Opinion
Case No. 6:21-cv-754-CEM-LHP
2023-04-18
Christopher T. PATTERSON, Plaintiff, v. CITY OF MELBOURNE, Defendant.
Zane Alexander Herman, Spielberger Law Group, Tampa, FL, for Plaintiff. Douglas T. Noah, Patricia Maria Rego Chapman, Dean, Ringers, Morgan & Lawton, PA, Orlando, FL, for Defendant.
Zane Alexander Herman, Spielberger Law Group, Tampa, FL, for Plaintiff. Douglas T. Noah, Patricia Maria Rego Chapman, Dean, Ringers, Morgan & Lawton, PA, Orlando, FL, for Defendant.
ORDER
CARLOS E. MENDOZA, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on Defendant, City of Melbourne's, Motion for Summary Judgment ("Motion," Doc. 35), to which Plaintiff filed a Response in Opposition (Doc. 42), and Defendant filed a Reply (Doc. 43). For the reasons stated herein, Defendant's Motion will be granted in part and denied in part.
I. BACKGROUND
This dispute arises from Defendant's alleged "unlawful discrimination, harassment, [and] retaliation against Plaintiff because of race and disability." (Second Am. Compl., Doc. 25, at 2). Plaintiff, Christopher T. Patterson, was first hired by Defendant, the City of Melbourne, in December 2016 as a part-time Recreation Leader. (Application Referral and Disposition, Doc. 42-23, at 1; Employee Action Notice, Doc. 35-4, at 1; Pl. Dep., Doc. 42-26, at 5). In this position, Plaintiff experienced no discrimination. (Doc. 42-26 at 12-13). Plaintiff then applied for, was offered, and transferred into the position of Maintenance Worker I with Defendant, a position which he began in November 2017. (Career Opportunity Application, Doc. 35-8, at 1-2; Employee Action Notice, Doc. 35-9, at 1; Doc. 42-26 at 10). As a Maintenance Worker I, Plaintiff was "[r]esponsible for performing manual labor using a variety of hand and power tools and equipment required in grounds keeping, landscaping and maintenance in parks, city facilities, right of ways, medians and cemeteries." (Job Description Review Form, Doc. 35-10, at 2; Doc. 42-26 at 12).
It was just after Plaintiff's transfer to the position of maintenance worker that he first began hearing "stories" from a Caucasian co-worker, Earl Lester, that were racially "demeaning or degrading." (Doc. 42-26 at 19-20, 24). These stories included Lester recounting how he was referred to as "the county nigger" at a former job; that "his dad was racist, he didn't like black people, and his sisters w[ere]n't allowed to date black guys"; and when "his neighbor called him a nigger lover" while they were playing basketball. (Id. at 20-21, 23-24). In response to Lester's story about the basketball game, Plaintiff reported the incident to Plaintiff's Caucasian crew lead, Dave Bossie, and told him that he could no longer work with Lester because he kept "using the 'N' word." (Id. at 11, 23). Bossie advised Plaintiff that he had spoken to the Supervisor for the Parks Division—Cindy Meekins, who is Caucasian—and that Plaintiff should finish his workday. (Meekins Decl., Doc. 35-3, at 2; Doc. 42-26 at 23).
Plaintiff testified in his deposition that he was also offended by another Caucasian coworker's response to Lester's use of racially offensive language. (Doc. 42-26 at 14, 21). However, there is no indication from the evidence that Plaintiff reported that reaction to Defendant as part of his complaint about Lester.
Sometime in the following days, Meekins requested that Plaintiff come in to submit a written statement regarding his complaint about Lester. (Doc. 42-26 at 28). Plaintiff complied and provided a written statement to Meekins about the three occasions where Lester had used racially offensive language. (Id. at 29). Additionally, Plaintiff was interviewed by Ruth Lovejoy, from Human Resources. (Id. at 31). Meekins also reported Plaintiff's complaint regarding Lester to Nicole Caldwell, Defendant's Parks Operations Manager. (Caldwell Decl., Doc. 35-1, at 2). Meekins and Caldwell interviewed "Lester together regarding [Plaintiff]'s complaint." (Id.). Following the interview, Caldwell "discussed the results of the investigation with Kevin Briski, the Director of the Department at the time"; they agreed that Lester's "comments were inappropriate and took corrective action in the form of counseling . . . Lester and warned him that similar future conduct would result in much more severe discipline." (Id. at 3). Additionally, Plaintiff was assigned to another partner, as he requested. (Doc. 42-26 at 15; Foxworth Dep., Doc. 42-27, at 82; Caldwell Dep., Doc. 42-28, at 74). After Meekins counseled Lester, "he was never the subject of a complaint similar to [Plaintiff]'s complaints," (id.), and Plaintiff never interacted with Lester again, (Doc. 42-26 at 16).
It is unclear whether Meekins took Plaintiff's statement before or after reporting the complaint to Caldwell. However, the order of events is not relevant to the issues currently before the Court.
Caldwell changed her last name in 2020; her former last name was Kukstis. (Doc. 35-1 at 2).
Plaintiff's Response contends that "Defendant refused to take any remedial action - failing to retain any statements or notes from the supposed investigation, permitting Mr. Lester to continue working without consequence, and shortly thereafter rewarding Mr. Lester with a promotion." (Doc. 42 at 3). As explained above, Defendant did take at least some remedial action in the form of counseling Lester and transferring Plaintiff. However, the record does contain evidence that Lester was promoted in March or April 2018. (Doc. 35-1 at 3; Lester Promotion Letter, Doc. 42-3, at 1; Doc. 42-26 at 16; Doc. 42-27 at 85).
In May 2018, following a staff meeting, Plaintiff made a report to Meekins regarding three specific instances of alleged discriminatory behavior by Defendant's employees, one of which directly involved Plaintiff. (See generally May 11, 2018 Memorandum and Emails, Doc. 42-5; Investigation Memoranda and Notes, Doc. 42-6; Investigation Interview Notes, Doc. 42-7). The investigation included an inquiry into the following comments made by employees—(1) a comment that Plaintiff was placed at a particular work location due to his race; (2) a comment that Marvin Shaw, an African American employee, "was paired with Sam Gervais because she likes black people"; and (3) a comment by an employee in another department, John Clark, who "said [the] 'N' word." (Doc. 42-6 at 3). During the investigation, Plaintiff and other employees were interviewed, including Joshua Santiago, the employee who reported the third comment above. (Id. at 1-5). As a result of the investigation, Defendant disciplined Clark for using "a racial slur," (id. at 8), and arranged for a required diversity training to be conducted. (Id. at 5-6; Doc. 42-27 at 28-29). Additionally, Lovejoy met with Plaintiff and Santiago, "explained to them the findings of the investigation," and "advised them to notify their supervision if any such language or actions occur[ed] in the future." (Doc. 42-6 at 7).
Clark's comment was made in response to hearing a rumor that Dr. Kimberly Foxworth—Defendant's Director of Human Resources and Risk Management, an African American women—was leaving Defendant's employ, Clark said: "[S]he's nothing but a (N word)." (Doc. 42-6 at 4; Foxworth Decl., Doc. 35-2, at 1). Plaintiff was not present when Clark made the comment. (Doc. 42-26 at 19).
As discussed below, once this training was held, it was called "Sensitivity Training."
Relatedly, during a staff meeting, Santiago "brought up his frustration that he hears offensive comments from other employees" and noted that he felt "the department could benefit from diversity training." (Doc. 42-26 at 24-25; Santiago's EEOC Statement, Doc. 42-1, at 1, 3). In response, Caucasian co-worker Jason Bussendorf stated: "That's life; deal with it." (Doc. 42-26 at 24). Plaintiff believes that Bussendorf intended this statement to be "demeaning or degrading with respect to race" because Bussendorf meant that employees should just deal with the racially demeaning or degrading comments. (Id.).
