Smith v. Florida Gulf Coast University Board of Trustees
Filing
109
OPINION AND ORDER granting in part and denying in part 64 Motion for summary judgment. The motion is denied as to the timeliness of the EEOC Charge of Discrimination; denied on the merits as to Counts I, III, and IV; and granted as to Count II as time-barred or in the alternative for lack of any supporting evidence. See Opinion and Order for details. Signed by Judge John E. Steele on 1/23/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
E. VALERIE SMITH,
Plaintiff,
v.
Case No: 2:14-cv-50-FtM-29MRM
FLORIDA
UNIVERSITY
TRUSTEES,
GULF
BOARD
COAST
OF
Defendant.
OPINION AND ORDER
This matter comes before the Court on the defendant Florida
Gulf
Coast
University
Board
of
Trustees’
Judgment (Doc. #64) filed on January 19, 2016.
Motion
for
Summary
Plaintiff filed an
Opposition (Doc. #79) on February 16, 2016. 1
On December 23, 2014, the Court issued an Opinion and Order
(Doc. #21) granting defendant’s Motion to Dismiss Complaint as to
the portions of Counts I, II, and III of the Amended Complaint
(Doc. #8) finding that the adverse actions resulting in a denial
of a raise and being placed on probation were both time barred,
but the case could proceed as to the nonrenewal and termination of
employment.
1
Count I of the Amended Complaint alleges that the
Plaintiff thereafter filed two Notices of Scrivener’s Error
to Correct Plaintiff’s Opposition. (Docs. ## 81, 82.)
nonrenewal of plaintiff’s employment contract, resulting in her
termination, was race discrimination under Title VII; Count II
alleges that these actions were national origin discrimination
under Title VII; and Count III alleges that these actions were
gender discrimination under Title VII.
Count IV alleges a claim
of retaliation under Title VII.
I.
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(a).
“An issue of fact is ‘genuine’ if
the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”
Baby Buddies, Inc. v. Toys “R” Us,
Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).
A fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“A
court must decide ‘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.’”
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004)(citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.
Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
2
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
However, “if
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983) (finding
summary judgment “may be inappropriate even where the parties agree
on the basic facts, but disagree about the factual inferences that
should be drawn from these facts”)).
“If a reasonable fact finder
evaluating the evidence could draw more than one inference from
the facts, and if that inference introduces a genuine issue of
material fact, then the court should not grant summary judgment.”
Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
II.
A. Florida Gulf Coast University (FGCU)
Florida Gulf Coast University (FGCU) is a public university
with several colleges, including the College of Arts and Sciences
(CAS).
(Doc. #8 & Doc. #22, ¶ 5; Doc. #64, p. 3.)
Within CAS are
several departments, including the Department of Behavioral and
Social Sciences (the DBSS).
p. 4.)
engaged
(Doc. #8 & Doc. #22, ¶ 14; Doc. #64,
The majority of CAS’s faculty, including plaintiff, are
under
a
three-year
rolling
Continuing
Multi
Year
Appointment (CMYA) contract and evaluated annually at the end of
the academic year (August – May).
3
(Doc. #75-3, p. 101.)
Plaintiff E. Valerie Smith (Smith or plaintiff) is an AfricanAmerican female born in the United States.
¶ 7.)
(Doc. #8 & Doc. #22,
In September 1996, plaintiff joined FGCU as a founding
faculty member and professor of sociology, and was hired on a CMYA.
(Id. at ¶¶ 9, 12.)
In or around 2005, Dr. Eric Strahorn (Chair
Strahorn) became plaintiff’s supervisor and the Chair of the DBSS.
(Doc. #64, p. 4; Doc. #79, p. 17.)
During the relevant academic years, Dr. Donna Price Henry
(Dean Henry) was the Dean and chief academic officer for CAS, and
responsible
for
managing
and
overseeing
the
Department
and
department chairs, including Chair Strahorn, and then Dr. Joseph
Cudjoe (Chair Cudjoe) who became chair in 2008.
Dean Henry
reported to FGCU’s provost or Vice-President of Academic Affairs
(VPAA), Bonnie Yegidis (Provost Yegidis), and later to Dr. Ronald
Toll (Provost Toll) who took the position in 2008.
The provost
reports directly to the President, Dr. Wilson Bradshaw (President
Bradshaw).
(Doc. #64, p. 4; Doc. #79, pp. 4, 6.)
Three documents relate to the evaluation of CAS faculty:
(1)
FGCU’s Collective Bargaining Agreement (CBA), which sets wages,
hours, and terms and conditions of employment, Doc. #75-3, p. 58;
(2) FGCU’s Faculty Performance Evaluation Document (FPED), which
sets forth the procedures and standards for evaluating faculty,
Doc. #72-2, p. 14, Exh. 4; and (3) CAS’s Performance and Evaluation
Criteria and Process (PECAP), Doc. #65-9, p. 27; Doc. #72-2, p.
4
80, Exh. 6, which covers procedures and standards for evaluating
faculty within CAS to the extent that the document does not
contradict or invalidate the university-wide Faculty Performance
Evaluation
Document.
The
FPED
controls
over
any
inconsistent
provision of the PECAP, and the CBA overrides both documents.
If
the FPED is silent or unspecific on any matter that is addressed
by the PECAP, the authority of the PECAP is not restricted.
#66-2, Belcher 1, p. 5, § 2.2.1.)
(Doc.
Thus, the hierarchy of the
relevant documents is the CBA, the FPED, and then the PECAP.
B. Faculty Evaluation Process
On May 6th of each year, at the beginning of the evaluation
period, the faculty member submits a Performance Development Plan
(PDP) outlining the individual’s academic goals and objectives for
the
next
service.
academic
year,
including
teaching,
(Doc. #75-3, Toll Exh. 12, p. 11.)
scholarship,
and
By March 31st of the
academic year, faculty members must submit an Annual Professional
Development Report (Development Report) to their department chair
outlining how they met their PDP, and include the course syllabi,
student evaluations, scholarly works, and community activities.
Additional documentation may be submitted until April 23rd.
By
April
30th,
after
review
of
the
Development
(Id.)
Report
and
conferring with the faculty member, the department chair must issue
a Performance Review Report (Performance Report) to the faculty
member summarizing the faculty member’s performance.
5
By May 31st,
an evaluation conference between the faculty member and supervisor
must take place to review the Performance Report for the concluding
evaluation year, and the Development Report for the new evaluation
year.
(Id.)
The Final PDP is completed and signed by September
30th of the following academic year.
(Id., Toll Exh. 12, p. 12;
Toll Exh. 20, p. 203.)
If the faculty member receives an “overall satisfactory”
Performance
Report,
the
faculty
member
receives
a
one-year
contract extension, thereby maintaining a full three-year contract
cycle.
