Short v. Immokalee Water & Sewer District et al

Filing 67

OPINION AND ORDER granting in part and denying in part 51 Immokalee Water & Sewer District's Motion to Dismiss; granting in part and denying in part 52 Eva Deyo's Motion to Dismiss. Defendants shall have 14 days from the date of this Opinion and Order to file a responsive pleading. See Opinion and Order for details. Signed by Judge John E. Steele on 2/25/2016. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOHN SHORT,
Plaintiff,
v.

Case No: 2:15-cv-136-FtM-29MRM

IMMOKALEE
WATER
&
SEWER
DISTRICT, as a govern entity
and EVA J. DEYO, in her
individual
capacity
as
executive
director
of
Immokalee
Water
&
Sewer
District,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant
Immokalee Water & Sewer District’s Motion to Dismiss Plaintiff's
Second Amended Complaint (Doc. #51) filed on October 14, 2015.
Plaintiff filed a Response in Opposition (Doc. #58) on November
12, 2015, to which Immokalee Water and Sewer District filed a Reply
(Doc. #66) on December 4, 2015.

Also before the Court is defendant

Eva Deyo’s Motion to Dismiss Plaintiff’s Second Amended Complaint
(Doc. #52) filed on October 19, 2015.

Plaintiff filed a Response

in Opposition (Doc. #57) on November 12, 2015, to which Eva Deyo
filed a Reply (Doc. #62) on November 19, 2015.

I.
Plaintiff’s Second Amended Complaint 1 (Doc. #48) contains the
following

allegations:

Plaintiff,

John

Short

(“Short”

or

“plaintiff”), is an African American who has been employed by
defendant, Immokalee Water & Sewer District (“IWSD”) since July 1,
1989.

(Id. ¶¶ 1, 5, 8.)

Short is the first and only African

American supervisor at IWSD in its 39 years of operation.
11.)

(Id. ¶

Plaintiff was initially hired as a Wastewater Plant Service

Technician.

(Id. ¶ 8.)

After obtaining his Florida Department of

Environmental Protection (“DEP”) license as a Wastewater Plant
Operator, he assumed the position of Licensed Wastewater Plant
Operator in 1995.

(Id. ¶ 9.)

Then, after becoming licensed by

the DEP to manage Wastewater Plant operations, plaintiff assumed
the position of Wastewater Plant Supervisor with IWSD in 2000.
(Id. ¶ 10.)

Plaintiff alleges that since assuming his position as

Wastewater Plant Supervisor, and since the arrival of Executive
Director Eva J. Deyo (“Deyo”) in 2000 as his immediate supervisor,

1

Counsel is reminded that Local Rule 1.05(a) requires:

[A]ll pleadings and other papers tendered by counsel for
filing shall be typewritten, double-spaced, in at least
twelve-point type, and, if filed on paper, shall be on
opaque, unglazed, white paper eight and one-half inches
wide by eleven inches long (8 1/2 x 11), with one and
one-fourth inch top, bottom and left margins and a one
to one and one-fourth inch right margin.

2

he has been subjected to racial discrimination and harassment by
IWSD through the actions of Deyo.

(Id. ¶¶ 7, 12.)

Plaintiff alleges that since 2002 he has been subjected to
discriminatory discipline, performance evaluation, compensation,
and reduction of job responsibilities.

In 2002, Deyo issued

plaintiff a disciplinary action form stating Short incompetently
performed his duties, which was subsequently found to be baseless
by the Board of Directors pursuant to the grievance process.
¶ 13.)

(Id.

In 2004 and 2005, Deyo again issued disciplinary actions

which were later rejected upon review.

(Id. ¶¶ 14-15.)

After

plaintiff’s successes in the grievance process, at the end of 2005,
the grievance procedures were altered to render Deyo’s decisions
regarding

discipline

unreviewable.

(Id.

and
¶

work

performance

16.)

Plaintiff

to

be

alleges

final
that

and
this

modification to the grievance process was in retaliation for his
successful complaints about Deyo’s discriminatory conduct.
Following the change in grievance procedure, Deyo continued
to give plaintiff negative and inaccurate performance evaluations,
although they were now unreviewable. (Id. ¶ 17.)

In contrast,

during this period plaintiff’s performance was reviewed by the DEP
and he received a 96%.

(Id. ¶ 18.)

Plaintiff also alleges that Deyo applied the pay policy in a
racially discriminatory manner.

In 2005, IWSD’s Board adopted a

merit based pay policy, which was to be implemented by Deyo. (Id.

3

¶ 19.)
job

The policy provided for employee pay increases for: (1)

related

professional

certifications,

allowance, and/or (3) job performance.

(2)

(Id.)

cost

of

living

Deyo had the sole

authority to grant or deny pay increases based upon professional
certifications

and

job

performance.

allowance increases were automatic.

(Id.)
(Id.)

Cost

of

living

In 2005, without any

basis, Deyo prevented plaintiff from receiving pay increases by
placing him on probation.

(Id. ¶ 20.)

To plaintiff’s knowledge,

no other IWSD employee was placed on probation in 2005.

(Id. ¶

21.)
Deyo also hindered Short’s job performance pay increases by
giving him negative and inaccurate performance reviews.
22.)

Short has the following certifications:

(Id. ¶

Water Facilities

Security & Response Systems, Odor Control, Control Panel, Basic
Driver Improvement, Chlorine Safety-Awareness Level, Management of
Water/Wastewater Facilities I & II, Keyboarding, CPR, and AED.
(Id. ¶ 23.)

Deyo refused to award any pay increases for Short’s

job related certifications, yet awarded pay increases to non-black
supervisors/employees
refused

Short’s

with

request

certifications.
for

permission

(Id.)
to

seek

Deyo

also

additional

certifications in Maintenance of Traffic (“MOT”) and Backflow
Prevention, but approved non-black supervisors/employees’ requests
to receive the MOT certification, even though it was unrelated to
their job positions.

(Id. ¶¶ 24-25.)

4

Plaintiff alleges that Deyo

approved pay increases, including certification opportunities, for
units headed by non-black managers, but not plaintiff’s unit. (Id.
¶¶ 26-28.)
On or about May 1, 2010, Short discovered and reported to
Deyo that an inadequate number of chlorine samples had been taken
by

a

technician.

(Id.

¶

30.)

In

response,

Deyo

filed

a

disciplinary action report holding Short responsible for failing
to complete the tests.

(Id. ¶ 31.)

In July 2010, Deyo issued two

disciplinary reports which were later determined to be unfounded
by the IWSD Civil Rights Committee.

(Id. ¶ 32.)

Despite the

findings by the Civil Rights Committee, Deyo was suspended for
three days and forced to attend counseling.

(Id. ¶¶ 32-33.)

In 2012, IWSD installed software called Net Nanny on all
supervisors’ computers, a program to block and filter pornography.
(Id. ¶ 34.)

The software was interfering with the computers’

performance and was eventually deactivated on all supervisors’
computers, except for Short’s.

(Id. ¶¶ 34-36.)

On or about

January 28, 2013, Deyo filed a false disciplinary report against
Short alleging that he was using his office computer to watch
pornography.

(Id. ¶ 37.)

Short complained to the Chairman, but

the Chairman took no action.

(Id. ¶ 38.)

Based upon the same

allegations, Deyo issued additional disciplinary actions on April
1, 2013 and on October 16, 2013.

(Id. ¶ 39.)

5

Deyo again required

Short to obtain counseling at the David Lawrence Center in order
to retain his job.

(Id. ¶ 41.)

