Carrasco v. Town of Fort Myers Beach, Florida

Filing 35

OPINION AND ORDER denying 22 defendant's Motion for Summary Judgment. See Opinion and Order for details. Signed by Judge John E. Steele on 7/25/2017. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JIM CARRASCO, an individual,
Plaintiff,
v.

Case No:

2:16-cv-21-FtM-99CM

TOWN OF FORT MYERS BEACH,
FLORIDA,
a
political
subdivision of the State of
Florida,
Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant’s Motion for
Summary Judgment (Doc. #22) and supporting documentation (Doc.
#23) filed on May 4, 2017.

Plaintiff filed a Response (Doc. #27)

and supporting documentation (Docs. ##27-1 - 27-21) on May 18,
2017.

A Reply (Doc. #3) and Sur-Reply (Doc. #34) were filed.

For

the reasons set forth below, the motion is denied.
I.
A court may grant summary judgment only if 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.”
R. Civ. P. 56(a).

Fed.

A fact is “material” if it goes to “a legal

element of the claim under the applicable substantive law” and
thus may impact the case’s outcome.
121 F.3d 642, 646 (11th Cir. 1997).

Allen v. Tyson Foods, Inc.,
“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.”

Hickson Corp. v. N. Crossarm

Co., 357 F.3d 1256, 1260 (11th Cir. 2004).
“The burden of establishing that there is no genuine issue of
material fact lies with the moving party.”

Walker v. Darby, 911

F.2d 1573, 1576 (11th Cir. 1990) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)).

“[O]nce the moving party has met

that burden by presenting evidence which, if uncontradicted, would
entitle it to a directed verdict at trial,” the party opposing
summary judgment must “set forth specific facts showing that there
is a genuine issue for trial.

A mere ‘scintilla’ of evidence

supporting the opposing party’s position will not suffice; there
must be enough of a showing that the jury could reasonably find
for that party.”

Id. at 1576–77.

In ruling on the motion, the

court must view all evidence and draw all reasonable inferences in
favor of the non-moving party.

Scott v. Harris, 550 U.S. 372, 380

(2007); Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
Summary judgment should be denied not just where the parties
disagree on issues of material fact, but also “where the parties
agree on the basic facts, but disagree about the factual inferences
that should be drawn from these facts.”

Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983); see
also Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir.
2007) (“If a reasonable fact finder evaluating the evidence could

- 2 -

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.”).

Put simply, if the resolution of

a material fact or the inference to be drawn therefrom presents a
“he said, she said” scenario, and if the record has evidence
genuinely supporting both sides of the story, then summary judgment
is not appropriate.
II.
This case alleges unlawful retaliation in violation of the
Age Discrimination in Employment Act (ADEA) (Count I) and the
Florida Civil Rights Act (FCRA) (Count II) against the Town of
Fort Myers Beach, Florida (defendant or Town), which is plaintiff
Jim Carrasco’s (plaintiff or Carrasco) former employer.
#1.) 1

(Doc.

Plaintiff seeks injunctive relief, back pay, front pay,

reimbursement for lost expenses, declaratory relief, compensatory
damages, and his attorney’s fees and costs.

(Id.)

In December 2006, Carrasco, a fifty-eight year old male, was
hired by the Town as a Zoning Permit Technician in the Community
Development Department.

(Doc. #22, ¶¶ 1-2.)

Kenneth Miller

(Miller) was plaintiff’s immediate supervisor during the relevant
time

period,

and

Terry

Stewart

(Stewart)

1

served

as

the

Town

Although plaintiff’s Complaint states under the “Causes of
Action” section (Doc. #1, p. 1) that the action is brought for age
discrimination and retaliation in violation of the ADEA and FCRA,
the Complaint only alleges two counts for retaliation.

- 3 -

Manager.

(Id. at ¶ 5.)

Plaintiff was promoted in July 2012 to

Community Development Technician and received a salary increase.
(Id. at ¶¶ 6-9.)

The position description states that plaintiff

was to perform site reviews, assist the public in completing the
permitting process, and address inquiries regarding building codes
and other ordinances.

(Doc. #27-1.)

On or about October 9, 2012, plaintiff filed his first Charge
of Discrimination with the EEOC based on age. 2

The EEOC sent the

Town a Notice of the Charge on February 28, 2013.

