Schoppman v. University of South Florida Board of Trustees

Filing 29

ORDER granting 16 Defendant's Motion for Summary Judgment. The CLERK is directed to enter final judgment in favor of Defendant University of South Florida Board of Trustees and against Plaintiff John Schoppman. The CLERK is directed to close this case. Signed by Judge James S. Moody, Jr on 5/23/2012. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOHN SCHOPPMAN,
Plaintiff,
v.

Case No. 8:11-cv-216-T-30TGW

UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES,
Defendant.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendant University of South Florida
Board of Trustees’ Motion for Summary Judgment (Dkt. 16) and Plaintiff John Schoppman’s
Response in opposition (Dkt. 28). The Court, having considered the motion, response, record
evidence, and being otherwise advised of the premises, concludes that the motion should be
granted and judgment entered, as a matter of law, in favor of Defendant.
INTRODUCTION
In the instant action, Plaintiff, a former employee of the University of South Florida
(“USF”), alleges that he was retaliated against under Title VII of the Civil Rights Act of
1964, as amended (“Title VII”) (Count I) and the Florida Civil Rights Act (“FCRA”) (Count
II). Specifically, Plaintiff alleges that Dr. Gretchen Koehler subjected him to retaliatory
conduct and eventually terminated him in April 2008, after Plaintiff participated in two
investigations of alleged discrimination and retaliation claimed by another USF employee.

Defendant moves for summary judgment on Plaintiff’s retaliation claims. The Court
concludes, as discussed below, that there is no genuine dispute as to any material fact with
respect to a prima facie case of retaliation because Plaintiff cannot show that there was a
causal relation between his non-reappointment/termination and his protected activities. Also,
even if Plaintiff could establish a prima facie case of retaliation, Plaintiff cannot show that
Defendant’s legitimate non-retaliatory rationale for Plaintiff’s non-reappointment was
pretextual. Accordingly, Defendant is entitled to judgment as a matter of law.
BACKGROUND
Plaintiff is a former employee of the University of South Florida (“USF”).1 Plaintiff
held various jobs at USF, starting in October 1987.
In July 2005, Plaintiff was reassigned to the College of Medicine (“COM”), Office
of Admissions. At that time, Robert Larkin was the Director of Admissions and Plaintiff’s
supervisor.
In April 2007, as part of a University-wide reclassification project, Plaintiff was
reclassified as an Admissions Recruiter/Advisor. As an Admissions Recruiter/Advisor,
Plaintiff continued performing the same job duties of maintaining the website for medical
school applicants, scanning documents to be posted on the website, and scheduling applicant
interviews. Plaintiff also advised applicants on the status of their files, i.e., what they were

1

Defendant is the Board of Trustees of the University of South Florida, a member institution of the
State University System of Florida, and the legal entity with the authority to sue and be sued in the name of
the University of South Florida.
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missing, and what they needed to complete. Plaintiff’s job duties did not extend to advising
current medical students.
In March 2007, Dr. Paul Wallach, Vice Dean of Educational Affairs, began
implementing a re-organization of several departments in the COM. As part of this
reorganization, Dr. Gretchen Koehler was appointed as Assistant Dean of Educational
Affairs, having administrative oversight over the Office of Admissions and the Office of
Student Diversity and Enrichment. As Assistant Dean, Koehler became the direct supervisor
of Larkin. Koehler reported to Wallach until he resigned in April 2007, at which time she
began to report to Dr. Bryan Bognar, who became the Interim Vice Dean of Educational
Affairs.
Shortly after Koehler became Assistant Dean of Educational Affairs, Plaintiff met
with Koehler to discuss an incident between Bryant Fayson, the Assistant Director of
Admissions, and Larkin. Plaintiff told Koehler that Larkin had made an off color joke and
inappropriate gesture towards Fayson in January 2007. This was the first time Koehler had
heard about the incident. Koehler informed Nancy Wisgerhof, who was the Human
Resources Director of USF Health at that time. Wisgerhof then spoke with Fayson, Larkin,
and Dr. Steven Specter, Larkin’s supervisor at the time of the incident, and reported what she
learned to Bill Havens, the Compliance Coordinator at USF’s Office of Diversity and Equal
Opportunity (“DEO”).
On March 30, 2007, Plaintiff was interviewed as part of the DEO’s investigation of
Fayson’s complaint against Larkin. During the interview, Plaintiff told the investigator that
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he had witnessed Larkin’s joke and that it was not the only incident of distasteful humor by
Larkin. As evidenced by the content of the DEO’s Final Investigative Report issued on May
31, 2007, Plaintiff did not say anything negative in his interview about Koehler, who had
recently begun her oversight of the Office of Admissions earlier that month.
After Koehler took over as Assistant Dean of Educational Affairs, Bognar requested
that she review the operations of the Office of Admissions and make the necessary changes
for its improvement. In July 2007, Larkin resigned and Koehler became the Interim Director
of Admissions. In that capacity, Koehler continued her review and restructuring of the
Admissions Office. Koehler instituted some changes, such as using a new “in and out” board
to be used to keep track of employees and their availability on a day to day basis. She also
instituted a policy where employees who were going to be late or absent on a particular day
had to contact their supervisor by phone or email and give a reason for the delay/absence and
their arrival time.
According to Koehler, after taking over the role of Interim Director of Admissions,
she started to develop concerns about Plaintiff’s role in the office. Koehler was informed by
Bognar that Plaintiff needed to refrain from advising students because Plaintiff had a history
of providing improper advice to get around established protocol. According to Koehler, she
also observed that Plaintiff was producing insufficient documentation of the advising
sessions he was holding with prospective students.

