, affidavits and discovery of record, there is no genuine issue of material fact and this Defendant is entitled to judgment as a matter of law as set forth below.

2. Plaintiff filed her original complaint on November 5, 1996 in Florida State Circuit Court one day before the 90 day time to file under Title VII would expire from the Right to Sue letter issued by the EEOC. This complaint named only Orange Dental Associates, Inc. as the defendant. Plaintiff filed her Amended Complaint naming additionally as a defendant PANDO, P.A. & YOCUM, P.A. in State Court on or about January 2, 1997. PANDO, P.A. & YOCUM, P.A. was served with this Amended Complaint on or about March 11, 1997 and this case was removed from State Court to Federal Court on or about March 21, 1997. (See pleadings in Court file.) The Plaintiff's pending Fourth Amended Complaint was filed in this Court on March 5, 1998 after the Court's ruling on the Plaintiff’s Motion for Leave to Amend the Complaint dated March 5, 1998.

The Defendant answered the pending complaint by its Answer deemed filed on March 12, 1998 (hereinafter "Answer").

Plaintiff’s cause of action is now brought in one count claiming sex discrimination, due to alleged violation of the Pregnancy Discrimination Act contained at 42 U.S.C. §2000e(k). (Complaint ¶¶18 and 20) This Act only requires that pregnant women be provided with the same benefits applied to any other illness or physical condition provided to any nonpregnant employee.

As a threshold jurisdictional issue, Plaintiff must prove that PANDO & YOCUM:

was Plaintiff's employer; and

treated the Plaintiff differently from other non-pregnant workers who requested medical leave to establish a prima facie case of discrimination based on her pregnancy or on the basis of "sex"; and

PANDO & YOCUM is entitled to the relief requested in this motion because, based upon the pleadings, discovery, and undisputed facts, it is conclusively demonstrated:

Plaintiff cannot prove a prima facie case of sex discrimination based on her Complaint. (Aff. Def. ¶¶25, 26, 28).

Assuming that the Plaintiff was an employee of PANDO, P.A. & YOCUM, P.A. on March 26, 1996 as alleged, PANDO, P.A. & YOCUM, P.A. was fully entitled to discharge her for her violation of the agreement with her employer on payment of Plaintiff's medical insurance while on "leave". (Aff. Def. ¶27).

Plaintiff’s claim is time barred because Plaintiff added this defendant after her 90 day right to sue had run. (Aff. Def. ¶24).

UNDISPUTED FACTS

In order to make a prima facie case for sex discrimination, Plaintiff must have some proof of disparate treatment of the Plaintiff versus other non-pregnant employees or direct evidence of discrimination. Plaintiff has not done so, and therefore this Court should enter summary judgment.

Plaintiff alleges in the pending Complaint a differential treatment for medical leave of pregnant women than for other conditions. (Complaint ¶17(B)). Plaintiff testified at deposition as to what she was told by Luis Villot as allegedly having an extended leave. This is of course inadmissible hearsay. (pp. 237-238). Previously filed with this Court on February 17, 1998, is Mr. Villot’s deposition transcript confirming that at no time has he had any kind of medical leave (extended or otherwise) from PANDO & YOCUM, P.A. (Villot depo. pp. 29-30, 34). Filed herewith is the affidavit of John C. Yocum, Jr., which clearly identifies the attached employment manual in effect at the time of Plaintiff’s pregnancy. The policy applicable to maternity leave clearly states:

Plaintiff testified she had no knowledge of any other "unequal" treatment, (p. 264). In fact, the essence of Plaintiff’s claim is that because she was "fired" while on "maternity leave" and this therefore constitutes discrimination. (pp. 281-283). The Plaintiff admitted that the majority of PANDO & YOCUM’s staff are women and mothers. (pp. 259-260). She has no knowledge of any PANDO & YOCUM employee being fired because of child care problems. (p. 218). Also, filed herewith are affidavits of two PANDO & YOCUM employees (Joany Rivas and Robin Whitney) who successfully took pregnancy related leaves without incident or hostility by their employer, and remain employed with PANDO & YOCUM.

Plaintiff Cannot Prove a Prima Facie Case Against These Defendant

Plaintiff’s claim seeks to establish a cause of action for sex discrimination based on her pregnancy which, under the Pregnancy Discrimination Act constitutes discrimination based on sex.

