Paul Zarza v. Tallahassee Housing Authoritit

Filing

Opinion issued by court as to Appellant Paul H. Zarza. 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[DO NOT PUBLISH]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. 15-15348
Non-Argument Calendar
________________________
D.C. Docket No. 4:14-cv-00626-RH-CAS
PAUL H. ZARZA,
Plaintiff - Appellant,
versus
TALLAHASSEE HOUSING AUTHORITITY,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(April 26, 2017)

Before MARCUS, JORDAN, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Plaintiff Paul Zarza (“Plaintiff”) appeals the district court’s order granting
summary judgment to Defendant Tallahassee Housing Authority (“Defendant”) on
his hostile work environment, constructive discharge, and retaliation claims under

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Title VII of the Civil Rights Act and the Florida Civil Rights Act.1 Concluding
that Plaintiff has not shown that the harassment he endured was sufficiently severe
or pervasive, we affirm the district court’s grant of summary judgment.
I. BACKGROUND
A. Factual Background
Defendant is a public housing agency that operates three properties:
Springfield Apartments, Pinewood Place, and Orange Ave Apartments. Plaintiff,
who is white, began working for Defendant in 2003 as a Work Order Specialist,
where he was responsible for responding to work order requests for these
properties, which consist of approximately 600 units. While employed in this
capacity, Plaintiff used his work truck as an office to complete any necessary
paperwork. As a result of a structural reorganization in 2011, Plaintiff became the
maintenance supervisor for Springfield Apartments only. In his new position,
Plaintiff had six employees reporting directly to him, as well as increased
responsibility and more paperwork, even though he was responsible for fewer units
overall.
Around the same time, Plaintiff began renovating three existing apartment
units used as offices into a single suite of offices, which also included adding

1

Plaintiff’s state law claims do not require separate discussion because the FCRA is modeled
after Title VII and the same framework is used to analyze these claims. See Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010).
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cubicles for some staff members. Plaintiff began using one of the offices in the
newly renovated space for several months, though the property manager at the
time, Joan Doby, who is African-American, asked Plaintiff to vacate the office so
that Wilford Evans could use the office. Evans, who is also African-American,
was the assistant property manager at the time. Plaintiff occupied the other vacant
office space for a few more months, until Doby asked Plaintiff to vacate the office
for another African-American employee, Larry Simmons, who was not part of the
maintenance organization. Plaintiff claims Doby denied him permission to build a
cubicle for himself and told him to work at the breakroom table instead. Doby
claims she only denied Plaintiff permission to build a cubicle in the breakroom
itself. Plaintiff found the breakroom table too small and the environment too
noisy, and he was frustrated by having to store his work in a closet every day.
Plaintiff was able to use a small surplus table in the breakroom for the eight
months immediately preceding his resignation. At the two other properties, the
maintenance supervisors, who were African-American, had offices.
Evans had been the assistant property manager at Springfield Apartments
since 2007. According to Plaintiff, Evans was “extremely hostile and rude” to him
the entire time they worked together, and Evans was particularly combative toward
white employees. When communicating his problems with Evans to Doby and
Brenda Williams, who is African-American and who was Defendant’s Executive

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Director, Plaintiff claims that these two threatened him with termination if he could
not work out his differences with Evans. In 2012, Plaintiff asked Doby and
Williams to be transferred to the maintenance supervisor position at the Pinewood
property. 2 According to Plaintiff, they refused the transfer, and Williams told
Plaintiff he could quit if he wanted. Plaintiff acknowledges that he never formally
applied for the position.
By June 2012, Evans replaced Doby as property manager of Springfield
Apartments. According to Plaintiff, at the first meeting that Evans led as property
manager, Evans demanded that Plaintiff lower an employee evaluation Plaintiff
had given to Randall Day, one of his white employees. Even though Plaintiff told
Evans he did not agree with the lowered evaluation, Evans told Plaintiff he would
be fired if he did not comply. 3
The same day, Evans reassigned the truck Plaintiff had used for four years to
Paul Robinson, an African-American employee who was Plaintiff’s subordinate
and who already had a truck assigned to him. Evans claimed the reassignment was
to ensure that Robinson had a safe truck to use when he was on call during late-

