Walters v. McDonald
Filing
35
OPINION AND ORDER granting 28 defendant's Motion for Summary Judgment. The Clerk shall terminate all remaining deadlines, including the trial term, and close the file. See Opinion and Order for details. Signed by Judge John E. Steele on 8/1/2016. (AMB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CAROLINE WALTERS,
Plaintiff,
v.
Case No: 2:14-cv-602-FtM-29MRM
ROBERT A. MCDONALD, in his
official
capacity
as
Secretary,
Department
of
U.S. Veterans Affairs,
Defendant.
OPINION AND ORDER
This
matter
comes
before
the
Court
on
the
defendant’s
Dispositive Motion for Summary Judgment (Doc. #28) filed on May 4,
2016.
Plaintiff filed a Memorandum of Law in Opposition (Doc.
#30) on May 16, 2016, to which defendant filed a Reply (Doc. #34)
on June 3, 2016.
For the reasons set forth below, the motion is
granted.
I.
Plaintiff Caroline Walters (“plaintiff” or “Walters”) filed
a two-count Complaint (Doc. #1) against defendant United States
Veteran Affairs (“defendant” or “V.A.”) alleging that the V.A.
unlawfully discriminated and retaliated against her in violation
of Title VII of the Civil Rights Act of 1964 (Title VII).
undisputed facts are as follows:
The
On January 17, 2012, plaintiff was hired at the Bay Pines
Veterans Affairs Medical Center (VAMC) in Fort Myers, Florida.
(Doc. #28, p. 4.) 1
Plaintiff was employed in the radiology
department as a Medical Support Assistant (MSA).
5.)
(Doc. #28, p.
As an MSA, plaintiff’s primary responsibility was to schedule
medical appointments for veterans.
supervisor was Bonnie Mellady.
Plaintiff
period.
was
subject
(Id.)
Plaintiff’s direct
(Id.)
to
a
one
year
(Id. at 4; Doc. #28-3; Doc. #28-4.)
probationary/trial
The V.A. Healthcare
System policy provides that “[e]mployees . . . are required to
serve a probationary period in keeping with the provisions of the
Code of Federal Regulations (CFR).”
(Doc. #28-4, p. 2.)
It
further provides that
[t]he probationary/trail [sic] period provides the final
step in determining the overall qualification and
ability of the employee to perform their assigned tasks
and provides protection against the retention of any
person who, in spite of having passed preliminary tests
or through self-certification, fails to meet the
requirements of the position.
1
In responding to defendant’s Motion for Summary Judgment,
plaintiff has identified factual paragraphs within defendant’s
Motion for Summary Judgment that are “disputed.” (Doc. #30, pp. 312.) The Court deems that the factual background paragraphs that
have not been identified as “disputed” are undisputed. Further,
the Court notes that many of the paragraphs identified by plaintiff
as “disputed” either do not provide any evidentiary support as to
why they are disputed or they cite to portions of the record that
are entirely unrelated to the “disputed” allegation.
This is
insufficient to create a disputed fact.
2
(Id.) 2
“The probationary period is an extension of the interview
process” and “is a final and highly significant step in the
examination process for federal employment.”
(Doc. #28-4, p. 3.)
In April, 2012, Lorie Aleshire, the Chief Technologist in the
radiology department, reported to Bonnie Mellady that despite
plaintiff having two months under her belt, plaintiff “continue[d]
to make multiple errors which are having a negative impact on
patient care and throughout.”
(Doc. #28-7, pp. 2-3, 6.)
Lorie
Aleshire listed four errors made by plaintiff in a single day.
(Id. at 3, 6.)
On April 23, 2012, pursuant to the probationary employment
protocol, plaintiff received her ninety-day evaluation of her
performance by Ms. Bonnie Mellady.
8.)
(Doc. #28, pp. 5-6; Doc. #28-
The ninety-day evaluation reported that plaintiff
has good intentions, however, has been found to make
excessive mistakes in her scheduling practices.