(Doc. #27-6.)

Plaintiff filed a second Charge of Discrimination on or about March
5, 2013, alleging retaliation for filing his first charge of
discrimination 3 (Doc. #27-20), which the Town received notice of
in March 2013 (Doc. #27-7).

After Carrasco filed the Charges, his

pay rate and job title remained the same.
Although the parties agree that plaintiff visited a property
located at 561 Palermo Circle (the Property) in February of 2013 4,

2

Although a copy of Carrasco’s first Charge of Discrimination
is not in the record, it appears the Charge alleged age
discrimination and equal pay violations.
3

Specifically, the second Charge stated: “I filed a charge
of discrimination against the above referenced employer in October
2012.
Subsequently, I am being retaliated against by constant
surveillance and also being demoted from my current workload and
responsibilities.
I also believe that they are demoting me
because there have been some bad zoning decisions made by Walter
Fluegel and Leslee Chapman.” (Doc. #27-20.)
4

Testimony shows that this event likely occurred on or about
February 8, 2013.

- 4 -

the parties’ version of events as to what transpired at the
Property vary greatly; therefore, the following is a summation of
the visit taken from both parties but is not necessarily accepted
as undisputed evidence.
local

builder,

Joe

The owner of the Property and long-time

Orlandini,

had

been

in

the

process

of

constructing a home and pool on the Property and was obtaining
permits from the Town to do so.

In the permitting process, an

issue had arisen as to whether an elevated pool deck at the back
of the Property should be approved.

Although Carrasco had not

been instructed by the Town to visit the Property that day,
Carrasco had previously worked on the permit review process for
the Property and did not believe that an elevated pool deck should
be approved based upon the Town’s building codes.

Plaintiff did

not advise his supervisors that he intended to visit the Property
that day, and did not disclose that he visited the Property
afterwards.

Carrasco visited the Property on his way home from

work and after work hours.
Orlandini testified that he was on the Property that evening
when Carrasco drove up in his personal vehicle.

Orlandini was not

expecting him but the two knew each other from prior dealings
Orlandini had with the Town on permitting issues.

Carrasco was

upset and the two engaged in a verbal altercation regarding whether
the elevated pool deck should be permitted and Carrasco was making
negative comments about Town employees.

- 5 -

It is disputed whether

plaintiff ever went onto the Property to view the pool deck or
viewed it from the street.

The entire exchange lasted about 5-10

minutes and Carrasco left.

Plaintiff testified that the exchange

was pleasant.
Nothing in the record establishes that Carrasco was invited
to the Property that evening and Carrasco believes that he was
trying to “protect the Town.”

(Doc. #23-1, 91:13-18.)

Plaintiff

offered the Declaration of Rick Sebastian, a former Town employee,
who states that site visits were not required to be scheduled, nor
was there a requirement that only those involved with the permit
approval process be allowed to conduct site visits.
¶ 9.)

(Doc. #27-3,

Carrasco testified that it was typical for him to conduct

site visits such as the one to Orlandini’s property after business
hours and on his way home.

(Id. at 92:20-25.)

Weeks later, Orlandini was in the Town’s office to discuss
permitting issues with the Town’s Community Development Director,
Walter Fluegel, and Orlandini mentioned Carrasco’s visit to the
Property.

Fluegel and Orlandini are personal friends and have a

long-term

relationship

working

on

permitting

issues.

When

Orlandini told Fluegel what had happened, Fluegel called in Stewart
(the Town’s Manager) to his office to hear the story.

Fluegel

later asked that Orlandini reduce his verbal complaint to writing 5,

5

The Declaration of Terry Stewart states that it is the
Town’s procedure regarding customer service complaints to reduce

- 6 -

which he did in a letter addressed to Stewart and dated March 27,
2013.

(Doc. #23-4.)

On April 23, 2013, the Town provided Carrasco with a copy of
Orlandini’s letter and the Town’s Notice of Intent to Issue a
Written

Reprimand

Personnel Manual.

because

his

actions

(Doc. #23-5.)

violated

the

Town’s

Carrasco prepared a written

response, dated the same day, reciting his version of the events
that had transpired.

(Doc. #23-6.)