(Id., Toll Exh. 12, p. 13; Toll Exh. 20, p. 202.)
If not,
the faculty member is placed on one-year of probation to remedy
deficiencies, with no contract extension added for the duration of
the probationary period.
(Id.)
Peer Review Committee (PRC).
This may be appealed through the
(Id., Toll Exh. 12, p. 14; Toll Exh.
20, p. 202.)
During probation, and by September 30th, the faculty member
must
draft
a
one-year
Performance
Improvement
Plan
(PIP)
or
Performance Improvement Contract (PIC) to address deficiencies,
set forth objectives, and identify a plan of action for the
academic year.
This PIP takes the place of the PDP for the next
evaluation period.
By March 15th of the probationary academic
year, the faculty member must have submitted a Development ReportPIC to their supervisor demonstrating fulfillment of the PIP.
weeks
thereafter,
by
March
31st,
6
the
supervisor
submits
Two
a
recommendation to the PRC for CAS with regard to whether the
faculty member satisfied the PIP.
By April 30th, the PRC submits
its evaluation and recommendation to the dean, who makes the final
decision on whether the faculty member satisfied the PIP and
whether the faculty member should return to a full three-year CMYA.
(Doc. #64, pp. 6-7.)
By May 6th, the dean makes the final decision based on the
recommendations
and
provides
written
nonrenewal to the faculty member.
notice
of
renewal
or
If the dean decides not to renew
the contract, or if the dean’s decision is different than the
recommendations of the PRC, by June 1st the dean must provide a
written report or dissenting report to the provost regarding the
decision.
The dean’s decision may be appealed to the provost, and
the provost retains authority to review and modify the final
decision of the dean.
(Id., pp. 7-8.)
C. Plaintiff’s Past Academic Years: 1996 to 2007
(1)
Academic Years 1996 to 2005-06
For her 1997-1998 Annual Evaluation, plaintiff received an
overall rating of exceeds expectations and signed and attached her
statement in response on March 26, 1999.
1,
pp.
1-3.)
Until
the
academic
year
(Doc. #65-4, Def. Exh.
2005-2006,
plaintiff
generally received satisfactory evaluations, and mostly excellent
7
or very good student assessments with a few anomalies. 2
(Doc. #64,
p. 9; Doc. #65-4, Def. Exhs. 5-10, pp. 219-256.)
(2)
Academic Year 2006-07
Starting from the 2006-2007 academic year going forward,
plaintiff started receiving increased low ratings from students
and
was
late
submitting
her
Development
Report.
The
Annual
Evaluation for the Summer 2006-Spring 2007 found that plaintiff
overall did not meet expectations, and that no Development Report
had been submitted “despite multiple requests and reminders.”
(Doc. #65-4, Def. Exh. 27, pp. 148-49.)
In his June 7, 2007 letter
to plaintiff, Chair Strahorn expressed that Smith had failed to
meet some of the basic requirements of the position, including:
difficulty meeting routine deadlines, a lack of accessibility, and
failing to provide even colleagues and her supervisor with routine
information in a timely fashion.
(Id., p. 148.)
On June 20, 2007,
Chair Strahorn signed the second page to indicate that plaintiff
had refused to sign the Annual Evaluation.
2
(Id., p. 149.)
On
For example, for Spring 1999, the Student Assessment for
The African-American Experience Course was 100% “Excellent”, Doc.
#65-4, Def. Exh. 5, p. 223, but for Fall 2000, the Student
Assessment for the Multicultural Issues Course reflects a split
between “Very Good” and “Fair”, but no “Excellent” ratings and
several “Poor” ratings, id., Def. Exh. 7, p. 228. The Spring 2005
Latin American Experience Course shows Student Assessments in all
categories, while the Fall 2005 Medical Sociology Course and Spring
2006 Caribbean Social Structures Course show mostly “Excellent”
assessment responses. (Id., Def. Exhs. 10-11, pp. 248, 252, 254.)
8
June 20, 2007, plaintiff emailed Chair Strahorn apologizing that
her Development Report was late, citing reasons including sickness
and no access to materials while in Brazil.
p. 150.)
(Id. at Def. Exh. 28,
On June 21, 2007, plaintiff finally submitted her
Development Report.
(Id. at Def. Exh. 43, p. 176.)
acknowledged receipt on June 25, 2007.
Chair Strahorn
(Id. at Def. Exh. 30, p.
158.)
By email dated September 14, 2007, Chair Strahorn responded
that plaintiff’s evaluation would not be revised, and that she had
missed the chance to work with him to put together a PIP, but that
she was welcome to work with him to craft the PIC, which would be
similar to past PDPs.
(Id. at Def. Exh. 42, p. 175.)
On October
9, 2007, Chair Strahorn emailed plaintiff to remind her that the
deadline to submit a PIC had passed, and if not received by October
12, 2007, he would “have no choice other than to finalize the
document without [plaintiff’s] input.”
(Id. at Def. Exh. 44, p.
204.)
By letter dated October 10, 2007, to Dean Henry and Provost
Yegidis, plaintiff submitted a portfolio and memo as an attachment
to her evaluation to appeal the evaluation.
p. 176.)
(Id. at Def. Exh. 43,
On October 12, 2007, Chair Strahorn acknowledged receipt
of plaintiff’s PDP.
(Id. at Def. Exh. 46, p. 208.)
emails
Strahorn,
from
Chair
submitted her PIP.
on
October
25,
After repeated
2007,
plaintiff
(Id. at pp. 208-10, Def. Exhs. 46-48 & p. 211,
9
Def. Exh. 49.)
On November 29, 2007, Chair Strahorn provided a
corrected version of his Performance Report, dated November 7,
2007, finding that plaintiff overall met expectations.
(Id. at
Def. Exh. 45, pp. 205-207.)
(3)
Academic Year: 2007-2008
For the 2007-2008 academic year, complaints from students
continued and increased, see, e.g., Doc. #65-7, pp. 1-36; Doc.
#65-6, pp. 1-87, and plaintiff also continued to submit documents
late.
On March 24, 2008, Chair Starhorn sent an urgent reminder
email to staff regarding the March 31, 2008 deadline for all fulltime
faculty
to
submit
their
Development
Reports,
and
the
additional deadlines leading to the submission of the final PDP.
(Doc. #65-6, Def. Exh. 65, p. 88.)
By email dated April 1, 2008,
plaintiff submitted her Development Report to Chair Strahorn. (Id.
at Def. Exh. 66, p. 89.)
Chair Strahorn noted there was an error
that needed correction, and after having been out of town, on April
24, 2008, plaintiff emailed Chair Strahorn her revised Development
Report, and updated CV.
(Id. Def. Exh. 67, p. 93.)
