Lewis v. City of St. Petersburg

Filing 38

ORDER denying 18 Motion for summary judgment. Signed by Judge James D. Whittemore on 6/8/2015. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BARBARA ANN LEWIS,
Plaintiff,
vs.

Case No. 8:14-cv-2547-T-27TGW
CITY OF ST. PETERSBURG,
Defendant.
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ORDER
BEFORE THE COURT is Defendant's Dispositive Motion for Summary Judgment (Dkt.
18), to which Plaintiff has responded in opposition (Dkt. 25). Upon consideration, Defendant's
motion is denied.
Background

Plaintiff Barbara Ann Lewis worked for Defendant City of St. Petersburg as a Data Entry
Operator II in the Water Resources Department. (Dkt. 21-1 at 6). Plaintiff alleges that she was fired
on October 11, 2011, in retaliation for her complaints of race discrimination, in violation of 42
U.S.C. § 1981 and the Florida Civil Rights Act (FCRA). The City maintains that Plaintifrs job was
eliminated as part of a broader reorganization. The relevant facts follow.
On June 10, 2010, Plaintiff was called into a meeting with the Director of the Water
Resources Department, George Cassady, and the Assistant Director, Dwight Wilson. (Dkt. 21-1 at
20-21; Dkt. 20-1 at 5, 31 ). According to Plaintiff, Cassady wanted to talk to her because he did not
understand why Plaintiff was not "grinning, bubbly or smiling" when she spoke to him. (Dkt. 21-1
at 20-21 ). Plaintiff disagreed, and told Cassady that she had always perceived her interaction with
him to be polite, courteous, and respectful of his position. (Id. at 23).

Approximately two months later, in August 2010, Wilson told Plaintiffthat Cassady was still
not happy with the way that Plaintiff spoke to him. (Id. at 23, 64). Plaintiff explained to Wilson that
she said "good morning" to Cassady the same way she did to other employees. (Id. at 23-24).
Wilson advised Plaintiff that when she heard Cassady coming down the hall, she should raise her
head, smile, stand up, and say, "Hello, George." (Id. at 24). Wilson told Plaintiff to do this not just
for two weeks, but for a while. (Id.). Plaintiff, who is African-American, testified that even though
she spoke to Cassady "just like other white employees did, that he was not happy, 'cause I wasn't
grinning, bubbly and smiling." (Id. at 43; Dkt. 2 at~ 12). Plaintiff believed that she was singled out
based on her race because white employees were not subject to similar discussions. (Dkt. 21-1 at
74).
In November 2010, Cassady told Plaintiffs manager not to deliver Plaintiffs annual
performance review until he had an opportunity to provide input into the areas of customer service,
interpersonal skills, and productivity. (Dkt. 20-1 at 17). When Plaintiff was given her evaluation
in April 2011, she received lower scores than she had in the past, partly due to her interactions with
Cassady. (Dkt. 21-1 at 57-58, 60; Dkt. 18-2 at 5).
On May 17, 2011, Plaintiff filed an EEOC Charge, alleging race discrimination based on the
performance evaluation and reprimand "for not 'grinning' or being 'bubbly' when speaking to White
employees." (Dkt. 21-1at57, 59; Dkt. 18-2 at 5). The City received the Charge on May 27, 2011.
(Dkt. 18-2 at ~ 5). Cassady was aware of the EEOC Charge by at least June or July 2011. (Dkt.
20-1 at 36).
On September 14, 2011, a mediation was held regarding the EEOC charge. (Id. at 35-37;
Dkt. 21-1 at 64). On September 26, 2011, Cassady sent an email to Michael Connors, the

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Administrator of Public Works, requesting elimination of Plaintiffs position as a Data Entry
Operator II, along with three other positions. (Dkt. 19-1 at 3, 10-11, 13). Of the four positions, two
positions were held by white employees and two were held by African-American employees. (Dkt.
21-1 at 40-41; Dkt. 20-1 at 46). Cassady proposed replacing the eliminated positions with different
positions, in order to achieve greater efficiency. (Dkt. 19-1at7-8).
With respect to Plaintiffs position, Cassady explained to Connors that Plaintiffs services
had "changed considerably to the point where they were no longer necessary." (Id at 8-9). Cassady
testified that over fifty percent of Plaintiffs job involved paper filing, and that paper filing ceased
after the Department's transition to an electronic work order system. (Dkt. 20-1 at 43-44). Cassady
explained that Plaintiffs remaining data entry tasks "would have been probably taken over by some
of the other staff." (Id. at 44).
ConnorsapprovedCassady'srecommendation. (Dkt.19-1at8,11). Plaintiffwasterminated
on October 11, 2011. (Dkt. 20-1 at 7). In February 2012, the City reclassified Plaintiffs former
position of Data Entry Operator II as a "Water Reclamation Plant Operation Specialist." (Dkt. 27
at 14-15).
The City maintains that Cassady contemplated eliminating Plaintiffs position before she
filed her EEOC Charge in May 2011 - effectively negating any inference that Cassady's decision
was in retaliation for Plaintitffs protected activity. Specifically, Evelyn Rosetti, the Manager of
Special Projects, avers that she met with Cassady in March 2011 in order to identify positions that
could be reclassified in order to more efficiently serve the Water Resources Department. (Dkt. 18-1
at~