NO DIRECT EVIDENCE OF DISCRIMINATION

The Plaintiff’s "direct evidence" of discrimination or discriminatory intent is attributed to a certain double hearsay comment allegedly made by Dr. Yocum to Dr. Pando to which the Plaintiff was not a witness. (pp. 163-164, Complaint, ¶17A): "after women have babies they are not as good employees as before." This "comment" is anything but direct evidence of discrimination. In Bush v. Barnett Bank of Pinellas County, 916 F.Supp. 1244 (M.D. Fla. 1996), the Court held:

The plaintiff’s direct evidence "must not only speak directly to the issue of discriminatory intent, it must also relate to the specific employment decision in question." (Citations omitted.)

Bush at 1252.

The Bush court demonstrated direct evidence of discrimination as : "fire Rollins – she is too old". Id. (Citations omitted.) Accord Earley v. Champion Int’l Corp., 907 F. 2d 1077 (11^th Cir. 1990). The direct evidence comment alleged in the Complaint (and as testified to by the Plaintiff), falls far short of direct evidence of discrimination. In the Bush case, the defendants offered a legitimate rationale for termination of the plaintiff in that she wrote bad checks against her employee checking account, used her employee checking account to transact commercial business and maintained an insufficient balance in violation of her bank employer’s policies. See also Jolley v. Phillips Educational Group of Central Florida, Inc., 71 F.E.P. Cas. 916, 10 F.L.W.F. D46 (M.D. Fla. 1996):

Jolley presents no convincing evidence that Wallace’s expressed views concerning women, children or Jolley’s potential for pregnancy resulted in Jolley’s termination.

Id.

Only the most blatant remarks whose intent could only be to discriminate...constitute direct evidence.

Kelly v. K.D. Construction of Fla., 866 F.Supp. 1406, 1410 (S.D. Fla. 1994) (citations omitted.)

The Bush court went on to observe:

It is well settled that bare allegations and unsupported legal conclusions do not show pretext or intentional discrimination...a plaintiff’s subjective opinion that the defendant’s action was discriminatory, without supportive evidence, is not sufficient to establish pretext to avoid summary judgment.

Id. at 1254. (Emphasis added.) Accord Jenson v. Travelers Cos., 58 F.E.P. Cas. 1 (E.D. La. 1992).

Brooks can do no more here than to claim even in light of the undisputed evidence that she was "discriminated" against for being pregnant. She has offered no evidence tying this "comment" to the termination she alleges occurred on March 26, 1996. Plaintiff has no evidence that this "comment" was a "significant" or "motivating" factor in the employment decision at issue. Kelly at 1413. Such evidence which merely "suggests" discrimination is insufficient to be "direct evidence", Carter v. Three Springs Residential Treatment, 132 F. 3d 635, 642 (11^th Cir. 1998). Compare Burrell v. Board of Trustees of Georgia Military College, 125 F. 3d 1390 (11^th Cir. 1997) wherein a statement by the college president to a female employee that he, "...wanted to hire a man for the position [of vice president] because too many women filled First Federal’s office positions" was held to be only "circumstantial" and not direct evidence of discrimination. Id. at 1393-1394.

Plaintiff’s evidence of this one-time "comment" amounts to nothing more than a "stray" comment which does not create a disputed issue of material fact. Gold Star Taxi v. Mall of America Co., 987 F.Supp. 741, 746-747 (D. Minn. 1997); Hodges v. Stone Savannah River Pulp, 67 F.E.P. Cas. 1298 (S.D. Ga. 1995).

Plaintiff’s claim based on direct evidence of discrimination cannot succeed as a matter of law.

Plaintiff has tendered no proof of "disparate treatment" of non-pregnant employees or males with similar disabilities or other illnesses by these Defendants. (Complaint ¶17B). See Osick v. Sears, Roebuck & Co., 886 F.Supp. 1408, 1414-1415 (N.D. Ill. 1995). As such, Plaintiff cannot establish her cause of action of sex discrimination or pregnancy discrimination and the Defendants are entitled to summary judgment. This form of discrimination is subject to the same disparate treatment analysis applied to Title VII Sex Discrimination claims, and can be treated here together. EEOC v. Ackerman, Hood & McQueen, Inc., 956 F. 2d 944 (10^th Cir. 1992).

Plaintiff’s failure to offer any admissible proof of facts which establish a prima facie case of differential treatment of non-pregnant or non-female employees by the defendant fatally dooms her case. Jolley, Jenson, supra.