A few minutes
later, plaintiff sent another email asking Chair Strahorn to
disregard the earlier submission as revisions and updates were
required.
(Id. at Def. Exh. 69, p. 105.)
On April 30, 2008, Chair Strahorn provided plaintiff a copy
of the Performance Report, and highlighted that May 31, 2008 was
set
aside
for
evaluation
conferences
10
between
supervisor
and
faculty.
(Id. at Def. Exh. 70, p. 106; Doc. #65-7, Def. Exh. 91,
p. 52.)
This time, Chair Strahorn’s Performance Report found
plaintiff overall did not meet expectations (Doc. #65-6, Def. Exh.
70, p. 107) requiring plaintiff to submit a PIP for the next
academic year of 2008-2009 rather than a regular PDP (id. at Def.
Exh. 75, p. 116).
Plaintiff did not sign the Performance Report,
and Chair Strahorn signed the Report on August 5, 2008, indicating
the refusal to sign.
(Id. at Def. Exh. 79, p. 126.)
Plaintiff
sent Chair Strahorn additional documentation in a bid to change
his mind, but he responded that no substantive changes would be
made.
(Doc. #65, Plaintiff Dep. 186:23.)
By email dated June 2,
2008, Chair Strahorn reminded plaintiff about her right to appeal
to the dean.
(Doc. #65-6, Def. Exh. 75, p. 116.)
By email dated
July 15, 2008, Chair Strahorn provided plaintiff with a PIC because
plaintiff did not submit a timely PIP.
(Id. at Def. Exh. 76, p.
118.)
Pursuant to a Memorandum dated July 21, 2008, to Provost Toll
from
President
Bradshaw,
Provost
Toll
was
designated
as
the
President’s designee for purposes of administering and executing
FGCU’s
academic
agreements,
approving
acting in the President’s absence.
pp. 21-22.)
personnel
actions,
and
(Doc. #65-9, Def. Exh. 106,
This delegation of authority included approval of a
faculty contract renewal or nonrenewal.
11
(Doc. #66, Belcher Dep.
45:12-18.)
In August 2008, Chair Cudjoe took over the role Chair
Strahorn had held.
(4)
By
Academic Year 2008-2009; Plaintiff’s Termination
Memorandum
dated
December
18,
2008,
to
Dean
Henry,
plaintiff took issue with her Performance Report and with Chair
Strahorn.
(Doc. #65-7, Def. Exh. 90, pp. 36-42.)
By Memorandum
dated February 23, 2009, to Provost Toll, plaintiff requested a
meeting to discuss her evaluations over the previous two years,
and for enclosed materials to be placed in her personnel file.
(Id. at Def. Exh. 91, p. 43.)
On March 12, 2009, Chair Cudjo emailed plaintiff to followup on the completion of her PIC and to remind her of the upcoming
deadline for her to submit her documentation.
93, p. 62.)
(Id. at Def. Exh.
On March 27, 2009, Chair Cudjoe provided his Probation
Review to the Chair of the PRC, in light of former Chair Strahorn’s
overall evaluation of unsatisfactory.
65.)
Chair
Cudjoe
recommended
to
(Id. at Def. Exh. 94, p.
the
PRC
that
plaintiff’s
probationary status be removed and her status be changed back to
a
CMYA
because
the
expected
areas
for
improvement
were
administrative in nature, plaintiff had shown improvement in the
conditions of the PIC, and plaintiff was making a deliberate effort
to improve.
(Id. at pp. 65-66.)
By Memorandum dated April 21, 2009, Provost Toll notified
plaintiff that her Performance Report for 2007-2008 would remain
12
unchanged and retained, and that she would not now be permitted to
add her comments since, as of August 2008, plaintiff had refused
to sign the Performance Report and it was not until December 18,
2008, that she had requested a meeting with the next higher level
administrator.
(Doc. #65-7, p. 133, Def. Exh. 97.)
By letter dated April 21, 2009, the PRC notified Dean Henry
that they reached the conclusion that plaintiff had satisfied the
requirements of the PIC, and that they concurred with Chair Cudjoe
that her probationary status be removed and plaintiff return to a
CMYA.
(Doc. #65-8, Def. Exh. 98, p. 1.)
In an email dated May 1, 2009, to plaintiff, Dean Henry
indicated that she had reviewed the APDR-PIC, and the input of the
PRC and Chair Cudjoe.
Dean Henry requested that plaintiff submit
additional supporting materials required by the PECAP, including
a Development Report, by May 5, 2009.
Otherwise, a decision
regarding renewal would be made based on the current submissions.
(Doc. #65-8, Def. Exh. 101, pp. 7-8; Doc. #65-9, p. 119.)
On May
4, 2009, Dean Henry directed an employee to print and place the
email in plaintiff’s mailbox.
(Id., p. 7; id., p. 119.)
In a letter dated May 6, 2009, Dean Henry notified plaintiff:
That
you
have
overall
unsatisfactory
performance for the 2008-2009 academic year.
Consistent with the Collective Bargaining
Agreement Articles 15.1 D. and 12.2 A., I am
giving you notice that your current contract
will not be renewed beyond the May 6, 2010
13
date.
No further notice
employment is required.
of
cessation
of
(Doc. #65-8, Def. Exh. 103, p. 11.)
Plaintiff did not consider herself terminated based on this
letter because, in her view, it did not follow proper procedure.
(Doc. #65, Plaintiff Dep. 236:9-21.)
In a Memorandum dated May
12, 2009, plaintiff made an internal grievance to the Grievance
Committee Chair of the United Faculty of Florida (UFF) against
Dean
Henry
for
failure
to
adhere
Collective Bargaining Agreement.
to
the
procedures
in
the
(Doc. #65, Plaintiff Dep. 239:8-
14; Doc. #65-8, Def. Exh. 105, p. 18.)
In a letter dated May 18 and 19, 2009, to plaintiff, Dean
Henry referenced the May 6, 2009, letter and plaintiff’s May 7,
2009, e-mail requesting a basis for the decision, and provided her
“rationale” for the overall unsatisfactory performance.
#65-9, Def. Exhs. 108-109, pp. 98, 166, 179, 258.)
(Doc.
On May 19,
2009, plaintiff sent an email request for informal resolution to
Provost Toll, which was acknowledged.
172, 174.)
(Id. at Def. Exh. 109, pp.
By letter dated May 22, 2009, Dean Henry submitted her
“Dean’s Report” to Provost Toll serving as her “dissenting report”
for a final decision for renewal or non-renewal of plaintiff’s
contract.
It was noted that the documents were submitted to
Provost Toll “for final decision for renewal or non-renewal of
[plaintiff’s] contract.”
(Id., p. 178.)