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The record reflects emails dated August 16, 2007, and October 31, 2007, discussing
Plaintiff’s performance of his job duties and Koehler’s concern that he did not resolve issues
the way she thought he should.
On November 1, 2007, Koehler received information from the business office that
there were problems with Plaintiff not following the correct process for getting food invoices
paid in a timely manner.
Around this same time, on October 29, 2007, after the Assistant Director of
Admissions position was eliminated as part of Koehler’s overall restructuring of the
Admissions Office, Bognar and Koehler issued a letter of non-reappointment to Fayson.2
On November 16, 2007, Fayson filed a complaint against Koehler with the DEO,
claiming that his non-reappointment was retaliatory and discriminatory. According to
Koehler, she was not informed of who would be interviewed during the investigation of
Fayson’s complaint.
In January 2008, Koehler hired Leila Amiri as the Associate Director of Admissions
in the Office of Admissions for USF’s COM. Amiri started working on January 11, 2008,
at which point she became Plaintiff’s direct supervisor. Koehler was Amiri’s direct
supervisor.
The record reflects that on January 24, 2008, Koehler emailed Amiri her assessment
of Plaintiff’s performance to date. In the email, Koehler told Amiri that Plaintiff had “much
room for improvement” and that she had not yet conducted a special evaluation of Plaintiff.
2

A notice of non-reappointment may be issued at any time and need not be for cause.
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(Koehler Aff. Tab 17). In the email, Koehler suggested that Amiri supervise Plaintiff for a
month or so and then they could meet with Plaintiff to do a special evaluation.
According to Amiri, Koehler subsequently told her that Amiri should hold off on
Plaintiff’s evaluation until the completion of the Fayson complaint against Koehler.
According to Amiri, one of the first things Koehler discussed with her after she started was
that Koehler intended to terminate Plaintiff because he was not performing at the level that
she expected and did not fit with the office.
The record reflects numerous emails between Amiri, Koehler, and Plaintiff during the
period of time from late January 2008 to late March 2008 regarding issues with Plaintiff’s
performance. For example, on February 4, 2008, Koehler received an email from Specter,
regarding a complaint he received from Heather Greenberg, an applicant to the medical
school program. Greenberg had complained about Plaintiff being unprofessional in their
discussion about the merits of her application. Specter advised Koehler: “I strongly
encourage you to counsel Mr. Schoppman (Plaintiff) about his behavior or remove him from
opportunities where he may again speak inappropriately to applicants or enrolled students.”
(Koehler Aff. Tab 19).
Amiri subsequently met with Wisgerhof to seek her guidance on how to address
Plaintiff’s performance issues.
On February 15, 2008, Specter notified Koehler that Plaintiff had inappropriately
advised a current medical school student on how to circumvent the curriculum and get

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around signing up for certain rotations. Koehler informed Amiri, who then replied, “Wow!
I hate that he does that.” (Koehler Aff. Tab 20).
On February 21, 2008, Plaintiff met with Koehler and Amiri regarding Specter’s
complaints. Plaintiff denied that he did anything inappropriate and stated that he felt his civil
rights were being violated when he was not given the opportunity to address or respond to
the allegations.
Subsequently, Amiri continued to send Plaintiff emails regarding his performance
issues.