Plaintiff also alleges that Deyo limited his duties to a
single department, while still holding him responsible with the
DEP

for

license.
his

actions

occurring

(Id. ¶ 43.)

license

was

outside

his

department

due

to

his

In April of 2013, Deyo informed Short that

inadequate

for

his

position

authority to only the Water Treatment Plant.

and

limited

(Id. ¶ 44.)

his
Deyo

had a non-black, inexperienced, unlicensed individual perform jobs
in violation of DEP rules, which Short brought to the attention of
DEP Agent David Rhodes.

(Id. ¶¶ 45-47.)

Upon being notified,

Agent Rhodes ordered the project to cease immediately.
48.)

(Id. ¶

Plaintiff also alleges that in September 2013, he began the

hiring process to fill two Service Tech I positions.

(Id. ¶ 50.)

Short recommended black applicants for each position, as they were
the most qualified.

(Id.)

Deyo rejected Short’s recommendations

and hired less qualified, non-black individuals.

(Id.)

Short alleges that on June 19, 2013, he filed an EEOC Charge
of Discrimination against IWSD alleging racial discrimination,
harassment, and retaliation by IWSD and Deyo.

(Id. ¶ 53.)

The

EEOC issued a notice of right to sue on December 2, 2014, which
was received by Short on December 5, 2014.

(Id. ¶ 54.)

Following receipt, plaintiff filed this action on March 3,
2015.

(Doc. #1.)

The Complaint has subsequently been amended

6

twice pursuant to Orders of the Court, resulting in the Second
Amended Complaint being the current operative pleading.

(Doc.

#48.)
Plaintiff’s Second Amended Complaint asserts the following 19
claims:

(1) Racially Hostile Work Environment in Violation of

Title VII against IWSD; (2) Racially Hostile Work Environment in
Violation

of

the

Florida

Civil

Rights

Act

against

IWSD;

(3)

Racially Hostile Work Environment in Violation of the Civil Right
Act, 42 U.S.C. § 1981 against IWSD; (4) Racially Hostile Work
Environment in Violation of the Civil Rights Act, 42 U.S.C. § 1981
against Deyo; (5) Racially Hostile Work Environment in Violation
of the Equal Protection Clause of the Fourteenth Amendment against
IWSD; (6) Racially Hostile Work Environment in Violation of the
Equal Protection Clause of the Fourteenth Amendment against Deyo;
(7)

Discrimination

in

Compensation,

Terms,

Conditions,

and

Privileges of Employment in Violation of Title VII against IWSD;
(8)

Discrimination

in

Compensation,

Terms,

Conditions,

and

Privileges of Employment in Violation of the Florida Civil Rights
Act

against

IWSD;

(9)

Discrimination

in

Compensation,

Terms,

Conditions, and Privileges of Employment in Violation of the Civil
Rights Act, 42 U.S.C. § 1981 against IWSD; (10) Discrimination in
Compensation, Terms, Conditions, and Privileges of Employment in
Violation of the Civil Rights Act, 42 U.S.C. § 1981 against Deyo;
(11)

Discrimination

in

Compensation,

7

Terms,

Conditions,

and

Privileges of Employment in Violation of the Equal Protection
Clause

of

the

Fourteenth

Amendment

against

IWSD;

(12)

Discrimination in Compensation, Terms, Conditions, and Privileges
of Employment in Violation of the Equal Protection Clause of the
Fourteenth Amendment against Deyo; (13) Retaliatory Hostile Work
Environment

in

Violation

of

Title

VII

against

IWSD;

(14)

Retaliatory Hostile Work Environment in Violation of the Florida
Civil Rights Act against IWSD; (15) Retaliatory Hostile Work
Environment in Violation of the Civil Rights Act, 42 U.S.C. § 1981
against

IWSD;

(16)

Retaliatory

Hostile

Work

Environment

in

Violation of the Civil Rights Act, 42 U.S.C. 1981 against Deyo;
(17)

Retaliatory

Work

Environment

in

Violation

of

the

First

Amendment against IWSD; (18) Retaliatory Hostile Work Environment
in Violation of the First Amendment against Deyo; (19) Intentional
Infliction of Emotional Distress against Deyo. (Id.)
II.
Defendant Deyo first asserts that plaintiff’s Second Amended
Complaint

again

violates

against shotgun pleadings.

the

Eleventh

Circuit’s

(Doc. #52, pp. 4-5.)

firm

stance

Deyo argues that

the Second Amended Complaint again sets “forth a host of nonrelevant

and

reincorporates
preceding

time-barred
factual

counts

incomprehensible.”

allegations

allegations

such

to

and

legal

render

(Id. at 4.)

8

and

impermissibly

conclusions

subsequent

from

counts

The Eleventh Circuit Court of Appeals recently delineated the
“four rough types or categories of shotgun pleadings” that have
been filed since 1985:
The most common type—by a long shot—is a complaint
containing multiple counts where each count adopts the
allegations of all preceding counts, causing each
successive count to carry all that came before and the
last count to be a combination of the entire complaint.
The next most common type, at least as far as our
published opinions on the subject reflect, is a
complaint that does not commit the mortal sin of realleging all preceding counts but is guilty of the venial
sin of being replete with conclusory, vague, and
immaterial facts not obviously connected to any
particular cause of action. The third type of shotgun
pleading is one that commits the sin of not separating
into a different count each cause of action or claim for
relief.
Fourth, and finally, there is the relatively
rare sin of asserting multiple claims against multiple
defendants without specifying which of the defendants
are responsible for which acts or omissions, or which of
the defendants the claim is brought against.
Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 132123 (11th Cir. 2015) (footnotes omitted).

The Second Amended

Complaint in this case does not commit any of these four pleading
sins.

Defendant Deyo’s motion to dismiss as a shotgun complaint

is denied.
III.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not

9

do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation
omitted).

To survive dismissal, the factual allegations must be

“plausible” and “must be enough to raise a right to relief above
the speculative level.”

Id. at 555.

See also Edwards v. Prime

Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
than

an

unadorned,

This requires “more

the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations
omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.

Berzain,

omitted).

654

F.3d

1148,

1153

(11th

Cir.

Mamani

2011)(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

facially plausible.”
1337

(11th

omitted).

Cir.

“Factual allegations that are merely

defendant’s

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

2012)(internal

quotation

marks

and

citations

Thus, the Court engages in a two-step approach: “When

there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”

Iqbal, 556 U.S. at 679.

10

“Generally, the existence of an affirmative defense will not
support a motion to dismiss,” Quiller v. Barclays Am./Credit, Inc.,
727 F.2d 1067, 1069 (11th Cir. 1984), aff’d on reh'g, 764 F.2d
1400 (11th Cir. 1985) (en banc) (per curiam) (reinstating panel
opinion),

because

plaintiffs

are

not

affirmative defense in their complaint.

required

to

negate

an

La Grasta v. First Union

Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

A complaint may

be dismissed, however, when the existence of an affirmative defense
“clearly appears on the face of the complaint.”
at 1069.

Quiller, 727 F.2d

“A complaint may be dismissed if an affirmative defense,

such as failure to exhaust, appears on the face of the complaint.
Otherwise,

exhaustion

and

other

affirmative

raised in a responsive pleading.”

defenses

must

be

Bingham v. Thomas, 654 F.3d

1171, 1175 (11th Cir. 2011) (citations omitted).

See also La

Grasta, 358 F.3d at 845 (“[A] Rule 12(b)(6) dismissal on statute
of limitations grounds is appropriate only if it is ‘apparent from
the face of the complaint’ that the claim is time-barred”) (quoting
Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1251 (11th Cir.
2003));

Douglas

v.