14
An informal resolution meeting was held on May 29, 2009, with
plaintiff, two United Faculty of Florida (UFF) representatives,
and an Associate Provost for Academic Affairs in attendance.
At
a second informal resolution meeting held on July 14, 2009, Dean
Henry and the Appointed Mediator joined in attendance.
9, Def. Exh. 109, pp. 203, 274.)
(Doc. #65-
On or about July 16, 2009, the
informal resolution process was concluded because the dispute
could not be resolved, thereby allowing plaintiff to proceed with
the filing of a grievance.
(Id., p. 195.)
On July 23, 2009, plaintiff filed her Step 1 Grievance. (Id.,
p. 201.)
It was agreed that the Step 1 decision requirement would
be extended from August 21, 2009 to August 28, 2009.
(Id. at Def.
Exh. 110, p. 268.)
On August 17, 2009, Dean Henry emailed the Director of Human
Resources for FGCU, Steve Belcher, a copy of her May 19, 2009
letter
to
plaintiff
providing
the
basis
for
nonrenewal in response to plaintiff’s email.
109, p. 256-259.)
her
decision
of
(Id. at Def. Exh.
By letter dated August 28, 2009, Doc. #65-9,
Def. Exh. 109, p. 101, FGCU, through Steve Belcher, provided
plaintiff
the
University
Step
1
Decision
denying
the
grievance originally filed on July 23, 2009, and noting:
The
faculty
member
did
not
request
a
conference with the dean regarding the content
of the Dean's report prior to its submittal to
the VPAA.
Additionally, the faculty member
failed to appeal the Dean’s decision according
15
Step
1
to the PECAP requirements.
Instead the
faculty member filed for Informal Resolution
under Article 20 of the CBA.
(Id., p. 108). The decision went on to find that the VPAA (Provost)
had not rendered a decision under the PECAP because plaintiff filed
under
Article
20
prior
to
the
Dean
providing
a
response
to
plaintiff’s request for the basis of the Dean’s decision:
Additionally, the Grievant did not exercise
her right under the PECAP to schedule a
conference with the Dean to be informed of the
content of the Dean's report prior to its
submittal to the VPAA, opting to instead file
under Article 20. She did not follow the PECAP
and file an appeal of the Dean's decision to
the VPAA. The UFF representative for Dr. Smith
acknowledged during the Step 1 meeting that
the grievant prematurely filed the Request for
Informal Resolution rather than filing an
appeal directly with the VPAA under the PECAP.
The Dean provided her dissenting report to the
Provost on May 22, 2009. Since there is no
specified timeline for the VPAA's decision
under the PECAP, the Grievant inappropriately
filed a grievance alleging that the VPAA did
not provide a decision.
(Id.)
FGCU concluded that both parties failed to take appropriate
action under the respective requirements of the PECAP and the CBA,
and directed the Provost to render a decision on the dean’s dissent
within 10 calendar days of the decision.
“This directive is
consistent with the PECAP requirement of a final decision by the
VPAA [Provost].”
(Id., p. 109.)
Plaintiff was not required to
initiate an appeal to the Provost from the Dean’s dissenting
16
recommendation, but it was her right to do so.
(Doc. #66, Belcher
Dep. 73:14-74:2.)
By letter dated September 4, 2009, Provost Toll sent plaintiff
a letter “[i]n response to the dissenting report from your Dean”
stating that after an independent review he found that plaintiff’s
overall
performance
unsatisfactory.
for
the
2008-2009
academic
(Id. at Def. Exh. 111, p. 271.)
year
was
Plaintiff was
notified in the letter that her employment would not be renewed,
and she would not be offered further appointment beyond September
8, 2010.
Provost Toll concluded with “[n]o further notice of
cessation of employment is required.”
p. 14.)
(Doc. #65-9, Def. Exh. 106,
Plaintiff was notified of her right to grieve the decision
if she believed that there had been a violation of the Collective
Bargaining Agreement.
(Id.)
By letter dated September 7, 2009, a Summary of Information
Resolution
was
sent
to
plaintiff
describing
informal resolution through August 2009.
the
timeline
of
(Id. at Def. Exh. 112,
pp. 272-276.)
D. Plaintiff’s Post-Nonrenewal Actions
(1)
Grievance Proceedings
A FGCU/UFF Grievance form was received in the Office of the
Provost on October 20, 2009, indicating that plaintiff was filing
a
Step
2
Grievance
alleging
a
violation
Bargaining Agreement and the PECAP.
17
of
the
Collective
Informal Resolution was
cancelled in favor of filing the Grievance.
106, p. 18.)
(Id. at Def. Exh.
A Step Two Decision dated October 20, 2009, found no
violations of the Collective Bargaining Agreement.
(Id., p. 1.)
On December 2, 2009, plaintiff made a Step 3 Request for
Arbitration in connection with the Step 2 decision of FGCU.
p. 282.)
(Id.,
On February 3, 2010, a Notice of Intent to Arbitration
was provided.
(Id., p. 283.)
After a hearing on April 12, 2010,
the Opinion and Award (id. at Def. Exh. 113, p. 277) found that
the two grievances were not in violation of Collective Bargaining
Agreement Section 20.15, which provided that “[a] grievance which
has been filed at Step 3 and on which no action has been taken by
the Grievant or UFF State Office for sixty (60) days shall be
deemed withdrawn and resolved in accordance with the decisions
issued at the prior step.”
(Id., p. 280.)
More specifically, the
arbitrator found that the February 3, 2010 Notice of Intent to
Arbitration was not received by FGCU until 75 days from the Step
3 Request for Arbitration, and that the grievance was deemed
withdrawn and resolved in accordance with the decision issued at
the prior step.
(2)
(Id. at p. 281.)
Plaintiff’s EEOC Filings
On June 28, 2010, plaintiff signed and swore her charge of
Discrimination to the Equal Employment Opportunities Commission
(EEOC) (Doc. #64-3, Composite Exh. A, p. 5), which was stamped
received
and
filed
on
June
30,
18
2010.
Plaintiff
alleged
discrimination against FGCU on the basis of race and age for the
period of May 30, 2009 through September 4, 2009.
On July 8, 2010,
plaintiff filed an Amended Charge of Discrimination (id. at p. 6)
adding
sex
and
retaliation
as
a
basis
for
discrimination.
Plaintiff stated her employment with FGCU would be effectively
terminated on September 8, 2010.
(Id.)
Neither Charge document
included reference to national origin as a basis for plaintiff’s
claim of discrimination.
On October 28, 2013, a Recommendation for Closure (Doc. #643) was issued by the EEOC indicating that the evidence did not
support the allegations of discrimination.
Exh. A, p. 3.)
(Doc. #64-3, Composite
On or about October 31, 2013, plaintiff received
her Dismissal and Notice of Rights letter from the EEOC.
original Complaint herein was filed on January 28, 2014.