2

Williams and Doby claim that Plaintiff never asked for a transfer to Pinewood, and according
to Doby, the position was not open at the time Plaintiff allegedly made his transfer request.
3

Evans testified that he did not order Plaintiff to change the evaluation, but merely told him he
had the option to change it.
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night hours. 4 Plaintiff was told he had to “walk the grounds” to perform his work
on the property’s 200 units. Although Plaintiff had other unassigned vehicles
available to him, he alleges he was not informed that he was able to use them.
Plaintiff used his own vehicle for about a month, until Plaintiff “got tired of
spending [his] own money driving around the property.” Plaintiff eventually
began to use a small station wagon when Simmons was not using it, though
Plaintiff said Evans was visibly displeased when Plaintiff used the station wagon.
The station wagon was too small to carry many of the tools and supplies that
Plaintiff needed to transport, and it was part of his job to travel off the premises to
buy supplies.
Evans gave Plaintiff several written warnings that Plaintiff asserts were
unmerited. In May 2012, Evans wrote up Plaintiff for failing to follow verbal
instructions to price a range hood, stock a van with supplies, and install a
refrigerator, as well as to contact an A/C contractor. Plaintiff disagrees that he
failed to fulfill these responsibilities. Evans also wrote up Plaintiff for refusing to
lower Day’s employee evaluation and for driving his personal truck to perform job
duties. Plaintiff is the only employee that Evans gave written warnings to.
Plaintiff believes that Evans wanted Robinson to have Plaintiff’s position
and so was trying to force Plaintiff to quit. Plaintiff alleges that Robinson also
4

According to Evans, Robinson’s truck was in need of repairs, including new tires, and he had
asked Plaintiff to make the necessary repairs.
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understood this to be true, and Robinson related to Plaintiff that he used the word
“cracker” in an argument with another employee, but was only suspended for three
days. Plaintiff also alleges that Evans would reassign worker assignments made by
Plaintiff without discussion or explanation solely to make Plaintiff look
incompetent.
On June 28, 2012, Plaintiff took his frustrations to Laura Detsch, who was
Defendant’s Deputy Director and who is white. Plaintiff said that he recounted to
Detsch Evans’s hostility toward him and his belief that Evans treated Plaintiff
poorly because Plaintiff was white. Plaintiff states that he tried to submit to Detsch
a letter of resignation, stating that Evans’s hostile treatment was too much for him
to handle. The resignation letter did not express Plaintiff’s belief that the hostility
was based on his race. Plaintiff claims that Detsch told him she would bring his
complaints to Williams, though there is no evidence that this occurred.
Sometime after making the report, Williams arranged for Plaintiff and Evans
to attend mediation, although it was unsuccessful. Evans issued Plaintiff a written
warning on September 19, 2012, for violating company policies. Plaintiff does not
recall what this reprimand was for. Plaintiff believed it was clear that Evans was
manufacturing the write-ups required before an employee could be justifiably
terminated. Plaintiff testified that at a maintenance staff meeting on September 26,
2012, Evans was demeaning, embarrassing, and hostile to Plaintiff. Plaintiff

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submitted a letter of resignation later that day, noting that the workplace had
become too hostile for him “to work in and still respect [himself] and [his]
superiors.”
B. Procedural History
Plaintiff sued Defendant in Florida state court under Title VII, which makes
it unlawful for an employer to discriminate against an employee because of race.
42 U.S.C. § 2000e-2(a)(1). Specifically, Plaintiff alleges claims of a hostile work
environment, constructive discharge, and retaliation. Plaintiff argues that the
denial of office space and of his requested transfer to Pinewood, the reassignment
of his truck, and Evans’s hostility toward him were all because he was white.
These acts, according to Plaintiff, created a hostile work environment, leading to
his constructive discharge.
Defendant removed the case to federal court and eventually moved for
summary judgment. In a hearing on the motion, the district court noted that the
harassment alleged by Plaintiff was not sufficiently severe or pervasive to satisfy
the standard for a hostile work environment or for a constructive discharge, and
that there was no evidence that a decision-maker knew about Plaintiff’s race-based
complaints, which is required to support a claim of retaliation. The district court
accordingly granted Defendant’s motion and entered judgment against Plaintiff.