Yates,

535

F.3d

1316,

1321

(11th

Cir.

2008)(same).
IV.
A. Claims Pursuant To Title VII of the Civil Rights Act
Counts

I,

VII,

and

XIII

of

plaintiff’s

Second

Complaint allege claims against IWSD under Title VII.

11

Amended

(Doc. #48,

pp. 2-9, 12-13, 18-20.)
Hostile

Work

Count I asserts a claim for a Racially

Environment;

Count

VII

asserts

a

claim

for

Discrimination in Compensation, Terms, Conditions, and Privileges
of Employment; and Count XIII asserts a claim for Retaliatory
Hostile Work Environment.
claims

because

they

are

(Id.)
time

IWSD moves to dismiss these

barred,

premature,

or

fail

to

adequately state claims upon which relief may be obtained under
Title VII.

(Doc. #51, pp. 3-5, 7-9, 13-20.)

The Court will

address each of the claims in turn.
(1)

Racially Hostile Work Environment

Count I alleges that plaintiff was subjected to a racially
hostile work environment at IWSD from 2002 through the filing of
the Second Amended Complaint.
to

discriminatory

Plaintiff alleges he was subjected

discipline,

performance

evaluations,

compensation, and reduction in job responsibilities.

(Doc. #48,

pp. 2-8.)
(a)

Failure to State a Claim

Title VII makes it unlawful for an employer “to discriminate
against any individual with respect to his compensation, terms,
conditions,

or

privileges

of

employment,

because

of

such

individual's race, color, religion, sex, or national origin . . .
.”

42 U.S.C. § 2000e-2(a)(1).

The “discriminat[ion]” prohibited

by Title VII includes the creation of a hostile work environment.
See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65–66 (1986).

12

To establish a hostile work environment claim under Title
VII, plaintiff must allege, and ultimately prove, discriminatory
behavior “sufficiently severe or pervasive to alter the conditions
of [his] employment.”

Pa. State Police v. Suders, 542 U.S. 129,

133 (2004) (citation omitted);
U.S. 17, 21 (1993)).

Harris v. Forklift Sys., Inc., 510

Specifically, plaintiff must allege that:

(1) he belongs to a protected group; (2) he has been subject to
unwelcome harassment; (3) the harassment must have been based on
a protected characteristic of the employee, such as race; (4) the
harassment was sufficiently severe or pervasive to alter the terms
and conditions of employment and create a discriminatorily abusive
working environment; and (5) the employer is responsible for such
environment under either a theory of vicarious or direct liability.
Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248-49 (11th Cir.
2014) (citation omitted); Reeves v. C.H. Robinson Worldwide, Inc.,
594 F.3d 798, 808 (11th Cir. 2010) (en banc).
IWSD asserts that Count I fails to state a claim for Hostile
Work Environment under Title VII because plaintiff has not alleged
conduct which is sufficiently “severe or pervasive.”
pp. 7-9.)

(Doc. #51,

In making this argument, IWSD only examined the two

disciplinary action reports filed in 2013.

(Id. at 8.)

As

discussed later, the Court determines this is a far too narrow
view of the cause of action.

13

The Eleventh Circuit recently summarized the contours of the
“severe or pervasive” element of a hostile work environment claim:
To be actionable, this behavior must result in
both an environment that a reasonable person
would
find
hostile
or
abusive
and
an
environment that the victim subjectively
perceives to be abusive.
In evaluating the
objective severity of the alleged hostile work
environment, we consider (1) the frequency of
the conduct; (2) the severity of the conduct;
(3)
whether
the
conduct
is
physically
threatening
or
humiliating,
or
a
mere
offensive utterance; and (4) whether the
conduct unreasonably interferes with the
employee's job performance. But Title VII is
not
a
general
civility
code;
ordinary
tribulations of the workplace, such as
sporadic use of abusive language, genderrelated jokes, and occasional teasing cannot
form the basis of a claim for actionable
harassment
or
hostile
work
environment.
Instead, conduct must be extreme to amount to
a
change
in
terms
and
conditions
of
employment. Title VII is not a shield against
harsh treatment in the workplace; personal
animosity is not the equivalent of [race]
discrimination.
Corbett v. Beseler, ---F. App’x---, No. 14-11049, 2015 WL 9583808,
at *6 (11th Cir. Dec. 30, 2015) (internal quotation marks and
citations omitted).

The Court finds that plaintiff’s allegations

are sufficient under this standard.
Plaintiff has alleged that he is a black male who has been
subjected to ongoing workplace harassment for over a decade,
including discriminatory application of the pay policy, repeated
unfounded disciplinary actions (including forced treatment at a
mental health facility), elimination of an internal grievance

14

procedure which he had used successfully to combat discrimination,
limitation

of

his

job

inaccurate

performance

responsibilities,
reviews.

(Doc.

and

#48,

negative
¶¶

1,

and

12-51.)

Plaintiff alleged that this harassment was on account of his race,
and

that

similarly

situated

subjected to similar treatment.
45, 58.)

non-black

supervisors

were

not

(Id. ¶¶ 12, 20-21, 25-28, 35, 42,

Plaintiff has alleged sufficient facts to plausibly

establish that the harassment was severe and pervasive, both from
a subjective viewpoint and objectively.

The Court finds that

plaintiff has sufficiently pled a claim for racially hostile work
environment under Title VII.
(b)

Statute of Limitations for Title VII Claims

Defendant argues that even if the Title VII counts do state
claims upon which relief may be granted, they are either untimely
or

premature.

This

requires

a

discussion

of

the

exhaustion

requirements for a Title VII claim and the statute of limitations.
(i)

Administrative Exhaustion Required

“As a prerequisite to filing suit under Title VII, a plaintiff
must file a timely charge of discrimination with the EEOC.” Stuart
v. Jefferson Cty. Dep’t of Human Res., 152 F. App’x 798, 800 (11th
Cir. 2005) (citing Mitchell v. Jefferson Cty. Bd. of Educ., 936
F.2d 539, 543 (11th Cir. 1991)).

In a deferral state, like

Florida, a plaintiff must file a charge of discrimination with the
EEOC within 300 days of the date of the alleged discrimination.

15

42 U.S.C. § 2000e-5(e)(1); 29 C.F.R. § 1626.7(a); 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
charge of discrimination are actionable.

Joe’s Stone Crabs, Inc.,

296 F.3d at 1271 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101 (2002)).

Untimely claims are barred.

Id.

A distinction is made between Title VII claims alleging
discrete acts and those alleging continuing violations.

An EEOC

Charge raising a claim based upon discrete discriminatory or
retaliatory acts must be filed within 300 days of the discrete
act.

Nat’l R.R. Passenger Corp., 536 U.S. at 113.

If not filed

within this time period, the discrete discriminatory acts are not
actionable, “even when they are related to acts alleged in timely
filed charges.”
are

exceptions

discriminatory

Id.
to

Continuing violations, on the other hand,
this

acts.

general

When

the

rule

regarding

allegedly

unlawful

discrete
employment

practices amount to a continuing violation, the time period for
filing an EEOC charge does not begin until the last occurrence of
the discrimination.

Id. at 118;

Hipp v. Liberty Nat’l Life Ins.

