DeBose v. USF Board of Trustees et al

Filing 210

OPINION AND ORDER granting in part and denying in part 75 MOTION for summary judgment , 68 MOTION for summary judgment . See order for details. Signed by Judge Elizabeth A. Kovachevich on 9/29/2017. (EJJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ANGELA W. DEBOSE,
Plaintiff,
Case No: 8:15-cv-2787-T-17AEP

v.
UNIVERSITY OF SOUTH FLORIDA
BOARD OF TRUSTEES and ELLUCIAN
COMPANY, L.P.,
Defendants.
ORDER

This cause comes before the Court pursuant to the motions for summary judgment
(Doc. Nos. 68 and 75) (the "Summary Judgment Motions") filed by the Defendants,
University of South Florida Board of Trustees ("USF"), and Ellucian Company, L.P.
("Ellucian"), and the responses in opposition (Doc. Nos. 151 and 169) filed by pro se

Plaintiff, Angela W. DeBose (the "Plaintiff" or "DeBose"). For the reasons set forth below,
the Summary Judgment Motions are GRANTED IN PART AND DENIED IN PART.
I.

Introduction

The Court must decide whether DeBose is entitled to a jury trial on her claims that
USF terminated her employment after 27 years due to race/gender discrimination and/or
in retaliation for her complaints of discrimination. Because DeBose has testified under
penalty of perjury that high'"ranking employees at USF have admitted to her that the
person who fired her is, essentially, a virulent racist, DeBose is entitled to her day in Court
on her claim that she was fired due to her race/gender. Similarly, De Bose strings together
enough circumstantial evidence to proceed to a jury on her retaliation claims, in which

she contends that she was terminated and given a poor employment review for protesting
USF's alleged acts of discrimination. The remainder of DeBose's claims, however, are
far too speculative and unsupported to withstand summary judgment. As a result, the
Summary Judgment Motions are granted in part and denied in part.

II.

Background
A.

Plaintiffs employment history at USF

The Plaintiff was hired by USF in 1988 and became the USF Registrar on October
1, 1996. (Doc. No. 76, at 1).

DeBose remained Registrar until her employment was

terminated on August 19, 2015. (Doc. No. 76, at 10).
B.

Plaintiffs tenure under the supervision of Paul Dosal

On July 1, 2010, Paul Dosal became De Bose's direct supervisor. (Doc. No. 76, at
2). DeBose initially had a "good relationship" with Dosal. (A. DeBose Dep. Tr. 33:3-6).
So much so that during 2011 or 2012, (A. DeBose Dep. Tr. 169:11-14), Dosal allegedly
confided in her that USF's Provost, Ralph Wilcox, is "a nasty son of a bitch," and that
"he's not going to think highly of you ... because ... you're black." (A. DeBose Dep. Tr.
167:19-168:14).
Things "changed" with Dosal, however, in late 2013 and early 2014. (A. DeBose
Dep. Tr. 33:12-14). During that time period, DeBose claims that Dosal "started being
more aggressive, edgy," "would clench his jaw," and "just stopped being pleasant at all."

(A. DeBose Dep. Tr. 34:10-15). According to DeBose, Dosal's animosity towards her
spread to others at USF, including another employee named Travis Thompson, who

2

allegedly told Dosal that DeBose was not collaborative and that things were not going
well with Degree Works. 1 (A. DeBose Dep. Tr. 34:18-24-35:1-16).
Bothered by these issues, Dosal allegedly met with DeBose in the spring of 2014
and counseled her to work and behave more collaboratively. (Doc. No. 76, at 3). USF
claims that DeBose's behavior did not improve and, in June of 2014, Dosal informed
DeBose that responsibility for Degree Works and ATLAS were being transferred from the
Registrar's Office to the information technology department. (A. De Bose Dep. Tr. 55: 1319). According to Dosal, the decision to transfer Degree Works and ATLAS away from
the Registrar's Office came from USF Provost Ralph Wilcox. (A. DeBose Dep. Tr. 55:2324). Around the same time, an email circulated within USF that accused DeBose of being
responsible for the resignation of another USF employee, Caurie Waddell. (A. DeBose
Dep. Tr. 63:17-25); (P. Dosal Dep. Tr. 36:15-19). According to DeBose, she feared that
the Caurie Waddell situation was "going to be used as ... grounds for [her] termination."
(A. DeBose Dep. Tr. 63:17-25).

C.

The AVP EPM position

During the summer of 2014, while the foregoing issues were percolating through
the school, the position of Assistant Vice President for Enrollment Planning and
Management ("AVP EPM") became vacant at USF. (Doc. No. 76, at 4).