According to Amiri, Koehler made her send Plaintiff emails outlining and

documenting his performance issues and also required Amiri to always copy Koehler on the
emails. According to Amiri, there was nothing untrue contained in the emails, but she
thought that Koehler was being unfair in her treatment of Plaintiff. According to Amiri, the
work environment was stressful during this time, which unfairly impacted Plaintiff’s
performance. According to Amiri, Koehler did not give Plaintiff a chance to improve his
performance and Amiri felt that Koehler did not like Plaintiff. According to Amiri, Plaintiff
did have performance issues and her emails to Plaintiff reflect that Plaintiff was not making
a genuine effort to rectify concerns with his performance.
On March 19, 2008, Specter sent an email to the employees in the Admissions Office,
including Plaintiff, requesting that they direct all information regarding residency selection
and other career counseling to the Student Affairs Office. Specter said, “Even if advice is
solicited from you I request that you refrain from participating in such advising.” (Koehler
Aff. Tab 25).
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On March 22, 2008, Amiri sent Koehler an email stating that Plaintiff was
undermining her and that she needed Koehler’s help to “reel him in.” (Koehler Aff. Tab 28).
Subsequently, Koehler received an email from Carolyn Nicolosi dated March 24,
2008, discussing that Plaintiff had inappropriately and poorly advised several current medical
school students, including a fourth year student about his Rank Order List for residency
selection. The email stated that the student took Plaintiff’s advice and that the outcome could
have been “ugly” if the student had not matched to his first choice program. (Koehler Aff.
Tab 26). According to Plaintiff, he was not improperly advising students as Defendant
alleges.
On March 25, 2008, Plaintiff was interviewed for the Fayson-Koehler DEO
investigation.
Around the end of March 2008, Koehler concluded that Plaintiff did not have the skill
set needed to effectively perform the job of the Admissions Recruiter/Advisor. According
to Koehler, a different approach was needed and Plaintiff did not fit into the direction she
was taking the Office of Admissions. With Bognar’s approval, Koehler consulted with
Wisgerhof about her options for removing Plaintiff from his position. Wisgerhof and
Koehler agreed that non-reappointment was the most appropriate action to take because it
would not negatively affect Plaintiff’s ability to obtain other employment with USF.
Wisgerhof then sought and obtained approval for Plaintiff’s non-reappointment from her
supervisor, Michael Stephens.

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On or about March 27, 2008, Koehler began the process of preparing a Request for
Non-Reappointment, wherein she recommended that Plaintiff not be reappointed to his
position in the Office of Admissions. Koehler, Bognar, and Wisgerhof testified that they
would have likely discussed Plaintiff’s non-reappointment more than two days, and probably
weeks, before Koehler drafted the Request for Non-Reappointment dated March 27, 2008,
however, they could not testify as to the specific date except that it must have predated
March 27, 2008.
According to Amiri, she was not involved in the actual decision to non-reappoint
Plaintiff. However, Amiri disagreed with the decision and thought Plaintiff deserved more
of a chance to improve his performance. According to Amiri, the only reason Koehler ever
gave Amiri about Plaintiff’s non-reappointment related to Plaintiff’s performance.
The record reflects that on April 2, 2008, Koehler advised Wisgerhof that Bognar
would be out of the office from April 7 to April 11, 2008, and she would be out of the office
from April 9 to April 13, 2008, and suggested that the non-reappointment letter could be
delivered to Plaintiff by Koehler and Bognar on April 16, 2008. The letter was signed by
Joann Strobbe, the Chief Financial Officer and Associate Vice President of Finance,
Administration and Technology, and dated April 8, 2008. Koehler then emailed Wisgerhof
and again inquired if she and Bognar could deliver the non-reappointment letter to Plaintiff
on April 16, 2008.
That same day, on April 8, 2008, Koehler received a copy of the Determination Letter
and Final Investigative Report for DEO Complaint 2007-062, which Fayson had filed against
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Koehler. The DEO issued a “No Cause” determination for his allegations against her. In the
report, Plaintiff told the investigator that he had “never witnessed anything done by Koehler
treating Fayson differently due to his race.” (Koehler Aff. Tab 38). Plaintiff did say,
however, that he “feels Koehler does have a problem with men.” Id.
Consistent with Koehler’s request that she and Bognar provide Plaintiff with the nonreappointment letter on April 16, 2008, Strobbe signed an identical non-reappointment letter
dated April 16, 2008. The letter stated that Plaintiff’s employment in the position of
Admissions Recruiter/Advisor would end at close of business on October 16, 2008, and that
the decision was based “on the determination that a different approach is needed for the
College of Medicine Admissions Office.” (Koehler Aff. Tab 38).
Subsequently, Plaintiff was relocated from the Admissions Office and placed under
the supervision of Bognar until his last day of employment on October 16, 2008.
SUMMARY JUDGMENT STANDARD
Motions for summary judgment should be granted only when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
show there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The existence of some factual disputes between the litigants will not defeat an
otherwise properly supported summary judgment motion; “the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (emphasis in original). The substantive law applicable to the claimed causes of action
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will identify which facts are material. Id. Throughout this analysis, the court must examine
the evidence in the light most favorable to the non-movant and draw all justifiable inferences
in its favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the
absence of a genuine issue of material fact, whether or not accompanied by affidavits, the
nonmoving party must go beyond the pleadings through the use of affidavits, depositions,
answers to interrogatories and admissions on file, and designate specific facts showing that
there is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be
significantly probative to support the claims. Anderson, 477 U.S. at 248-49 (1986).
This Court may not decide a genuine factual dispute at the summary judgment stage.
Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f factual
issues are present, the Court must deny the motion and proceed to trial.” Warrior Tombigbee
Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute about a
material fact is genuine and summary judgment is inappropriate if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248;
Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there must exist a
conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse Elec.
Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).