This
has been reported to me by the Chief of Radiology, Lorie
Aleshire, the Nuc med technician, Mary Jo Lawrence, MSA,
Kim Warner, Lead of the Naples CBOC, Shelly Fouch, and
the Ultrasound technician, Maggie Paulis.
2
This is an example of an allegation that is identified as
disputed, yet doesn’t provide proper support.
Plaintiff claims
that this paragraph is “disputed” based upon plaintiff’s testimony
that she was not provided additional training. (Doc. #30, p. 3.)
The Court does not deem the reason provided by plaintiff to be
related to the fact that this statement is contained in the V.A.
Healthcare System policy.
3
(Doc. #28-8, p. 2.)
Plaintiff admits that prior to April 23, 2013,
she had made at least “a few” mistakes.
(Doc. #28-2, p. 17.)
On April 24, 2012, the day after plaintiff’s ninety-day
evaluation,
plaintiff
contacted
the
EEO
representative,
Joan
Harris, to make a complaint of “discrimination based on gender,
race, and retaliation” against Bonnie Mellady.
(Doc. #28, p. 6;
Doc. #28-2, p. 19; Doc. #28-9.)
Specifically, the EEO Complaint
contained
allegations
the
following
eight
of
discrimination
against Bonnie Mellady:
1. On or about 1-17-12 she made the comment that she was
“surprised that I was not fat.”
2. Intimidating and belittling tone about reviewing my
personnel file.
3. She consistently felt that I was not able and capable
of “learning” the requirements and duties [of the]
radiology department. “Excessive errors & I was not
getting it.”
4. On 4-23-12 she confrontationally presented me with a
letter of evaluation and asked me “Why are you here”
(I am a veteran and I have 13 years prior civil service
– service comp. date of 01-09-83; service connected;
and
Bachelors
in
History,
and
Business
Administration/Management, plus currently enrolled in
Graduate School – Masters in Public Health).
5. I feel that she unfairly questioned the way I dressed
and willingly to compare to “dress code.”
6. She asked me if “I make me nervous.”
7. I complained of my co-worker abrasive and hostile
behavior and requested a department transfer and feel
that I’m being retaliated against for doing so.
4
8. I took a couple of unscheduled days of sick leave on
4/18 and 4/19 (for my personal well-being and health)
she appeared upset and that I had no right.
(Doc. #28-9, p. 3.)
After plaintiff’s ninety-day evaluation,
plaintiff recalls making at least one more error.
(Doc. #28-2, p.
26.)
In May of 2012, Allyn Kilcrease 3 became plaintiff’s secondline supervisor.
(Doc. #28, p. 7.)
In May, additional complaints
regarding mistakes made by plaintiff were reported.
8.)
(Id. at 7-
One complaint involved an incident where plaintiff allegedly
scheduled the wrong patient for a nuclear medical test.
7.)
(Id. at
The patient was prepped for the test, laying on the table,
and about to have the radioactive isotopes injected into his body,
when the error was discovered by the technologist.
Plaintiff denies this incident occurred.
(Id. at 7-8.)
(Doc. #30, p. 8.)
On May 17, 2012, a meeting was held between plaintiff, Allyn
Kilcrease, and others.
Doc.
#28-13.)
The
(Doc. #28, p. 8; Doc. #28-2, pp. 27-28;
main
topic
of
discussion
was
plaintiff’s
performance — specifically mistakes made by plaintiff over the
previous
ninety
days.
(Doc.
#28-2,
pp.
27-28;
Doc.
#28-13.)
Plaintiff admitted that she made mistakes over the duration of her
employment, and has since acknowledged that “[i]f [she] had known
3
Allyn Kilcrease’s last name was subsequently changed to
Mamalakis. (Doc. #28, p. 7 n.2.)
5
[she] was going to be held accountable [for] mistakes from day
one[, she] would have probably not made mistakes.”