Co., 252 F.3d 1208, 1221-22 (11th Cir. 2001).
(ii)
Plaintiff

Date of Plaintiff’s EEOC Charge
alleges

that

he

filed

his

EEOC

Charge

of

Discrimination “[o]n or about June 19, 2013.” (Doc. #48, ¶ 53.)
IWSD asserts that plaintiff actually filed his EEOC charge on

16

August 2, 2013, and attaches the Charge of Discrimination from the
EEOC to establish this date. (Doc. #51, p. 4; Doc. #51-1.)
When ruling on a 12(b)(6) motion, “a judge generally may not
consider materials outside of the four corners of a complaint
without first converting the motion to dismiss into a motion for
summary judgment.” Pouyeh v. Bascom Palmer Eye Inst., 613 F. App’x
802, 808 (11th Cir. 2015) (citing Day v. Taylor, 400 F.3d 1272,
1275-76 (11th Cir. 2005)).

“However, a document outside the four

corners of the complaint may still be considered if it is central
to

the

plaintiff’s

authenticity.”

claims

and

is

undisputed

in

terms

of

Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d

1337, 1340 n.3 (11th Cir. 2005) (citing Horsley v. Feldt, 304 F.3d
1125, 1135 (11th Cir. 2002)).
Here, the EEOC Charge of Discrimination attached to IWSD’s
Motion to Dismiss is central to the litigation and the authenticity
has not been disputed.

The document establishes that plaintiff

signed the Charge of Discrimination on August 2, 2013, and there
is no indication that anything was filed by plaintiff with the
EEOC before that date. The Court therefore determines for purposes
of this motion that the EEOC Charge was filed on August 2, 2013.
Given this finding, only those claims arising on or after October
6, 2012, are actionable under Title VII.

17

Defendant asserts that most of the Title VII conduct is barred
as untimely because they arose prior to October 6, 2012. 2

The

Court examines each Title VII claim.
(iii)

Racially Hostile Work Environment

“A hostile work environment claim is composed of a series of
separate

acts

that

collectively

employment practice.’”

constitute

one

‘unlawful

Nat’l R.R. Passenger Corp., 536 U.S. at

117 (quoting 42 U.S.C. § 2000e-5(e)(1)).
The timely filing provision only requires that
a Title VII plaintiff file a charge within a
certain number of days after the unlawful
practice happened.
It does not matter, for
purposes of the statute, that some of the
component acts of the hostile work environment
fall outside the statutory time period.
Provided that an act contributing to the claim
occurs within the filing period, the entire
time period of the hostile environment may be
considered by a court for the purposes of
determining liability.
Id.

“Where the discrete act is sufficiently related to a hostile

work environment claim so that it may be fairly considered part of
the

same

claim,

it

can

form

the

basis

for

consideration

of

untimely, non-discrete acts that are part of the same claim.”

2Defendant

also asserts that the time barred claims are not
relevant. Relevancy is not a basis for a motion to dismiss, and
even conduct which is time barred would not necessarily be
irrelevant. An employee is not barred “from using the prior acts
as background evidence in support of a timely claim.” Nat’l R.R.
Passenger Corp., 536 U.S. at 113.

18

Chambless v. La.-Pac. Corp., 481 F.3d 1345, 1349-50 (11th Cir.
2007).

“The pivotal question is whether the timely discrete acts

are sufficiently related to the hostile work environment claim.”
Id. at 1350.
Here, multiple discrete acts were committed after October 6,
2012.

Plaintiff

alleges

defendant

filed

false

disciplinary

reports against him on January 28, 2013, April 1, 2013, and October
16, 2013 (Doc. #48, ¶¶ 37-39), and interfered with his assigned
work duties and responsibilities on April 19, 2013 and July 12,
2013.

(Id. ¶¶ 43-45.)

The Court finds that the timely acts

alleged in the complaint are sufficiently related to the racially
hostile work environment claim, and are sufficient to bring the
entire claim within the statute of limitations.

Accordingly, “the

entire time period of the hostile environment may be considered
for the purposes of determining liability.”
Corp., 536 U.S. at 117.

Nat’l R.R. Passenger

Defendant’s motion to dismiss on this

ground is denied.
(iv)

Discrimination
in
Compensation,
Terms,
Conditions, and Privileges of Employment

Count VII asserts a claim for discrimination in compensation,
terms, conditions, and privileges of employment in violation of
Title VII. (Doc. #48, ¶¶ 91-95.)
August

21,

2012

forward,

IWSD

Plaintiff asserts that from
discriminated

against

him

in

compensation by denying him hourly pay increases given to similarly

19

situated non-black employees in October, 2013 and October, 2014,
and paying him less than similarly situated non-black employees
based on past discriminatory compensation decisions, resulting in
paychecks which were less than they would have been but for the
discrimination.

(Id. ¶¶ 92-93.)

Plaintiff also alleges that he

was discriminated against in the terms, conditions, and privileges
of employment when IWSD refused to remove Net Nanny software when
it impeded his work performance, required him to obtain mental
health counseling as a condition of continued employment, filed
unfounded disciplinary actions in January and April, 2013, limited
his work responsibilities and authority in April and July, 2013,
and refused to hire employees selected by plaintiff.

(Id. ¶ 94.)

IWSD asserts that plaintiff may only seek to recover the pay
differential for the two year period preceding the filing of the
Charge of Discrimination with the EEOC.

(Doc. #51, p. 4.)

it is not always clear, plaintiff seems to agree.

While

(Doc. #58, p.

3.)
The Lilly Ledbetter Fair Pay Act of 2009 (“the Act”) was
intended to “clarify that a discriminatory compensation decision
or other practice that is unlawful under such Acts occurs each
time

compensation

is

paid

pursuant

to

the

discriminatory

compensation decision or other practice, and for other purposes.”
Pub. L. No. 111–2, 123 Stat. 5 (2009).

The Act was a direct

response to the Supreme Court's decision in Ledbetter v. Goodyear

20

Tire & Rubber Co., 550 U.S. 618 (2007), which imposed a more
restrictive

interpretation

of

the

challenging discrimination in pay.
employment

practice”

occurs

limitations

period

for

Under the Act, an “unlawful

when:

(1)

“a

discriminatory

compensation decision or other practice is adopted,” (2) “an
individual

becomes

subject

to

a

discriminatory

compensation

decision or other practice,” and (3) “an individual is affected by
application of a discriminatory compensation decision or other
practice,

including

each

time

wages,

benefits,

or

other

compensation is paid, resulting in whole or in part from such a
decision or other practice.”

42 U.S.C. § 2000e–5(e)(3)(A).

Thus,

the Act provided that “the statute of limitations for filing an
EEOC charge alleging pay discrimination resets with each paycheck
affected by a discriminatory decision.”

Tarmas v. Sec'y of Navy,

433 F. App’x 754, 760 (11th Cir. 2011) (citation omitted).

The

Act was signed into law on January 29, 2009, and made retroactive
to all Title VII wage discrimination claims pending on or after
May 28, 2007.

Pub. L. No. 111–2, § 6, 123 Stat. 5, 7 (2009).

Because each paycheck is deemed a discrete discriminatory
employment

action,

plaintiff

is

limited

to

recovery

of

the

differential for those paychecks issued two years before his August
2, 2013 filing of the Charge of Discrimination with the EEOC.
Plaintiff’s proof of discrimination is not limited to that two
year time period, but there can be no liability for paychecks

21

issued prior to the two year statute of limitations.