4). On March 22, 2011 a document was created identifying five positions for adjustment,

including Plaintiffs position. (Id & Exh. A).

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By contrast, Plaintiff maintains that Cassady's decision was motivated by a retaliatory
animus. Three to four days prior to Plaintiffs termination, Cassady told Debra Bynum, a Senior
Management Methods Analyst, that he would be terminating Plaintiff and three other employees
"because they were thorns in his side, and he had to save face." (Dkt. 27 at 3-6). According to
Bynum, Cassady did not explain what he meant by this statement, but he kept repeating it. (Id. at
9, 13, 24-25).
Procedural History

Plaintiff initiated this action in state court, alleging unlawful retaliation in violation of the
FCRA. (Dkt. 1-2). On August 11, 2014, the state court denied the City's motion for summary
judgment. (Dkt. 1-24). On August 22, 2014, Plaintiff filed an amended complaint, adding a parallel
retaliation claim pursuant to 42 U.S.C. § 1981. (Dkt. 2). The City then removed the case to this
court on October 8, 2014. (Dkt. 1).
In her response in opposition to the City's motion for summary judgment, Plaintiff first
argues that the state court's prior denial of summary judgment should control the disposition of the
instant motion. As Plaintiff acknowledges, however, this Court may modify non-final state court
orders, just as a state court may reconsider its own rulings at any time before final judgment. Hill
v. US. Fid. & Guar. Co., 428 F.2d 112, 114 (5th Cir. 1970); Ware v. Fleetboston Fin. Corp., 180

F. App'x 59, 64, (1 lth Cir. 2006); see also Fabre v. Bank ofAm. Bank, NA, 523 F. App'x 661, 664
(11th Cir. 2013). For that reason, and because the action includes a new claim and new evidence,
the City's motion for summary judgment and Plaintiffs response are considered on the merits.
Standard

Summary judgment is appropriate where "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine
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factual dispute exists only if a reasonable fact-finder 'could find by a preponderance of the evidence
that the [non-movant] is entitled to a verdict."' Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300
(11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is
material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc.,
121F.3d642, 646 (11th Cir. 1997).
The moving party bears the initial burden of showing the court, by reference to materials on
file, that there are no genuine disputes of material fact that should be decided at trial. Hickson Corp.

v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). If the moving party fails to demonstrate the absence of a genuine dispute,
the motion should be denied. Kernel Records, 694 F .3d at 1300 (citing Adickes v. S.H Kress & Co.,
398 U.S. 144, 160 (1970); Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th Cir. 1991)).
Once the movant adequately supports its motion, the burden shifts to the nonmoving party to show
that specific facts exist that raise a genuine issue for trial. Dietz v. Smithkline Beecham Corp., 598
F.3d 812, 815 (11th Cir. 2010). The nonmoving party must "go beyond the pleadings," and
designate specific facts showing that there is a genuine dispute. Jeffery v. Sarasota White Sox, Inc.,
64 F.3d 590, 593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).

Discussion
Section 1981 and the FCRA prohibit employers from retaliating against employees who
engage in statutorily protected activity. Fla. Stat.§ 760.10(7); Chapter 7 Trustee v. Gate Gourmet,

Inc., 683 F.3d 1249, 1257-58 (11th Cir. 2012). 1 Retaliation claims brought pursuant to the FCRA
and Section 1981 are analyzed in the same manner as Title VII claims, which are subject to the

1 As

explained in the December 9, 2014 Order on the City's Rule 12(b)(6) motion to dismiss,
Plaintiff's Section 1981 claim is construed as having been brought pursuant to 42 U.S.C. § 1983.
(Dkt. 9 at 3 n.4).
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familiar McDonnell Douglas burden-shifting framework. Bryant v. Jones, 575 F.3d 1281, 1307
(11th Cir. 2009); Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1389 (11th Cir. 1998).
A plaintiff must first establish a prima facie case of retaliation by demonstrating that: ( 1) she
engaged in statutorily protected activity; (2) she suffered a materially adverse employment action;
and (3) there was a causal connection between the protected activity and the adverse action.