(Doc. #28-2,
p. 23.)
On
May
22,
2012,
Allyn
Kilcrease
probationary employment be terminated.
June
25,
2012,
plaintiff
was
requested
plaintiff’s
(Doc. #28-12, p. 10.)
provided
with
On
correspondence
terminating her probationary employment with VAMC effective July
1, 2012.
(Doc. #28-14.)
On October 3, 2012, plaintiff filed a
formal complaint with the EEO alleging that she was discriminated
against in the following eight ways:
1. On January 17, 2012, the complainant’s supervisor,
Bonnie Mellady, commented that she was “surprised”
that the complainant “was not fat.”
2. When the complainant took sick leave on April 18th
through April 19th, 2012, Bonnie Mellady gave the
impression that she was “upset” and that she thought
the complainant had no right to take the leave.
3. On April 23, 2012, Bonnie Mellady issued the
complainant
a
letter
of
evaluation
in
a
“confrontational” manner and asked, “Why are you
here?”
4. On June 25, 2012, the complainant was notified that
the decision was made to terminate her Career
Conditional
Appointment
as
a
Medical
Support
Assistant during her probationary period effective
July 1, 2012.
5. Bonnie
Mellady
exhibited
an
“intimidating
and
belittling” tone when reviewing the complainant’s
personnel folder.
6. Bonnie Mellady consistently indicated that she felt
the complainant was not capable of learning the
6
requirements and duties of her position while accusing
her of making “excessive errors” and “not getting it.”
7. Bonnie Mellady “unfairly” questioned the complainant
about the way she dressed in comparison to the
facility dress code.
8. Bonnie Mellady asked the complainant if she made her
nervous.
(Doc. #28, pp. 10-11; Doc. #28-6, pp. 5-6.)
On June 18, 2013, the
VA issued a Final Agency Decision finding that no discrimination
had occurred.
(Doc. #1, ¶ 34; Doc. #28, p. 11.)
On October 17, 2014, plaintiff filed the underlying Complaint
alleging racial discrimination in violation of Title VII of the
Civil Rights Act of 1964 and retaliation.
(Doc. #1.)
Defendant
now moves for entry of summary judgment as to both counts.
#28.)
(Doc.
As to plaintiff’s racial discrimination claim, defendant
asserts
that
plaintiff
cannot
allege
a
prima
facie
case
of
discrimination because (1) some allegations of discrimination are
time-barred, (2) there is no direct evidence of discrimination,
and
(3)
plaintiff
cannot
establish
discrimination
by
circumstantial evidence because the only adverse employment action
was her termination and she has not shown that there are similarly
situated individuals that were treated more favorably.
15-25.)
(Id. at
Defendant asserts that even if plaintiff has established
a prima facie case of racial discrimination, defendant is still
entitled to entry of summary judgment because it had a legitimate,
non-discriminatory
reason
for
plaintiff’s
7
termination,
and
plaintiff has not established that such reason was a mere pretext.
(Id. at 25-26.) As to plaintiff’s claim for retaliation, defendant
asserts that it fails as a matter of law because (1) plaintiff
cannot establish a causal connection between the EEO complaint and
her
termination
and
(2)
defendant’s
decision
to
terminate
plaintiff was based upon a legitimate non-discriminatory reason,
entirely unrelated to plaintiff’s EEO complaint.
(Id. at 26-30.)
II.
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
8
non-moving party.
Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
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. Am.’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, 1296-97 (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).
III.
A. Failure to Timely Exhaust Administrative Remedies
Defendant
first
argues
that
plaintiff
is
barred
from
asserting claims based upon the actions that occurred during her
first week of employment in January 2012.
(Doc. #28, pp. 15-17.)
Plaintiff has not addressed this argument in her response. (See
Doc. #30.)
“Congress
has
empowered
the
Equal
Employment
Opportunity
Commission with the responsibility to issue rules and regulations
implementing the provisions of Title VII.”