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II. DISCUSSION
A. Standard of Review
We review an entry of summary judgment de novo, construing all facts and
drawing all reasonable inferences in favor of the nonmoving party. Jones v. UPS
Ground Freight, 683 F.3d 1283, 1291–92 (11th Cir. 2012). A movant is entitled to
summary judgment if 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
about a material fact 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 (1986).
B. Hostile Work Environment Claim
A plaintiff seeking to establish a hostile work environment claim must show
his membership in a protected group, that he has been subject to unwelcome
harassment based on a protected characteristic, that the harassment was
“sufficiently severe or pervasive to alter the terms and conditions of employment
and create a discriminatorily abusive working environment,” and that the employer
is responsible for that environment. Miller v. Kenworth of Dothan, Inc., 277 F.3d
1269, 1275 (11th Cir. 2002). Determining whether harassment is “sufficiently
severe or pervasive” involves both a subjective and an objective inquiry. Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21–22 (1993). When considering the objective

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inquiry, relevant factors include “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.” Id. at 23. The objective severity of the harassment is considered by
looking at all of the circumstances. Id.
For example, in Miller v. Kenworth of Dothan, Inc., this Court concluded
that severe and pervasive conditions existed where the plaintiff was called
ethnically offensive names three to four times per day and was required to interact
with the person expressing the slurs. 277 F.3d 1269, 1273, 1276–77 (11th Cir.
2002). We noted that “it is repeated incidents of verbal harassment that continue
despite the employee’s objections [that] are indicative of a hostile work
environment and not simply some magic number of racial or ethnic insults.” Id. at
1276 (quotation marks omitted) (alteration in original). In contrast, we noted that
racially derogatory language was “too sporadic and isolated” to show that
harassment was sufficiently severe or pervasive when, over the course of more
than two years, only once was a racially insensitive remark was directed toward the
plaintiff, and only once was such a remark otherwise used in her presence.
McCann v. Tillman, 526 F.3d 1370, 1379 (11th Cir. 2008). Harsher racial epithets
were never directed toward the plaintiff or used in her presence. Id.; see also
Harris, 510 U.S. at 21 (finding that the “mere utterance of an . . . epithet which

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engenders offensive feelings in a[n] employee . . . does not sufficiently affect the
conditions of employment to implicate Title VII.”) (internal quotation marks
omitted).
Similarly, while “simple teasing, offhand comments, and isolated incidents
(unless extremely serious)” do not rise to the level of a hostile work environment
under Title VII, see Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
(internal citation and quotation marks omitted), we found that a plaintiff who had
endured seven incidents of racially-hostile acts escalating over a year—four of
which occurred during the plaintiff’s last two weeks of employment and included a
“possibly threatening confrontation”—created a jury question on whether there
was a hostile work environment. Jones, 683 F.3d at 1303–04.
Accepting Plaintiff’s allegations as true, we will assume that he has shown
that his immediate superiors, particularly Evans, did not treat him with the same
respect and consideration that these superiors treated Plaintiff’s black counterparts.
According to Plaintiff, Evans was petty and went out of his way to annoy Plaintiff.
But the problem for Plaintiff in succeeding on his claim is the requirement that the
hostility be severe and pervasive to have altered the terms and conditions of his
employment. Based on the applicable standards we use in deciding such claims,
we agree with the district court that Plaintiff has not shown that the mistreatment

