Reid v. Naples Community Hospital, Inc.

Filing 28

OPINION AND ORDER granting 15 Defendant's Motion for Summary Judgment; denying Plaintiff's February 21, 2017 oral motion to amend 2 the Complaint to include allegations regarding Plaintiff's termination; denying as moot 19 Defendant's Motion to Strike 18 Plaintiff's Response in Opposition to Summary Judgment; and denying as moot 21 22 23 Defendant's Motions in Limine. The Clerk is directed to enter judgment in favor of Defendant Naples Community Hospital, Inc., to terminate all deadlines, and to close the case. Signed by Judge John E. Steele on 3/13/2017. (KP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONALD C. REID,
Plaintiff,
v.

Case No: 2:16-cv-33-FtM-29CM

NAPLES
INC.,

COMMUNITY

HOSPITAL,

Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion for
Summary Judgment (Doc. #15) filed on November 1, 2016.

Plaintiff

filed a Response in Opposition (Doc. #18) on November 15, 2016.
For the reasons set forth below, Defendant’s Motion for Summary
Judgment is granted.
I.
This is a Title VII case.

On December 10, 2015, Plaintiff

Donald Reid filed a two-count complaint (Doc. #2) in the Circuit
Court of the Twentieth Judicial Circuit in and for Collier County
against his then-employer, Defendant Naples Community Hospital,
Inc. (Defendant or NCH).

The

Complaint

alleges

claims

of

racial discrimination and retaliation, in violation of Title VII
of

the

Civil

Rights

Act

of

1964,

42

U.S.C.

§

1981.

NCH

subsequently removed the Complaint to federal court (Doc. #1) on
grounds of federal question jurisdiction and now moves for summary
judgment on both of Plaintiff’s claims.

II.
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).

- 2 -

III.
A.
The undisputed facts regarding Plaintiff’s employment history
with NCH are as follows:
In November 2011, John Griffith (Supervisor Griffith), a
Caucasian male, hired Plaintiff, an African-American male and
retired police officer, to begin working as a per diem (“as
needed”) security officer for NCH.

(Docs. ## 16-4; 20, p. 14.)

NCH has two main campuses, one in downtown Naples, and one in North
Naples.

(Doc. #20, p. 14.)

Plaintiff completed his probationary

period at the downtown campus on February 2, 2012, after which he
generally worked the night shift at the North Naples campus. 1
(Id.)

Plaintiff

individuals:

a

typically

Hispanic

African-American male. 2

worked

male,

a

a

shift

Caucasian

with
male,

three
and

other

another

(Id.)

On May 4, 2012, Plaintiff submitted an application to be a
full-time security officer at the North Naples campus, but he was
not selected for the position. 3

(Doc. #4, ¶ 18.)

Plaintiff again

1

NCH facilities have three shifts: the day shift (6 a.m. to 2
p.m.); the evening shift (2 p.m. to 10 p.m.); and the night shift
(10 p.m. to 6 a.m.). (Doc. #16-1, pp. 29, 37.)
2

At least two other Caucasian men and one other Hispanic man also
regularly worked this shift. (Doc. #20, p. 14.)
3

The Complaint alleges that there were multiple open positions,
which went to “two white males.” (Doc. #2, ¶ 18.) Defendant has
denied that allegation.
(Doc. #4, ¶ 18.)
The race of the
individual(s) hired is not clear from the record.
- 3 -

submitted an application for an open full-time position at the
North Naples campus on August 28, 2012.
position.

(Doc. #20, p. 15.)

He was hired for that

Plaintiff worked the evening shift

at first, and was later transferred to the night shift.

(Id.)

On March 8, 2014, Plaintiff submitted an application and
interviewed for a Lead Security Officer position at the North
Naples Campus.

(Docs. ## 2, ¶ 21; 4, ¶ 21.)

The position was not

filled during the remainder of Plaintiff’s time at the North Naples
campus; rather, a supervisor from the downtown campus absorbed the
responsibilities of that position.
Plaintiff

submitted

another

(Doc. #16-1, pp. 159-60.)

application

for

a

Lead

Security

Officer position on June 18, 2014, but he withdrew that application
when he learned the position was for the evening shift, not the
day shift.

(Doc. #16-14.)

Plaintiff subsequently requested, and was granted, a transfer
to the “freestanding” NCH facility. 4

(Docs. #16-1, p. 29.)