He states that there was no

verbal altercation but he was there to see the elevated pool deck
and spoke to Orlandini about the Town’s code.
The Town claims that it conducted an investigation into
Orlandini’s complaint, and credited Orlandini’s version of the
events.

(Doc. #23-2, ¶ 14.)

As a result of the investigation,

on May 23, 2013, Stewart issued Carrasco a written reprimand and
placed him on a 90-day performance improvement plan 6 in order to
work on improving his interpersonal skills, maintain a positive
image for the Town, and refrain from policy interpretations if he

any verbal complaints to writing.
(Doc. #23-2, ¶ 13.)
In
response, plaintiff offers the Declaration of Rick Sebastian, a
former Town employee, who states that this was not the policy.
(Doc. #27-3, ¶ 10.)
6

The Town states that Carrasco’s conduct during the
unscheduled visit would have justified his immediate termination
pursuant to the Town’s Policies and Employees Handbook, but Stewart
agreed to implement the 90-day performance improvement plan in an
effort to allow Carrasco time to improve his work performance.
(Doc. #23-2, ¶ 16.)

- 7 -

did not attend departmental staff meetings.
Doc.

#23-11.)

The

written

reprimand

(Id. at ¶¶ 15-17;

stated

that

Carrasco’s

unprofessional conduct at the Property, as well as his conduct
towards his fellow Town employees, were unacceptable.
11.)

(Doc. #23-

The Town states Carrasco had previously been counseled about

his poor interpersonal skills with co-workers, supervisors, and
members of the public before it placed him on a performance
improvement plan.

(Doc. #23-3, ¶ 20.)

The Town is not clear on

the dates of any alleged indiscretions except for events in April
of 2013 wherein Stewart authored notes regarding some of Carrasco’s
aggressive

and

disruptive

interactions

with

fellow

which were within the 90-day performance period.
6.)

employees,

(Doc. #23-3, p.

Prior to May 23, 2013, the Town had not issued any kind of

discipline
submitted

to
a

Carrasco.
portion

of

(Doc.
the

#27-2,

Town’s

¶

4.)

Plaintiff

Disciplinary

Matrix

has
and

Procedures (Doc. #27-21), and alleges that the Town did not follow
its procedures before terminating plaintiff.
On May 24, 2013 – one day after he was issued the written
reprimand – Carrasco sent the EEOC written correspondence wherein
he states that Fluegel “continues to retaliate towards me . . . I
fear that all this is getting out of control and I am fearful for
my job and wellbeing at the Town of Ft. Myers Beach.”
13.)

(Doc. #27-

On June 19, 2013, plaintiff sent Miller (his immediate

supervisor) an email about the “degradation” of his position.

- 8 -

(Doc. #27-5.)

Because plaintiff failed to adhere to the terms of

the performance plan, the Town terminated him on June 24, 2013.
Following his termination, and while his second Charge was
pending, plaintiff was interviewed by the EEOC on or about July 5,
2013.

The notes from the interview state that Carrasco was

“demoted” after his initial EEOC Charge and his regular tasks were
taken away from him and replaced by clerical tasks.
16.)

(Doc. #27-

On July 9, 2013, plaintiff sent the EEOC notice of his

termination, stating “I am sure it’s because first I filed a
discrimination complaint with the EEOC and then a retaliation
charge.”

(Doc. #27-15.)

Carrasco again wrote to the EEOC on June

30, 2014, stating that he was wrongfully terminated for filing a
complaint with the EEOC (Doc. #27-18), and again on October 15,
2014, stating “I lost my job because I filed a complaint with the
EEOC” (Doc. #27-17), both while the second Charge was pending.
Defendant argues that summary judgment is appropriate because
plaintiff failed to exhaust his administrative remedies, fails to
establish a prima facie case, and that the Town can offer a
legitimate, non-discriminatory reason for Carrasco’s termination.

- 9 -

III.
A. Exhaustion of Administrative Remedies
The

ADEA

prohibits

employers

from

discriminating

against

employees based on their age 7 and retaliating against employees
who engage in ADEA-protected activity.

Both sides agree that

before a party may bring a cause of action for violation of the
ADEA,

he

must

first

file

a

timely

complaint

against

the

discriminating entity with the EEOC and receive a Notice of Right
to Sue from the EEOC.

