Ramon Gonzalez v. State of Florida Department of, et al

Filing

Opinion issued by court as to Appellant Ramon Gonzalez. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14324
________________________
D.C. Docket No. 1:14-cv-22479-MGC

RAMON GONZALEZ,
Plaintiff-Appellant,
versus
STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES,
MANUEL R. MORALES, JR.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 23, 2017)
Before ED CARNES, Chief Judge, FAY and PARKER, * Circuit Judges.
PER CURIAM:

*

Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit,
sitting by designation.

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In November 2010 Ramon Gonzalez, who is Cuban, began working as
maintenance supervisor for Florida’s Department of Management Services in its
Division of Real Estate Development and Maintenance.1 Facilities Manager
Norberto Fernandez (“N. Fernandez”) hired him. The two of them together were
responsible for developing work plans for the mechanical staff, reviewing
maintenance work performed at three buildings, and contracting with outside
vendors for work order supplies and services. And in his position as maintenance
supervisor, Gonzalez was also responsible for managing seven employees who
worked as maintenance mechanics and support technicians in the three buildings,
prioritizing work orders, and conducting daily inspections of operations systems.
Viewing the evidence in the light most favorable to Gonzalez, nine months
after N. Fernandez hired Gonzalez, Deputy Bureau Chief of Regional Facilities
Daniel Eberhart told N. Fernandez that he would not have hired Gonzalez because
he “spoke with a heavy Cuban accent” and he “spoke too loud.” According to N.
Fernandez’s declaration,“there were several occasions where Mr. Eberhart made
comments about Ramon Gonzalez’s accent in a way that made it clear that he
wanted to get rid of him.” Neither N. Fernandez’s declaration nor any other part of
the record provides any information about when those comments were made or

1

“At summary judgment we view the facts in the light most favorable to the nonmoving
party,” taking those facts from the “evidentiary materials on file.” Crawford v. Carroll, 529 F.3d
961, 964 n.1 (11th Cir. 2008).
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specifically what was said by Eberhart that “made it clear” he wanted to “get rid
of” Gonzalez.
In January 2013 Eberhart issued a memo to N. Fernandez expressing
concerns about his work performance and directing him to take immediate action
to correct the problems. The memo listed three areas in need of improvement —
communication, personnel management, and maintenance management — and
provided details of the specific problems within each category. After deciding that
N. Fernandez had not sufficiently improved by April of that year, Tom Berger,
Director of the Division of Real Estate and Maintenance, recommended that
human resources fire him based on his poor supervisory performance, hostile
demeanor, and insubordination. N. Fernandez was fired soon thereafter and, so far
as the record shows, he never filed any action contesting his firing.
After N. Fernandez was fired, Eberhart assigned joint responsibility of the
three buildings to Gonzalez and Lissette Fernandez (“L. Fernandez”), with
Gonzalez supervising all of the maintenance tasks. Eberhart directed them to send
all work requests to him for final approval because he wanted control over the
maintenance work for budgetary reasons. In violation of that directive, Gonzalez
authorized the repair of a fence before Eberhart had given that repair work final
approval, which caused the work to be performed without the Department having
in place any way to pay for those repairs. Gonzalez also authorized payment for
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the repair of a light pole that should not have been paid for because the work was
unacceptable.
Senior mechanic Joel Kyllonen and facilities manager Ralph Reynolds
emailed Eberhart in late April 2013 after visiting Gonzalez at one of the buildings
he was managing. Both Kyllonen and Reynolds described Gonzalez as having