He

worked the night shift at that facility until October 6, 2016,
when NCH terminated Plaintiff’s employment. 5

(Doc. #22, p. 2.)

4

It is unclear why this third location is referred to as a
“freestanding location,” rather than as a “main campus.”
5

Plaintiff’s termination occurred approximately ten months after
he filed suit and is not currently at issue here. At the February
21, 2017 final pretrial conference, Plaintiff’s counsel stated
that Plaintiff had filed a new EEOC charge of discrimination based
on the termination, but that no right to sue letter had yet issued.
- 4 -

B.
The genesis for Plaintiff’s charges of discrimination and
retaliation is an incident that allegedly occurred in March 2012.
The Complaint avers that Plaintiff was working with supervisor
Sherrie Oaks (Supervisor Oaks) – a Caucasian female - to review
the hospital’s video security system when she made a comment that
she “did not like black people because they come here and take
jobs from white people.”

(Doc. #2, ¶ 16.)

Plaintiff informed

Supervisor Oaks that he is African American and “made [her] aware
of

his

discomfort

with

conversation ended.” 6

her

statements,”

after

(Id.; Doc. #16-1, pp. 39-40.)

denies the conversation ever took place.

which

“the

Defendant

(Doc. #4, ¶ 16.)

According to Plaintiff, he began suffering discriminatory
treatment
complaining

shortly
about

thereafter,
the

racist

“in

retaliation

statement.” 7

of

(Doc.

[sic]
#2,

¶

his
17.)

Specifically, Plaintiff contends that he was: i) taken off of the
schedule for the entire month of April, which resulted in a loss
of pay; ii) sent “to work a less desirable shift” (the night shift)

6

Plaintiff testified at his deposition that Supervisor Oaks
subsequently told him “she thought [he] was Caribbean, not knowing
that Caribbeans [sic] were also . . . from Africa.” (Doc. #16-1,
p. 40.)
7

It is unclear – but ultimately immaterial – whether Plaintiff
contends that the discriminatory/retaliatory treatment began after
he advised Supervisor Oaks of his discomfort with her statement,
or instead after Plaintiff subsequently complained of the incident
to Supervisor Griffith – a conversation Supervisor Griffith denies
occurred. (Doc. #15, p. 6 n.7.)
- 5 -

with other “minorities” at a “different hospital” (the North Naples
campus); and passed over multiple times for a promotion to a fulltime position.

(Id. ¶¶ 17, 18.)

Plaintiff lodged a complaint

against Supervisor Griffith with NCH’s Human Resource Director in
June 2012 (id. ¶ 19), which Plaintiff alleges caused further
retaliation – namely, Plaintiff was issued unwarranted “coaching
forms” and parking tickets, and his coworkers refused to “back him
up” in emergency situations involving disruptive or dangerous
patients.

(Id. ¶¶ 19, 20. 8)

Plaintiff contends that his concerns

about this treatment were ignored by his supervisors and NCH’s
Human Resources department.
On

April

Questionnaire
supplement

18,

2013,

(Doc.

(the

(Id.)

Plaintiff

#16-3)

to

Supplement)

filled

which

he

detailing

discrimination and retaliation.

out

an

attached
his

EEOC
a

Intake

five-page

allegations

of

His official EEOC Charge of

Discrimination form (the EEOC Charge) (Doc. #2-1) was filed on
April 30, 2013. 9
Plaintiff

alleges

that

he

suffered

treatment after filing the EEOC Charge.

further

retaliatory

Specifically, he contends

that he was unfairly issued another coaching form, as well as

8

The Complaint contains two Paragraph 20s.

9

Both are cited here.

It is unclear from the record whether the Intake Questionnaire
and Supplement were attached to the Charge of Discrimination. The
Court presumes they were, for purposes of resolving this Motion.
- 6 -

corrective action forms, and that NCH failed to promote him to a
supervisor position for which he was qualified.

(Id. ¶ 21.)

The EEOC issued its official Dismissal and Notice of Rights
form (Doc. #2-1, p. 7) on September 22, 2015, informing Plaintiff
that “the EEOC is unable to conclude that the information obtained
establishes violations of the statutes.”

This suit followed.