In response to the recommendation from the investigation, Defendant held a "Sensitivity Training" the following month. (Meeting and Training Sign In Sheet, Doc. 42-9, at 1; Doc. 42-28 at 43). Plaintiff and numerous other employees attended, including supervisors such as Bossie, Caldwell, and Meekins; however, Bussendorf and Lester did not sign the sign-in sheet, indicating that they were not present. (Id. at 1-2; Doc. 42-27 at 67-68). Defendant asserts that any employees who were not present would have typically received follow-up training on an individual basis, (Doc. 42-27 at 60-63), but there is no direct evidence that Bussendorf or Lester ever received any such training. Additionally, there is no evidence that race discrimination or the use of racial slurs were discussed in this training. (Doc. 42-28 at 28 (noting that Caldwell did not recall whether the topics of "racial slurs" and "race" were specifically discussed at the training); see generally Sensitivity Training Handout, Doc. 42-8 (discussing "differences" but not expressly mentioning race)).
Listed on the sign-in sheet as Nichole Kukstis. (Doc. 42-9 at 1).
In October 2019, approximately sixteen months after the Sensitivity Training, Plaintiff had an encounter with another employee involving racially offensive comments. (Doc. 42-26 at 40). Joseph Richards, a Caucasian co-worker, made the following comments to Plaintiff while they were partnered together at work: (1) "[c]alling all of the African-American men in the area of [the park] homeboys"; (2) "[c]alling African-American kids niglets"; (3) telling Plaintiff that he had "nigger legs"; (4) accusing Plaintiff of getting "into a fight over the weekend with a nigger"; and (5) being "mad because [the City of Melbourne] changed the name [of a street] to Martin Luther King." (Id. at 24, 40). Plaintiff reported Richards' conduct to Defendant. (Id. at 41-42). In response, Defendant immediately suspended Richards "pending possible termination." (Id.; Richards' Notice of Suspension, Doc. 35-18, at 1). Prior to the end of Richards' suspension period, he resigned. (Richards' Resignation Letter, Doc. 35-19, at 1).
One instance in Plaintiff's deposition notes that these events occurred in October 2018. (Doc. 42-26 at 41). However, the remaining evidence in the record demonstrates that these events occurred in October 2019.
The report occurred sometime between "a [c]ouple of days" and "two weeks" following the start of the conduct. (Doc. 42-26 at 42).
In December 2019, Plaintiff failed to attend two department meetings. (Doc. 42-26 at 43-46; Employee Warning Record, Doc. 35-20, at 1). Plaintiff states that at the time he missed the first meeting, he told Caldwell that he "didn't feel comfortable being in the meeting[s]" because his co-workers present at the meetings had been making offensive racial comments. (Doc. 42-26 at 43-44, 46). Caldwell responded by telling Plaintiff that he "should just quit if [he] can't attend the meetings, because that was a part of the job description." (Id. at 46). Caldwell also made a comment that Plaintiff found to be racially offensive—that when Caldwell's son would listen to rap music that used the "N" word, Caldwell would tell her son to turn the music off. (Id. at 47). Plaintiff believes that Caldwell made this comment in an attempt "to put [him] at ease that she's not prejudice[d]." (Id.). Caldwell then apologized to Plaintiff and agreed to not write him up for missing the first meeting. (Id.).
This same month, it appears that Plaintiff also reported some of his concerns to the South Brevard Branch National Association for the Advancement of Colored People ("NAACP"). (See generally NAACP Email and Statement, Doc. 42-11 (discussing incidents dating between October 21, 2019 and December 12, 2019)).
As to the second meeting, Plaintiff states that he was told by co-workers on the morning of the meeting that it was cancelled, so Plaintiff left the meeting site to get ready for the workday. (Id. at 43). Shortly thereafter, Plaintiff realized that the meeting was not cancelled, but by that time he would have been late, and he was uncomfortable going into the meeting late. (Id. at 44). Upon missing the second meeting, Plaintiff received a documented verbal warning from Caldwell for failing to attend, which included a notation that Plaintiff had been previously warned. (Doc. 35-20 at 1).
At an unknown time while Plaintiff was working as a maintenance worker—sometime between November 2017 and January 2020—Plaintiff experienced an additional instance of racially offensive language. Plaintiff was sitting in the front seat of a work truck between Bossie and Meekins. (Doc. 42-26 at 11, 47). Meekins made a comment about Plaintiff's "big private" parts "being squished" in the middle of the truck between Bossie and Meekins. (Id. at 47). Plaintiff understood this comment to be a stereotype about African American men having "[a] big penis." (Id.).
While Plaintiff did not report this incident to Defendant's Human Resources Department, for the purposes of Title VII claims, "a supervisor acts as an 'agent' of the employer . . . , thus rendering the employer directly liable for the supervisor's actions, 'where [the] supervisor exercises the authority actually delegated to him by his employer.' " Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1559 (11th Cir. 1987) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 70, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)); id. ("This liability is direct; the employer cannot find shelter in the claim that it neither had notice of, or approved of, the unlawful conduct." (citing Meritor Sav. Bank, 477 U.S. at 72, 106 S.Ct. 2399)). Meekins, as the Supervisor of the Parks Division, was clearly in a role where she was acting as an agent of Defendant, so even though Plaintiff did not report this incident, the Court will consider it.
In January 2020, Plaintiff suffered a "[l]eft achilles tendon strain" while at work. (Jan. 22, 2020 Workers' Compensation Form, Doc. 35-22, at 1; Doc. 42-26 at 55). Due to the injury, Plaintiff "took leave without pay" while he was covered by workers' compensation. (Doc. 42-26 at 56).
Plaintiff refers to this injury as "a torn achilles" in his deposition testimony. (Doc. 42-26 at 55). Plaintiff's medical records state that it was an "achilles tendon strain." (Doc. 35-22 at 1). Nonetheless, the exact extent of the injury is not relevant to the analysis in this Order.
On March 3, 2020, presumably while Plaintiff was out on workers' compensation, Plaintiff filed a Charge of Discrimination (Doc. 35-21), alleging discrimination and retaliation based on race beginning in November 2018. (Id. at 1). In the Charge of Discrimination, Plaintiff references the incidents with Lester and Richards, the comment by Caldwell that Plaintiff "should just quit," the comment by Caldwell regarding her son listening to rap music, and incidents of alleged discrimination towards employees other than Plaintiff. (Id. at 1-4).
In May 2020, Plaintiff was cleared by workers' compensation to return to work with restrictions on carrying, climbing, kneeling, lifting, pushing, and pulling. (May 14, 2020 Workers' Compensation Form, Doc. 35-23, at 1-2; Doc. 42-26 at 56). These restrictions prevented Plaintiff from continuing in his position as a maintenance worker, so he was placed on "light duty." (Doc. 35-10 at 4 (describing the physical activity requirements for a Maintenance Worker I); May 18, 2020 Employee Action Notice, Doc. 35-24, at 1; Doc. 42-26 at 56).
While Plaintiff was on light duty, Sundae Hein, a Caucasian co-worker, said to Plaintiff, "[n]igga please." (Doc. 42-26 at 59). Plaintiff reported the comment to Dr. Kimberly Foxworth, Defendant's Director of Human Resources and Risk Management. (Id.; May 18, 2020 Emails, Doc. 42-13, at 1; Foxworth Decl., Doc. 35-2, at 1). In response to Plaintiff's report, Hein resigned. (Doc. 42-26 at 59, 61).
This was the last documented incident of racially offensive language that Plaintiff experienced. Plaintiff states that he experienced additional instances of offensive racial comments from Matt Ward and Gordy Lemon, who were co-workers; however, because these comments were made by co-workers and Plaintiff did not report them to Defendant, (Doc. 42-26 at 45), these instances are not relevant to the instant Motion.