Count VII

only seeks damages for the period June 19, 2012 forward (Doc. #48,
¶ 97), which is within the two year statute of limitations period.
With this understanding of the potential liability period, the
motion to dismiss is denied.
(v)

Retaliatory Hostile Work Environment

IWSD argues that a Title VII claim for retaliation can only
relate to retaliation for filing of a formal charge with the EEOC,
not retaliation for “participating in an employer’s internal, inhouse investigation, conducted apart from a formal charge with the
EEOC.” (Doc. #51, p. 19.) Thus, defendant argues that plaintiff’s
retaliation claim cannot arise until after the August 2, 2013 EEOC
Charge was filed.

(Id.)

Additionally, IWSD argues that the

portion of Count XIII alleging discrimination or retaliation for
filing his 2013 EEOC Charge must be dismissed because plaintiff
has failed to allege he timely filed a second EEOC Charge alleging
retaliation or discrimination for filing his first EEOC Charge.
(Id.)
The

Eleventh

Circuit

recognized

a

claim

of

retaliatory

hostile work environment in Gowski v. Peake, 682 F.3d 1299 (11th
Cir. 2012).

To establish that claim, a plaintiff must show that:

(1) he engaged in a statutorily protected activity; (2) he has
been subject to unwelcome harassment; (3) the harassment was based
on his engaging in the protected activity; and (4) the harassment

22

was

sufficiently

severe

or

pervasive

conditions of his employment.

to

alter

the

terms

and

Kelly v. Dun & Bradstreet, Inc., -

--F. App’x---, No. 15-11888, 2016 WL 370539, at *1 (11th Cir. Feb.
1, 2016) (per curiam).
Title VII prohibits an employer from discriminating against
an employee because the employee “opposed any practice” made
unlawful by Title VII (the “opposition clause”), or “made a charge,
testified, assisted, or participated in” a Title VII proceeding or
investigation (the “participation clause”). 42 U.S.C. § 2000e–
3(a); Knott v. DeKalb Cty. Sch. Sys., 624 F. App’x 996, 997 (11th
Cir.

2015).

For

retaliation

to

be

prohibited

under

the

participation clause, plaintiff must participate in a proceeding
or activity that occurs in conjunction with a formal charge to the
EEOC or after the filing of a formal charge.

EEOC v. Total Sys.

Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000)(participation
clause

“protects

proceedings

and

activities

which

occur

in

conjunction with or after the filing of a formal charge with the
EEOC; it does not include participating in an employer's internal,
in-house investigation, conducted apart from a formal charge with
the EEOC.”)

“The opposition clause, on the other hand, protects

activity that occurs before the filing of a formal charge with the
EEOC, such as submitting an internal complaint of discrimination
to an employer, or informally complaining of discrimination to a

23

supervisor.”

Muhammad v. Audio Visual Servs. Grp., 380 F. App’x

864, 872 (11th Cir. 2010) (citations omitted).
Count

XIII

properly

alleges

retaliatory

environment in violation of Title VII.

hostile

work

Plaintiff asserts he was

subjected to a retaliatory hostile work environment both for
opposing

defendant’s

participating

in

the

discriminatory
EEOC

proceedings.

practices
(Doc.

and

for

¶

133.)

#48,

Plaintiff claims he engaged in protected activity beginning in
2002 by complaining to the IWSD Board about discrimination by Deyo,
and was retaliated against beginning in 2005 by the elimination of
the grievance procedure which was the vehicle of his protected
activity.

(Id. ¶ 126.)

Plaintiff alleges that from 2005 forward,

defendant engaged in a continuous course of retaliation.
129.)
clause.

(Id. ¶

These claims are properly brought under the opposition
Plaintiff also asserts that he was retaliated against

after he filed his EEOC Charge of Discrimination in 2013. (Id. ¶¶
130-32.) These claims are properly brought under the participation
clause.
Defendant also argues that plaintiff failed to exhaust his
administrative remedy as to retaliation based upon the EEOC Charge
of Discrimination.

Within Count XIII, plaintiff has alleged that

all conditions precedent to bringing suit have been satisfied.
(Id. ¶ 135.)

This is sufficient for pleading purposes.

Civ. P. 9(c).

24

Fed. R.

IWSD points out that plaintiff has not alleged that he filed
any other EEOC Charge, and does not suggest that he filed another
EEOC Charge. (Doc. #51, pp. 4-5; Doc. #66, pp. 3-6.)

Even if this

is so, it is doubtful that another administrative charge needed to
be filed with the EEOC.

The Eleventh Circuit has held that

it
is
unnecessary
for
a
plaintiff
to
exhaust
administrative remedies prior to urging a retaliation
claim growing out of an earlier charge; the district
court has ancillary jurisdiction to hear such a claim
when it grows out of an administrative charge that is
properly before the court.
There are strong practical reasons and policy
justifications for this conclusion. It is the nature of
retaliation claims that they arise after the filing of
the EEOC charge.
Requiring prior resort to the EEOC
would mean that two charges would have to be filed in a
retaliation case-a double filing that would serve no
purpose
except
to
create
additional
procedural
technicalities when a single filing would comply with
the intent of Title VII.
Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.
1988) (quoting Gupta v. E. Tex. State Univ., 654 F.2d 411, 411
(5th Cir. Unit A Aug. 1981)).
(vi)

Liability For Actions After August 2, 2013

IWSD also argues throughout its Motion to Dismiss that claims
for actions occurring after plaintiff filed his EEOC Charge are
premature and not actionable in this case.

(See, e.g., Doc. #51,

pp. 4-5, 15 (“Plaintiff’s claims of discriminatory pay in October
2013

and

2014

are

premature

administrative remedies.”)).

as

he

has

not

The Court disagrees.

25

exhausted

the

Courts do not require the filing of another EEOC Charge for
actions that arise out of the allegations of an already filed EEOC
Charge.

The Eleventh Circuit has held that “[a] plaintiff’s

judicial

complaint

is

limited

by

the

scope

of

the

EEOC

investigation that ‘can reasonably be expected to grow out of the
charge of discrimination.’” Ramon v. AT & T Broadband, 195 F. App’x
860, 865 (11th Cir. 2006) (quoting Gregory v. Ga. Dep’t of Human
Res., 355 F.3d 1277, 1280 (11th Cir. 2004)).

“[T]he allegations

in a judicial complaint filed pursuant to Title VII may encompass
any kind of discrimination like or related to allegations in the
charge and growing out of such allegation during the pendency of
the case before the Commission.” Sanchez v. Standard Brands, Inc.,
431 F.2d 455, 466 (5th Cir. 1970) (internal quotation marks and
citations omitted).

The scope of the EEOC charge should not be

strictly construed.

Gregory, 355 F.3d at 1280.

The allegations

in plaintiff’s Second Amended Complaint encompass discrimination
like or related to the allegations in the Charge of Discrimination,
and are therefore properly brought in this action.
(2)

IWSD

Discrimination in Compensation, Terms, Conditions, and
Privileges of Employment
argues

that

Count

VII

fails

to

state

a

claim

for

discrimination in compensation, terms, conditions, and privileges
of employment because plaintiff has failed to allege that (1) he

26

was subjected to an adverse employment action 3, (2) IWSD treated
similarly situated employees outside of his class more favorably,
and (3) he was qualified to receive the higher wage.
pp. 15-16.)
To

(Doc. #51,

The Court disagrees.

state

a

claim

for

intentional

discrimination

compensation under Title VII, a claimant must allege that:

in
“(1)

[]he belongs to a racial minority; (2) []he received low wages;
(3) similarly situated comparators outside the protected class
received higher compensation; and (4) []he was qualified to receive
the higher wage.”

Cooper v. S. Co., 390 F.3d 695, 735 (11th Cir.