III.
Defendant now moves for summary judgment.

Summary judgment

of Plaintiff’s case is merited, Defendant argues, because: several
of

Plaintiff’s

allegations

of

discrimination/retaliation

are

barred i) under Title VII’s statute of limitations or ii) for
failure to exhaust administrative remedies; and iii) the remaining
allegations

do

not

amount

to

actionable

“adverse

employment

actions,” as required to state a claim under Title VII for both
retaliation and discrimination.

The Court agrees that, based on

the record, summary judgment in Defendant’s favor is warranted.
A.

Time-Barred Allegations of Discrimination and Retaliation
Defendant’s first argument in support of summary judgment is

that several of Plaintiff’s allegations of discrimination and
retaliation fall outside the limited window of time for redress
that Title VII affords.

“[I]n a deferral state such as Florida, .

. . . [o]nly those claims arising within 300 days prior to the
filing

of

the

EEOC’s

discrimination

charge

are

actionable.”

E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th
Cir. 2002) (citing 42 U.S.C. § 2000e–5(e)(1)).

- 7 -

Defendant argues

that,

accordingly,

any

discriminatory

acts

alleged

to

have

occurred more than 300 days before April 30, 2013 – the date the
EEOC Charge was filed - fall outside the scope of this action and
thus cannot serve as a basis for Plaintiff’s claims.
Plaintiff’s Response in Opposition to Summary Judgment does
not address Defendant’s argument or raise any claim for extending
the

limitations

period.

Accordingly,

the

Court

agrees

that

discriminatory acts alleged to have occurred prior to July 4, 2012
(300 days before April 30, 2013) are time-barred.

Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) (“A discrete
retaliatory or discriminatory act ‘occurred’ on the day that it
‘happened.’ A party, therefore, must file a charge within either
180 or 300 days of the date of the act or lose the ability to
recover for it.”).

Consequently, the following incidents – even

if otherwise actionable under Title VII – cannot form the basis
for Plaintiff’s claims: i) Plaintiff’s “removal” from the April
2012 work schedule and subsequent transfer to the North Naples
campus; ii) NCH’s decision not to promote Plaintiff to a full-time
position in May 2012; and iii) the June 21, 2012 coaching form
(Doc. #16-5). 10

Morgan, 536 U.S. at 114.

10

Plaintiff’s EEOC Intake Questionnaire is dated April 18, 2013.
Even if that date, and not April 30, 2013 (the date the Charge was
filed), is the appropriate one from which to count back 300 days,
that still means that any event occurring before June 22, 2012 is
time barred. Each of these events allegedly did.
- 8 -

B.

Failure to Exhaust Administrative Remedies
Defendant also moves for summary judgment as to Plaintiff’s

claim that NCH discriminated and retaliated against Plaintiff by
not promoting him to a supervisory position in the spring of 2014.
Defendant primarily argues that the evidence does not show that
Plaintiff exhausted his administrative remedies for that event. 11
Plaintiff’s Response opposing summary judgment does not dispute
Defendant’s argument or otherwise address exhaustion of remedies. 12
It is well established that a plaintiff “must exhaust certain
administrative

remedies”

violations of Title VII.

before

filing

a

lawsuit

alleging

Joe’s Stone Crabs, 296 F.3d at 1271.

This includes “timely filing a charge of discrimination” setting
forth the allegations of discrimination and/or retaliation.

Id.

(citing 42 U.S.C. § 2000e–5(b); Wilkerson v. Grinnell Corp., 270
F.3d 1314, 1317 (11th Cir. 2001)).

Important here, “‘allegations

of new acts of discrimination are inappropriate’ for a post-charge
judicial complaint,” unless the charge was subsequently amended or
a new one was filed, Duble v. FedEx Ground Package Sys., Inc., 572

11

NCH also contends that Plaintiff cannot state a claim based on
a failure to promote because no one was “promoted” to fill the
position for which Plaintiff submitted an application; rather,
Supervisor Oaks “absorbed” those responsibilities.
At his
deposition, however, Plaintiff testified that, immediately after
he transferred to the off-site NCH facility, his former coworker,
a Caucasian man, was promoted to that position, and Supervisor
Oaks “went back downtown.” (Doc. #16-1, pp. 172-73.)
12

At the parties’ final pretrial conference, Plaintiff’s attorney
stated that she believed all necessary administrative remedies had
been exhausted.
- 9 -

F. App’x 889, 892 (11th Cir. 2014) (per curiam) (quoting Gregory
v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279-80 (11th Cir.
2004)), or the EEOC otherwise reviewed the new claims. 13

See Basel

v. Sec’y of Def., 507 F. App’x 873, 876 (11th Cir. 2013) (“Discrete
acts of discrimination that occur after an administrative filing
must first be administratively reviewed before a plaintiff may
obtain judicial review of those same acts.”).
There is no reliable evidence before the Court indicating
that Plaintiff ever amended his April 30, 2013 EEOC charge to
include NCH’s failure to promote him to a security supervisor
position, or that the EEOC otherwise “reviewed” that claim. 14

The

Court cannot, therefore, conclude that Plaintiff has exhausted his
administrative remedies.