In November 2020, Defendant notified Plaintiff via letter that his "light duty work status throughout the year ha[d] exceeded the six months threshold" permitted by Defendant's Human Resources policies. (Nov. 23, 2020 Letter, Doc. 42-20, at 1). In the letter, Defendant also notified Plaintiff that "there is no Departmental need for [his light duty] placement on a permanent basis," so "in an effort to provide [Plaintiff] a period to either return to work full-duty in [his] regular position or obtain an alternate position with [Defendant]," Defendant agreed to permit Plaintiff "through the end of the calendar year" to either obtain medical clearance for his former position as a maintenance worker or to apply for and obtain another position with Defendant. (Id.). Absent either of these options, Plaintiff's employment would end on December 31, 2020. (Id.).
Plaintiff applied for two other positions during his time on light duty. (Doc. 42-26 at 57). The first position Plaintiff applied for was "Senior Recreation Supervisor - Tennis." (Foxworth Decl., Doc. 35-2, at 2-3; Job Posting and Application, Doc. 35-28, at 1; Doc. 42-26 at 57). Because Plaintiff did not meet the minimum qualifications for this position, his application was screened out during the selection process. (Doc. 35-2 at 3). The second position Plaintiff applied for was "Recreation Leader." (Job Application, Doc. 42-23, at 2-4; Doc. 35-2 at 3; Doc. 42-26 at 57). Plaintiff was interviewed for this position along with three other applicants, and Plaintiff received the lowest interview scores of the four applicants, so he was not selected for the position. (Recreation Leader Interview Matrix, Doc. 35-29, at 3; Doc. 35-29 at 1).
On December 29th, Defendant sent a follow-up letter to Plaintiff notifying him that his continued restrictions "render[ed him] ineligible to return to work in [his] regular position" and that Defendant would therefore process Plaintiff for "medical separation" on December 31st. (Dec. 29, 2020 Letter, Doc. 35-26, at 1). Plaintiff was medically separated from his employment with Defendant on December 31st. (Employee Action Notice, Doc. 35-27, at 1; Doc. 35-2 at 3-4).
In August 2021, Plaintiff filed a second Charge of Discrimination (Doc. 42-12). (Id. at 1). Plaintiff alleged that Defendant "discriminated against [him] on the basis of [his] race (African American) and disability." (Id.). Plaintiff also alleged that Defendant retaliated against him for his complaints of discrimination by failing to provide reasonable accommodations for his injury, moving him to a new location on light duty, failing to hire him for the Recreation Leader position, and terminating his employment. (Id. at 1-2).
Plaintiff's Second Amended Complaint asserts nine counts: three claims alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (Counts I, II, V); three claims alleging violations of the Florida Civil Rights Act of 1992 ("FCRA"), Fla. Stat. § 760.01 et seq. (Counts III, IV, VI); and three claims alleging violations of Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. (Counts VII, VIII, IX). (Doc. 25 at 10-19). Defendant moves for summary judgment on all counts.
II. LEGAL STANDARD
"The court shall grant summary judgment 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 dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it may "affect the outcome of the suit under the governing law." Id.
"The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1313-14 (11th Cir. 2007). In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). However, when faced with a "properly supported motion for summary judgment," the nonmoving party "must come forward with specific factual evidence, presenting more than mere allegations." Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997) (citing Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505 (1986)); see also LaRoche v. Denny's, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999) ("The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a motion for summary judgment.").
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "[T]he proper inquiry on summary judgment is 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Stitzel v. N.Y. Life Ins. Co., 361 F. App'x 20, 22 (11th Cir. 2009) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505). Put another way, a motion for summary judgment should be denied only "[i]f reasonable minds could differ on the inferences arising from undisputed [material] facts." Pioch v. IBEX Eng'g Servs., 825 F.3d 1264, 1267 (11th Cir. 2016) (quoting Allen, 121 F.3d at 646).
III. ANALYSIS
A. Exhibits to Plaintiff's Response
Defendant, in its Reply, challenges several of Plaintiff's exhibits as being inadmissible because they are "unauthenticated," "unsworn," and/or are prohibited by the hearsay rules. (Doc. 43 at 2). Plaintiff's exhibits challenged by Defendant are:
Defendant contends that these are "a mere sampling" of the inadmissible exhibits. (Doc. 43 at 2). However, the Court can only consider those legal arguments actually presented by Defendant, so it only considers Defendant's objections as to those exhibits actually referenced in the Reply.
• Santiago's EEOC Statement (Doc. 42-1)
• Plaintiff's Medical Records (Doc. 42-2)
• Unsigned Handwritten Statement (Doc. 42-4)
• Murphy's Statement (Doc. 42-10)
• NAACP Email and Statement (Doc. 42-11)
• Handwritten Statement (Doc. 42-18)
• Text Messages (Doc. 42-22)
As to Defendant's authentication argument, "authentication of documents no longer is required at the summary judgment stage." Higgens v. Trident Asset Mgmt., LLC, No. 16-24035-Civ-Scola, 2017 WL 7796085, at *2, 2017 U.S. Dist. LEXIS 224483, at *5 (S.D. Fla. July 21, 2017) (quoting Sanders v. Benjamin Moore & Co., Paints, No. 4:11-cv-0397-JEO, 2015 WL 1489855, at *38, 2015 U.S. Dist. LEXIS 41654, at *109 (N.D. Ala. Mar. 31, 2015)). "Instead, all that is required is 'that evidence be presentable in admissible form at trial.' " Id. (quoting Abbott v. Elwood Staffing Servs., Inc., 44 F. Supp. 3d 1125, 1134 (N.D. Ala. 2014)). Thus, "[o]n motions for summary judgment, [the Court] may consider only that evidence which can be reduced to an admissible form." Robertson v. Interactive Coll. of Tech./Interactive Learning Sys., 743 F. App'x 269, 273 (11th Cir. 2018) (quoting Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005); citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Plaintiff has not shown that two of these exhibits meet this low threshold for evidence that can be reduced to admissible form:
• Exhibit D to Plaintiff's Response (Doc. 42-4) is a handwritten, unsigned, and undated statement. (Id. at 1). Neither the Response, the statement itself, nor other evidence in the record indicates who wrote it or where it originated from. (Id.; Doc. 42 at 3, 6 (citing Exhibit D but providing no explanation as to what the document is)).Accordingly, these exhibits have been disregarded by the Court for the purposes of the instant Order.
• Exhibit N to Plaintiff's Response (Doc. 42-18) is a one-page handwritten statement with an illegible signature at the bottom. (Id. at 1). Neither the Response, the document itself, nor other evidence in the record indicates who wrote it or where it originated from. (Id.; Doc. 42 at 9, 24 (citing Exhibit N but providing no explanation as to what the document is)).
Additionally, the Court has not relied on Plaintiff's Medical Records (Doc. 42-2), Murphy's Statement (Doc. 42-10), or the text messages (Doc. 42-22) for the purposes of the instant Order because they were not relevant to the analysis herein. Finally, as to the remaining two exhibits—Santiago's EEOC Statement (Doc. 42-1) and the NAACP Email and Statement (Doc. 42-11)—Defendant has not explained why these exhibits could not be reduced to an admissible form at trial or why they are excluded by the hearsay rules. Therefore, these exhibits have been considered.
While the Court referenced these exhibits in its background discussion for purposes of context, the exhibits did not play a role in the legal analysis in the instant Order.