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he faced in his work environment was sufficiently severe or pervasive to sustain a
claim for a hostile work environment.
While lack of a designated truck and office space certainly made it more
difficult for Plaintiff to do his job, he was still able to perform his job. Plaintiff
had access to other pool vehicles, and he does not point to any specific projects or
assignments he was unable to complete because he did not have a vehicle assigned
to him. Plaintiff was also able to complete his paperwork in the breakroom—he
had completed paperwork without an office at all prior to becoming maintenance
supervisor—and the only problems with this arrangement were loud noises and
distractions and having to reorganize his work every day.
As to any overtly racially-hostile conduct, Plaintiff was not subjected to this
kind of conduct. The only evidence in the record of a racial insult among
employees—Robinson’s “cracker” remark—was not directed at Plaintiff, and the
speaker was punished. Plaintiff points to only a few specific acts to demonstrate
the hostile work environment. For example, the reprimand for refusing to lower
Day’s employment evaluation was a single event. (Nor has Plaintiff spelled out
with enough specificity the reasons why his supervisor was wrong to make this
request.) Plaintiff was not subjected to racially pejorative remarks multiple times a
day, every day, as the plaintiff in Miller. Nor was Plaintiff ever physically
threatened like the plaintiff in Jones. In sum, while Plaintiff’s working conditions

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may have been unpleasant, and his supervisor may have been an unfair and unkind
boss, Plaintiff has not shown that he faced the objectively severe or pervasive
harassment necessary to sustain a hostile work environment claim.
C. Constructive Discharge Claim
Constructive discharge occurs when an employer deliberately makes an
employee’s working conditions so unbearable that a reasonable person in that
position would be compelled to resign. Bryant v. Jones, 575 F.3d 1281, 1298 (11th
Cir. 2009). Establishing this claim requires demonstrating an even greater severity
or pervasiveness of harassment than is required for a hostile work environment
claim. Id. at 1298–99. Because Plaintiff has not shown that the mistreatment
directed toward him rose to the level necessary to sustain a hostile work
environment claim, his constructive discharge claim also fails.
D. Retaliation Claim
Title VII makes it “an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has opposed any practice
made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a).
An employee alleging retaliation must demonstrate a prima facie case of
retaliation, which requires showing that: (1) the employee engaged in a statutorily
protected activity; (2) the employee suffered a materially adverse employment
action; and (3) there is a causal connection between the protected activity and the

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adverse action. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir.
2010).
In this case, the district court indicated in its oral ruling that Plaintiff had
“pretty much [given] up” his retaliation claim during argument before the court,
but the court nevertheless considered the claim and deemed it deficient. First, the
district court agreed that Plaintiff engaged in protected activity during his meeting
on June 28 with Detsch, in which Plaintiff reported to Detsch his belief that
Evans’s harassment and unfair treatment towards him were racially motivated.
Rollins v. State of Fla. Dep’t of Law Enf’t, 868 F.2d 397, 400 (11th Cir. 1989)
(“[T]he protection afforded by [Title VII] is not limited to individuals who have
filed formal complaints, but extends as well to those . . . who informally voice
complaints to their superiors or who use their employers’ internal grievance
procedures.”). We agree.
Nevertheless, the district court concluded that Plaintiff had not demonstrated
the causal connection between this protected activity and a materially adverse
employment action, as required by the third element. The district court further
noted its doubt that Plaintiff had even suffered a materially adverse employment
action after taking his complaint to Detsch, but it did not decide this question
because it concluded that the complaint failed anyway on the causation element.
We agree that Plaintiff has failed to sustain his retaliation claim, but we conclude

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that, in addition to the causation prong, the absence of a materially adverse
employment action likewise supports this conclusion.
As to the requirement that a plaintiff show causation, this Court “construe[s]
the causal link element broadly so that ‘a plaintiff merely has to prove that the
protected activity and the negative employment action are not completely
unrelated.’” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1278 (11th Cir.
2008) (quoting Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir.1998)).
“The burden of causation can be met by showing close temporal proximity
between the statutorily protected activity and the adverse employment action.”
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). Because
demonstrating temporal proximity is ultimately about showing that a decision
maker was aware of the protected conduct at the time of the adverse action,
“temporal proximity alone is insufficient . . . where there is unrebutted evidence
that the decision maker did not have knowledge that the employee engaged in
protected conduct.” Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799
(11th Cir. 2000) (“A decision maker cannot have been motivated to retaliate by
something unknown to him.”). 5
Defendant argues, and the district court concurred, that although Plaintiff
made his complaint to Detsch, there is no evidence that Williams, the “decision5