As such, Plaintiff cannot base his Title

VII

to

claims

on

failures

promote

occurring

in

2014.

See

Haugabrook v. Cason, 518 F. App’x 803, 809 (11th Cir. 2013) (per
curiam) (affirming summary judgment where the plaintiff failed to

13

The Eleventh Circuit has recognized a limited exception to the
independent exhaustion rule for a “retaliation claim [that] ‘grows
out of an administrative charge that is properly before the
court.’” Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 762 (11th
Cir. 1995) (emphasis added) (quoting Gupta v. E. Tex. State Univ.,
654 F.2d 411, 414 (5th Cir. 1981)). However, Plaintiff has not
argued that the “Gupta exception” applies here.
14

At his deposition, Plaintiff claimed he was “sure” he filed an
addendum to his EEOC charge regarding the failure to promote him
to a supervisor position or at least called the EEOC “in reference
to” that charge.
(Doc. #16-1, pp. 171-72.)
However, no such
addendum has been presented to the Court, and there is no
indication on the face of either the EEOC Charge or the EEOC’s
Dismissal and Notice of Rights form that the EEOC investigated any
post-charge conduct.
- 10 -

exhaust her administrative remedies as to a post-charge allegation
of a failure to promote). 15
C.

Other “Discriminatory” and “Retaliatory” Treatment
Having found that any alleged conduct occurring prior to July

4, 2012 (or June 22, 2012) and the March 2014 failure to promote
cannot support Plaintiff’s Title VII claims, the Court is left
with the following allegations of discrimination and retaliation:
Plaintiff’s

November

24,

2012

parking

ticket 16 (Doc.

#16-12)

(discrimination and retaliation); the January 9, 2013 coaching
form

(Doc.

#16-8)

Plaintiff

was

issued

(discrimination

and

retaliation); Plaintiff’s allegation that his coworkers routinely
refused to “back him up” in emergency situations (discrimination

15

Defendant’s Motion for Summary Judgment does not address
Plaintiff’s claim that NCH retaliated against him by issuing him
disciplinary “corrective action” forms.
(Doc. #2, ¶ 21.)
Two
corrective action forms have been made available to the Court.
The first (Doc. #16-9), dated July 10, 2013, issues Plaintiff a
“1-point reminder” for a “direct act of insubordination.”
The
second form (Doc. #16-13), dated August 18, 2015, is a “Step 1”
correction for Plaintiff’s admitted “use of profanity toward [his]
direct supervisor.”
Even assuming that the issuance of these
post-charge forms was race-motivated, and that Plaintiff did not
need to independently exhaust his administrative remedies, the
mere issuance of the forms does not amount to an “adverse
employment action,” as required to state a claim under Title VII.
See discussion infra pp. 12-16.
16

Plaintiff’s grievance is not so much that the ticket was issued
and placed in his file, but rather, that the parking ticket he
subsequently issued to the same (Caucasian) coworker who had
ticketed him was not similarly recorded in the coworker’s file.
Defendant’s explanation is that the coworker’s wife, a NCH
supervisor, parked the vehicle there with permission to do so.
- 11 -

and retaliation) 17 ; and the claim that NCH failed to address
Plaintiff’s concerns about disparate treatment and retaliation
(discrimination). 18

None of these incidents is sufficient to state

a claim under Title VII for either discrimination or retaliation,
even if motivated by discriminatory reasons.
Not all “race-motivated conduct” supports a Title VII action.
Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1246 (11th Cir.
2001).

Rather, “Title VII makes it unlawful for an employer to

“discriminate

against

any

individual

with

respect

to

his

compensation, terms, conditions, or privileges of employment,” 42
U.S.C. § 2000e-2 (emphasis added), or to discriminate against an
employee

because

the

employee

has

opposed

a

discriminatory

employment practice, i.e., to retaliate against an employee.
at § 2000e-3(a).