B. Employment Discrimination Laws
1. Title VII and the FCRA
Title VII "makes it unlawful for an employer 'to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.' " Lewis v. City of Union City ("Lewis I"), 918 F.3d 1213, 1220 (11th Cir. 2019) (quoting 42 U.S.C. § 2000e-2(a)(1)). Title VII also "prohibits employers from retaliating against an employee 'because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge . . . under [Title VII].' " Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d 1280, 1289 (11th Cir. 2021) (quoting 42 U.S.C. § 2000e-3(a)). Finally, courts have interpreted Title VII to "protect[ ] employees from being required 'to work in a discriminatorily hostile or abusive environment.' " Nichols v. Volunteers of Am., N. Ala., Inc., 470 F. App'x 757, 760 (11th Cir. 2012) (quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (en banc)).
Similarly, under the FCRA, "[i]t is an unlawful employment practice for an employer . . . [t]o discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status." Fla. Stat. § 760.10(1)(a). The FCRA also prohibits retaliation and protects employees from a hostile work environment in the same manner as Title VII. Id. § 760.10(7); Mosley v. MeriStar Mgmt. Co., LLC, 137 F. App'x 248, 252 (11th Cir. 2005) (citing Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1195 n.1 (11th Cir. 2004)) (providing for a hostile work environment claim under the FCRA).
"[D]ecisions construing Title VII apply to the analysis of FCRA claims." Johnson v. Miami-Dade Cnty., 948 F.3d 1318, 1325 (11th Cir. 2020) (citing Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1387, 1389-90 (11th Cir. 1998)); Harper, 139 F.3d at 1387 ("The Florida courts have held that decisions construing Title VII are applicable when considering claims under the [FCRA], because the Florida act was patterned after Title VII."). Indeed, "[n]o Florida court has interpreted the Florida statute to impose substantive liability where Title VII does not." Harper, 139 F.3d at 1387. Therefore, Plaintiff's Title VII and FCRA claims will be analyzed together applying Title VII legal authority.
2. ADA
"The ADA prohibits discrimination by an employer 'against a qualified individual on the basis of a disability' in any of the 'terms, conditions, [or] privileges of employment.' " Mazzeo v. Color Resols. Int'l, LLC, 746 F.3d 1264, 1267 (11th Cir. 2014) (quoting 42 U.S.C. § 12112(a)). The ADA also prohibits retaliation against an individual when "such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge . . . under [the ADA]." Id. at 1260 (quoting 42 U.S.C. § 12203(a)).
C. McDonnell Douglas Framework
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
When a Title VII or FCRA discrimination claim is based on circumstantial evidence, as is the case here, the Eleventh Circuit dictates that the three-part McDonnell Douglas burden-shifting framework applies. Johnson, 948 F.3d at 1325 (citing Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013)); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The Eleventh Circuit applies the same burden-shifting framework to Title VII and FCRA retaliation claims, as well as ADA retaliatory-discharge claims. Tolar, 997 F.3d at 1289 (applying McDonnell Douglas to Title VII and FCRA claims); Todd v. Fayette Cnty. Sch. Dist., 998 F.3d 1203, 1219 (11th Cir. 2021) (citing Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999) (applying McDonnell Douglas to ADA retaliatory-discharge claims). Therefore, the McDonnell Douglas burden-shifting framework will be applied to the following claims: Title VII discrimination (Count I), Title VII retaliation (Count II), FCRA discrimination (Count III), FCRA retaliation (Count IV), and ADA retaliation (Count IX).
Under this framework, the plaintiff has the initial burden to establish a prima facie case of discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. "Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination." Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). If the plaintiff establishes a prima facie case by a preponderance of the evidence, a presumption of discrimination arises. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Once the plaintiff has presented a prima facie case and its attendant presumption arises, the burden "shift[s] to the employer to articulate some legitimate, nondiscriminatory reason" for its actions. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the employer meets this burden, "the presumption of discrimination is eliminated and the plaintiff has the opportunity to come forward with evidence . . . sufficient to permit a reasonable fact-finder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision." Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (quotation omitted). "An employer's stated reason is not a pretext unless it is shown that both: (1) the reason was false; and (2) the real reason was unlawful." Vega v. Invsco Grp., Ltd., 432 F. App'x 867, 871 (11th Cir. 2011) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). "If the plaintiff does not proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer's articulated reasons is pretextual, the employer is entitled to summary judgment on the plaintiff's claim." Chapman, 229 F.3d at 1024-25.
However, "establishing the elements of the McDonnell Douglas framework is not . . . the sine qua non for a plaintiff to survive a summary judgment motion in an employment discrimination case." Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). If, despite failing to precisely establish the McDonnell Douglas elements, the plaintiff "presents circumstantial evidence that creates a triable issue concerning the employer's discriminatory intent"—i.e., "a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker"—the plaintiff can still survive summary judgment. Id. (quotation and footnote omitted).
1. Discrimination Claims (Counts I and III)
Plaintiff asserts claims of discrimination under Title VII (Count I) and the FCRA (Count III). (Doc. 25 at 10-13). To establish a prima facie case of discrimination, a plaintiff must show: "(1) that [ ]he belongs to a protected class, (2) that [ ]he was subjected to an adverse employment action, (3) that [ ]he was qualified to perform the job in question, and (4) that h[is] employer treated 'similarly situated' employees outside h[is] class more favorably." Lewis I, 918 F.3d at 1220-21 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817).
Defendant argues that Plaintiff has not demonstrated that he suffered an adverse employment action. Defendant first contends that "Counts I and III [of Plaintiff's Second Amended Complaint] do not specifically identify the adverse actions which Plaintiff attributes to his race." (Doc. 3 at 17). However, upon review, Counts I and III allege multiple actions by Defendant that Plaintiff contends are adverse employment actions—"reprimanding" Plaintiff; moving Plaintiff "to a new location" while on light duty; failing to inform Plaintiff about a staff meeting and then issuing him "a write up for missing the meeting"; "repeatedly transferring [Plaintiff] to various locations until he was completely isolated"; and terminating Plaintiff from his job with Defendant. (Doc. 25 at 5, 7, 9-10). Additionally, Plaintiff's Responses to Defendant's Interrogatories (Doc. 35-30), referenced by Defendant in its Motion, set forth additional alleged adverse employment actions, including assigning Plaintiff to "menial tasks" during his light duty assignment and "subject[ing] Plaintiff to increased scrutiny and disparate lunch policies." (Id. at 16-17).
Relatedly, Defendant then argues that the actions identified by Plaintiff in his interrogatory responses do not rise to the level to qualify as an adverse employment action under Title VII. But Defendant's argument does not address all of the employment actions alleged by Plaintiff in his Second Amended Complaint, including the allegation that Plaintiff was terminated because of race discrimination. "[U]ltimate employment decisions" such as termination undoubtedly qualify as an adverse employment action under Title VII. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Because the record evidence demonstrates that Plaintiff was indeed terminated from his employment with Defendant, the Court need not address Defendant's remaining arguments regarding whether the other actions taken by Defendant rise to the level of an adverse employment action.
The only place Defendant references Plaintiff's termination as an adverse employment action is in a footnote to its Reply, where Defendant contends that Plaintiff stated in his deposition that he did not believe that Foxworth terminated him because of his race. (Doc. 43 at 5 n.4 (citing Doc. 42-26 at 58)). However, "[a]rguments not properly presented in a party's initial brief or raised for the first time in the reply brief are deemed waived." In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009). Additionally, a footnote is not the proper place for such an argument. Brady v. Medtronic, Inc., No. 13-cv-62199-RNS, 2014 WL 1377830, at *8 n.1 (S.D. Fla. Apr. 8, 2014) ("A footnote is the wrong place for substantive arguments on the merits of a motion." (quotation omitted)). Finally, Plaintiff's statement in his deposition cited by Defendant is but one answer taken far out of context. Plaintiff's deposition, when read as a whole, makes clear that Plaintiff believes he was discriminated against—and terminated—because of his race.