Plaintiff has failed to plead or prove any "policy" of either Defendant which has been applied differentially to pregnant women vs. non-pregnant employees. The cases cited by Plaintiff in her last response to the Defendants’ prior Motion for Summary Judgment provide no comfort here. Maddox v. Grandview Care Center, Inc., 607 F.Supp. 1404 (M.D. Ga. 1985) found that the leave policy was discriminatory (treated pregnancy separate and different) on its face and constituted direct evidence of discrimination. Maddox offers no support here, because the stated policy treats maternity leave the same as other leaves. Byrd v. Lake Shore Hospital, 30 F. 3d 1380 (11^th Cir. 1994) also fails to support Plaintiff’s claim. Byrd found that the Pregnancy Discrimination Act was violated by differential treatment of employer leave benefits compared to non-pregnant employees. Byrd actually supports this motion. Byrd concluded its opinion:

...it is a violation of the PDA for an employer to deny a pregnant employee the benefits commonly afforded temporarily disabled workers in similar positions, or to discharge a pregnant employee for using those benefits.

Id. at 1383-1384. The exact point mandating summary judgment for the Defendant is the lack of any evidence of a policy of the Defendant having been "applied unequally to pregnancy-related conditions." Id. The policy manual in effect appropriately identifies the fact that requests for long-term leaves (not just maternity) are determined on a "case-by-case" basis.

The Plaintiff did not attach her Charge of Discrimination or her Right to Sue Letter to her complaint. However, the Defendants have attached the Plaintiff’s Charge of Discrimination filed with the EEOC as an exhibit to its current Answer. The Discrimination Statement submitted to the EEOC as contained in §III is:

I believe that I have been discriminated against in violation of Title VII of the 1964 Civil Rights Act as amended in 1972 because of my Sex/Female (Pregnancy) by Discharge for the following reasons:

1. In August 1995, I informed my former employer that I was pregnant, and that my due date would be on or around February 28, 1996.

2. Luis (LNU), Male, Dental Lab Technician, was allowed to return to his position after being out due to a medical condition; whereas, I was discharged while still on maternity leave.

(Emphasis added.)

Ms. Brooks in no way alleges this claim in the presently pending Complaint. Plaintiff alleges at ¶¶ 16 and 17:

16. Although, the defendant advised that MELISSA BROOKS would be provided with her position upon return from maternity leave, which maternity leave was to end on or about May 15, 1996 (at which time she was able to return to her former position which she was qualified to perform), instead, on the [sic] Defendant committed a discriminatory termination.

17. Specifically, when Melissa Brooks took leave due to the pregnancy at the end of February unbeknownst to her, she had been terminated; notice of the termination occurred on March 26, 1996, just (11) eleven days after the delivery of Mrs. Brooks’ baby, and the defendant –

1. terminated the Plaintiff because of antipathy towards pregnancy of the Plaintiff with no legitimate business purpose, ie. the Plaintiff was told by the employer that "after women have babies they are not as good employees as before." and/or
2. terminated the Plaintiff by imposing a leave policy which treats pregnancy different from other disabling conditions, with no legitimate business purpose for such termination.

In Dodd v. Riverside Health System, Inc., 67 F.E.P. Cas. 594, (D. Kan. 1995), the plaintiff asserted her cause of action for pregnancy discrimination based upon the Federal Civil Rights Act, Title VII and Kansas’ Anti-Discrimination Act. The court looked to the Act itself in quoting the purpose of the Pregnancy Discrimination Act:

Id. (emphasis added).

The court held that to establish a prima facie case of pregnancy discrimination based upon disparate treatment, the plaintiff must show the following four elements:

1) the plaintiff is a member of the group protected by the Act;

2) the plaintiff was qualified for the position;

3) that plaintiff suffered an adverse affect on her employment; and

Id. (Emphasis added). This court has recently so ruled. See Jolley, supra.

The court in Jolley entered summary judgment based upon the plaintiff’s failure to present any evidence showing differential treatment of other employees in similar situations. The court held:

Id.

Plaintiff’s declarations in her pleadings and proof that she was a member of "a protected class" and adversely affected by an "employment decision" does not create a prima facie case. Earley at 1083.

Accord Castello v. Delta Air Lines, Inc., 72 F.E.P. Cas. 1147 (N.D. Ill. 1996); Armstrong v. Flowers Hospital, 812 F.Supp. 1183 (M.D. Ala. 1993); EEOC v. Akerman, supra.