Id.

Making out a prima facie case of discrimination

requires a plaintiff to show that “(1) []he belongs to a protected
class; (2) []he was qualified to do the job; (3) []he was subjected
to adverse employment action; and (4) h[is] employer treated
similarly situated employees outside h[is] class more favorably.”
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citing

17

It is unclear from the filings whether Plaintiff believes the
coworkers’ conduct is itself an act of discrimination/retaliation
for which NCH may be held liable, or instead that liability stems
from NCH’s failure to correct the behavior.
18

The Complaint also alleges
on January 29, 2013 (Doc. #2,
what
being
placed
“on
discriminatory/retaliatory,
documentary support for this

that Plaintiff was placed “on detail”
¶ 20), but Plaintiff does not explain
detail”
means
or
why
it
is
nor has the Court located any
allegation in the record.
- 12 -

Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th
Cir. 2003) (per curiam)).

“A prima facie case of retaliation

under Title VII requires the plaintiff to show that: (1) []he
engaged in an activity protected under Title VII; (2) []he suffered
an adverse employment action; and (3) there was a causal connection
between the protected activity and the adverse employment action.”
Crawford, 529 F.3d at 970 (citing Pennington v. City of Huntsville,
261 F.3d 1262, 1266 (11th Cir. 2001)).

Thus, regardless of whether

the

retaliation,

claim

plaintiff

is
must

for

discrimination

show

that

the

or

conduct

alleged

a

Title

amounted

to

VII
an

“adverse employment action.”
“[N]ot all conduct by an employer negatively affecting an
employee constitutes adverse employment action.”
at 1238.

Davis, 245 F.3d

A plaintiff claiming discrimination must establish that

the discriminatory conduct either caused an “ultimate employment
decision” such as a “termination, failure to hire, or demotion,”
Crawford,

529

F.2d

at

970

(citation

omitted),

or

caused

the

employee to suffer “a serious and material change in the terms,
conditions, or privileges of employment.”
omitted).

Id. at 970-71 (citation

A plaintiff alleging retaliation bears a lighter burden

but still must “show that a reasonable employee would have found
the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making
or supporting a charge of discrimination.”

Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation omitted);

- 13 -

see

also

Crawford,

529

F.3d

at

973

(“Under

the

holding

of

Burlington, the type of employer conduct considered actionable has
been broadened from that which adversely affects the plaintiff’s
conditions of employment or employment status to that which has a
materially
whether

adverse

it

material

is

effect

employment

adversity

on
or

helps

“significant” ones.

the

plaintiff,

irrespective

workplace-related.”).
separate

“trivial

Burlington, 548 U.S. at 68.

of

Requiring

harms”

from

And considering

the “reactions of a reasonable employee” allows for “[a]n objective
standard [that] is judicially administrable.”

Id.

The Court concludes that “no reasonable jury could view the
relatively minor incidents suffered by [Plaintiff] as the kind of
adverse employment action that Title VII was intended to redress.”
Davis,

245

constitutes

F.3d
had

at
a

1245–46.

material

None

adverse

19

of

the

effect

on

conduct

alleged

Plaintiff 19 or

Plaintiff testified at his deposition that he suffered a “minor
heart attack” in 2013 (Doc. #116-1, p. 117), and the parties’ Joint
Pretrial Statement states that Plaintiff seeks “compensat[ion] for
damages as a result of Plaintiff having a minor heartache as a
result of the work-related stress.” (Doc. #20, p. 13.) According
to his medical records, Plaintiff did visit his physician on July
2, 2013 and complained of two recent instances of chest pain he
had suffered while on the job. (Doc. #21-2, p. 26 (“[Plaintiff]
has been having some stress on the job !!”).) The report does not
diagnose a heart attack, but rather, states that “Patient has
angina. One has to rule out underlying coronary artery disease
given his risk factors and symptoms.”
(Id. p. 27.)
Recurring
chest pain may very well satisfy Burlington’s materiality prong.
But even assuming Plaintiff could prove that his “heartache” was
caused by the conduct he alleges violates Title VII (something he
did not raise in his Complaint or Response in Opposition to Summary
Judgment), he cannot satisfy Burlington’s objectivity prong.
- 14 -

constitutes an “ultimate employment decision.”