9
Babb v. McDonald, No.
8:14-cv-1732-T-33TBM, 2014 WL 6886046, at *3 (M.D. Fla. Dec. 8,
2014) (citations omitted). These regulations, which have the force
and effect of law, United States v. Nixon, 418 U.S. 683, 695
(1974), require a claimant who believes she has been subjected to
racial discrimination to consult with an EEO counselor within
forty-five days of the alleged discriminatory conduct,
§ 1614.105(a)(1).
29 C.F.R.
The forty-five day period may be waived or
extended under circumstances where the employee can show cause for
failing to meet the deadline.
29 C.F.R. § 1614.105(a)(2).
Absent
waiver or exception, claimants are precluded from filing suit
regarding actions that fall outside of the forty-five day period.
Hunter
v.
U.S.P.S.,
(citation omitted).
continuing
535
App’x
869,
872
(11th
Cir.
2013)
Unlike a hostile work environment claim, the
violation
discriminatory acts.
F.
doctrine
is
inapplicable
to
discrete
Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 113 (2002) (“[D]iscrete discriminatory acts are not
actionable if time barred, even when they are related to acts
alleged in timely filed charges.”).
See also Abram v. Fulton Cty.
Gov’t, 598 F. App’x 672, 676 (11th Cir. 2015).
Here, plaintiff filed her informal EEO complaint on April 24,
2012. (Doc. #28-9.)
Because the allegations of discriminatory
conduct constitute discrete discriminatory acts and plaintiff has
not brought a claim for hostile work environment, pursuant to 29
C.F.R. § 1614.105(a)(1), conduct that occurred forty-five days
10
prior to plaintiff first seeking EEO counseling on April 24, 2012
is time-barred and not properly before the Court.
B. Walters’ Racial Discrimination Claim – Count I
Discrimination
claims,
whether
brought
under
Title
VII,
Section 1981, or the FCRA, are subject to the same standards of
proof and employ the same analytical framework.
Bryant v. Jones,
575 F.3d 1281, 1296 (11th Cir. 2009) (Title VII and Section 1981
claims employ identical analyses); Albra v. Advan, Inc., 490 F.3d
826, 834 (11th Cir. 2007) (FCRA is construed in accordance with
Title VII).
To establish a violation of Title VII, “a plaintiff
must show that a challenged action was the result of intentional
discrimination on the part of the defendant.”
Sirpal v. Univ. of
Miami, 509 F. App’x 924, 926 (11th Cir. 2013) (citations omitted).
A plaintiff may use direct or circumstantial evidence to establish
her discrimination claim. 4
Sirpal, 509 F. App’x at 926 (citations
omitted).
1. Direct Evidence of Racial Discrimination
“Direct evidence is evidence that establishes the existence
of discriminatory intent behind the employment decision without
any inference or presumption.”
Id. (quoting Standard, 161 F.3d at
4
There is also a third method to establish a prima facie case
of race discrimination – by statistical evidence. Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). The
third method, however, is not at issue in this case.
11
1330). 5
“[O]nly the most blatant remarks, whose intent could be
nothing other than to discriminate” constitute direct evidence of
racial discrimination.
(11th Cir. 1989).
Carter v. City of Miami, 870 F.2d 578, 582
“[R]emarks by non-decisionmakers or remarks
unrelated to the decisionmaking process itself are not direct
evidence of discrimination.”
Kilgore v. Trussville Dev., LLC, --
- F. App’x ---, No. 15-11850, 2016 WL 1138412, at *6 n.4 (11th
Cir. Mar. 24, 2016) (alteration in original) (quoting Standard,
161 F.3d at 1330).
“[S]tatements that are open to more than one
interpretation
not
do
constitute
direct
evidence
of
racial
discrimination” because they require the trier of fact to make
inferences.
Carter v. Three Springs Residential Treatment, 132
F.3d 635, 642 (11th Cir. 1998) (citation omitted).