Maynard v. Pneumatic Prods. Corp., 256 F.3d

1259, 1262 (11th Cir. 2001); 29 U.S.C. § 626(e).

To be timely in

Florida, a charge of unlawful discrimination must be filed with
the

administrative

agency

not

more

than

300

days

allegedly unlawful employment practice occurred.

after

the

Bost v. Fed.

Express Corp., 372 F.3d 1233, 1238 (11th Cir. 2004); Brooks v. CSX
Transp., Inc., 555 F. App’x 878, 880 (11th Cir. 2014).

If

plaintiff fails to comply with this requirement, he cannot assert
a claim in court.

Sheffield v. United Parcel Serv., Inc., 403 F.

App’x 452, 454 (11th Cir. 2010) (citing Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 109 (2002)).

In addition to being a pre-

condition for suit, a “judicial complaint is limited by the scope
of the EEOC investigation which can reasonably be expected to grow

7

The ADEA prohibits employers from discharging an employee
who is at least 40 years of age because of that employee’s age.
29 U.S.C. §§ 623(a)(1), 631(a).

- 10 -

out of the charge of discrimination.”
549

F.

App’x

844,

848

(11th

Cir.

Penaloza v. Target Corp.,
2013)

(internal

citations

omitted); Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1280
(11th Cir. 2004).

Judicial claims that “amplify, clarify, or more

clearly focus” the allegations in the EEOC charge are permitted,
but the plaintiff cannot allege new acts of discrimination.
at 1279–80.

Id.

Nevertheless, courts are “extremely reluctant to

allow procedural technicalities to bar claims brought under [the
ADEA]” and should construe an EEOC complaint broadly.

Penaloza,

549 F. App’x at 848 (quoting Gregory, 355 F.3d at 1280).
Exhaustion

of

administrative

remedies

is

a

matter

abatement that should be raised in a motion to dismiss.

in

Bryant

v. Rich, 530 F.3d 1338, 1374–75 (11th Cir. 2008) (addressing the
Prison Litigation Reform Act’s exhaustion requirements).

It is

permissible for a district court to consider facts outside of the
pleadings and resolve factual disputes, so long as the factual
disputes do not decide the merits and the parties are given
sufficient opportunity to develop a record.

Id. at 1376.

Deciding a motion to dismiss for failing to exhaust
administrative remedies is a two-step process. First,
the court must look to the factual allegations in the
defendant’s motion and the plaintiff’s response, taking
the plaintiff’s version of the facts as true to the
extent that it conflicts with that of the defendant. If
the complaint is not subject to dismissal at this step,
the court must then make specific findings to resolve
the parties’ factual disputes, and determine whether the
defendant bore its burden of proving that the plaintiff
failed to exhaust his administrative remedies.

- 11 -

Basel v. Sec’y of Defense, 507 F. App’x 873, 874–75 (11th Cir.
2013) (citation omitted).
The Town argues that plaintiff’s EEOC Charges were still
pending before the EEOC at the time of his termination, and
Carrasco never filed a Charge after his termination, which is a
“discrete act” of retaliation that must be raised in a new Charge.
But based on the facts of this case, a new charge after his
termination

was

Discrimination

not
with

required.
the

EEOC

Plaintiff
on

March

filed
5,

a

Charge

2013,

retaliation because he filed a Charge in 2012.

of

asserting

(Doc. #27-20.)

Following his termination, plaintiff sent communications to the
EEOC, stating that he was terminated because he filed his EEOC
Charge, and he informed the EEOC during his interview that he had
been terminated.

See Docs. #27-15 – 27-18.

Cellulose

the

Corp.,

Eleventh

Circuit

In Baker v. Buckeye

found

that

a

claim

of

retaliation could reasonably be expected to grow out of an original
charge of discrimination.

856 F.2d 167, 169 (11th Cir. 1988).

In

doing so, the court noted that it has long been established in the
Eleventh Circuit that a judicial complaint is defined by the scope
of the EEOC investigation that “can reasonably be expected to grow
out of the charge of discrimination” and the scope of an EEOC
complaint should be strictly interpreted.

Id.; Litman v. Dristy,

-- F. App’x --, 2017 WL 3027584, at *4 (11th Cir. 2017).

- 12 -

The same result applies in this case.