Chapter 7 Trustee, 683 F .3d at 1258. Once the plaintiff establishes a primafacie case, the employer
must articulate a legitimate, non-discriminatory reason for the challenged employment action.

Wascura v. City ofS. Miami, 257 F.3d 1238, 1242 (11th Cir. 2001). If the employer discharges its
burden, the plaintiff must produce evidence that would permit a reasonable factfinder to conclude
that the employer's proffered reason is a mere pretext for unlawful discrimination. Id. at 1243.
Ultimately, the plaintiff must demonstrate that the desire to retaliate was the but-for cause of the
adverse employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2528 (2013);

Booth v. Pasco Cnty., 757 F.3d 1198, 1207 (11th Cir. 2014). 2

Both parties assume that a showing ofbut-for causation is required at the primafacie stage,
pursuant to the Supreme Court's decision in Nassar, which involved an appeal from a jury trial. See
133 S.Ct. at 2524. In the summary judgment context, unpublished decisions from the Eleventh
Circuit suggest that a showing of but-for causation is not required at the prima facie stage, but
remains the plaintiffs ultimate burden. See Smith v. City ofFort Pierce, 565 F. App'x 774, 778-79
(11th Cir. 2014) (considering but-for causation as ultimate question, assuming plaintiff had met her
primafacie case and citing Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir.2013)); Butterworth
v. Lab. Corp. ofAm. Holdings, 581 F. App'x 813, 816-17 (11th Cir. 2014); but see Baroudi v. Secy,
U.S. Dep'tofVeteransA.ffairs, No.13-14477,_F.App'x_,2015 WL 1475586,at*3 (11th Cir.
Apr. 2, 2015) (stating that causation element of the primafacie case requires but-for causation);
Jones v. Suburban Propane, Inc., 577 F. App'x 951, 954-55 (11th Cir. 2014). Published decisions
from outside the Eleventh Circuit have expressly held, or implicitly assumed, that but-for causation
is the plaintiff's ultimate burden, and does not impose a more stringent causation standard at the
primafaciestage. Fosterv. Univ. ofMd.-E. Shore,No.14-1073, _F.3d_,2015 WL2405266,
at *4-5 (4th Cir. May 21, 2015); Montellv. Diversified Clinical Servs., Inc., 757 F.3d497, 504 (6th
Cir. 2014); Zann Kwan v. Anda/ex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013); Feistv. La., Dep't.
ofJustice, Office ofthe Attorney Gen., 730 F.3d 450, 454 (5th Cir. 2013). In this action, Plaintiff
produces sufficient evidence to permit a jury to conclude that Plaintiffs protected activity was the
2

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1.

Prima/acie case
The City does not dispute that Plaintiff engaged in statutorily-protected activity or that she

suffered a materially adverse employment action. The City instead argues that Plaintiff cannot
demonstrate the requisite causal connection.
"To establish a causal connection, a plaintiff must show that the relevant decisionmaker was
aware of the protected conduct, and that the protected activity and the adverse actions were not
wholly unrelated." Kidd v. Manda Am. Corp., 731 F.3d 1196, 1211 (I Ith Cir. 2013) (internal
quotation marks omitted); Jackson v. United Parcel Serv., Inc., 593 F. App'x 871, 877 (I Ith Cir.
2014). Temporal proximity between protected activity and an adverse employment action may
support an inference of causation, although "mere temporal proximity, without more, must be very
close." Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (I Ith Cir.2007) (internal quotation
marks omitted). In the absence of other evidence, a period of three months between the protected
activity and the adverse employment action is not sufficient to establish causation. Id.; Drago v.

Jenne, 453 F.3d 1301, 1308 (I Ith Cir.2006).
Although Connors made the ultimate decision to eliminate Plaintiffs position, the City does
not dispute Cassady's status as the relevant decisionmaker. (E.g., Dkt. 18 at 7, 11); see Sims v.