The
only
evidence
at
issue
here
that
could
possibly
be
interpreted as direct evidence of discrimination is the statement
5
In 1999, the Eleventh Circuit utilized a more relaxed
definition of direct evidence, defining “‘direct evidence,’ in the
context of employment discrimination law, [to mean] evidence from
which a reasonable trier of fact could find, more probably than
not, a causal link between an adverse employment action and a
protected personal characteristic.”
Wright v. Southland Corp.,
187 F.3d 1287, 1293 (11th Cir. 1999). Eleventh Circuit cases postdating the decision in Wright have rejected the relaxed standard
articulated therein. See Kilpatrick v. Tyson Foods, Inc., 268 F.
App’x 860, 862 (11th Cir. 2008) (per curiam) (“[O]ur case law,
both before and since Wright, have used the standard applied by
the district court in this case—i.e., that direct evidence in this
context means ‘evidence, which if believed, proves existence of
fact in issue without inference or presumption.’” (citation
omitted)).
12
that Mellady made that she was surprised plaintiff was not fat.
The Court has ruled that this discriminatory act is time-barred
and not properly before the Court.
was
not
time-barred,
the
Even assuming the statement
statement
at
most
only
suggests
discrimination, leaving the trier of fact to infer discrimination
based on the evidence.
circumstantial.
As such, the evidence is, by definition,
Further, Ms. Mellady was not the decision-maker
in regard to plaintiff’s termination.
2. Circumstantial Evidence of Racial Discrimination
“When a plaintiff offers circumstantial evidence to prove a
Title VII claim, we use the analytical framework established by
the Supreme Court in McDonnell Douglas Corp. v. Green . . . .”
Standard, 161 F.3d at 1331; see also Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1087 (11th Cir. 2004).
Under McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the plaintiff must first
establish a prima facie case of discrimination.
F.3d at 1331.
Standard, 161
To establish a prima facie case of discrimination,
a plaintiff must show that: “(1) he is a member of a protected
class; (2) he was subjected to adverse employment action; (3) his
employer treated similarly situated employees outside of his class
more favorably; and (4) he was qualified to do the job.”
Hall v.
Dekalb Cty. Gov’t, 503 F. App'x 781, 787 (11th Cir. 2013) (citation
omitted).
“If the plaintiff presents a prima facie case, the
employer must offer a legitimate, non-discriminatory reason for
13
the adverse employment action. If the employer does so, the burden
shifts back to the plaintiff to show that the stated reason is a
mere
pretext
for
unlawful
discrimination.”
Id.
(citations
omitted).
a) Membership in a Protected Class
Walters is African–American, and therefore indisputably a
member of a protected class. See, e.g., Maddox–Jones v. Bd. of
Regents of Univ. Sys. of Ga., 448 F. App'x 17, 20 (11th Cir. 2011).
b) An Adverse Employment Action
An adverse employment action is a “serious and material change
in the terms, conditions, and privileges of employment.” Rainey v.
Holder, 412 F. App’x 235, 238 (11th Cir. 2011) (quoting Davis v.
Town of Lake Park, 245 F.3d 1232, 1238-39 (11th Cir. 2001)).
Defendant admits that plaintiff’s termination constitutes an
adverse employment action. (Doc. #28, pp. 20-22.) While the Court
finds
that
plaintiff’s
termination
constitutes
an
adverse
employment action, it does not find that plaintiff has alleged any
other actions that constitute adverse employment actions.
The
manner and tone in which Mellady spoke to plaintiff, plaintiff’s
allegations
that
Mellady
was
upset,
plaintiff’s
performance
evaluation, and Mellady’s comments to plaintiff regarding the
dress code did not amount to a serious and material change in the
terms, conditions, and privileges of plaintiff’s employment, and
therefore do not amount to an adverse employment action.