The
(Doc.
#1; Doc. #8, ¶ 55b.)
III.
The Court previously determined that plaintiff’s Title VII
discrimination claims were limited to the nonrenewal of her CMYA
and her resulting termination.
Bd.
of
Trustees,
No.
Smith v. Florida Gulf Coast Univ.
214-CV-50-FTM-29DNF,
7337415, at *4 (M.D. Fla. Dec. 23, 2014).
Doc.
#21,
2014
WL
The preliminary issue
is whether these remaining Title VII claims are time-barred.
Defendant argues that the Dean’s decision dated May 6, 2009, was
the final decision which triggered the 300-day filing deadline
19
with the EEOC.
Plaintiff maintains that the clock did not start
until the Provost issued his September 4, 2009 decision. The Court
agrees with plaintiff on this issue.
A. General Principles
Before filing a Title VII lawsuit, a plaintiff must first
file a timely EEOC charge.
1314, 1317 (11th Cir. 2001).
Wilkerson v. Grinnell Corp., 270 F.3d
In a deferral state such as Florida,
plaintiff’s EEOC charge had to be filed with the EEOC within 300
days “after the alleged unlawful employment practice occurred.”
42 U.S.C. § 2000e-5(e)(1).
See EEOC v. Joe's Stone Crabs, Inc.,
296 F.3d 1265, 1271 (11th Cir. 2002).
Only “those claims arising
within 300 days prior to the filing of the EEOC's discrimination
charge are actionable.” Joe's Stone Crabs, Inc., 296 F.3d at 1271.
The Supreme Court has said, perhaps unhelpfully, that an unlawful
employment practice “occurred” within the meaning of § 2000e5(e)(1) when it “happened.”
AMTRAK v. Morgan, 536 U.S. 101, 109
(2002) (hostile work environment claim).
Identifying when the
alleged discrimination occurred in this case requires a review of
some relevant FGCU procedures and documents.
B. Renewal or Nonrenewal of Faculty Employment at FGCU
Under the CBA, Article 12, employees are entitled to a one
year notice regarding non-reappointment if they have been employed
for 2 or more continuous years.
The CBA does not contradict the
timeline or steps leading up to notice set forth in the FPED.
20
(Doc. #75-3, Toll 13, pp. 92-93.)
The Article 20 grievance
procedures may take place simultaneously, and the grievant may
file an EEOC charge while it is in progress and when it becomes
necessary.
(Id., p. 138.)
The process under the FPED for faculty members on a CMYA but
placed on probation following the previous year’s CMYA extension
review is as follows:
•
The unit's chief academic administrator
[Dean] will make the final decision with
respect
to
the
faculty
member's
evaluation and contract extension based
on the recommendations and documentation
provided.
•
In the event the unit's chief academic
administrator [Dean] believes the Peer
Review
Committee's
findings
are
inconsistent with the unit's evaluation
procedures and criteria, that individual
[Dean] may contest the Peer Review
Committee's findings by providing his or
her findings and accompanying documents
to the Vice President of Academic Affairs
[Provost].
•
The faculty member shall have the
opportunity
to
review
the
final
recommendation of his or her unit's chief
academic administrator [Dean] and, if
dissatisfied
with
the
final
recommendation, may provide a written
response and appeal to the Vice President
of Academic Affairs [Provost] for review
of the evaluation.
(Doc. #75-3, Toll 20, p. 204.)
The FPED provides that the unit’s
chief academic administrator or Dean “must submit written report
to the Vice President of Academic Affairs”.
21
(Id.)
Under the FPED,
if the Dean disagrees with the PRC’s findings, the Dean may contest
the findings by providing the findings to the Provost “with whom
the final decision on evaluation and contract extension rests.”
(Id.)
The FPED process is consistent with the PECAP.
Under § 3.3.1
of the PECAP, as it pertains to the PIC remediation evaluation
process by the faculty member’s supervisor and the PRC, the Dean
communicates
the
“final
extension of the CMYA.”
decision
regarding
extension
or
non-
(Doc. #75-3, Toll Exh. 12, pp. 14-15.)
Under §§ 3.3.2 and 3.3.3.4 of the PECAP, the Dean “shall submit”
a written report justifying the decision to renew or not renew the
faculty member’s CMYA to the Provost by June 1st.
The faculty
member has the right to schedule a conference with the Dean with
regard to the contents of the report prior to its submission, and
“[a]ny appeal by the faculty member of the Dean’s decision must be
directed to the VPAA at this time and in this form.”
2, Belcher Exh.1, pp. 16, 17.)
(Doc. #66-
Under § 3.3.4 of the PECAP, if the
result of the evaluation is nonrenewal,
. . . and this finding is upheld through any
appeal or legal action, then he/she shall
remain not in good standing for the duration
of the employment contract in effect, and no
contract extension shall be offered.
The
informal appeal mechanisms of § 3.91 shall be
unavailable to faculty members in this
instance, since they are replaced by the right
of direct appeal to the VPAA [Provost].
22
(Id., p. 17.)
Under § 3.3.5, if the Dean disagrees with the
findings of the PRC, the Dean must submit a dissenting report to
the Provost with a copy of the Peer Review Evaluation, and the
Provost “shall then render the final decision regarding renewal or
nonrenewal.”
(Id., pp. 17-18.)
Under the timeline for this
process, § 3.4.2, the Dean makes her renewal recommendation to the
Provost on or before April 15th, and the Provost “shall inform the
faculty member of the final renewal or non-renewal decision” by
April 30th.
(Id., p. 19.)
C. When Alleged Discrimination Occurred in this Case
Plaintiff’s supervisor and the PRC concurred that plaintiff’s
probationary status should be removed and her CMYA renewed.
The
Dean and the Provost each rejected this position, declined to renew
the CMYA, and terminated plaintiff effective in a year.
Defendant
FGCU wants the Dean’s decision to be the final, operative “final
decision”
which
triggered
claims with the EEOC.
plaintiff’s
obligation
to
file
her
The effect of this would be that the EEOC
charges were untimely.
On May 6, 2009, Dean Henry issued her letter finding plaintiff
had an “overall unsatisfactory performance”, and gave notice to
plaintiff that her contract would not be renewed beyond a year
from
the
date
of
the
effective May 6, 2010.
letter,
i.e.,
that
she
was
(Id. at Def. Exh. 103, p. 11.)
terminated
In a letter
dated May 22, 2009, Dean Henry notified Provost Toll that her
23
written report would serve as the dissenting report required by
3.3.5 of the PECAP, and that it was being submitted for a “final
decision”
regarding
renewal
or
non-renewal.
(Id.,
p.
178.)