been angry, argumentative, and loud while they were with him. Reynolds reported
that he had told Gonzalez that “his attitude was not a positive representative [sic]
of [the Department] and shouldn’t occur again.” Around that time, Eberhart had a
conference call with his supervisor, a human resources representative, and
Eberhart’s assistant, whose handwritten notes show that the discussion topics
included Gonzalez’s “poor attitude” and difficulties communicating with others,
and also state that “[s]ince [N. Fernandez]’s exit we have discovered more details
about [Gonzalez]’s performance.” They discovered “deficiencies” in Gonzalez’s
performance that N. Fernandez “did not address” while he was Gonzalez’s
supervisor. During that conference call, Eberhart also mentioned receiving
complaints from employees who directly reported to Gonzalez. According to
Eberhart, those employees said that Gonzalez berated and belittled them in front of
building tenants, vendors, and members of the public. Those were not the only
complaints about Gonzalez. L. Fernandez testified that she had received
complaints from employees, tenants, and vendors about his loud, aggressive, and
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intimidating manner of communication, and that he had a bad attitude and
complained about having to make necessary repairs. Evidence showed that
Eberhart knew about at least one of the tenant’s complaints.
Gonzalez himself testified that he is a “strong, hard-voiced talking person”
and knows that he talks “loud.” He also conceded that he tends to talk louder and
faster when he is upset and that those around him could misinterpret him as
yelling.
In a May 30, 2013 memo to the director of human resources, Division
Director Berger recommended that Gonzalez be terminated. Berger’s memo stated
that Eberhart had visited one of the three buildings and had determined that
Gonzalez lacked organization in carrying out his supervisory duties. The memo
explained that there was no routine maintenance program and that employees had
complained that Gonzalez yelled at them, berated them, and called them names. It
also mentioned Gonzalez’s failure to follow proper purchasing and payment
protocols, and it concluded by recommending that he be terminated “for poor
performance, insubordination/failure to follow instructions and conduct
unbecoming.” The information upon which Berger relied to write that memo came
from human resources, which had in turn received the information from Eberhart.
After receiving Berger’s memo, the director of human resources decided that
dismissal was warranted, and in a letter dated June 4, 2013, he notified Gonzalez
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that “[w]e have determined that it is in the best interest of the Department that your
employment be terminated . . . .” The letter offered no further explanation for the
termination. Because he was in a supervisory position, Gonzalez was a “select
exempt service employee,” which is an “at will” employee who can be terminated
at any time without cause. For those select exempt service employees, the
Department “may use disciplinary actions at [its] discretion.”
I.
After obtaining a right-to-sue letter from the EEOC, Gonzalez filed a lawsuit
in Florida state court alleging national origin discrimination in violation of the
Florida Civil Rights Act of 1992, Fla. Stat. § 760.10, and Title VII of the Federal
Civil Rights Act, 42 U.S.C. § 2000e-2. The Department removed the case to
federal district court and, after discovery, filed a motion for summary judgment.
Gonzalez filed a response in opposition to that motion, attaching as support N.
Fernandez’s declaration as well as his own. The Department then filed a motion to
strike N. Fernandez’s declaration because it violated Federal Rule of Civil
Procedure 26 and to strike one paragraph of Gonzalez’s declaration as inadmissible
hearsay. The district court, in its summary judgment order, granted both parts of
the Department’s motion to strike and its motion for summary judgment. This is
Gonzalez’s appeal.