2004), overruled on other grounds, Ash v. Tyson Foods, Inc., 546
U.S. 454, 457 (2006).

In compensation discrimination claims, the

payment of lesser wages takes the place of an adverse employment
action, and in and of itself constitutes an adverse employment
action.

See Cooper, 390 F.3d at 735 (replacing adverse employment

action with payment of lesser wages when stating the elements of
a claim for discrimination in compensation).

Additionally, “a

poor performance evaluation that directly results in the denial of
a pay raise of any significance clearly affects an employee’s

3Generally,

an adverse employment action must involve “an
ultimate employment decision . . . or other conduct that alters
the employee's compensation, terms, conditions, or privileges of
employment, deprives him or her of employment opportunities, or
adversely affects his or her status as an employee.” Gupta v. Fla.
Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000) (internal
quotation marks and citation omitted).

27

compensation and thus constitutes an adverse employment action
under Title VII.”

Crawford v. Carroll, 529 F.3d 961, 971 (11th

Cir. 2008) (citing Gillis v. Ga. Dep’t of Corr., 400 F.3d 883, 888
(11th Cir. 2005)).
Here, plaintiff has alleged that he received a lesser wage
because of racial discrimination (Doc. #48, ¶¶ 17-28, 92-94) and
that

his

poor

evaluations/disciplinary

compensation are inextricably intertwined.

actions
(Id.)

and

his

As a result of

the negative and inaccurate evaluations and disciplinary measures,
plaintiff

alleges

he

suffered

an

adverse

directly connected to his compensation.

employment

action

Accordingly, plaintiff

has plausibly alleged both a lower actual wage and an adverse
employment action under Title VII.
IWSD next argues that plaintiff has failed to allege that
IWSD treated similarly situated employees outside of plaintiff’s
class more favorably, or that he was qualified to receive the
higher wage within the time period.
finds neither argument is accurate.

(Doc. #51, p. 15.)

The Court

Plaintiff has alleged that

similarly situated, non-black individuals received pay raises and
received pay increments for certifications while he did not. (Doc.
#48, ¶¶ 20-28.)

Plaintiff has also alleged that he was qualified

to receive pay raises, and would have received the merit based pay
increases but for the inaccurate negative performance reviews.
(Id. ¶¶ 20-22.)

28

The Court finds that plaintiff has plausibly stated a claim
for

discrimination

in

privileges of employment.

compensation,

terms,

conditions,

and

Accordingly, IWSD’s Motion to Dismiss

Count VII is denied.
(3)

Retaliatory Hostile Work Environment

As previously stated, to establish a retaliatory hostile work
environment claim, a plaintiff must show that:

(1) he engaged in

a statutorily protected activity; (2) he has been subject to
unwelcome harassment; (3) the harassment was based on his engaging
in the protected activity; and (4) the harassment was sufficiently
severe or pervasive to alter the terms and conditions of his
employment. Gowski, 682 F.3d at 1311.

IWSD attacks plaintiff’s

retaliatory hostile work environment claim on the basis that
plaintiff has failed to allege an adverse employment action. (Doc.
#51, pp. 18-20.)
Plaintiff has alleged, among other things, that he suffered
retaliation

in

the

following

forms:

limitation

of

work

responsibilities and duties, disciplinary and negative reports
resulting in denial of merit pay increases, denial of pay raises
to which he was entitled, and installation of software on his
computer that impeded his work performance.

(Doc. #48, ¶ 129.)

Accordingly, the Court finds that plaintiff has plausibly alleged
an adverse employment action and IWSD’s Motion to Dismiss Count
XIII is denied.

29

B. Claims Pursuant To Florida Civil Rights Act
IWSD similarly alleges that plaintiff’s corresponding Florida
Civil Rights Act (“FCRA”) claims (Counts II, VIII, XIV) are time
barred, premature, and/or fail to state a claim for which relief
may be granted as to any of these claims.
20.)

(Doc. #51, pp. 5-9, 13-

While the time to exhaust administrative remedies is 365

days under the FCRA, Fla. Stat. § 760.11(1), the analysis is
otherwise the same as under Title VII.

Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010) (citing
Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir.
1998)). Therefore, IWSD’s Motion to Dismiss these Counts II, VIII,
and XIV is denied.
C. Claims Pursuant to 42 U.S.C. § 1981
Counts III, IX, and XV purport to bring § 1981 claims against
IWSD pursuant to 42 U.S.C. § 1983 for racially hostile work
environment, discrimination in compensation, terms, conditions,
and

privileges

of

employment,

and

retaliatory

environment. (Doc. #48, pp. 9-10, 14-15, 21.)
XVI

purport

to

bring

similar

§

1981

hostile

work

Counts IV, X, and

claims

against

Deyo

individually. (Id. at 10, 15-16, 22.)
(1)

§ 1981 Claims Against IWSD

Title 42 U.S.C. § 1981(a) provides that “[a]ll persons within
the jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts . . . as

30

is

enjoyed

by

white

retaliation claims.

citizens.”

Section

1981

encompasses

CBOCS W., Inc. v. Humphries, 553 U.S. 442,

446 (2008).
IWSD first argues that plaintiff’s § 1981 claims against it
must be dismissed because IWSD is a public entity and § 1981 does
not provide a cause of action against state actors.
pp. 6-7.)

(Doc. #51,

Plaintiff counters that he “has not sued IWSD directly

under Section 1981, but rather has asserted his Section 1981 rights
through 42 U.S.C. § 1983.” (Doc. #58, p. 13.)
It is well established that there is no cause of action
against state actors under 42 U.S.C. § 1981.
Sch. Dist., 491 U.S. 701, 733 (1989).

Jett v. Dallas Indep.

Section 1983 “constitutes

the exclusive remedy against state actors for violations of the
rights contained in § 1981.”

Butts v. County of Volusia, 222 F.3d

891, 893 (11th Cir. 2000) (citing Jett, 491 U.S. at 731-32).
Within

Count

III,

plaintiff

has

included

the

following

language: “IWSD has subjected Short to a racially hostile work
environment, in violation of the Civil Rights Act of 1866, 42
U.S.C. § 1981, as made applicable to units of local government by
the Civil Rights Act of 1871, 42 U.S.C. § 1983.”
69.)

(Doc. #48, ¶

Similarly, in Counts IX and XV plaintiff has either included

or incorporated a paragraph into his claims indicating that he is
bringing these claims under § 1981 against IWSD pursuant to § 1983.
(Id. ¶¶ 2, 101, 142.)

The Court finds that this is sufficient to

31

establish that plaintiff is properly bringing his claims pursuant
to § 1983.
IWSD next argues that plaintiff’s § 1983 claims under Counts
III, IX and XV are duplicative of plaintiff’s § 1983 claims under
Counts V, XI, and XVII. (Doc. #66, pp. 6-7.)
While the elements of an Title VII discrimination claim are
the same as plaintiff’s discrimination claims brought under the
Equal Protection Clause and 42 U.S.C. § 1983, see Bryant v. Jones,
575 F.3d 1281, 1296 n.20, 1307 (11th Cir. 2009); Crawford, 529
F.3d at 970; and Smith v. Auburn Univ., 201 F. Supp. 2d 1216, 1227
(11th Cir. 2002), each claim asserting a different legal basis may
stand on its own.
declines

to

Fed. R. Civ. P. 8(d)(2).

dismiss

plaintiff’s

§

1983

Accordingly, the Court
racial

discrimination

claims as duplicative of his Equal Protection claims.
IWSD vaguely argues that plaintiff has failed to sufficiently
allege claims for hostile work environment, discrimination in
compensation, terms, conditions, and privileges of employment, and
retaliatory hostile work environment. (Doc. #51, pp. 13-20.)