Defendant next argues that Plaintiff has not set forth evidence showing that other similarly situated employees outside his class were treated more favorably. Under this element, it is Plaintiff's burden to "present evidence of a comparator—someone who is 'similarly situated in all material respects.' " Jenkins v. Nell, 26 F.4th 1243, 1249 (11th Cir. 2022) (quoting Lewis I, 918 F.3d at 1224). "Although what constitutes a 'material' similarity or difference will differ from case to case, ordinarily a similarly situated comparator and the plaintiff will: have engaged in the same basic conduct or misconduct, be subject to the same employment policies, have the same supervisor(s), and share an employment or disciplinary history." Id. (citing Lewis I, 918 F.3d at 1227-28).
Plaintiff contends that "numerous counterparts" within Defendant's employ were treated more favorably than Plaintiff. (Doc. 42 at 15). However, the majority of Plaintiff's vague assertions fail to identify which other employees were treated more favorably or how they were similarly situated to Plaintiff in all relevant respects. Plaintiff only cites to two specific instances of other employees outside of his protected class being treated more favorably, so the Court will address these.
In the first instance, Plaintiff contends that "Defendant changed Plaintiff's assignment because of his Caucasian counterpart Mr. Lester's racial discrimination and then rewarded Mr. Lester with a promotion." (Doc. 42 at 16). Plaintiff has not explained—with citations to record evidence, Fed. R. Civ. P. 56(c)(1)(A)—how Lester was similarly situated to himself. And, even assuming arguendo that Lester was similarly situated, Plaintiff's contention is factually inaccurate based on the record evidence. As explained above, it was Plaintiff who requested to be transferred to another partner, and transferring Lester would have not been feasible because Lester was in the process of training Plaintiff for the work location where they were assigned together. (Doc. 42-26 at 15; Doc. 42-27 at 82; Doc. 42-28 at 74). And, while Lester was promoted several months later, there is no evidence that this promotion was related to the incident with Plaintiff. Thus, this example fails to establish a sufficient comparator.
In the second instance, Plaintiff argues that "Defendant promptly investigated Mr. Santiago's complaint about a Caucasian counterpart using the word N***** but ignored Plaintiff's complaint of a Caucasian counterpart using the word N*****." (Doc. 42 at 16). This comparator fails for the same reasons as the first comparator—Plaintiff does not explain why Santiago is similarly situated to Plaintiff in all respects, and Plaintiff's contention is not supported by the record evidence. Defendant did not "ignore" Plaintiff's complaint about Lester; rather, Plaintiff investigated the report, disciplined Lester, and assigned Plaintiff to another partner. (Doc. 42-26 at 15, 28-29, 31; Doc. 42-27 at 82; Doc. 42-28 at 74; Doc. 35-1 at 2-3). Absent "a proper comparator," Plaintiff's discrimination claims fail at the prima facie stage under McDonnell Douglas. Jenkins, 26 F.4th at 1250.
However, this does not end the inquiry because, as noted above, "an employee can still survive summary judgment by presenting 'circumstantial evidence that creates a triable issue concerning the employer's discriminatory intent.' " Jenkins, 26 F.4th at 1250 (quoting Smith, 644 F.3d at 1328). "A triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker." Id. (quoting Smith, 644 F.3d at 1328). "A plaintiff may establish a convincing mosaic by pointing to evidence that demonstrates, among other things, (1) suspicious timing, ambiguous statements, or other information from which discriminatory intent may be inferred, (2) 'systematically better treatment of similarly situated employees,' and (3) pretext." Id. (quoting Lewis v. City of Union City ("Lewis II"), 934 F.3d 1169, 1185 (11th Cir. 2019)).
Plaintiff argues that this case presents such a situation, and the Court agrees. The record evidence, when viewed in a light most favorable to Plaintiff, paints a concerning picture of Plaintiff's department within Defendant's workplace. Over a span of approximately three years, Plaintiff was subjected to regular racial slurs and epithets from not only co-workers—such as Lester, Bussendorf, Richards, and Hein—but also from supervisors—such as Caldwell and Meekins.
The Court will however take this opportunity to remind Plaintiff that the factual representations made by counsel in filings with the Court must be supported by record evidence. There are several instances throughout Plaintiff's Response where counsel's factual assertions approach the level of misrepresentations, as the Court has noted in several footnotes to this Order. That has occurred again in this section of Plaintiff's Response. Accordingly, the Court has only considered the facts that are sufficiently supported by the record evidence.
And other unreported comments, such as those from Lemon and Ward.
While the Court has already recounted these events in troubling detail above, a few specific instances are worth elaborating upon. For example, the entire investigation of Lester's offensive comments appears to be undocumented by Defendant, as demonstrated by the lack of contemporaneous evidence. Given the ubiquitous nature of electronic communications, the lack of any evidence of an investigation, when viewed in a light most favorable to Plaintiff, would suggest that a thorough investigation was not done, and Plaintiff was simply transferred following his complaint to supervisors to avoid further problems.
As another example, when Hein uttered the racial slur "nigga" to Plaintiff and Plaintiff was visibly offended by the utterance, Hein responded "by turning to Plaintiff and laughing that she did not care if she offended Plaintiff." (Doc. 35-30 at 15). While Hein thereafter resigned, Plaintiff was told by Kristen Galla, a division manager within the parks department, that if anyone in the department asked Plaintiff about the situation that he should tell them that Hein "resigned due to family issues," an explanation that was purportedly concocted by Galla and Caldwell. (Doc. 42-26 at 41-42, 59, 61). When viewing this evidence in a light most favorable to Plaintiff, it could be inferred that the supervisors were attempting to hide the offensive racial comment and protect Hein.
In another instance, Plaintiff reported his co-worker Richards for making numerous derogatory racial comments, and the record shows that he was immediately suspended pending possible termination. However, when Plaintiff initially reported Richards' conduct to Meekins and Caldwell, he was first told to "[j]use ignore it, rise above it." (Doc. 42-26 at 51). Their response, when viewed in a light most favorable to Plaintiff, would suggest that they did not, at least initially, take the complaint seriously.
Plaintiff's interaction with Caldwell regarding his concerns about being uncomfortable attending staff meetings shows a similar pattern. When Plaintiff approached Caldwell with his concerns, her response was to tell him that he "should just quit" if he was uncomfortable attending the meetings. (Doc. 42-26 at 46). While it may have been a true statement that Plaintiff was required to attend staff meetings as part of his job, (id.), the undertone of Caldwell's response was that Plaintiff would need to simply deal with the offensive comments made by fellow staff, such as Bussendorf's comment at a previous meeting, rather than Defendant taking corrective action to stop the comments.
As further evidence that Defendant failed to sufficiently intervene to stop the culture of racism is the instance regarding Meekins' comment to Plaintiff while they were in the work truck together. This is compelling evidence that Meekins felt comfortable enough with the acceptance of such offensive comments that she commented on the size of Plaintiff's private parts as an African American man. Given Meekins' supervisory role over Plaintiff, it is reasonable to infer that Plaintiff would not have been comfortable responding to the comment or reporting it.
Certainly, these circumstances are enough to satisfy the first element presented by the Eleventh Circuit's test—statements by which the Court can infer discriminatory intent. Jenkins, 26 F.4th at 1250. Next, the Court must consider whether other similarly situated employees were treated better and whether Defendant's reason for its action against Plaintiff were pretextual. Id.
As to the second element, the evidence shows that Defendant treated Santiago's complaint more seriously than Plaintiff's very similar complaint, conducting a full investigation, which led to suspension of the offending employee and the scheduling of the Sensitivity Training. Unlike the McDonnell Douglas test where the comparator is required to be similarly situated in all material respects, under the convincing mosaic test, the Eleventh Circuit does not require a "strict comparator." Id. at 1251. Thus, using Santiago as a comparator is sufficient here to satisfy the second element.