14
c) Similarly-Situated Individual(s) Treated Differently
“To be an adequate comparator, the preferentially treated
individual
from
outside
plaintiff's
protected
class
must
be
similarly situated to the plaintiff in all relevant respects.
If
this is not the case, the different application of workplace rules
does not constitute illegal discrimination.”
Brown v. Sch. Bd. of
Orange Cty., 459 F. App'x 817, 819 (11th Cir. 2012) (citations
omitted); Wilson, 376 F.3d at 1091 (“The comparator must be nearly
identical to the plaintiff to prevent courts from second-guessing
a
reasonable
decision
by
the
employer.”
(citation
omitted)).
Courts evaluate whether the comparators were involved in the same
or similar conduct and whether they were disciplined in different
ways.
Rioux v. City of Atlanta, 520 F.3d 1269, 1280 (11th Cir.
2008) (citation omitted).
comparator’s
claimant’s.
misconduct
Id.
The “quality and quantity” of the
must
be
nearly
(citation omitted).
similar misconduct is insufficient.
Id.
identical
to
the
An allegation of merely
(citation omitted).
While not directly addressing the issue, the Eleventh Circuit
has alluded that probationary employees are not similarly situated
to permanent employees.
See White v. Hall, 389 F. App’x 956, 960
(11th Cir. 2010) (per curiam) (finding that plaintiff “could not
identify any other probationary deputy, of any race, who had been
insubordinate and had not been fired” (emphasis added)).
other
courts
have
held
that
probationary
15
employees
Various
are
not
similarly situated to permanent employees.
Mexico,
420
F.3d
1189,
1194-95
(10th
See Green v. New
Cir.
2005)
(finding
probationary employee plaintiff was not similarly situated to two
non-probationary employees); George v. Leavitt, 407 F.3d 405, 415
(D.C.
Cir.
2005)
(holding
that
“probationary
employees
and
permanent employees are not similarly situated [because] under
federal regulations, probationary employees may be terminated for
problems even if those problems would not be good cause for
terminating a permanent employee” (citation omitted)); Steinhauer
v.
Degolier,
359
F.3d
481,
484-85
(7th
Cir.
2004)
(finding
probationary employee not similarly situated to non-probationary
employee); Bogren v. Minnesota, 236 F.3d 399, 405 (8th Cir. 2000);
Blanding v. Pa. State Police, 12 F.3d 1303, 1309-10 (3d Cir. 1993);
Ashmore v. F.A.A., No. 11-60272-CIV, 2011 WL 5433924, at *8 (S.D.
Fla. Nov. 8, 2011); Moore v. Alabama, 989 F. Supp. 1412, 1416 n.6
(M.D. Ala. 1997) (“[D]uring the evaluation of a plaintiff's prima
facie
case,
it
appears
that
courts
should
focus
on
whether
employees are similarly situated in terms of disciplinary record
and employment status, i.e., whether the employee is probationary,
tenured, part-time, etc. . . . .”), aff’d 178 F.3d 1303 (11th Cir.
1999).
Conversely, only a few courts have found that probationary
employees are similarly situated to non-probationary employees.
See Yates v. Hall, 508 F. Supp. 2d 1088, 1100 (N.D. Fla. 2007).
16
Plaintiff has identified five individuals that she claims
were similarly situated yet treated more favorably than she was.
(Doc. #28-2, pp. 29-42; Doc. #28-15, pp. 7-8.)
Of these five
individuals, not one of them was a probationary employee. (Doc.
#28-2, pp. 30, 32, 34, 36, 40.)
Accordingly, the Court finds that
they are not similarly situated individuals.
Even assuming that they were probationary employees, the
employees identified are not similarly situated to plaintiff. Mary
Paulis and Sherry Fouch held a different position, worked in a
different office, and/or had different job duties than plaintiff.
(Id. at 31-32, 38-40.)