As

IWSD has acknowledged, the elements of a claim of discrimination
under Title VII and section 1983 are the same. Rice-Lamar v. City
of Ft. Lauderdale, 54 F. Supp. 2d 1137, 1145 (S.D. Fla. 1998).
Accordingly, the analyses supra in regard to the sufficiency of
plaintiff’s claims under Title VII are equally applicable here.

32

(2)

§ 1981 Claims Against Deyo

Deyo moves to dismiss plaintiff’s § 1981 claims on the basis
that the § 1981 claims are merged into plaintiff’s § 1983 claims,
and thus must be dismissed as duplicative. (Doc. #52, p. 10.)

Deyo

further argues that plaintiff’s exclusive remedy is pursuant to §
1983 since Deyo is a state actor. (Id.)
As previously held in regard to plaintiff’s claims against
IWSD, the Court finds that plaintiff has sufficiently alleged that
he is bringing his § 1981 claims against defendants pursuant to §
1983.

(Doc. #48, ¶¶ 75, 113, 149.)

Further, the Court again holds

that plaintiff’s claims under § 1981 brought pursuant to § 1983
and plaintiff’s claims for violation of the Equal Protection Clause
pursuant to § 1983 are properly pled under Rule 8(d)(2).
D. Claims Pursuant to Equal Protection Clause
Counts V and XI allege claims for racially hostile work
environment and discrimination in compensation, terms, conditions,
and privileges of employment in violation of the Equal Protection
clause against IWSD. (Id. at 10-12, 16-18.)

Counts VI and XII

allege the same claims against Deyo individually. (Id. at 12, 18.)
(1)

Claims Against IWSD

IWSD moves to dismiss plaintiff’s Equal Protection claims on
the basis that plaintiff has failed to allege a custom or policy
by IWSD.

(Doc. #51, pp. 9-13.)

The Court finds that a custom or

policy is properly alleged in the Second Amended Complaint.

33

A local government may be held liable under § 1983 only “if
the plaintiff shows that a ‘custom’ or ‘policy’ of the municipality
was the ‘moving force’ behind the constitutional deprivation.”
Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997)
(citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690–94
(1978)).

The government entity “must be found to have itself

caused the constitutional violation at issue; it cannot be found
liable on a vicarious liability theory.”

Skop v. City of Atlanta,

485 F.3d 1130, 1145 (11th Cir.2007) (citing Monell, 436 U.S. at
694–95)).

A municipality’s liability is limited to “acts which

the municipality has officially sanctioned or ordered.”
v. City of Cincinnatti, 475 U.S. 469, 480 (1986).
several

ways

to

establish

municipal

liability

under

Pembaur

There are
§

1983.

Hoefling v. City of Miami, ---F.3d---, No. 14-12482, 2016 WL
285358, at *6 (11th Cir. Jan. 25, 2016).
Municipal liability exists for decisions by individuals with
final policymaking authority with respect to the subject matter in
question.

Pembaur, 475 U.S. at 480-82.

Whether an official has

final policymaking authority is a question of state law. Id. at
482.

Additionally, pursuant to a delegation theory, municipal

liability

may

attach

when

final

policymaking

authority

is

delegated to a subordinate and the “subordinate’s discretionary
decisions are not constrained by official policies and are not
subject to review.”

Mandel v. Doe, 888 F.2d 783, 792 (11th Cir.

34

1989) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 12528 (1988)).
through

Further, municipal liability can be established

ratification

of

conduct

“when

a

subordinate

public

official makes an unconstitutional decision and when that decision
is

then

adopted

by

someone

who

does

have

final

policymaking

authority.” Matthews v. Columbia County, 294 F.3d 1294, 1297 (11th
Cir. 2002).

“The final policymaker, however, must ratify not only

the decision itself, but also the unconstitutional basis for it.”
Id. (citing Gattis v. Brice, 36 F.3d 724, 727 (11th Cir. 1998)).
Plaintiff alleges that the discrimination and harassment has
been “carried out by Defendant IWSD’s chief executive officer,
Defendant

Deyo,

with

full

authority

of

the

IWSD,

and

with

unreviewed discretion granted by the IWSD to act on its behalf.”
(Doc. #48, ¶¶ 81-82, 84, 120.)

Viewing the factual allegations in

a light most favorable to the plaintiff, the Court finds that
plaintiff

has

sufficiently

alleged

a

basis

for

municipality

liability under § 1983.
(2)

Claims Against Deyo

Deyo asserts that Counts VI and XII of plaintiff’s Second
Amended Complaint fail to state claims for violation of Equal
Protection claims under 42 U.S.C. § 1983 against her because
plaintiff has failed to allege a discriminatory purpose or intent,
or that the harassment was sufficiently severe or pervasive. (Doc.
#52, pp. 5-10.)

The Court disagrees.

35

“[D]iscrimination claims, including hostile work environment
claims, brought under the Equal Protection Clause, 42 U.S.C. §
1981, or Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e–2, are subject to the same standards of proof and employ the
same analytical framework.” Bryant, 575 F.3d at 1296 n.20, 1307.
Accordingly, the Court’s findings in regard to plaintiff’s Title
VII discrimination claims are applicable here. The only difference
is

that

in

addition

to

establishing

the

elements

for

a

discrimination claim under Title VII, the claimant must also allege
that the defendant was acting under color of state law and with a
discriminatory purpose or intent.

Watkins v. Bowden, 105 F.3d

1344, 1355 (11th Cir. 1997).
The Court finds that plaintiff has sufficiently alleged that
Deyo was acting under color of state law.
81, 89, 123.)
disciplinary
Short’s race.

(See Doc. #48, ¶¶ 79,

Additionally, Plaintiff has alleged that Deyo made
and

other

employment

(Id. ¶ 42, 51.)

decisions

based

solely

on

The Court finds that plaintiff has

plausibly alleged a discriminatory purpose or intent on behalf of
Deyo.
E. Claims Pursuant to First Amendment
Counts XVII and XVIII allege claims for retaliatory hostile
work environment in violation of the First Amendment against IWSD
and

Deyo,

respectively.

(Id.

¶¶

151-65.)

IWSD

argues

that

plaintiff has failed to state a claim for retaliatory hostile work

36

environment in violation of the First Amendment because plaintiff
fails to allege:

that he spoke as a private citizen on a matter

of public concern, his interests as a citizen outweigh the interest
of IWSD as the employer, and his speech played a substantial or
motivating role in IWSD’s decision to take an adverse employment
action. (Doc. #51, pp. 20-23.)

Deyo asserts similar arguments.

(Doc. #52, pp. 10-12.)
A First Amendment claim for retaliation is “governed by a
four-stage analysis.”

Moss v. City of Pembroke Pines, 782 F.3d

613, 617 (11th Cir. 2015).
First, we consider whether Plaintiff's speech was made
as a citizen and whether it implicated a matter of public
concern.
If this first threshold requirement is
satisfied, we then weigh Plaintiff's First Amendment
interests against the City's interest in regulating his
speech to promote the efficiency of the public services
it performs through its employees. The above two issues
are questions of law that are decided by the court. The
court's resolution determines whether Plaintiff's speech
is protected by the First Amendment.
If his speech is so protected, the third stage of
the analysis requires Plaintiff to show that it was a
substantial motivating factor in his termination.
If
Plaintiff is able to make this showing, the burden shifts
to the City to prove that it would have terminated
Plaintiff even in the absence of his speech. Because
these final two issues, which address the causal link
between Plaintiff's speech and his termination, are
questions of fact, a jury resolves them unless the
evidence is undisputed.
Id. at 617-18 (internal quotation marks and citations omitted).
In order to satisfy the first requirement, the public employee
must speak both on a matter of public concern and as a private

37

citizen.