In Armstrong, the court held the plaintiff had failed to establish a prima facie case:

Id. at 1192.

The court also noted that the Pregnancy Discrimination Act does not require the employer to make accommodations to pregnant employees which amounts to preferential treatment. Id. See also, Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689 (M.D. Fla. 1994).

The law is well settled that it is plaintiff’s burden to allege and/or prove a prima facie case of discrimination. EEOC v. Southwestern Electric Power Co., 591 F.Supp. 1128 (W.D. Ark. 1984). The Southwestern court held that the plaintiff had failed to meet her initial burden proving a prima facie case because:

Id. at 1134. [Emphasis added.]

In the Southwestern case, the EEOC had asserted violations of Title VII regarding the plaintiff’s alleged discrimination based on pregnancy, being sex discrimination. Based upon the plaintiff’s failure to present a prima facie case, the court dismissed the claims for discrimination. As stated in Troupe v. May Dept. Stores Company, 20 F. 3d 734 (7th Cir. 1994):

Id. at 738. The Defendant has established through Mr. Villot’s deposition that Plaintiff’s vague claim of "disparate treatment" in her charge of discrimination is totally false. Plaintiff herself testified she knows of no other "unequal" treatment. Plaintiff has yet to identify a "policy" that is being applied differently.

Plaintiff in her response to the Defendants’ last Motion for Summary Judgment cited the testimony of PANDO & YOCUM’s office manager, Luisa Buckingham. (Disposition Motion Response Plaintiff’s Response to Defendant’s Motion for Summary Judgment As To All the Plaintiff’s Claims filed March 4, 1998) as creating a question of fact as to whether PANDO & YOCUM’s medical leave policy was discriminatory in its application.

The deposition of Luisa Buckingham as cited by Plaintiff is a total fabrication taken out of context. Buckingham makes the alleged statement based on her "understanding." (Deposition of Buckingham p. 30, L23-p. 31, L1). However, this testimony is inadmissible and not relevant so as to preclude summary judgment. Nowhere in the deposition does Plaintiff elicit any testimony that Ms. Buckingham has any personal responsibility for dispensing maternity or medical leave requests. Plaintiff must demonstrate that this statement concerns "...a matter within the scope of the agency or employment, made during the existence of the relationship." OKI America, Inc. v. Mictrotech Intl’l, Inc., 872 F. 2d 312, 314 (9^th Cir. 1989). Without a predicate for Ms. Buckingham’s "understanding" such that she had a role in the transaction at issue or had "authority to speak" for PANDO & YOCUM on matters regarding medical leave, such statements are inadmissible hearsay and create no issue of material fact precluding summary judgment. Zaben v. Air Products & Chemicals, Inc., 129 F. 3d 1453, 1456 (11^th Cir. 1997). See also Miles v. M.N.C. Corp., 750 F. 2d 867 (11^th Cir. 1985).

This argument and "evidence" is insufficient to create a triable issue "...sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency." Hammer v. Slater. 20 F. 3d 1137 (11^th Cir. 1994). See also Lichtie v. U.S. Home Corp., 655 F.Supp. 1026 FNT, (D. Utah 1987). Lack of proof of specific facts alluding differential treatment supported the trial court’s award of summary judgment in Mechnig v. Sears, Roebuck & Co., 864 F. 2d 1359 (7^th Cir. 1988).

Here, Plaintiff’s claim based upon disparate treatment fails as a matter of law.

Plaintiff Has No Evidence to Rebut The Defendant’s

Grounds For Legitimate Discharge

Even assuming the Plaintiff can offer evidence to demonstrate a prima facie case of discrimination (which PANDO & YOCUM vehemently denies), the Plaintiff cannot overcome the non-discriminatory reason of PANDO & YOCUM in refusing to rehire her or "terminate" the Plaintiff when she failed to make her medical insurance payments as agreed between employer and employee. YOCUM’s affidavit filed with this Motion demonstrates conclusively the fact that no other partnership employees had violated a material agreement with PANDO & YOCUM like the Plaintiff has. Since PANDO & YOCUM has tendered undisputed reasons in support of the "decision" at issue, the burden returns to the Plaintiff to show these reasons are pretextual. Mechnig at 1365-1366, Earley at 1084, FN5. The affidavits of Rivas and Whitney adequately demonstrate that PANDO & YOCUM does not have a "policy" of denying leave or harassing pregnant women. At least two women have successfully had children and returned to PANDO & YOCUM and retained their jobs. Plaintiff admitted in deposition that most of the employees at PANDO & YOCUM are mothers of children. (pp. 259-260). Plaintiff also admitted that no one ever voiced to her any statements attributed to management demonstrating an anti-mother or anti-pregnancy attitude. (pp. 215-216). This empirical evidence belies Plaintiff’s claim.