Despite Dean Henry submitting her report in order to obtain a
“final decision” from the Provost, FGCU argues that it was really
the Dean who made the final decision, albeit subject to the
Provost’s ability “review and modify”.
Thus, defendant stated in
part to the Request for Admissions:
1.
The
final
decision
regarding
the
termination for Smith’s employment rested with
Dr. Ronald Toll.
Response:
Denied as phrased. . . .
Upon receipt of either an appeal by the
faculty member or a dissenting report or both,
Dr. Toll has complete authority to review and
modify the final decision of the Dean of CAS.
(PECAP at 003927-003928) Dr. Toll also has
complete authority to review and modify the
CAS Dean's final decision regardless of the
CAS Dean's agreement or disagreement with the
supervisor or Peer Review Committee (“PRC”)
and absent either an appeal or a dissenting
report. . . .
(Doc. #64-2.)
FGCU employees testified to a different view.
Chair Cudjoe
testified that it was his understanding that the final decision
has to come from the Provost, specifically in the context of a
dissenting report.
(Doc. #70, Cudjoe Dep. 74:8-12; 92:22-93:9.)
Mr. Brown, the Chair and a member of the PRC, stated that it was
his belief that the Provost would make the final judgment if the
24
Dean disagrees with the recommendation of the PRC, and that it was
an exception that arises when a dissenting opinion is issued.
(Doc. #68, Brown Dep. 64:2-6; 91:25-92:5; 115:11-16.) 3
Provost
Toll stated that his letter was an “indication that the original
final decision was the final final decision.”
(Doc. #75, Toll
Dep. 21:14-15.)
The Court deals with substance, not the labels utilized by
the documents or FGCU officials and employees.
The evidence
convinces the Court that in the circumstances of this case and
under the process utilized by FGCU, the decision of the Dean was
at
best
a
tentative
final
decision,
and
not
the
established
official position of FGCU as to the renewal or nonrenewal of
plaintiff’s employment.
“The existence of careful procedures to
assure fairness in the tenure decision should not obscure the
principle that limitations periods normally commence when the
employer’s decision is made.”
449 U.S. 259, 261 (1980).
Delaware State College v. Ricks,
The process employed by FGCU after the
Dean’s decision was not simply a remedy for the Dean’s decision,
but an opportunity for the employee to influence the ultimate
3
Mr. Brown also stated, on cross-examination, that the Dean
“communicates the final decision regarding extension”, and then it
goes on appeal. When presented with a hypothetical, if plaintiff
had done nothing in response to Dean Henry’s letter and just left
her position at the end of the year, Mr. Brown said “I would think
so” when asked: is it done? (Doc. #68, Brown Dep. 92:6-9; 116:1423.)
25
decision before it was made.
The actual final decision is made
when the University has “established its official position – and
made that position apparent to [the employee]. . . .”
Id. at 262.
It was Provost Toll’s letter “[i]n response to the dissenting
report” which, “[c]onsistent with Article 12.2” of the CBA, stated
that plaintiff would not be offered further appointment beyond
September 8, 2010.
(Id., p. 14.)
This decision agreed with the
nonrenewal of plaintiff’s contract, but extended Dean Henry’s May
6, 2010 termination date by about five months.
This was the
decision which stated the official position of FGCU, and which
triggered the time for filing an EEOC charge.
The Court finds that the alleged discrimination in this case
– the nonrenewal and termination – occurred on September 4, 2009.
The EEOC Charge was timely filed, and plaintiff properly exhausted
her administrative remedies except as discussed below.
IV.
Count II of the Amended Complaint alleges a claim of national
origin discrimination under Title VII.
Plaintiff claims she is a
member of a protected class because she was born in the United
States, and that the “real reason” FGCU did not renew her contract
was because of her national origin as a U.S. born person.
#8, ¶¶69-76.)
(Doc.
This claim is both untimely, and alternatively,
without any factual support.
26
It is undisputed that the national origin claim was not
specifically
identified
in
either
the
original
Charge
Discrimination or the amended Charge of Discrimination.
#64-3, pp. 5-6.)
of
(Doc.
It is also undisputed that the National Origin
box was not checked on the EEOC Intake Questionnaire.
3, Composite Exh. C, p. 3.)
(Doc. #17-
Plaintiff argues, however, that the
claim is “like, or related to” the claims of discrimination which
were actually made in the Charges, and was therefore properly
exhausted.
Because
a
Title
VII
plaintiff
must
first
exhaust
administrative remedies by filing a timely discrimination charge
with the EEOC, a “plaintiff's judicial complaint is limited by the
scope of the EEOC investigation which can reasonably be expected
to grow out of the charge of discrimination.”
Gregory v. Ga. Dep't
of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004). To determine
whether a complaint falls within this scope, the Court asks whether
the judicial complaint is “like or related to, or grew out of, the
allegations
Plaintiffs
contained
may
not
in
her
raise
EEOC
charge.”
“[a]llegations
of
Id.
new
at
1280.
acts
of
discrimination” in the judicial proceedings, Wu v. Thomas, 863
F.2d 1543, 1547 (11th Cir. 1989), but the scope of an EEOC charge
is not strictly interpreted, Gregory, 355 F.3d at 1280.
“The [EEOC] defines national origin discrimination broadly as
including, but not limited to, the denial of equal employment
27
opportunity because of an individual's, or his or her ancestor's,
place
of
cultural
group.”
origin;
or
or
because
linguistic
an
individual
characteristics
29 C.F.R. § 1606.1.
of
has
a
the
physical,
national
origin
See also Saint Francis Coll. v. Al-
Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring)
(noting that national origin claims are often treated as ancestry
or ethnicity claims, and birthplace alone is insufficient).
Nothing in plaintiff’s EEOC filings would have placed the
EEOC on notice that she was claiming FGCU engaged in discrimination
against her because she was born in the United States.
Both
Charges state that plaintiff sent an email to the EEO Officer on
May 30, 2009, regarding discrimination against her “due to my race
and age;” plaintiff did not refer to her birth in the United States
as a basis of the discrimination.
provided
notice
of
this
“U.S.
Nothing plaintiff told EEOC
born”
claim,
which
was
not
sufficiently related to either race, age, or gender to allow EEOC
to guide their investigation.
was
not
like
or
related
to
Plaintiff’s national origin claim
any
of
her
actual
claims
of
discrimination, and therefore was not properly exhausted with the
EEOC.
Count II is therefore dismissed.
Alternatively, plaintiff’s national origin claim lacks any
factual support and therefore summary judgment is entered in favor
of FGCU.
Plaintiff’s claim is that she was discriminated against
based on national origin (i.e., being born in the United States)
28
because she was replaced by a Caucasian foreign born male.
Even
if it could be said that being born in the United States is like
or related to any of the actual allegations made by plaintiff,
summary judgment would still be granted because there is absolutely
no evidence supporting such a claim.