Though Brungart concerns retaliation under the Family and Medical Leave Act (FMLA), this
Court has noted that FMLA and Title VII retaliation are analyzed under the same standards.
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maker,” ever learned of the complaint. Plaintiff did not testify that he made the
same complaint to Williams. Detsch testified that she did not pass Plaintiff’s racebased complaint or letter of resignation along to Williams, and Williams testified
that she never learned of any race-based complaints from Plaintiff. Even if
Williams had received the resignation letter that Plaintiff attempted to give to
Detsch, the letter itself does not indicate Plaintiff’s resignation was based on racial
hostility.
Rather, Plaintiff attempts to show that Williams had constructive knowledge
of his complaint of race-based hostility, which allows him to impute retaliatory
intent to her. Yet as this Court has noted, discrimination and retaliation under Title
VII concerns “actual knowledge, and real intent, not constructive knowledge and
assumed intent,” which means “we must focus on the actual knowledge and actions
of the decision-maker.” See Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d
1270, 1274 (11th Cir. 2002) (discussing the establishment of a prima facie case for
discrimination under Title VII). Thus, without evidence of Williams’s actual
knowledge of Plaintiff’s complaint of race-based hostility, Plaintiff cannot satisfy
the causation element of a prima facie case for retaliation, and his claim
accordingly fails.
But even assuming that Williams, who was Defendant’s Executive Director,
was aware that, in complaining to Detsch about his unfair treatment by Evans,

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Plaintiff had characterized Evans’s conduct as racially motivated, Plaintiff’s claim
still fails. A major problem with Plaintiff’s claim is his failure to identify any
decision that Williams subsequently made about which Plaintiff is complaining or
to explain how any such decision would constitute a materially adverse
employment action. In this Circuit, a materially adverse employment action is one
that “might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” See Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir.
2008) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–68
(2006)). This is an objective inquiry, and a lack of good manners, personality
conflicts, petty slights, or minor annoyances do not suffice. See Burlington, 548
U.S. at 68.
Plaintiff complains that after his meeting with Detsch, Williams arranged for
Plaintiff and Evans to attend a mediation to try to work out their problems. But a
mediation between an employee and his immediate supervisor is hardly an adverse
action, and it is not even clear that Plaintiff is saying that it was. So, Plaintiff has
failed to identify any adverse consequences visited on him by Williams after
Plaintiff’s meeting with Detsch on June 28, 2012.
It is true that Plaintiff contends that Evans continued to write him up for
violations, and Plaintiff contends that these write-ups were unmerited. But Evans
had been consistently rude to and critical of Plaintiff, and had written him up in the

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past, so Evans’ conduct was just more of the same in the long pattern of his and
Plaintiff’s unharmonious relationship. A causative link between Plaintiff’s
comment to Detsch and Evans’s subsequent conduct is difficult to discern.
More fundamentally, Plaintiff did not complain in his lawsuit that any
particular write-up by Evans was a materially adverse act for purposes of his
discrimination claim. Had he done so, and had he offered more than just the
general and conclusory allegations about those acts that is present in the record, we
could examine such a claim and adjudicate whether Plaintiff had produced
evidence from which a jury could conclude that Defendant, through Evans, visited
these acts on Plaintiff out of a racially-discriminatory motive. Instead, however,
Plaintiff’s discrimination claim is based on his argument that because conditions
were so unpleasant for him at his job, he was forced to resign and this resignation
should be treated as a constructive discharge. And that claim circles us back to our
earlier analysis: which is that although Evans, as Plaintiff’s supervisor, may have
treated Plaintiff harshly and even unfairly, Evans’s treatment of Plaintiff was not
severe enough to warrant a characterization of Plaintiff’s decision to resign as a
constructive discharge.
In short, we conclude that the district court correctly granted summary
judgment to Defendant on the retaliation claim.

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III. CONCLUSION
Because Plaintiff has not shown that his working conditions demonstrated
severe or pervasive harassment for purposes of his race discrimination claim and
because he has failed to meet the requirements set out for a retaliation claim, we
AFFIRM the district court’s order granting summary judgment in favor of
Defendant.

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