MVM, Inc., 704 F.3d 1327, 1335 n.6 (I Ith Cir. 2013) (noting that, under "cat's paw" theory, a
defendant may be liable based on animus held by supervisor who is not charged with making the
ultimate employment decision). Cassady admits that he was aware of Plaintiffs EEOC case by June
or July 2011, prior to recommending her position for elimation in the September 26, 2011 email to
Connors. (Dkt. 20-1 at 36). Nonetheless, the City argues that Plaintiff is unable to demonstrate the

but-for cause of her termination, as explained below.

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requisite causal link because: ( 1) Cassady eliminated Plaintiffs job for non-discriminatory reasons;
(2) Cassady contemplated eliminating Plaintiffs job before she filed her EEOC Charge; and (3)
there was a five-month gap between the EEOC Charge and Plaintiffs termination, which does not
constitute sufficient temporal proximity.
"[I]n a retaliation case, when an employer contemplates an adverse employment action
before an employee engages in protected activity, temporal proximity between the protected activity
and the subsequent adverse employment action does not suffice to show causation." Drago, 453
F.3d at 1308; Smith, 565 F. App'x at 779. As the Supreme Court has held, "[e]mployers need not
suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their
proceeding along lines previously contemplated, though not yet definitively determined, is no
evidence whatever of causality." Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)
(rejecting inference of causation based on temporal proximity).
The City presents unrebutted evidence, from Rosetti, that Cassady considered eliminating
Plaintiffs position as early as March 22, 2011, prior to Plaintiffs filing of the EEOC Charge on
May 17, 2011. (Dkt. 18-1). Although Plaintiff argues that Cassady did not formally submit his
proposal to Connors until September 2011, and that her position was not actually reclassified until
February 2012, those facts do not call into question Rosetti's evidence that Cassady considered
Plaintiffs position for elimination prior to the EEOC Charge. 3 As a result, any temporal proximity

Plaintiff also notes that Connors and Cassady provide differing accounts as to when
Cassady recommended Plaintiffs position for elimination: Cassady testified that he spoke with
Connors in January or February 2011, and Connors testified that the conversation occurred in
August or September 2011. (Dkt. 20-1 at 10; Dkt. 19-1 at 20). Regardless, it is undisputed that
Cassady did consider Plaintiffs position for elimination in March 2011, based on Rosetti' s affidavit
and the spreadsheet reflecting that proposal. (Dkt. 18-1 ).
3

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between Plaintiffs termination and the EEOC Charge - or the EEOC mediation - is immaterial.
ClarkCnty. Sch. Dist., 532 U.S. at272; Drago, 453F.3dat1308; Kelleyv. City ofAlbuquerque, 542

F.3d 802, 816 (10th Cir. 2008) (holding that defense attorney's participation in mediation was
protected activity under Title VII).
In addition to temporal proximity, Plaintiff relies on Bynum's testimony that Cassady
terminated Plaintiff and three other employees "because they were thorns in his side, and he had to
save face." (Dkt. 27 at 5). As an initial matter, this statement does not disclose any facially
retaliatory motive and is therefore not direct evidence of discrimination. Rollins v. TechSouth, Inc.,
833 F.2d 1525, 1528, n. 6 (11th Cir.1987). A factfinder could, however, reasonably conclude that
Cassady considered Plaintiff to be "a thorn in his side" due to her filing of an EEOC Charge. First,
the EEOC Charge was based, in part, on Cassady' s conduct. Second, Cassady testified during his
deposition that Plaintiffs job was not eliminated due to deficient performance or a personality
conflict, suggesting that he may instead have considered Plaintiff to be "a thorn in his side" due to
the allegations contained in the EEOC Charge. Third, although Cassady originally identified
Plaintiffs position for elimination prior to the EEOC Charge, he testified that, by August 2011, it
was not a definite conclusion that her job would be eliminated. (Dkt. 20-1 at 39-40). By that point,
Cassady was aware of the EEOC Charge. Accordingly, there is at least a reasonable inference that,
when Cassady submitted his formal request to eliminate the four positions on September 26, 2011
- less than two weeks after the EEOC mediation - Cassady did so due to Plaintiffs participation
in the EEOC proceedings.
2.