Alternatively, the evidence is overwhelming based on the depositions and the "termination" letter on the day the decision was made not to rehire, that Plaintiff’s eligibility to return to PANDO & YOCUM was lost due to her own failure to abide by the agreement on insurance. The Plaintiff here has discerned no evidence which would rebut this legitimate reason for discharge due to the Plaintiff’s failure to abide by the insurance requirements placed upon her at the time she ceased active employment with PANDO, P.A. and YOCUM, P.A. and to which she has admitted to in deposition. Plaintiff cites to no evidence that would demonstrate that the legitimate reasons for "termination" claimed by Defendant PANDO & YOCUM, and as recited by the Plaintiff in her deposition and set forth below were pretextual in order to defeat this motion. Earley, FN5 at 1084. See also Steven v. PGA Sheraton Resort Ltd., 873 F. 2d 276 (11^th Cir. 1989) and Mayfield v. Patterson Pump Co., 101 F. 3d 1371 (11^th Cir. 1996).

Plaintiff testified that although she had original discussions with Dr. Pando regarding her alleged "maternity leave" of two months post delivery (pp. 96-98, 111-112); she did not then talk to either of her bosses (Dr. Pando or Dr. Yocum) about the fact that she was taking a "medical leave" early in addition to the two months "maternity leave". (pp. 113-116). Plaintiff states she talked about her "medical leave" with Louisa Buckingham (pp. 114-115) the office manager, who was not part of the prior leave approval process with Dr. Pando. (pp. 96-98, 111-112).

In Roe v. Kidd, 731 F.Supp. 534 (D. DC 1990), summary judgment was entered against an employee who claimed discrimination where it was conceded the employee had not met the performance standards established by the employer. For Plaintiff to have a triable issue in this regard would require her to offer proof of other employees who are similarly situated and who violated the insurance arrangements or some other material agreement with PANDO, P.A. and YOCUM, P.A. who was not fired and not pregnant. Plaintiff has offered no evidence of other employees similarly situated and who have been treated differently.

As explained in Roe in citing to other authority:

Roe at 539. Since PANDO & YOCUM have sufficiently rebutted Plaintiff’s claim of discrimination (if the Court believes she has presented a prima facie case), the burden of production returns to the Plaintiff to demonstrate pretext to defeat summary judgment. Plaintiff has offered no evidence to demonstrate pretext or discredit PANDO & YOCUM’s proffered nondiscriminatory reason for its actions. Combs v. Plantation Patterns, 106 F. 3d 1519 (11^th Cir. 1997) and therefore Summary Judgment in favor of the Defendant is appropriate. Mechnig and Earley, supra.

If the Plaintiff was employed at the time she alleges, she was legitimately fired.

Statute of Limitations under 42 U.S.C. §2000e Bars
Brooks’ Claim Against Pando & Yocum

PANDO & YOCUM has also asserted that Plaintiff’s claim is barred by the 90 day statute of limitations which runs from the Right to Sue Letter per 42 U.S.C. §2000e-5(f)(1). The Defendant has already attached a copy of the Right to Sue Letter to its Answer. The Court can judicially notice the date of issue, August 8, 1996. The Court can further notice the Court records in this file which indicates that this Defendant was not named until January 2, 1997, 57 days after the Plaintiff’s right to sue had passed.

The Plaintiff’s belated filing on November 26, 1996 of an identical action in state court demonstrates Plaintiff’s knowledge of the problem both as the Statute of Limitations and in suing the proper party. (Composite Exhibit "A" – certified copies from Orange County Case number 96-9162.)