Literally nothing in the
record suggests the FGCU did not renew plaintiff’s contract because
they wanted to hire someone who was not born in the United States.
Indeed, the record establishes that FGCU first offered the position
to Krista Bywater, but she declined the job offer.
It was only
afterwards that the position was offered to Jan-Martijn Meij, a
white male who, because he had an H1 visa, was presumably born
outside the United States.
(Doc. #74-3, Strahorn Exh. 22, p. 82;
id., Strahorn Exh. 23, p. 83; Doc. #74, Strahorn Dep. 20:5-6.)
Nothing suggests that plaintiff’s nonrenewal and termination was
because she was born in the United States and FGCU wanted to hire
a foreign born person.
The Court finds that that national origin claim in Count II
is not like, or even related to the initial charge's allegations
of race discrimination.
time-barred.
Count II is dismissed with prejudice as
Alternatively, if it is like or related, summary
judgment is granted in favor of defendant as to Count II.
29
V.
Counts I and III assert claims or discrimination based on
race and gender under Title VII, 42 U.S.C. § 2000e-2(a)(1). 4
The
framework for plaintiff to establish her prima facie case of
discrimination
is
well
established
under
the
burden-shifting
analysis of McDonnell Doulgas Corp. v. Green, 411 U.S. 792 (1973):
Plaintiff must show that she was a qualified member of a protected
class, that she was subjected to an adverse employment action, and
that this was different than similarly situated employees outside
the protected class.
Alvarez v. Royal Atl. Developers, Inc., 610
F.3d 1253, 1264 (11th Cir. 2010).
“When the plaintiff establishes
a
creates
prima
facie
case,
which
the
presumption
of
discrimination, the burden of production shifts to the employer to
articulate
a
legitimate,
nondiscriminatory
reason
for
its
actions.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th
Cir. 2004).
“If the employer satisfies its burden by articulating
one or more reasons, then the presumption of discrimination is
rebutted, and the burden of production shifts to the plaintiff to
4
Although raised in the Charge of Discrimination, plaintiff
does not allege age discrimination in the Amended Complaint.
30
offer evidence that the alleged reason of the employer is a pretext
for illegal discrimination.”
Id.
For purposes of summary judgment, defendant does not contest
that plaintiff was qualified for the position, that she is a member
of a protected class, and that she was subjected to an adverse
employment action.
Defendant argues that plaintiff has not shown
discrimination because she has not shown comparators.
Plaintiff
does not contest the absence of comparators, but argues that a
comparator is not required if discrimination may be inferred from
the
circumstantial
evidence,
and
there
is
sufficient
circumstantial evidence present in this case.
A plaintiff usually sets forth her prima facie case through
indirect, circumstantial evidence 5, and by use of comparators,
Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th
Cir. 2012), but the “methods of presenting a prima facie case are
not fixed; they are flexible and depend to a large degree upon the
employment situation”, Wilson, 376 F.3d at 1087.
The failure to
produce a comparator will not “necessarily doom the plaintiff’s
case.”
Gate Gourmet, Inc., 683 F.3d at 1255.
5If
For example, in
the evidence only suggests, but does not prove
discriminatory intent, it is circumstantial evidence. Burrell v.
Bd. of Trustees of Georgia Military Coll., 125 F.3d 1390, 1393
(11th Cir. 1997).
31
Gate Gourmet, 6 the record contained enough non-comparator evidence
to support the claim of pregnancy discrimination.
A plaintiff
will always survive summary judgment if [s]he
presents circumstantial evidence that creates
a triable issue concerning the employer's
discriminatory intent. [ ] 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.
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.
2011) (citations omitted).
favorable
to
circumstantial
the
The record, viewed in a light most
plaintiff,
evidence
presents
that
would
a
convincing
allow
a
jury
mosaic
to
of
infer
intentional discrimination by the decisionmaker.
“The employer may fire an employee 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.”
Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1187 (11th Cir.
1984).
The Court is “not in the business of adjudging whether
employment decisions are prudent or fair.
Instead, [the] sole
concern is whether unlawful discriminatory animus motivates a
challenged employment decision.”
Damon v. Fleming Supermarkets of
Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (citing Nix, 738
6
Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1256
(11th Cir. 2012).
32
F.2d at 1187).
Ultimately, the burden remains with plaintiff who
must show that reasons proffered were pretextual.
Texas Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Defendant
reasons
for
has
identified
nonrenewal
of
legitimate,
plaintiff’s
nondiscriminatory
contract.
Dean
Henry
identified the non-completion of PIP requirements as the basis for
the nonrenewal decision, including:
(1) failing to follow the
correct procedure when administering the Student Assessment of
Instruction in each course, i.e., by administering the assessment
during a class examination; (2) failing to submit all paperwork on
time, including a Sabbatical Report, and refusing to provide a
copy when requested; and (3) failing to provide a complete course
syllabus on the first day of class, i.e., that requires the
requisite inclusion of certain policies.
180.)
(Doc. #65-9, pp. 179-
While these reasons appear relatively trivial, they came on
the heels of numerous complaints by students and by Chair Strahorn
leading to plaintiff’s probationary status before the decision not
to renew.
Plaintiff responds to each of the three reasons for nonrenewal
articulated by Dean Henry as follows:
Plaintiff first argues that
the Sabbatical Report was indeed submitted, but to President
Bradshaw.
Plaintiff states that no one provided any notice that
it was not available or required, or an issue prior to Dean Henry’s
email request for a copy (which she refused).
33
Prior to Dean
Henry’s request for a copy, the Sabbatical Report was not even
considered by Chair Cudjoe or the PRC in their evaluations.
#79, pp. 20-22.)
(Doc.
Chair Cudjoe testified that the PIC did not
reference the sabbatical because it was taken in the previous
academic year and so didn’t fall under Chair Cudjoe’s time as
chair.
(Doc. #70, Cudjoe Dep. 84:15-19.)
Chair Cudjoe could not
confirm if the sabbatical report was ever submitted, and it was
never discussed or asked about by the dean or provost.
(Id.,
85:23-86:2; 86:8-13.)
Plaintiff notes that she notified Chair Cudjoe that she was
administering the Student Assessment of Instruction on an exam
day, but that neither Chair Cudjoe nor the PRC felt that it
warranted nonrenewal.
Plaintiff points out that a Caucasian
professor who did not report her mistake of failing altogether to
distribute the Student Assessment of Instruction was found to be
overall satisfactory, and had her contract renewed.
testified
that
he
would
have
elected
to
not
Chair Cudjoe
administer
the
evaluation rather than doing it on an examination day “because
it's spelled out that [you] don't administer it on the date you're
giving an exam, and there's a reason for that.