The Town terminated

plaintiff while the EEOC’s investigation was pending and before
the EEOC issued a right-to-sue letter.

The termination is not a

separate act that requires a new EEOC Charge; rather, it grows out
of or is the culmination of the alleged ongoing efforts of the
Town.

The

EEOC

correspondence

was

and

aware

of

interview

the
of

investigating his second Charge.

termination
plaintiff

through

when

it

its
was

“The purpose of this exhaustion

requirement is that the [EEOC] should have the first opportunity
to investigate the alleged discriminatory practices to permit it
to perform its role in obtaining voluntary compliance and promoting
conciliation efforts.” Gregory, 355 F.3d 1277, 1279 (11th Cir.
2004).

That purpose is fulfilled here.

B. Prima Facie Case
An employee can use direct or circumstantial evidence to make
out either a discrimination or retaliation claim.

See Kragor v.

Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012)
(discrimination); de la Cruz v. Children’s Trust of Miami–Dade
Cnty., 843 F. Supp. 2d 1273, 1281 (S.D. Fla. 2012) (retaliation)
(citing

Strickland

v.

Water

Works

&

Sewer

Bd.

of

City

of

Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001)).
Here, it is undisputed that there is no direct evidence that
the termination was because of plaintiff’s age.

The Supreme Court

has

McDonnell–Douglas

never

held

that

the

burden

- 13 -

shifting

framework 8 applies to an ADEA claim based upon circumstantial
evidence.

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 141-42 (2000); Gross v. FBL Financial Servs., Inc., 557 U.S.
167

(2009).

The

Eleventh

Circuit,

however,

does

McDonnell–Douglas framework to such an ADEA claim.

apply

the

Turlington v.

Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998), cert.
denied, 525 U.S. 962 (1998); Chapman v. AI Transp., 229 F.3d 1012,
1024 (11th Cir. 2000).
Where,
as
here,
a
plaintiff
attempts
to
use
circumstantial
evidence
to
establish
unlawful
discrimination under the ADEA, this court employs the
following
burden-shifting
scheme.
Initially,
the
plaintiff must establish a prima facie case of
discrimination. The employer then must respond with a
legitimate, nondiscriminatory reason for its actions.
In order to prevail, the plaintiff must establish that
the
employer’s
articulated
legitimate,
nondiscriminatory reason was a pretext to mask unlawful
discrimination.”
Turlington, 135 F.3d at 1432.
To

establish

retaliation,

an

a

prima

employee

must

facie

case

of

show

that:

(1)

discriminatory
he

engaged

in

protected conduct; (2) he suffered an adverse employment action;
and (3) there is a causal relationship between the two events.
Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). 9

8

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

9

FCRA age discrimination claims are subject to the same
analysis as ADEA claims. Cardelle v. Miami Beach Fraternal Order
of Police, 593 F. App’x 898, 901 (11th Cir. 2014); Zaben v. Air
Prods. & Chems., Inc., 129 F.3d 1453, 1455 n.2 (11th Cir. 1997);
Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17, 21 (Fla. 3d

- 14 -

Here, defendant disputes that the second and third elements are
satisfied

and

therefore

the

entry

of

summary

judgment

is

appropriate.
For both discrimination and retaliation claims, after an
employee establishes a prima facie case, the McDonnell Douglas
framework is identical.

Establishing a prima facie case creates

a presumption of retaliation and the employer can rebut that
presumption by presenting evidence of one or more legitimate nonretaliatory reasons for its action.

See Kragor v. Takeda Pharms.

Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (citing McDonnell
Douglas, 411 U.S. at 802-03).
is only one of production.
142).

The employer’s burden on rebuttal

See id. (citing Reeves, 530 U.S. at

The Town also argues that it can establish a legitimate,

non-retaliatory reason for plaintiff’s termination.
If the employer presents one or more non-retaliatory reasons,
the

employee

“is

afforded

an

opportunity

to

show

that

employer’s stated reason is a pretext for discrimination.”
v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013).

the
Sims

The employee

can show pretext in two ways: “either directly by persuading the
[C]ourt that a discriminatory reason more likely motivated [the
employer] or indirectly by showing that [the employer’s] proffered
explanation is unworthy of credence.”

DCA 2009).