Plaintiff has not identified any mistakes made by Kim Warner,
Mary Paulis, or Andrea Smith (id. at 29, 32, 34), and could only
recall Ronzel Wilson and Sherry Fouch making one mistake each,
(id. at 36, 40).
The alleged misconduct is not of the same quality
and quantity as the mistakes made by plaintiff.
Numerous errors
made by plaintiff were documented and reported, and plaintiff
admitted to making at least a few mistakes before her ninety-day
evaluation and at least one after her ninety-day evaluation.
Plaintiff also alleges that Kim Warner, Mary Paulis, and
Ronzel Wilson are similarly situated because they were permitted
to be disruptive and to create a hostile work environment and were
not disciplined for it.
(Id. at 29-31, 38.)
17
There have not been
any
allegations
that
plaintiff
exhibited
similar
disruptive
behavior and was treated any differently. 6
Lastly, plaintiff alleges that Sherry Fouch was allowed to
transfer from the Naples to the Fort Myers clinic, but when
plaintiff requested a transfer, she was not allowed to transfer.
(Doc. #28-2, pp. 39-41.)
However, plaintiff testified that she
was offered the opportunity to transfer to the Edison team, but
declined the offer.
(Id. at 27-28; Doc. #28-13, p. 2.)
The Court finds that plaintiff is not similarly situated to
the
five
individuals
identified.
Accordingly,
plaintiff
has
failed to establish a prima facie case of race discrimination and
defendant is entitled to entry of summary judgment as to Count I.
C. Walters’ Retaliation Claim – Count II
Defendant asserts that plaintiff’s retaliation claim fails as
a matter of law because: (1) plaintiff cannot establish a causal
connection between her EEO Complaint and her termination and, even
if
she
can
establish
a
causal
6
connection,
(2)
plaintiff’s
Plaintiff alleges that she was initially denied time off to
go to a medical appointment, but was ultimately allowed to go when
Andrea Smith indicated she also needed to leave for a medical
appointment. (Doc. #28-2, pp. 34-35.) The Court does not find
that Smith was treated more favorably than plaintiff as both
plaintiff and Smith were allowed to leave to attend their medical
appointments.
18
probationary
employment
retaliatory reasons.
was
terminated
for
legitimate,
non-
(Doc. #28, pp. 26-30.)
In addition to prohibiting employment discrimination in and
of itself, Title VII also prohibits retaliation against an employee
who
opposes
unlawful
employment
discrimination
or
otherwise
assists an investigation into unlawful employment discrimination.
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
“To
establish a claim of retaliation under Title VII or section 1981,
a plaintiff must prove that he engaged in statutorily protected
activity, he suffered a materially adverse action, and there was
some causal relation between the two events.”
Goldsmith v. Bagby
Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008) (citation
omitted).
retaliation
Once
plaintiff
claim,
“the
has
established
burden
of
the
production
elements
shifts
to
of
a
the
defendant to articulate a legitimate, non-retaliatory reason for
its employment action, which the plaintiff can rebut with evidence
of pretext.”
Clark v. S. Broward Hosp. Dist., 601 F. App'x 886,
896 (11th Cir. 2015).
1. Causal Connection
Defendant argues that plaintiff cannot establish causation
for her retaliation claim because (1) the decision-maker was
unaware of the protected conduct at the time of the adverse action
and (2) a two-month gap between the filing of plaintiff’s EEO
19
complaint
and
causation. 7
her
termination
is
insufficient
to
establish
(Doc. #28, pp. 27-29.)
“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).
The decision-maker
must actually be aware of the protected activity.
Goldsmith v.
City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993).
“Causation
may be inferred by close temporal proximity between the protected
conduct and the materially adverse action taken by the employer.”
Walker, 518 F. App’x at 628 (citation omitted); Clark Cty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001) (When a plaintiff relies
solely on the temporal proximity between the protected activity
and
the
adverse
action,
the
proximity
7
must
be
“very
close.”