Non-discriminatory reason and pretext
Having established a prima facie case, the burden shifts to the City to produce a non-

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discriminatory reason for the adverse employment action. Shannon v. BellSouth Telecomm., Inc.,
292 F.3d 712, 715 (11th Cir. 2002). The City maintains that Plaintiff was terminated because her
position was no longer needed due to the City's adoption of a paperless work order system. (Dkt.
18 at 9). In particular, Cassady testified that over fifty percent of Plaintiffs job duties involved
filing paper, and paper filing had ceased. (Dkt. 20-1 at 4).
Because the City articulates a non-discriminatory reason for terminating Plaintiff, the burden
shifts back to Plaintiff to show that the City's reason is pretextual. Alvarez v. Royal Atl. Developers,
Inc., 610 F.3d 1253, 1265 (11th Cir. 2010). A plaintiff may establish pretext "either directly by

persuading the court that a discriminatory reason more likely motivated th~ employer or indirectly
by showing that the employer's proffered explanation is unworthy of credence." Carter v. City of
Miami, 870 F.2d 578, 584 (11th Cir. 1989) (internal quotation marks omitted); Munozv. Oceanside
Resorts, Inc., 223 F.3d 1340, 1346 (11th Cir. 2000). For instance, a plaintiff may point to

"weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons." Jackson v. State ofAla. State Tenure Comm 'n, 405 F.3d 1276, 1289
(11th Cir. 2005) (internal quotation marks omitted). However, "federal courts do not sit as a
super-personnel department that reexamines an entity's business decisions," and a plaintiff may not
establish pretext merely by quarreling with the wisdom of an employer's decision. Chapman v. AI
Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (internal quotation marks and alteration omitted).

In this case, Cassady's purported statement to Bynum directly contradicts the City's stated
reason for Plaintiffs termination, and it therefore provides sufficient evidence of pretext.
Specifically, if a reasonable factfinder credits Bynum' s testimony, Cassady recommended Plaintiff
for termination not because of a decrease in her job duties or as an efficiency measure, but because

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she was "a thorn in his side." As explained above, a factfinder could also infer, from the record as
a whole, that Cassady had a retaliatory motive in recommending Plaintiff's job for elimination.
Plaintiff proffers additional evidence that she contends shows the City's reason is pretext for
unlawful discrimination, including evidence regarding historical racism in the Water Resources
Department, based on the testimony oflsleyn Boyd, a union representative, and Latishia Staley, a
former employee. (Dkt. 25 at 3-7; e.g., Dkt. 32 at 4, 14-15, 20-21; Dkt. 30 at 3, 7, 22-23, 30-31).
The City does not challenge the admissibility of this evidence on evidentiary grounds, though it
correctly observes that statistics "without an analytic foundation, are virtually meaningless." Brown

v. Am. Honda Motor Co., Inc., 939 F.2d 946, 952 (11th Cir. 1991); Wilson v. BIEAerospace, Inc.,
376 F.3d 1079, 1089 (11th Cir. 2004). Plaintiff also maintains that data entry tasks are still being
performed in the Department (Dkt. 35 at 5-7; Dkt. 29 at 9; Dkt. 27 at 20-21), but that fact is of
limited probative value, as Plaintiff does not dispute that paper filing -

the majority of her job

duties, according to Cassady - had ceased. Likewise, Plaintiff cites the delay in reclassifying her
position, but she does not explain how this undercuts the City's stated reason for her termination.

Cf Hurlbertv. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1299 (11th Cir. 2006) (explaining
that an employer's deviation from standard procedures may serve as evidence of pretext).
Although Plaintiffs remaining evidence of pretext is less persuasive, she creates a jury issue
on pretext based on Bynum' s testimony. That testimony would permit a reasonable factfinder to
conclude that Plaintiffs termination was based on her protected activity. Booth, 757 F.3d at 1207
("if the jury was permitted to disbelieve the County, it may have been permitted to infer that the
County's actions were retaliatory").

A reasonable factfinder could, of course, alternatively

conclude that the City fired Plaintiff in connection with a legitimate reorganization of the Water

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Resources Department - or even based on Cassady' s opinion that Plaintiff was not friendly enough
- motivations that would not subject the City to liability. See Nix v. WLCY Radio/Rahall Commc 'ns,
738 F.2d 1181, 1187 (11th Cir. 1984) ("[t]he employer may fire an employee for a good reason, a
bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for
a discriminatory reason"). Because reasonable minds could differ, the City's motion for summary
judgment is denied as to Plaintiffs claimed violations of the FCRA and Section 1981 (Counts I and
II).

Conclusion
Based on the foregoing, it is ORDERED that Defendant's Motion for Summary Judgment

(Dkt. 18) is DENIED.
DONE AND ORDERED this

.,..

_j_ day of June, 2015.

United States District Judge
Copies to:
Counsel of Record

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