Garcetti v. Ceballos, 547 U.S. 410, 419-20 (2006).

If

this requirement is not satisfied, then there is no First Amendment
protection for the speech.

“[W]hile the First Amendment invests

public employees with certain rights, it does not empower them to
‘constitutionalize the employee grievance.’” Id. at 420 (quoting
Connick v. Myers, 461 U.S. 138, 154 (1983)).
In

the

retaliated

instant

case,

against

for

plaintiff
(1)

has

making

alleged

that

complaints

of

he

was
race

discrimination and harassment and (2) filing an EEOC Charge of
discrimination

alleging

race

discrimination

(Doc. #48, ¶¶ 126-35, 152-58, 160-65.)

and

retaliation.

The Eleventh Circuit

rejected a similar claims in Morgan v. Ford, 6 F.3d 750 (11th Cir.
1993).

In Morgan, the plaintiff alleged retaliation in violation

of

First

the

Amendment

as

a

result

of

complaints

of

sexual

harassment and argued that her complaints involved a public concern
“because sexual harassment in the workplace is a matter of vital
social interest.”

Id. at 754.

While the Eleventh Circuit agreed

that sexual harassment is a matter of important social interest,
the Court explained that the essential inquiry is “whether the
purpose of [the plaintiff’s] speech was to raise issues of public
concern, on the one hand, or to further [his] own private interest,
on the other.”

Id.

“An employee’s speech will rarely be entirely

private or entirely public.

Rather than categorize each phrase

the employee uttered, we ‘consider whether the speech at issue was

38

made primarily in the employee’s role as citizen, or primarily in
the role of employee.’” Id. at 755 (quoting Kurtz v. Vickrey, 855
F.2d 723, 727 (11th Cir. 1988)).
held

that

Amendment

the

plaintiff’s

protection

employee grievance.

as

The Court in Morgan ultimately

speech

it

was

primarily

not

entitled

related

to

to

her

First

private

Id. at 754-55.

While racial discrimination in the workplace is a matter of
important social interest, plaintiff’s speech focused on how Deyo
behaved toward him and affected him personally.

Plaintiff has not

alleged facts tending to show he raised issues of discrimination
in order to invoke public interest or to relate his concerns about
racial discrimination to the public.

Plaintiff complained of

discrimination in order to improve his own work environment.

The

Court finds that “the main thrust of [his] speech took the form of
a private employee grievance.”

Id. at 755.

Since the first prong

of the inquiry is not satisfied, the Court need not continue with
its analysis.

Accordingly, Counts XVII and XVIII of plaintiff’s

Complaint are dismissed without prejudice.
F. Claim of Intentional Infliction of Emotional Distress
Count

XIX

of

plaintiff’s

Complaint

asserts

a

claim

for

Intentional Infliction of Emotional Distress (IIED) against Deyo.
(Doc. #48, ¶¶ 166-70.)

Deyo moves to dismiss this claim on the

basis that plaintiff has failed to allege that Deyo intended to
cause plaintiff emotional distress or knew that her actions would

39

result in severe emotional distress, and that the allegations are
not sufficient to establish that Deyo’s conduct exceeded all bounds
tolerated by a civilized society.

(Doc. #52, pp. 12-15.)

The

Court agrees with Deyo’s last point.
“The tort of intentional infliction of emotional distress can
undoubtedly arise in the context of employment discrimination.”
Vamper v. United Parcel Serv., Inc., 14 F. Supp. 2d 1301, 1306
(S.D. Fla. 1998) (citing Vernon v. Med. Mgmt. Assocs. of Margate,
912 F. Supp. 1549, 1558-59 (S.D. Fla. 1996)).

Florida first

recognized

of

the

tort

of

intentional

infliction

emotional

distress in Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla.
1985).

In order to state a claim for intentional infliction of

emotional distress under Florida law, a plaintiff must plausibly
allege:

“(1)

deliberate

or

reckless

infliction

of

mental

suffering, (2) outrageous conduct that (3) caused the emotional
distress, and (4) that the distress was severe.” Tillman v. Orange
County, 519 F. App’x 632, 636 (11th Cir. 2013).

For conduct to be

sufficiently outrageous, it must be “so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”
Lopez v. Target Corp., 676 F.3d 1230, 1236 (11th Cir. 2012)
(quoting Restatement (Second) of Torts § 46 cmt. d (Am. Law Inst.
1965)).

Whether the alleged conduct satisfies this high standard

is a legal question “for the court to decide as a matter of law.”

40

Vance v. S. Bell Tel. & Tel. Co., 983 F.2d 1573, 1575 n.7 (11th
Cir. 1993) (quoting Baker v. Fla. Nat'l Bank, 559 So. 2d 284, 287
(Fla. 4th DCA 1990)); see also Liberty Mut. Ins. Co. v. Steadman,
968 So. 2d 592, 595 (Fla. 2d DCA 2007).
The Court finds that the conduct alleged within plaintiff’s
Second

Amended

Complaint

fails

to

rise

outrageousness required for a claim of IIED.

to

the

level

of

Here, plaintiff has

alleged that he was subjected to a discriminatorily applied pay
policy, issued unfounded discriminatory actions, his job duties
were limited, and he was accused of watching pornography on his
work computer and ordered to seek treatment for same.
¶¶ 1-51.)

(Doc. #48,

While such conduct, if true, is clearly offensive, it

does not rise to the level of extreme and outrageous required to
support a claim for IIED.

See Williams v. Worldwide Flight SVCS.,

Inc., 877 So. 2d 869 (Fla. 3d DCA 2004) (finding that repeated
racial

epithets,

false

disciplinary

reports,

job

termination

threats, and assignment to dangerous duties were objectionable and
offensive but did not rise to level of extreme and outrageous);
Johnson v. Thigpen, 788 So. 2d 410 (Fla. 1st DCA 2001) (finding
repeated sexually explicit comments and requests accompanied by
forced sexual contact in the workplace was sufficient to state an
IIED claim); Nims v. Harrison, 768 So. 2d 1198 (Fla. 1st DCA 2000)
(finding threats in newsletter to kill and rape teacher and her

41

children

was

sufficiently

outrageous

to

support

IIED

claim).

Accordingly, Count 19 is dismissed without prejudice.
Accordingly, it is now
ORDERED:
1. Defendant Immokalee Water & Sewer District’s Motion to
Dismiss

Plaintiff’s

Second

Amended

Complaint

with

Incorporated Memorandum of Law (Doc. #51) is GRANTED in
part and DENIED in part.
2. Defendant

Eva

Deyo’s

Motion

to

Dismiss

Plaintiff's

Second Amended Complaint (Doc. #52) is GRANTED in part
and DENIED in part.
3. Counts 17 and 18 of plaintiff’s Second Amended Complaint
are dismissed without prejudice; Count 19 of plaintiff’s
Second Amended Complaint is dismissed without prejudice.
The Motions are otherwise denied.
4. Defendants shall have FOURTEEN (14) DAYS from the date
of this Opinion and Order to file a responsive pleading.
DONE AND ORDERED at Fort Myers, Florida, this __25th__ day of
February, 2016.

Copies: Counsel of record

42