The Court notes that plaintiff is examining the time between
the date she filed her EEO complaint and the date she was informed
that her employment was being terminated. The Court notes that
although plaintiff was terminated on June 25, 2012, Ms. Kilcrease
recommended that her employment be terminated on May 22, 2012 —
approximately one month after plaintiff filed her EEO complaint.
20
(citation omitted)).
Where there is undisputed evidence that the
decision-maker did not have knowledge of the employee’s protected
conduct, “temporal proximity alone is insufficient to create a
genuine issue of fact as to causal connection.”
Walton-Horton v.
Hyundai of Ala., 402 F. App’x 405, 409 (11th Cir. 2010) (alteration
omitted) (quoting Brungart v. BellSouth Telecomms., Inc., 231 F.3d
791, 799 (11th Cir. 2000)). Cf.
Brisk v. Shoreline Found., Inc.,
--- F. App’x ---, No. 15-13028, 2016 WL 2997172, at *2 (11th Cir.
May 25, 2016) (“Close temporal proximity . . . is generally
sufficient to create a genuine issue as to whether there is a
causal connection.”).
intervening
act
of
Where the adverse action is caused by an
misconduct,
however,
there
is
no
causal
connection between the protected conduct and the adverse action.
Brisk, 2016 WL 2997172, at *2.
The Court need not determine whether the temporal proximity
between plaintiff’s protected activity and the adverse action is
sufficient to establish causation 8 because plaintiff has failed to
8
It is well established that a three to four month gap between
the protected conduct and the adverse action is insufficient to
establish causation based on temporal proximity alone. See Clark
Cty. Sch. Dist., 532 U.S. at 273-74. When the gap is less than
three months, the Eleventh Circuit has had varying opinions as to
what is sufficient temporal proximity to establish causal
connection between the protected conduct and the adverse action.
Compare Williams v. Waste Mgmt., Inc., 411 F. App’x 226, 229-30
(11th Cir. 2011) (per curiam) (finding a two month gap was not
“very close” and failed to establish causal connection), with
Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir.
1999) (finding seven weeks sufficient to establish causal
21
establish that the decision-maker, Ms. Kilcrease, was aware of
plaintiff’s
protected
conduct
at
the
plaintiff’s employment be terminated.
time
she
requested
Ms. Kilcrease was the
individual that requested plaintiff’s probationary employment be
terminated.
(Doc. #28-12, pp. 4, 10.)
Here, defendant has
produced evidence establishing that Ms. Kilcrease, the decisionmaker, was unaware of plaintiff’s EEO Complaint at the time she
recommended that plaintiff’s employment be terminated.
10, p. 7.)
(Doc. #28-
Plaintiff has failed to identify any evidence, direct
or circumstantial, to establish otherwise. As such, the unrebutted
evidence fails to establish that Ms. Kilcrease was aware of the
protected activity at the time the adverse action was taken.
Without establishing knowledge of the protected activity by the
decision-maker, plaintiff is unable to establish causation for her
retaliation claim.
Accordingly,
defendant’s
Motion
for
Summary
Judgment
is
granted as to Count II.
Accordingly, it is now
connection).
Further, the time does not begin to run when the
protected activity occurs, but rather when the decision-maker
becomes aware of the protected activity. See Castillo v. Roche
Labs., Inc., 467 F. App’x 859, 862 (11th Cir. 2012) (citing Hidgon
v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)); Cain v. Geren,
261 F. App’x 215, 218 (11th Cir. 2008) (quoting Farley, 197 F.3d
at 1337) (discussing that there must be close temporal proximity
between the awareness by the decision-maker and the adverse
employment action).
22
ORDERED:
1.
Defendant’s
Dispositive
Motion
for
Summary
Judgment
(Doc. #28) is GRANTED.
2.
The
Clerk
shall
terminate
all
remaining
deadlines,
including the trial term, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this __1st__ day of
August, 2016.
Copies:
Counsel of record
23
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