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DISCUSSION
I.

Legal Discussion - Retaliation Claim
“A prima facie case of retaliation under Title VII requires the plaintiff to show that:

(1) she engaged in an activity protected under Title VII; (2) she suffered an adverse
employment action; and (3) there was a causal connection between the protected activity and
the adverse employment action.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008);
Butler v. Alabama Dep’t of Transp., 536 F.3d 1209, 1212-13 (11th Cir. 2008) (“To establish
a claim of retaliation under Title VII or section 1981, a plaintiff must prove that he engaged
in statutorily protected activity, he suffered a materially adverse action, and there was some
causal relation between the two events.”).3 Plaintiff’s burden of establishing a prima facie
case is not heavy. See Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001)
(“the prima facie requirement is not an onerous one”).
Importantly, the McDonnell Douglas burden-shifting framework applies to Title VII
retaliation claims relying on circumstantial evidence. Brown v. Alabama Dept. Of Transp.,
597 F.3d 1160, 1181 (11th Cir. 2010). Once a plaintiff has made a prima facie case of
retaliation, “the burden of production shifts to the defendant to rebut the presumption by
articulating a legitimate, non-discriminatory reason for the adverse employment action.” Id.
If the defendant is able to successfully rebut the presumption of retaliation, then the burden

3

The same standard also applies to retaliation claims under the Florida Civil Rights Act. Blizzard v.
Appliance Direct, Inc., 16 So.3d 922, 926 (Fla. 5th DCA 2009).
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shifts back to the plaintiff to show that the defendant’s purported reasons are a mere pretext
for retaliation. Id. at 1181-82.
The record is bereft of any direct evidence of retaliation. Under Eleventh Circuit
precedent, “only the most blatant remarks, whose intent could mean nothing other than to
retaliate on the basis of an impermissible factor constitute direct evidence of retaliation.”
Masso v. Miami-Dade County, 465 F. Supp. 2d 1260, 1264 (S.D. Fla. 2006) (quoting Ward
v. Univ. of Cent. Florida Bd. of Trustees, 2006 WL 1119191, at *4 (M.D. Fla. April 26,
2006)).
Here, although Amiri testified that Koehler intended to terminate Plaintiff as early as
January 2008, and stated that Koehler appeared to be picking on Plaintiff as set forth above,
Amiri admitted that she had no personal knowledge as to whether Koehler’s actions were
related to any protective activity on the part of Plaintiff. Indeed, Amiri testified that she
could point to no evidence that Koehler was retaliating against Plaintiff because he
participated in Fayson’s DEO complaints. And Amiri admitted that Koehler never told her
that she wanted to hold off on evaluating Plaintiff until she saw what he said to the DEO
investigator.4 Finally, Amiri admitted that she was not involved in the actual decision to nonreappoint Plaintiff.
Therefore, Plaintiff must rely solely upon circumstantial evidence to prove his
retaliation claim against Defendant.
4

Notably, on this issue and on many of the arguments asserted by Plaintiff in his response in
opposition, Plaintiff misstates the record or selects general statements to prove a point that is later discussed
in the record, and often, corrected or restated in more detail.
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II.

Plaintiff Cannot Establish a Prima Facie Case of Retaliation As a Matter of Law
A.