Absent unusual equitable considerations, the general rule is that a filing of a Title VII claim is time barred if not filed within the statutory 90 day period from the EEOC letter. Smith v. Local Union 28, 877 F.Supp. 165 (S.D. NY 1995). Attached hereto as an admission of the Plaintiff, is her counsel’s letter to the EEOC requesting a copy of the charge file pursuant to the Right to Sue Letter, dated September 11, 1996. It is readily apparent the Plaintiff received the letter and knew full well when the date was to file her claims. She failed to do so and this claim is time barred as to PANDO & YOCUM. Smith at 172; Dickinson v. Chrysler Corp., 456 F.Supp. 43 (E.D. MI. 1978). It is also interesting to note that the Plaintiff elected to sue in State Court, contrary to the explicit dictates of the Right to Sue Letter, directing suit be filed in "District Court". Dickinson at 47-48.

Plaintiff will no doubt argue that her addition of this Defendant PANDO & YOCUM should relate back to the initial filing of the complaint in state court pursuant to Fla.R.Civ.P. 1.190(c). However, in light of Plaintiff’s knowledge of the correct party and failure to name it, this amendment does not "relate back". The amendment added a new party.

In Florida, the general rule is that an amendment to a complaint after the Statute of Limitations has run is not permitted when it adds parties. West Volusia Hospital Authority v. Jones, 668 So. 2d 635 (5^th DCA Fla. 1996) and Lindsey v. H.H. Raulerson, Jr. Mem. Hosp., 505 So. 2d 577 (4^th DCA Fla. 1987). This rule has likewise been applied when two corporate defendants had a relationship of franchisor/franchisee, and were represented by the same attorney. Johnson v. Taylor Rental Center, Inc., 458 So. 2d 845 (2^nd DCA Fla. 1984).

In Gray v. Executive Drywall, Inc., 520 So. 2d 619 (2^nd DCA Fla. 1988), common shareholders, attorney and officers were not enough to avoid application of the general rule. ("There was no obligation to advise plaintiff who to sue." Id. at 620).

In Garrido v. Markus, Winter & Spitale Law Firm, 358 So. 2d 577 (3^rd DCA Fla. 1978) the court dealt with the relation back issue. The court noted that the plaintiff had been warned that the claim might well be brought against others not then named as a defendant. The court affirmed the dismissal of the parties added after the statute had run:

Id. at 583.

Garrido then cited to 3 Moores Federal Practice, §15.15:

Id. The clear undisputed facts show the Plaintiff knew, and was told, the correct party to sue. Plaintiff elected not to name PANDO & YOCUM until after the statute had run. Plaintiff cannot add a new party after the claim is time barred, as the addition does not relate back.

Summary judgment is properly entered due to Plaintiff’s failure to file this claim against PANDO & YOCUM within the prescribed Statute of Limitations.

CONCLUSION

PANDO & YOCUM is entitled to summary judgment under the analysis as set forth in Earley, supra. "Summary judgment for defendants are not rare in employment discrimination cases." (Citations omitted.) Id. at 1081. The Plaintiff fails to present any genuine issue of material fact, that the conduct she assails "would not have occurred but for the fact of her sex." Fredette v. BVP Management Associates, 905 F.Supp. 1034 (M.D. Fla. 1995). A defendant is entitled to such judgment in its favor "when no material issue of fact exists then the party the motion is entitled to judgment as a matter of law." See U.S. v. Moriarty, 8 F. 3d 329 (6th Cir. 1993). Earley, Jolley, supra.

PANDO & YOCUM has sufficiently demonstrated the absence of evidence to support the Plaintiff’s case. Ali v. City of Clearwater, 915 F.Supp. 1231 (M.D. Fla. 1996). Summary Judgment must be granted unless the Plaintiff can produce "...significant, probative evidence demonstrating the existence of a triable issue of fact...and designate specific facts..." Id. at 1237. "If there is a complete failure of proof in an essential element [of a claim], there is no longer a genuine issue of material fact." (Citations omitted.) Tidmore Oil Co. v. BP Oil Co., 932 F. 2d 1384, 1388 (11^th Cir. 1991). See also Earley at 1080.

Jenson, supra.

The Plaintiff has discerned no evidence to support her claim of "direct evidence of discrimination" or "disparate treatment" which therefore mandates judgment in the favor of PANDO & YOCUM. Likewise, Plaintiff has no evidence to overcome the legitimate reason for discharge and the Statute of Limitations bar.

WHEREFORE, PANDO & YOCUM request this Court enter its Order granting summary judgment as set forth above. In the event the Court grants this Motion, counsel for PANDO & YOCUM will file a motion for fees and costs with the appropriate affidavits.