The January 9,

2013 coaching form merely documented that Plaintiff had failed to
adequately communicate his location to his Lead Officer upon
completing his duties.

According to NCH’s Handbook, disciplinary

“[p]oints are not associated with a coaching” (Doc. #16-5, p. 23),
and Plaintiff admits that he was not issued any corrective action
points and experienced no changes to the terms or conditions of
his employment as a direct result of receiving the form. 20
#16-1, pp. 73, 99.)

(Doc.

It may be, as Plaintiff contends, that the

critique conveyed in the coaching form was undeserved, and perhaps
even racially motivated.

Nevertheless, “[e]mployer criticism,

like employer praise, is an ordinary and appropriate feature of
the workplace” and typically not actionable under Title VII.

20

In his EEOC Charge, Plaintiff contends that the coaching form
was issued “to build a paper trail so that [NCH could] terminate
[his] employment.”
(Doc. #2-1, p. 1.)
The coaching form does
state that it will remain in Plaintiff’s personnel file, and NCH
clearly does take “performance concerns” into consideration when
determining whether to promote an employee. (Doc. #15, p. 21; see
also Doc. #16-16, ¶ 15.) It is thus possible that the coaching
form, though “non-disciplinary,” could have played a minor role in
NCH’s “failure to promote” Plaintiff to a supervisory position.
But, as discussed, that failure to promote is not properly before
the Court.
Even if it were, “[a] negative evaluation that
otherwise would not be actionable will rarely, if ever, become
actionable merely because the employee comes forward with evidence
that his future prospects have been or will be hindered as a
result.” Davis, 245 F.3d at 1243; see also Butler v. Ala. Dep’t
of Transp., 536 F.3d 1209, 1216 (11th Cir. 2008) (“A Title
VII discrimination claim ’rarely may be predicated merely on
employer’s allegedly unfounded criticism of an employee’s job
performance, where that criticism has no tangible impact on the
terms, conditions, or privileges of employment.’” (emphasis added)
(quoting Davis, 245 F.3d at 1242)).
- 15 -

Davis, 245 F.3d at 1242 (“Expanding the scope of Title VII to
permit discrimination lawsuits predicated only on unwelcome dayto-day critiques and assertedly unjustified negative evaluations
would threaten the flow of communication between employees and
supervisors and limit an employer’s ability to maintain and improve
job performance.”).
As for the non-monetary, non-disciplinary parking ticket and
the alleged refusal of Plaintiff’s coworkers to “back him up,” the
Court again fails to see how either of these materially affected
Plaintiff in an objectively-adverse manner.

To the contrary,

these are examples of “those petty slights or minor annoyances
that often take place at work and that all employees experience”
and for which Title VII does not purport to provide redress. 21
Burlington, 548 U.S. at 68; see also Gillis v. Ga. Dep’t of Corr.,
400 F.3d 883, 888 (11th Cir. 2005) (“Title VII is ‘neither a
‘general

civility

code’

nor

a

statute

making

actionable

the

‘ordinary tribulations of the workplace.’” (quotation omitted)).
Because Plaintiff has failed to present sufficient evidence
for a reasonable jury to find that he suffered any “adverse
employment action” between July 4, 2012 and April 30, 2013, and
because an “adverse employment action is an indispensable element

21

Because there are no actionable allegations of discrimination
or retaliation before the Court, any alleged failure by NCH to
address Plaintiff’s concerns cannot support a Title VII claim.
- 16 -

of a Title VII plaintiff’s case,” Davis, 245 F.3d at 124, the Court
must grant summary judgment in Defendant’s favor.
Accordingly, it is hereby
ORDERED:
1.

Defendant’s Motion for Summary Judgment (Doc. #15) is

GRANTED.
2.

Plaintiff’s February 21, 2017 oral motion to amend the

Complaint to include allegations regarding Plaintiff’s termination
is DENIED.
3.
Response

Defendant’s
in

Motion

Opposition

to

to

Strike

Summary

(Doc.

Judgment

#19)
(Doc.

Plaintiff’s
#18)

and

Defendant’s three Motions in Limine (Docs. ## 21-23) are DENIED AS
MOOT.
4.
Defendant

The Clerk is directed to enter judgment in favor of
Naples

Community

Hospital,

Inc.,

to

terminate

all

deadlines, and to close the case.
DONE and ORDERED at Fort Myers, Florida, this 13th day of
March, 2017.

Copies:
Counsel of Record

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