The March 30, 2007 Interview

Defendant assumes, for the sake of argument, that Plaintiff’s March 30, 2007
interview in connection with Fayson’s first DEO complaint against Larkin was protective
activity. And Defendant assumes that the non-reappointment of Plaintiff was an adverse
action. Defendant argues, however, that the record is bereft of any genuine issues of material
fact with respect to any causal relationship between the March 30, 2007 interview and the
non-reappointment. The Court agrees.
It is undisputed that Koehler, the person who made the initial recommendation not to
reappoint Plaintiff to his position, was not the subject of Fayson’s complaint about Larkin.
Koehler was not accused of wrongdoing with respect to that complaint and Plaintiff’s March
30, 2007 interview as part of that investigation occurred before Koehler took over
supervision of Plaintiff in the Admissions Office, when she became Interim Director in July
2007.
Notably, Plaintiff did not say anything negative in his interview about Koehler. And
Plaintiff testified during his deposition that he is not claiming in this case that he was
retaliated against because he was a witness in the DEO investigation of Larkin’s conduct
toward Fayson.
Finally, throughout his response in opposition, Plaintiff spends a lot of time focusing
on Amiri’s testimony about Koehler’s unfair treatment of Plaintiff, such as Koehler’s
statement to Amiri made soon after she started in her position as Plaintiff’s direct supervisor
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that Koehler intended to terminate Plaintiff and Koehler’s statement, also around this time,
that she wanted to delay Plaintiff’s special evaluation. Plaintiff discusses this record
evidence, without focusing on the timing of the events, which is critical to establish the
causal aspect of a retaliation claim, that is, that there is some relation between the protective
activity and the adverse action. In other words, the adverse action must be related to the
protective activity. And Amiri admitted that she had no knowledge about the DEO’s
investigation of Larkin’s conduct toward Fayson because she did not start her position as
Plaintiff’s direct supervisor until January 11, 2008. Also, Koehler’s statements to Amiri
about Plaintiff, which occurred, at the earliest, on January 11, 2008, when Amiri started her
position, are too far in time from Plaintiff’s March 30, 2007 interview, without some other
evidence, to establish a causal relation.
Accordingly, Plaintiff cannot establish a prima facie case of retaliation based on his
March 30, 2007 interview by the DEO.
B.

The March 25, 2008 Interview

Defendant assumes, for the sake of argument, that Plaintiff’s March 25, 2008
interview in connection with Fayson’s second DEO complaint, this time against Koehler, was
protective activity. And Defendant assumes that the non-reappointment of Plaintiff was an
adverse action. Defendant argues, however, that the record is bereft of any genuine issues
of material fact with respect to any causal relationship between the March 25, 2008 interview
and the non-reappointment. The Court agrees.

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It is undisputed in the record that there is a close proximity between Plaintiff’s March
25, 2008 interview and Plaintiff’s non-reappointment, which Koehler prepared on March 27,
2008. However, “temporal proximity alone is insufficient to create a genuine issue of
material fact as to causal connection where there is unrebutted evidence that the decision
maker did not have knowledge that the employee engaged in protected conduct.” Watkins
v. Secretary Dept. of Homeland Sec., 2010 WL 4263186, at *5 (11th Cir. Oct. 27, 2010); see
also Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1235 (11th Cir. 2010).
Here, the record is undisputed that Koehler was not aware that Plaintiff was a witness
in the investigation of Fayson’s retaliation complaint until April 8, 2008, when she saw the
final report of the investigation. This was after Koehler had already decided to recommend
that Plaintiff not be reappointed. In fact, Koehler had already begun preparing the text for
the non-reappointment recommendation as early as March 27, 2008.5 Thus, it is impossible
for Plaintiff to demonstrate a causal relation between his interview as part of Fayson’s
retaliation complaint and his non-reappointment.
Plaintiff continually misstates the record on this issue. Plaintiff contends that the
record reflects that Koehler was aware of Plaintiff’s March 25, 2008 interview. Plaintiff is
incorrect. Although the record reflects that at times during the duration of the Fayson
complaint against Koehler, which lasted from roughly November 2007 until April 8, 2008,
Koehler requested information regarding the investigation of Fayson’s complaint against her,
5