- 15 -

Kragor, 702 F.3d at 1308

(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981)).
(1) Adverse Employment Action
Defendant argues that because Carrasco failed to exhaust his
administrative remedies with respect to his termination, the only
purported adverse employment actions that remain are a written
reprimand,

which

did

have

a

material

adverse

effect

employment as plaintiff’s pay rate never changed.

on

his

Generally a

written counseling that does not amount to a reprimand which has
no effect on an employee’s salary and does not impact any of the
terms of employment, does not constitute an adverse employment
action.

Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1241–42

(11th Cir. 2001).

“[C]riticisms of an employee’s job performance

— written or oral — that do not lead to tangible job consequences
will rarely form a permissible predicate for a [discrimination]
suit.”

Id. (citing cases).

As discussed above, the Court has found that the failure to
exhaust argument fails and the Court will consider the fact that
plaintiff was terminated.

Although plaintiff did receive written

reprimand, counseling, and was put on a performance plan, plaintiff
was also terminated, thus satisfying the adverse employment action
prong.

- 16 -

(2) Causal Relationship Between Protected Conduct and an
Adverse Employment Action
The

third

element,

a

causal

relationship,

requires

an

employee to demonstrate that the decision-maker was aware of his
protected conduct and that the protected conduct and the adverse
action were not wholly unrelated.

McCann v. Tillman, 526 F.3d

1370, 1376 (11th Cir. 2008).

Causation may be inferred by close

temporal

the

proximity

between

protected

materially adverse action taken by the employer.

conduct

and

the

Thomas v. Cooper

Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).

“We have

held, however, that in the absence of other evidence tending to
show

causation,

protected

a

conduct

three-to-four
and

the

month

adverse

time

gap

employment

insufficient to establish causation on its own.

between

the

action

is

Walker v. Sec’y,

U.S. Dept. of Air Force, 518 F. App’x 626, 628 (11th Cir. 2013)
(citing Thomas, 506 F.3d at 1364); Brown v. Ala. Dept. of Transp.,
597 F.3d 1160, 1182 (11th Cir. 2010) (holding that a three month
timespan between the protected activity and the adverse action was
too long).
It is undisputed that the Town had knowledge of the EEOC
Charges, the last of which was filed on March 5, 2013, and received
by the Town at the end of March 2013.

The Town argues that because

plaintiff was terminated over three months later – on June 24,
2013

–

he

has

failed

to

establish

- 17 -

a

causation.

The

Court

disagrees.

There is other evidence in the record tending to show

causation.

Taking the evidence in a light most favorable to

plaintiff, beginning in March 2013, the Town solicited a written
complaint from Orlandini; credited Orlandini’s version of events
without

conducting

a

formal

investigation;

issued

Carrasco

a

written reprimand and placed him on a 90-day performance plan, and
terminated him one month later on June 24, 2013.

There is

sufficient evidence of a temporal proximity between plaintiff’s
EEOC Charge and his termination such that summary judgment is
inappropriate.
C. Legitimate, Non-Retaliatory Reason
If plaintiff establishes a prima facie case, the employer
then must respond with a legitimate, non-retaliatory reason for
its actions.

The Town argues it has a legitimate and non-

retaliatory reason for issuing Carrasco a written reprimand and
terminating

him,

namely,

Carrasco’s

unscheduled

visit

to

Palmermo Circle and the verbal altercation with Orlandini.

561
But

as detailed above, the parties diverge greatly on their version of
events that transpired at the Property and the parties dispute
whether it was proper for plaintiff to visit the Property after
hours.

Indeed, plaintiff has offered evidence that it was normal

practice for him to conduct site visits after hours.

Plaintiff

also alleges that the Town departed from its own disciplinary
policy when it solicited the written complaint from Orlandini.

- 18 -

Therefore, there is evidence from which a reasonable jury could
find that plaintiff was terminated because of his EEOC Charge;
therefore, defendant’s motion for summary judgment is denied. 10
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant’s Motion for Summary Judgment (Doc. #22) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this __25th__ day of
July, 2017.

Copies:
Counsel of Record

10

Because the Court finds that there is a genuine issue of
material fact whether the Town has articulated a legitimate, nonretaliatory reason for terminated plaintiff, the Court need not
address whether plaintiff has established that the reason is a
pretext to mask unlawful discrimination.

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