To make sure that
students are not pressured to answer questions at the evaluation
one way or the other due to the exam.”
81:4-8.)
(Doc. #70, Cudjoe Dep.
Chair Cudjoe would not have denied reinstatement on this
issue alone.
(Id., 82:11-13.)
34
Plaintiff alleges that the Syllabi were reviewed by both Chair
Cudjoe, and the PRC, and found to be sufficient, but Dean Henry
concluded
argues
otherwise
that
there
by
was
pointing
no
out
guideline
deficiencies.
or
policy
Plaintiff
requiring
the
inclusion of certain language at the time, and therefore Dean Henry
imposed additional requirements on plaintiff to legitimize her
decision to not renew plaintiff’s contract.
On March 27, 2009,
after the semester had started and syllabi were all done, defendant
approved Guidelines for Course Syllabus.
90:10-24.)
(Doc. #70, Cudjoe Dep.
Chair Cudjoe did not think the syllabi were deficient.
(Id., 92:8-11.)
Plaintiff provided an Affidavit (Doc. #79-1, Exh.
1) and attached a composite of other faculty members’ syllabi that
also lacked the requisite language, but none of them were denied
renewal or disciplined.
“[T]he 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.”
Inc., 477 U.S. at 249.
Anderson v. Liberty Lobby,
In this case, the Court is not satisfied
that the undisputed material facts establish that a reasonable
jury could not find that the nonrenewal decision was the product
of racial and/or gender discrimination.
While the evidence is far
from overwhelming, summary judgment is “improper” if the factfinder must weigh the credibility of the deponents.
35
Strickland v.
Norfolk S. Ry. Co., 692 F.3d 1151, 1162 (11th Cir. 2012).
The
motion will be denied as to Counts I and III.
VI.
Count IV alleges a claim of retaliation.
Title VII also
prohibits retaliation against an employee who opposes unlawful
employment discrimination, or otherwise charges or participates in
an
investigation
discrimination.
or
hearing
into
unlawful
employment
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.
2008). “To establish a prima facie case of retaliation under Title
VII, a plaintiff must show that (1) [s]he engaged in statutorily
protected expression; (2) [s]he suffered an adverse employment
action; and (3) there is some causal relation between the two
events.”
Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th
Cir. 1998).
“Title VII retaliation claims must be proved according to
traditional principles of but-for causation. . . .”
Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
When
establishing a causal connection between the protected activity
and the adverse action, generally a plaintiff must show that: (1)
the decision-makers were aware of the protected conduct and (2)
the protected conduct and adverse action(s) were not “wholly
unrelated.”
Walker v. Sec’y, U.S. Dep’t of Air Force, 518 F. App’x
626, 628 (11th Cir. 2013) (citation omitted).
36
The decision-maker
must actually be aware of the protected activity.
Goldsmith v.
City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993).
Plaintiff alleges that she complained of race discrimination
and harassment to Dr. Charles McKinney 7 in Fall of 2008.
#79-1, Exh. 1, ¶ 7.)
(Doc.
In an email dated May 30, 2009, to Dr.
McKinney, plaintiff stated:
As you know, I have been and continue to be
very overwhelmed, depressed, and concerned
about the treatment I have been receiving
these last few years. While I have no doubt,
that there has been the ever present subtle
racism since I came to FGCU, and I have
experienced the periodic harassment, based
perhaps on gender and perhaps based on race;
I believe, over these past two years, the
overt harassment, micromanaging and other
behaviors culminating in my termination based
upon invalid evaluations and other invalid
“reasons”
is
a
direct
result
of
age
discrimination.
It began when I turned 60
years old, and has not ceased since then. I
have
expressed
this
to
you
and
other
administrators in a speculative way over the
past couple of years . . . “Could this be
happening because I am an older faculty
member?” . . . but, as I assess the evolution
of events and behaviors, now I am convinced.
All of a sudden when I turned 60 years old (my
birthday
was
May
13,
2007
and
the
unsatisfactory evaluation was given in June)
things that had been “normal and acceptable”
were all of a sudden were not acceptable. You
have
to
admit,
it
seems
more
than
coincidental.
7
Prior to his retirement, Dr. McKinney was the Ombudsman and
special assistant to the President, Doc. #67, Bradshaw Dep. 28:2022, and/or the Director of the Office Equity and Diversity, Doc.
#75, Toll Dep. 123:9-10.
37
(Doc. #65-9, Exh. 114, p. 296; Doc. #75-5, Toll Exh. 31, p. 17.)
Plaintiff also stated that she spoke to Dr. McKinney a number of
times in the past about race discrimination, and with Dr. Bradshaw.
(Doc. #65-1, Plaintiff Dep. 12:11-13:2.)
Plaintiff did not recall
having a conversation regarding race discrimination with anyone
else except members of the union.
Plaintiff stated that Dr.
McKinney spoke to Provost Toll, albeit informally.
16:6.)
(Id. 15:24-
Plaintiff also emailed the EEO Officer on May 30, 2009,
and May 30, 2009, fell between informal resolution meetings, and
before the Provost’s final decision.
See supra pp. 15, 17, 28.
Dr. Bradshaw only recalled plaintiff stating that she was
being treated unfairly, but he did not recall plaintiff using the
term discrimination or harassment.
23, 10:3-4.)
(Doc. #67, Bradshaw Dep. 9:21-
Provost Toll recalled having conversations regarding
plaintiff with Dr. McKinney, about how she sought him out to talk,
but Provost Toll did not specifically recall that he was told that
plaintiff complained of discrimination.
123:23-124:16.)
(Doc. #75, Toll Dep.
Dean Henry stated that Dr. McKinney did not
mention discrimination, in any form, and did not tell her that
plaintiff believed she was being discriminated against on the basis
of race.
If
(Doc. #72, Henry Dep. 229:12-18.)
plaintiff
reasonably
believed,
subjectively
and
objectively and in good faith, that her employer engaged in an
unlawful employment practice in violation of Title VII, she can
38
make a prima facie case of retaliation.
Little v. United Techs.,
Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997).
The
Court finds that the undisputed material facts do not entitle
defendant to summary judgment on the retaliation claim, and that
a jury may indeed find that her termination was caused by one or
more protected activities.
Accordingly, it is now
ORDERED:
Defendant’s Motion for Summary Judgment (Doc. #64) is GRANTED
IN PART AND DENIED IN PART.
The motion is denied as to the
timeliness of the EEOC Charge of Discrimination; and granted as to
Count II (national origin) as time-barred or, alternatively, for
lack of any supporting evidence, and denied as to Count I (race)
and Count III (gender) and Count IV (retaliation) on the merits.
DONE AND ORDERED at Fort Myers, Florida, this
January, 2017.
Copies:
Counsel of record
39
23rd
day of
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