As Defendant notes in its motion, the Eleventh Circuit has been clear that a causal connection
cannot be established where the decision maker has already started the process for taking adverse action prior
to gaining knowledge of the protected activity.
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there is absolutely no record evidence that Koehler was informed at any time that Plaintiff
was a witness in the investigation. Indeed, Koehler stated that she never discovered the
identities of Fayson’s witnesses in his DEO complaint until she received the Final
Investigative Report on April 8, 2008.
Further, although Koehler instituted the in/out board to keep track of her employees,
there is no evidence in the record suggesting that Plaintiff indicated on the board that he was
being interviewed by the DEO on March 25, 2008. Again, Plaintiff misstates the evidence
and assumes Koehler was aware of Plaintiff’s March 25, 2008 interview because the day
before she inquired about his whereabouts with Wisgerhof after he left the office at
approximately 3:50 and indicated on the in/out board that he was on “break” and did not
return until 5:05.
Even Plaintiff testified during his deposition that he assumed Koehler learned of the
investigation and his participation on April 8, 2008, when she received the final report. And
Plaintiff testified that he did not have any information to suggest that Koehler received
information about the investigation before the final report was issued.
The record reflects that Bill Havens of the DEO testified that Koehler did not receive
any information with respect to witnesses and that the independent investigator, Mr. Ginnetti,
would not have provided Koehler with that information. Havens also testified that Koehler
did not have access to any documents during the investigation.
Finally, Plaintiff’s heavy reliance on Amiri’s testimony does not establish a causal
relationship because her testimony relates to incidents that occurred before Plaintiff’s March
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25, 2008 protective activity. Again, it is axiomatic that Koehler could not have retaliated
against Plaintiff based on protective activity that had not yet occurred.
Accordingly, Plaintiff cannot establish a prima facie case of retaliation based on his
March 25, 2008 interview by the DEO.
III.

Plaintiff Cannot Establish that Koehler’s Legitimate Non-Retaliatory Rationale
for Recommending Plaintiff’s Non-Reappointment Was Pretextual
Even if the Court assumes, for the sake of argument, that Plaintiff can establish a

prima facie case of retaliation, the record reflects that Koehler had a legitimate and nonretaliatory basis for not re-appointing Plaintiff to his position; ultimately, Koehler concluded
during the course of the reorganization at the Office of Admissions that Plaintiff was not a
good fit for his position or the office as a whole. And Plaintiff has not established pretext.
The record reflects extensive issues with Plaintiff’s performance, which were
predominantly raised by people other than Koehler.
Wisgerhof testified that she and Koehler discussed Koehler’s goals for the office and
Plaintiff’s lack of ability to perform the kind of work she wanted, which is why they decided
to non-reappoint Plaintiff. Wisgerhof testified that this conversation took place before
Koehler drafted the March 27, 2008 non-reappointment recommendation.
Bognar testified that he and Koehler discussed Koehler’s desire to non-reappoint
Plaintiff based on Plaintiff not being a good fit in the position probably weeks before March
27, 2008 (although he could not state an exact date as to how much time prior to March 27,
2008 their conversations occurred), and Bognar supported Koehler’s decision.

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Plaintiff testified that he had “no idea” why Koehler would retaliate against him prior
to April 8, 2008, the point at which she first learned that he was a witness in Fayson’s
complaint against her.
Amiri admitted that there were issues with Plaintiff’s performance, but she did not
agree with how Koehler was addressing them and thought that Plaintiff deserved a chance
to improve. Amiri also admitted that all of her emails about Plaintiff’s performance were
truthful. And Amiri testified that, although she disagreed with Koehler’s decision, she was
not involved in the decision to non-reappoint Plaintiff.
Finally, on the issue of pretext, it is irrelevant whether Plaintiff disagreed with
Koehler’s reasons or felt that he was qualified for the position. Plaintiff’s own evaluations
and opinions about Koehler’s decision are insufficient to establish pretext. Standard v.
A.B.E.L. Services, Inc., 161 F.3d 1318, 1332-33 (11th Cir. 1998); Holifield v. Reno, 115 F.3d
1555, 1565 (11th Cir. 1997).
Accordingly, Plaintiff cannot show that Koehler’s legitimate, non-retaliatory rationale
for recommending Plaintiff’s non-reappointment was pretextual for unlawful retaliation.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendant University of South Florida Board of Trustees’ Motion for Summary

Judgment (Dkt. 16) is GRANTED.
2.

The CLERK is directed to enter final judgment in favor of Defendant

University of South Florida Board of Trustees and against Plaintiff John Schoppman.

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3.

The CLERK is directed to close this case.

DONE and ORDERED in Tampa, Florida on May 23, 2012.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2011\11-cv-216.msj16.frm

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