The record does not expressly note Santiago's race, but viewing the evidence in the light most favorable to Plaintiff, it appears that Santiago was not African American.
As to the third element, pretext, "racially-biased comments can be circumstantial evidence to support an 'inference of discrimination' even if the comments were not made close to the termination decision and were too remote in time or too attenuated to constitute direct evidence of discrimination." Id. (citing Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291 (11th Cir. 1998)). While it appears from the record that Plaintiff's termination may have been due to his physical inability to continue his job as a maintenance worker, the Court simply cannot ignore the years of "racially-biased comments" that led up to that termination. Id. At this point, when the evidence is viewed in a light most favorable to Plaintiff, a reasonable jury could certainly determine that Defendant's reason for terminating Plaintiff was pretextual.
"Considering all the evidence, [Plaintiff] provides a convincing mosaic of discrimination, sufficient to survive summary judgment at this stage. [Plaintiff] has met his burden of showing factual disputes that should be decided by a jury—a jury whose role it is to weigh conflicting evidence and make any necessary credibility determinations." Id. (citing Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012)). Accordingly, given the record evidence viewed in a light most favorable to Plaintiff, "summary judgment is simply improper," id., so Defendant's request for summary judgment as to Counts I and III will be denied. Id. ("When a plaintiff who alleges a racial discrimination claim under . . . Title VII presents factual and credibility disputes which require a jury to resolve and 'would allow a jury to infer intentional discrimination,' summary judgment is improper." (quoting Smith, 644 F.3d at 1328)).
2. Retaliation Claims (Count II, IV, and IX)
Plaintiff asserts claims of retaliation under Title VII (Count II), the FCRA (Count IV), and the ADA (Count IX) (Doc. 25 at 11-13, 18-19). To establish a prima facie case of retaliation under Title VII, the ADA, or the FCRA, a plaintiff must show that: (1) he engaged in a statutorily protected expression; (2) he suffered an adverse employment action; and (3) there was a causal link between the first two elements. Johnson, 948 F.3d at 1325 (listing the elements for a Title VII retaliation claim); Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir. 2001) (listing the elements for an ADA retaliation claim).
a. Title VII and FCRA Retaliation Claims (Counts II and IV)
Defendant first argues that Plaintiff has not satisfied the second element, an adverse employment action. The Court has addressed this argument above, and this element is satisfied.
Next, Defendant argues that Plaintiff has not shown that he engaged in a statutorily protected expression prior to the adverse employment action because Plaintiff's first Charge of Discrimination was filed in March 2020. However, as discussed above, Defendant does not address the adverse employment action of Defendant's termination of Plaintiff, which occurred in December 2020 after Plaintiff's Charge of Discrimination, so this argument fails. Additionally, Defendant concedes that Plaintiff's complaints against Lester, Richards, and Hein, along with "his participation in the complaint against Clark," were protected activities, (Doc. 35 at 28-29), so this element is satisfied.
It is undisputed that a formal charge of discrimination is protected activity under Title VII. Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1350 (11th Cir. 1999) (citing 42 U.S.C. § 2000e-(3)a).
Finally, as to the causal link element, Defendant argues that each of the protected expressions by Plaintiff were too far removed from the adverse employment actions to demonstrate causation. "[A] plaintiff can demonstrate causation 'by showing close temporal proximity between the statutorily protected activity and the adverse employment action.' " Martin v. Fin. Asset Mgmt. Sys., 959 F.3d 1048, 1054 (11th Cir. 2020) (quoting Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)). Again, Defendant's argument fails because it ignores the adverse employment action of Plaintiff's termination. Specifically, Defendant contends that "all of the alleged retaliatory acts predated [Plaintiff's] complaint against Hein and therefor[e] could not have resulted from the complaint." (Doc. 35 at 29). However, Plaintiff's complaint against Hein—his last complaint prior to his termination—did predate his termination and occurred while he was on light duty, sometime between May and December 2020, prior to Plaintiff's termination at the end of 2020. Accordingly, because Defendant has failed to meet its burden as to this element, summary judgment will be denied as to Counts II and IV.
b. ADA Retaliation Claim (Count IX)
Defendant first argues that Plaintiff did not engage in any statutorily protected expression with regard to his disability because Plaintiff's first charge of discrimination occurred prior to his injury and did not mention disability, his second charge of discrimination occurred after his termination and therefore any retaliation could not have resulted from it, and Plaintiff did not otherwise engage in protected activity as to his injury.
Plaintiff's first charge of discrimination was filed in March 2020, which was after when Plaintiff was injured in January 2020. However, Defendant is correct that Plaintiff's first charge of discrimination did not mention disability. Additionally, Defendant is correct that Plaintiff's second charge of discrimination was filed after Plaintiff was terminated, so it cannot have been the cause of Plaintiff's termination. Therefore, the Court must determine whether the record contains any evidence that Plaintiff otherwise engaged in a protected expression with regard to his disability.
Absent a formal charge of discrimination, a plaintiff may demonstrate that he engaged in a protected activity under the ADA's "opposition clause," which prohibits retaliation against an employee who "has opposed any act or practice made unlawful by [the ADA]." 42 U.S.C.S. § 12203(a). "[T]o satisfy the first element of the prima facie case, it is sufficient that an employee have a good faith, objectively reasonable belief that his activity is protected by the statute." Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th Cir. 1998). And a plaintiff's burden as to this element is not heavy—he need only have an objectively reasonable belief that he was disabled and therefore entitled to reasonable accommodations under the ADA and then request those reasonable accommodations. Id. At this stage, Defendant has not attempted to argue why Plaintiff's request for light duty and applying for alternative positions failed to put Defendant on notice that Plaintiff reasonably believed he had a disability that required accommodation. Therefore, Defendant has not met its summary judgment burden as to the contention that Plaintiff did not engage in a statutorily protected expression under the ADA.
Nor does the Court conclude that Plaintiff actually held this reasonable belief, only that Defendant has failed to meet its burden on summary judgment.
Next, Defendant argues that even if Plaintiff has demonstrated a prima facie case of retaliation under the ADA, Defendant is able to set forth a legitimate non-discriminatory reason for Plaintiff's termination. That is, Defendant contends that Plaintiff "was not physically able to perform the physical requirements of Maintenance Worker, could not identify a reasonable accommodation to enable him to perform the functions of that position - other than to remain on light duty - and never requested an accommodation from [Defendant]." (Doc. 35 at 30).
In response, Plaintiff contends that Defendant could have extended Plaintiff's light duty accommodations for a brief period, provided him with a brief medical leave, or transferred Plaintiff to an alternative position. The Court will address each request in turn.
As to the request for an extension of light duty status, Plaintiff stated in his deposition that he sent an email to Foxworth or her assistant asking for more time and received a response from Foxworth but did not recall what that response said. (Doc. 42-26 at 62-63). Relatedly, Plaintiff's Response several times contends that Lester, a Caucasian, was permitted to remain on light duty longer than Plaintiff. (Doc. 42 at 2, 10, 16, 18, 27). While Plaintiff stated in his deposition that he "believe[d] Earl Lester was on light duty more than six months," (Doc. 42-26), Defendant's human resources records show that is not the case. Plaintiff was on light duty from May 18, 2020 through December 31, 2020, a total of 227 days. (Doc. 35-24 at 1; Doc. 35-27 at 1). Lester was placed on light duty on three occasions totaling 141 days. (Foxworth Decl., Doc. 43-1 at 2). Regardless, an employer is not required to allow an employee to remain on light duty status as a reasonable accommodation; and even if it was, it would have been Plaintiff's burden to demonstrate why that request would have been a reasonable accommodation, which he did not do. Howell v. Michelin Tire Corp., 860 F. Supp. 1488, 1492 (M.D. Ala. 1994); Redish v. Blair, No. 5:14-cv-260-Oc-22-PRL, 2016 WL 9503731, at *4-5, 2016 U.S. Dist. LEXIS 30036, at *12-13 (M.D. Fla. Feb. 10, 2016); McKane v. UBS Fin. Servs., Inc., 363 F. App'x 679, 681 (11th Cir. 2010).