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II.
Gonzalez contends that the district court abused its discretion by granting the
Department’s motion to strike. We need not resolve that question because, as we
will explain, even considering both declarations in their entirety, Gonzalez has
offered no direct evidence of discrimination and has failed to offer evidence raising
a genuine issue of fact as to pretext.
III.
In relevant part, Title VII makes it unlawful to fire or take any other adverse
employment action against an employee based on that employee’s national origin.
See 42 U.S.C. § 2000e–2(a)(1).2 A plaintiff bringing a Title VII claim can prove
intentional discrimination through direct or circumstantial evidence. See Alvarez
v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). Gonzalez
contends that he should not suffer summary judgment because he has presented
direct evidence of discrimination and, alternatively, he has presented circumstantial
evidence sufficient to both make out a prima facie case and show pretext under the
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817 (1973), and Texas Department of Community Affairs v. Burdine, 450
U.S. 248, 101 S. Ct. 1089 (1981).
2

Doing so is also unlawful under the Florida Civil Rights Act. Fla. Stat. § 760.10(1)(a).
Florida courts have held, and the parties do not dispute, that “decisions construing Title VII are
applicable when considering claims under the Florida Civil Rights Act, because the Florida act
was patterned after Title VII.” Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th
Cir. 1998). As a result, analysis of the state claim is subsumed in analysis of the federal claim.
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Gonzalez contends that Eberhart’s comments about his accent and loud
manner of talking are direct evidence of discrimination. Because Eberhart did not
make the final decision to fire Gonzalez, the first step is usually to determine
whether Eberhart’s statements about Gonzalez’s accent and loud volume can be
imputed to Berger under a “cat’s paw” theory of liability. See Stimpson v. City of
Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999) (“This [cat’s paw] theory
provides that causation may be established if the plaintiff shows that the
decisionmaker followed the biased recommendation [of a non-decisionmaker]
without independently investigating the complaint against the employee. In such a
case, the recommender is using the decisionmaker as a mere conduit, or ‘cat’s paw’
to give effect to the recommender’s discriminatory animus.”). Because it does not
matter to the result, however, we will simply assume for purposes of this appeal
that Eberhart’s comments about Gonzalez’s accent and loud voice can be imputed
to Berger under the “cat’s paw” theory of liability.
We also conclude that Eberhart’s comments about Gonzalez’s accent and
loud manner of speaking are not direct evidence of national origin discrimination.
“Direct evidence is evidence which, if believed, proves the existence of a fact
without inference or presumption.” Scott v. Suncoast Beverage Sales, Ltd., 295
F.3d 1223, 1227 (11th Cir. 2002). “[O]nly the most blatant remarks, whose intent
could mean nothing other than to discriminate on the basis of some impermissible
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factor constitute direct evidence of discrimination. If the alleged statement
suggests, but does not prove, a discriminatory motive, then it is circumstantial
evidence.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)
(citations and quotation marks omitted).
As support for his contention that Eberhart’s comments about his accent and
loud voice are direct evidence of discriminatory motive, Gonzalez cites Akouri v.
State of Florida Department of Transportation, 408 F.3d 1338 (11th Cir. 2005).
In the Akouri decision, the plaintiff, who was born in Lebanon, testified that he had
been denied a promotion and that when he asked “shortly after” that denial why
another employee had been chosen instead, he was told: “[T]he people working in
the crew are not the same that are working in the office. There [are] no black or
Hispanic [employees] in the back. . . . [T]hey are all white and they are not going
to take orders from you, especially if you have an accent, and something like that.”
Id. at 1341, 1347–48 (quotation marks omitted) (third alteration in original). We
concluded in the Akouri decision that the explanation for why the plaintiff had
been denied the promotion was direct evidence because “[t]here is no mere
suggestion or need for inferences because the statement relates directly to the
[employer]’s decision to promote [someone else] over Akouri . . . and blatantly
states that the reason he was passed over for the promotion was his ethnicity.” Id.
at 1348.
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Unlike the direct evidence in the Akouri case, Eberhart’s statements were
not directly related to Gonzalez’s termination (or Eberhart’s decision to report to
Berger about the problems with Gonzalez’s job performance). The only evidence
of when Eberhart commented about Gonzalez’s accent and loud voice is the
statement Eberhart made to N. Fernandez two years before Gonzalez’s termination.
See Scott, 295 F.3d at 1227–28 (noting that the comment “[w]e’ll burn his black
ass” was not direct evidence of discrimination because “it was made approximately
two and one-half years before the [plaintiff was terminated] and because it was not
directly related to the subject of [the plaintiff]’s termination”). As a result,
Eberhart’s comments are not direct evidence of discrimination.
IV.
Lacking any direct evidence of discrimination, Gonzalez could still have
escaped summary judgment by offering sufficient circumstantial evidence to meet
the burden-shifting framework under the McDonnell Douglas and Burdine
decisions. Under that framework the plaintiff bears the initial burden of showing a
prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93
S. Ct. at 1824. If the plaintiff makes that showing, the burden shifts “to the
employer to articulate some legitimate, nondiscriminatory reason for the [adverse
employment action].” Id. “[S]hould the defendant carry this burden, the plaintiff
must then have an opportunity to prove by a preponderance of the evidence that the
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legitimate reasons offered by the defendant were not its true reasons, but were a
pretext for discrimination.” Burdine, 450 U.S. at 253, 101 S. Ct. at 1093.
While the parties dispute whether Gonzalez has made out a prima facie case
of discrimination, we need not decide that issue because, as we will discuss,
Gonzalez has failed to raise a genuine issue of material fact as to whether the
Department’s proffered reasons for firing him were a pretext for discrimination.
See Alvarez, 610 F.3d at 1265 (“It matters not whether Alvarez has made out a
prima facie case if she cannot create a genuine issue of material fact as to whether
[the defendant]’s proffered reasons for firing her are pretext masking
discrimination.”).
The Department provided several legitimate nondiscriminatory reasons for
firing Gonzalez, all of which are summarized in Berger’s memo recommending
that he be terminated: He did not carry out his maintenance supervisory duties in
an organized way; there was no routine preventative maintenance program;
employees, including Kyllonen and Reynolds, had complained that Gonzalez had
yelled at them, berated them, or called them names; at least one tenant had
complained to Eberhart that Gonzalez had yelled at her and made her
uncomfortable; and Gonzalez had failed to follow proper purchasing and payment
protocols.