As to Plaintiff's request for a medical leave, there is no record evidence to support a contention that Plaintiff ever requested this accommodation. McKane, 363 F. App'x at 681 (citing Lucas, 257 F.3d at 1255) ("The plaintiff bears the burden of identifying an accommodation.").
As to Plaintiff's third point, transfer to an alternative position, for the same reason, Plaintiff would have had to identify the available position to be transferred into. The record demonstrates that Plaintiff identified and applied for two positions while he was on light duty. As to the first position, Plaintiff was screened out at the initial stage because he did not meet the minimum qualifications. As to the second position, the interview scores show that Plaintiff was the least qualified of the four candidates interviewed. While reassignment to a vacant position is a reasonable accommodation identified by the ADA, Lucas, 257 F.3d at 1256; 42 U.S.C. § 12111(9)(B), "the ADA does not automatically mandate reassignment without competition," United States EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333, 1347 (11th Cir. 2016) (holding additionally that neither does the ADA require preferential treatment of the disabled in reassignment to another position). Thus, Defendant has provided valid reasons why it did not transfer Plaintiff to one of these positions.
Defendant has identified a legitimate reason for Plaintiff's termination that is unrelated to any purported disability discrimination—i.e., he was no longer able to perform his assigned job functions and could not identify any reasonable accommodation that would allow him to do so—and Plaintiff has not even attempted to argue that Defendant's reason for terminating Plaintiff is pretextual in regards to the ADA retaliation claim. Vega, 432 F. App'x at 871. Accordingly, Defendant's request for summary judgment will be granted as to Count IX.
D. Hostile Work Environment Claims (Counts V and VI)
It does not appear that the Eleventh Circuit dictates application of the McDonnell Douglas framework to hostile work environment claims. Williams v. Birmingham City Sch., Civil Action No. 2:20-cv-2006-ACA, 2022 WL 4391505, at *4, 2022 U.S. Dist. LEXIS 171544, at *11 (N.D. Ala. Sep. 22, 2022). Nonetheless, because Defendant's argument as to these claims fail at the prima facie analysis, the result here would be the same whether or not McDonnell Douglas applies to these claims.
Plaintiff asserts claims of hostile work environment under Title VII (Count V) and the FCRA (Count VI). (Doc. 25 at 13-15). "A hostile work environment claim under Title VII is established upon proof that 'the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.' " Nichols, 470 F. App'x at 760 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). "To establish a hostile work environment claim, a plaintiff must show that: (1) he belongs to a protected group; (2) he suffered unwelcome harassment; (3) the harassment was based on a protected characteristic of the employee . . . ; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) the employer is responsible for that environment under a theory of either direct liability or vicarious liability." Fernandez v. Trees, Inc., 961 F.3d 1148, 1153 (11th Cir. 2020) (citing Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)). Defendant challenges the fourth and fifth elements.
1. Fourth Element—Sufficiently Severe or Pervasive
The fourth element "contains both an objective and a subjective component." Miller, 277 F.3d at 1276 (citing Harris., 510 U.S. at 21-22, 114 S.Ct. 367). Objectively, for conduct "[t]o be sufficiently 'severe or pervasive,' the employer's actions 'must result in both an environment that a reasonable person would find hostile or abusive and an environment that the victim subjectively perceive[s] . . . to be abusive.' " Tonkyro v. Sec'y, VA, 995 F.3d 828, 837 (11th Cir. 2021) (emphasis added) (quoting Miller, 277 F.3d at 1276). As to the objective component, the Eleventh Circuit "look[s] to the totality of the circumstances, including: '(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance.' " Id. (quoting Miller, 277 F.3d at 1276).
Defendant first contends that "[Plaintiff]'s work environment was not objectively severe" because "his exposure to offensive comments was limited to three persons," those made by Lester, Richards, and Hein. (Doc. 35 at 21-22). Defendant's contention starts with an incorrect premise because Plaintiff experienced offensive racial comments from more than just Lester, Richards, and Hein. As discussed, he also had encounters with Meekins and Caldwell, who were both in supervisory roles over Plaintiff.
Next, Defendant argues that "[n]one of the comments were physically threatening toward [Plaintiff] and the vast majority of the comments were not humiliating to [Plaintiff]." (Doc. 35 at 22). The Court agrees that Plaintiff did not experience any physically threatening comments. But the comments were certainly humiliating. While the Court need not again recount all of the offensive comments, it highlights the ones directed to Plaintiff's body—Richards commenting that Plaintiff had "nigger legs" and Meekins commenting on Plaintiff's private parts as an African American man. (Doc. 42-26 at 40, 47). These comments are objectively humiliating. Smelter v. S. Home Care Servs., 904 F.3d 1276, 1286 (11th Cir. 2018).
As to Richards' comments specifically, Defendant also appears to argue a Faragher defense. (Doc. 35 at 23). In Faragher, the Supreme Court made clear that an employee has "a prompt reporting duty" under Title VII, and failure "to take full advantage of the employer's preventative measures," such as a harassment reporting policy, is fatal to an employee's claim. Baldwin v. Blue Cross/Blue Shield, 480 F.3d 1287, 1307 (11th Cir. 2007) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). The Faragher affirmative defense consists of two elements, both of which a defendant bears the burden of proving—the employer must demonstrate that (1) "it took reasonable care both to prevent and correct harassment" and (2) the employee "unreasonably failed to take advantage of [the employer]'s complaint procedures or otherwise avoid harm." Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1314-15 (11th Cir. 2001) (emphasis omitted) (citing Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Ellerth, 524 U.S. at 765, 118 S.Ct. 2257); Walton v. Johnson & Johnson Servs., 347 F.3d 1272, 1289 (11th Cir. 2003).
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); see also Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
This defense fails. First, Defendant has not argued the first element. Frederick, 246 F.3d at 1314 (noting that "an employer's showing that it has a . . . harassment policy does not automatically satisfy its burden"). Next, as to the second element, Defendant has not argued why a delay in reporting of two weeks, (Doc. 42-26 at 42), is too long under Faragher. Good v. Omni Hotels Mgmt. Corp., No. 1:07-CV-0621-HTW-AJB, 2008 WL 11322930, at *30, 2008 U.S. Dist. LEXIS 129307, at *81 (N.D. Ga. Aug. 15, 2008) (collecting cases) ("The undersigned has found no Eleventh Circuit case that has held such a short delay [of ten days] is per se unreasonable."); cf. Baldwin, 480 F.3d at 1307 (holding that a delay of three and a half months was "too long"); Walton, 347 F.3d at 1289-90 (holding that a delay of two and a half months was too long); Banks v. City of Atlanta, No. 21-14122, 2022 WL 4587869, at *3, 2022 U.S. App. LEXIS 27394, at *9 (11th Cir. Sep. 30, 2022) (holding that delays of more than four years, more than two years, and more than three months were too long); Swindle v. Jefferson Cnty. Comm'n, 593 F. App'x 919, 924 (11th Cir. 2014) (holding that a delay of over two years was too long). Nor has Defendant argued why Plaintiff's justification for the delay—that he wanted to consult with his union representative, (Doc. 42-26 at 42)—is insufficient to excuse the at most two weeks that passed before reporting. Baldwin, 480 F.3d at 1307 ("An employee in extreme cases may have reasons for not reporting harassment earlier that are good enough to excuse the delay."). Defendant has failed to meet its burden under Faragher, so the defense fails at this stage.
Additionally, the amount of time it took Plaintiff to report Richards is a disputed issue of material fact. (Doc. 42-26 at 42) (noting that it was between a couple of days and two weeks before Plaintiff reported Richards' conduct).
Finally, as to the fourth element, Defendant summarily argues that "none of the comments, individually or collectively, interfered with Patterson's ability to perform his work or his performance." (Doc. 35 at 23). This assertion is easily disputed by the evidence. Plaintiff had to be transferred from his first work assignment, with Lester, because of Lester's offensive comments. The evidence shows that Plaintiff, and not Lester, had to be transferred because Lester was training Plaintiff. Thus, Lester's comments interfered with Defendant's training of Plaintiff for his position. Additionally, Plaintiff testified that he no longer felt comfortable attending staff meetings because of the comments that he had experienced, both outside of the meetings by people that would be present in the meetings and comments during the actual meetings. When Plaintiff relayed this issue to a supervisor, Caldwell responded by telling him that he should just quit if he could not attend meetings, which were a part of his job. This evidence demonstrates that even Defendant thought that Plaintiff could not adequately perform his job if he was not comfortable dealing with the offensive comments. Defendant failed to meet its burden to show that the harassment was not sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.
2. Fifth Element—Employer Liability
Defendant also challenges the fifth element, whether the employer is responsible for the abusive working environment under a theory of either direct liability or vicarious liability. Defendant argues that it cannot have known of the behavior of Plaintiff's co-workers unless it was told about it, given that supervisors were not in consistent direct contact with its maintenance workers during their regular workday. And, Defendant contends that this is why it had a policy that required employees to report such behavior and "always took prompt remedial action" when complaints were raised.
Again, this argument is quickly disposed of by reference to the evidence. The Court agrees that Defendant cannot have known about conduct of Plaintiff's co-workers when it was not reported. However, Defendant was receiving many reports from many employees, including Plaintiff, about the offensive racial comments that seemed to permeate a large part of the department. And, some of those comments were coming directly from supervisors, such as Meekins and Caldwell, and Defendant is clearly liable for those comments. Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1559 (11th Cir. 1987).
As to Defendant's prompt remedial action, at best this is a disputed issue of material fact. While Defendant did take remedial action each time Plaintiff reported an employee, such as suspending Richards, the evidence shows that those actions were often paired with a level of indignation from Defendant. While Richards was suspended by Defendant, that was not Defendant's initial response when Plaintiff reported the egregious conduct. Rather, Plaintiff was told by Caldwell and Meekins to "rise above" and "ignore" Richards' conduct because he was "[j]ust . . . be[ing] stupid." (Doc. 42-26 at 51-52). As to Hein's resignation, Plaintiff was directed by supervisors to tell people that she had resigned because of family issues—not because she directed an offensive racial slur at an African American co-worker. Given this evidence, this is clearly an issue to be determined by a jury.
3. Totality of the Circumstances
To the extent that the evidence supporting any of the individual elements of a hostile work environment claim is "weak," "the Supreme Court has made clear that 'no single factor is required' to establish the objective component." Smelter, 904 F.3d at 1286-87 (citing Harris, 510 U.S. at 23, 114 S.Ct. 367). At this stage, Defendant has not met its burden to show that the totality of the circumstances is insufficient to state a prima facie claim for a hostile work environment; thus Defendant's request for summary judgment as to Counts V and VI will be denied.
E. ADA Discrimination Claims (Counts VII and VIII)
Plaintiff asserts claims of disability discrimination (Count VII) and failure to accommodate (Count VIII) under the ADA. (Doc. 25 at 15-19). "To establish a prima facie case of employment discrimination under the ADA, a plaintiff must show that, at the time of the adverse employment action, he had a disability, he was a qualified individual, and he was subjected to unlawful discrimination because of his disability." Mazzeo, 746 F.3d at 1268 (citing Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255-56 (11th Cir. 2007)). "To state a prima facie claim for failure to accommodate, the plaintiff must show that: (1) he is disabled; (2) he is a qualified individual; and (3) he was discriminated against by way of the defendant's failure to provide a reasonable accommodation." McKane, 363 F. App'x at 681 (citing Lucas, 257 F.3d at 1255). "The plaintiff bears the burden of identifying an accommodation, and of demonstrating that the accommodation allows him to perform the job's essential functions." Id. (citing Lucas, 257 F.3d at 1255-56). To the extent the elements of each of these claims overlap, the Court will address them together.
As a preliminary issue, Defendant's arguments regarding an adverse employment action fail for the same reasons identified above. Next, as to the question of disability, "Defendant does not dispute that Plaintiff is disabled." (Doc. 35 at 32). Rather, Defendant argues that Plaintiff, by reason of his disability, "was not qualified for his position following his injury." (Id.).
"A 'qualified individual' is 'an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.' " Mazzeo, 746 F.3d at 1267-68 (quoting 42 U.S.C. § 12111(8)). A "reasonable accommodation" is one that "enables the employee to perform the essential functions of the job." Lucas, 257 F.3d at 1255 (citing LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998)).
Plaintiff contends that he was a qualified individual because he "was able to perform the essential functions of his position with the reasonable accommodation of light duty and/or a brief medical leave while he healed, after which he would again be able to return to his position for full duty without restrictions." (Doc. 42 at 26). This argument fails on both fronts.
First, the need to remain on light duty, per se, meant that Plaintiff could not perform the essential functions of his job, which required, inter alia, the "[a]bility to lift, carry, push and pull items which weigh up to 50 pounds over uneven terrain, up/down stairs or ladders," the "[a]bility to lift items (weighing less than 50 pounds) above the head or down from over the head," the "[a]bility to hold items (weighing 1 to 50 pounds) for a period less than 10 minutes, without putting the item down," and the "[a]bility to stay in a bending, kneeling, or squatting position for periods less than 10 minutes." (Doc. 35-10 at 4). It is clear that by allowing Plaintiff to remain on light duty, he would not have been able to perform most—if not nearly all—of the essential functions of his job as a maintenance worker. (See id. at 2-4). And this, an employer is not required to do. Lucas, 257 F.3d at 1260 ("[E]mployers are not required to transform the position into another one by eliminating functions that are essential to the nature of the job as it exists."). As to the second part of Plaintiff's argument, as explained above, Plaintiff did not request an additional medication leave as a reasonable accommodation.
Next, Plaintiff contends that Defendant should have transferred Plaintiff to another position as a reasonable accommodation because "there were available positions for which Plaintiff was qualified and able to perform the essential functions within his restrictions." (Doc. 42 at 26). As discussed above, Plaintiff identified and applied for two potential positions. As to the first position as a Senior Recreation Supervisor—Tennis, it is clear from the evidence that Plaintiff did not meet the minimum qualifications for this job. As to the second position as a Recreation Leader, Plaintiff was interviewed for the job but was the least qualified of the four candidates. As explained above, while reassignment to a vacant position is a reasonable accommodation identified by the ADA, the ADA does not require reassignment without competition. St. Joseph's Hosp., 842 F.3d at 1347. Here, as discussed above, Plaintiff was the least qualified of the four candidates interviewed.
Accordingly, because Plaintiff is unable to demonstrate that he was a qualified individual to continue in his position as a maintenance worker, Plaintiff's claims in Counts VII and VIII fail, and Defendant is entitled to summary judgment on those claims.
IV. CONCLUSION
In accordance with the foregoing, it is ORDERED and ADJUDGED as follows:
1. Defendant, City of Melbourne's, Motion for Summary Judgment (Doc. 35) is GRANTED in part and DENIED in part.
a. The Motion is granted as to Counts VII, VIII, and IX.
b. The Motion is otherwise DENIED.
The Clerk will be directed to enter judgment on all claims where summary judgment has been granted herein upon the resolution of the remainder of the claims in this case.
DONE and ORDERED in Orlando, Florida on April 18, 2023.