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Because the Department articulated several legitimate nondiscriminatory
reasons for terminating Gonzalez, he had the burden of putting forward evidence
raising a genuine issue of material fact as to whether those reasons were pretextual.
See Alvarez, 610 F.3d at 1265. Gonzalez could have done so “either by offering
evidence that [the Department] more likely than not acted with a discriminatory
motive, or by showing that its proffered reasons are not credible.” Id. Because the
Department provided multiple reasons for terminating Gonzalez, he had to
“produce sufficient evidence for a reasonable factfinder to conclude that each of
[those] proffered nondiscriminatory reasons is pretextual.” Chapman v. AI
Transp., 229 F.3d 1012, 1037 (11th Cir. 2000) (en banc) (emphasis added).
Gonzalez contends that he presented enough circumstantial evidence to
create a genuine issue of material fact that each proffered reason was pretextual.
But he didn’t. Gonzalez submitted a declaration asserting that his performance
was satisfactory, that he had never been counseled or disciplined, and that “[i]f
there were any truth to these matters [raised by the Department as supporting his
termination], they would have been brought to my attention through the
progressive discipline [policy].” And N. Fernandez, who had himself been fired
for other reasons, submitted a declaration stating that he had been satisfied with
Gonzalez’s performance and that in his opinion the Department should have
addressed the alleged problems about Gonzalez’s performance through “coaching
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for improvement,” and not termination. However, as we have “repeatedly and
emphatically held”:
employers may terminate an employee for a good or bad reason
without violating federal law. Title VII does not allow federal courts
to second-guess nondiscriminatory business judgments, nor does it
replace employers’ notions about fair dealing in the workplace with
that of judges. We are not a super-personnel department assessing the
prudence of routine employment decisions, no matter how medieval,
high-handed, or mistaken. Put frankly, employers are free to fire their
employees for a good reason, a bad reason, a reason based on
erroneous facts, or for no reason at all, as long as its action is not for a
discriminatory reason.
Flowers v. Troup Cty., Ga., Sch. Dist., 803 F.3d 1327, 1338 (11th Cir. 2015)
(quotation marks and citations omitted).
While Gonzalez’s declaration asserts that his performance was satisfactory,
he has offered no evidence disputing the fact that: (1) employees and at least one
tenant had complained to Eberhart about Gonzalez’s communication problems;
(2) tenants and vendors had complained to L. Fernandez about his belligerent
treatment of them; (3) he did not wait for a purchase order for a fence repair before
having that work done, which caused the work to be completed before the
Department had in place a method of payment; and (4) Gonzalez had authorized
payment for the repair of a light pole that should not have been paid for because
the work was unacceptable. 3 In his deposition Gonzalez conceded that when he

3

While his declaration states that the initial repair of the light pole was approved by
Eberhart, Gonzalez does not dispute that the repair should not have been paid for because the
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gets upset he speaks more rapidly and at a louder volume, and that his doing so
could be interpreted by others as yelling. There was no evidence at all disputing
the fact that he had yelled at employees and tenants of the Department.
The statement in N. Fernandez’s declaration that he was satisfied with
Gonzalez’s performance does not establish pretext. N. Fernandez himself was
fired because of his poor supervisory performance along with his hostile and
insubordinate demeanor. “Different supervisors may impose different standards of
behavior, and a new supervisor may decide to enforce policies that a previous
supervisor did not consider important.” Rojas v. Florida, 285 F.3d 1339, 1343
(11th Cir. 2002). Evidence that a supervisor — who was himself fired because of
his hostile demeanor and poor performance — did not find an employee’s
demeanor and performance unsatisfactory, is not sufficient to create a genuine
issue of material fact about whether non-terminated supervisors did. And there is
also evidence showing that even more problems with Gonzalez’s performance
were discovered after N. Fernandez had been fired.
Gonzalez argues that the fact the Department gave him no formal warning or
counseling is evidence of pretext. The Department’s disciplinary policy does not
mandate counseling or formal warning before termination but instead states that
work was unacceptable, and instead asserts only that “[t]he repair work on the light pole did not
need to be redone to my knowledge” and speculates that “[i]f there were any truth to the claim
that I did something wrong, it would have been brought to my attention through the progressive
discipline [policy].” (Emphasis added).
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the Department “may use disciplinary actions at their discretion concerning Select
Exempt Service . . . employees,” and that “[c]ounseling may be used to help
employees recognize a mistake or deficiency. . . .” (Emphasis added). Because
counseling and formal warnings were discretionary options, the Department’s
failure to provide them does not raise a genuine issue of fact as to whether its
stated reasons for terminating Gonzalez were pretextual. See Alvarez, 610 F.3d at
1262 n.7, 1268 (concluding that the plaintiff had failed to raise a genuine issue of
material fact even though the employer had admitted that it had not followed its
progressive discipline policy, which normally provided for successive verbal and
written warnings before an employee was terminated for misconduct); see also
Morris v. City of Chillicothe, 512 F.3d 1013, 1020 (8th Cir. 2008) (“Deviance
from a progressive discipline policy can be evidence of pretext, but here, the
department’s employee manual and related documents specifically state that the
department is not bound by any number of warnings and that it can fire at-will
employees without warning if necessary. We have found such caveats in an
employee policy negate its persuasiveness in showing pretext.”).
Gonzalez has failed to raise a genuine issue as to pretext. While he offered
evidence showing that Eberhart made some remarks about his accent and loud
manner of speaking at some point during his employment, including one comment
that was made almost two years before his termination, that evidence standing
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alone does not establish pretext. See Scott, 295 F.3d at 1229 (“Although a
comment unrelated to a termination decision may contribute to a circumstantial
case for pretext, it will usually not be sufficient absent some additional evidence
supporting a finding of pretext.”) (citation omitted). The district court did not err
in granting summary judgment to the Department.
AFFIRMED.

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