Dosal was

responsible for filling the vacant AVP EPM position and, after consultation with Ralph
Wilcox and USF President Judy Genshaft, USF employee Billie Jo Hamilton was
appointed to the AVP EPM position. (Doc. No. 76, at 5). DeBose disagreed with USF's

Previously, in the spring of 2011, Dosal transferred responsibility for USF's degree
audit system, Degree Works, and its academic tracking system, ATLAS, to the
Registrar's Office. (Doc. No. 76, at 3).
1

3

decision to directly appoint Hamilton to the AVP EPM position in lieu of conducting a
national search. (A. DeBose Dep. Tr. 305:3-4). In fact, DeBose wanted the job for herself,
and believed she was "a very strong candidate for the AVP position." (A. DeBose Dep.
Tr. 310:2-4).
Dosal met with DeBose in July of 2014, ostensibly to try and patch things up. At
that meeting, Dosal allegedly promised that he would "make it clear" to the USF
community that he remained confident in DeBose, and told her he hoped she would
remain a member of his team through the end of his tenure in 2019. (A. DeBose Dep. Tr.
66:8-15, 66: 16-25-67:1-15). DeBose claims that during the meeting, Dosal responded
to her request for an increase in compensation 2 by "allud[ing] to ... N****r, you already
make too much money." (A. DeBose Dep. Tr. 139:17-23). When DeBose responded that
she believed she was not selected for the AVP EPM position because of her race, he
allegedly "clenched his jaw" and denied that race was a factor, instead telling DeBose
"the provost wants this." (A. DeBose Dep. Tr. 150:22-152:21). Following the meeting,
on July 28, 2014, DeBose filed an internal complaint with USF, referencing discrimination
with respect to the Degree Works/ATLAS transfer, Caurie Waddell email, and the AVP
EPM appointment incidents.

D.

DeBose's EEOC complaint and alleged acts of retaliation

After DeBose filed her internal complaint, she claims she "got a reprieve" from
Dosal's allegedly hostile behavior. (A. DeBose Dep. Tr. 212:19-22). However, towards
the end of the year, she filed a complaint with the EEOC, after which she alleges "things
began to ramp up to an unacceptable level." (A. DeBose Dep. Tr. 230:6-13). For instance,

Two days after being informed of Hamilton's appointment to the AVP EPM position,
DeBose sent a memorandum to Dosal requesting a pay raise. (Doc. No. 76, at 6).

2

4

DeBose claims that after she filed the EEOC complaint she was "asked into meetings
with no agenda ... was not treated well or respectfully or civilly ... was marginalized ..
. berated ... [and] treated poorly." (A. DeBose Dep. Tr. 230:6-20).

E.

The Alexis Mootoo incident and subsequent written reprimand

DeBose's acrimony with USF worsened on January 29, 2015, when DeBose
attended a meeting with Dosal to discuss implementation of a new shared services model.
(A. DeBose Dep. Tr. 77: 1-10). Also present at the meeting was another African American
employee, Alexis Mootoo, who allegedly had a history of "making [DeBose] and other
people in [DeBose's] office uncomfortable with abusive language," including gratuitous
use of the word "n****r." (A. DeBose Dep. Tr. 77:11-25-78:1-21). During the meeting,
DeBose allegedly took umbrage with Mootoo's involvement in the implementation of the
new shared services model, and referred to her as a "little girl" and told her to "stay in her
lane." (A. DeBose Dep. Tr. 83:10-21).
While DeBose denies making those statements, Mootoo reported DeBose's
alleged "little girl" comment to authorities at USF, who issued DeBose a written reprimand.
(A. DeBose Dep. Tr. 83:22-24) (Doc. No. 77-2, at 2). According to DeBose, Mootoo
fabricated the story in exchange for a deal with Dosal under which Mootoo would receive
more favorable "pay and position." (A. Dep. Tr. 84:2-86:24). In support, DeBose claims
that "Alexis Mootoo [would come] into the office supposedly for budget meetings and
talking about n****r this and n****r that ... [but that] Dosal knew about [her use of the
word 'n****r]' and didn't have a problem with it." (A. DeBose Dep. Tr. 159:23-160:4).

F.

DeBose's allegations of a "backdrop" of racist conduct at USF

DeBose claims that by this time in her career at USF, "[t]here were constant
references to [her as an] angry black woman, black bitch, n****r this, n****r that." (A.

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DeBose Dep. Tr. 164:11-20). While DeBose reluctantly admits that Dosal did not call her
an "angry black woman, black bitch, [or] n****r," (A. DeBose Dep. Tr. 164:21-165:9), she
accuses Dosal of making veiled "racial statements" over the course of her time at USF,
including a 2010/2011 3 comment in which he told her he was moving out of "the hood"
and that she should do the same because they were the "only two people of color in
EPM," (A. DeBose Dep. Tr. 166:5-16), a 20134 statement in which he asked her to attend
Black Faculty Staff Association breakfasts, but that he did not want her to "be a token,"

(A. DeBose Dep. Tr. 169:24-170: 13), and another incident in which he allegedly
disparaged a "black Hispanic" person who had accused him of discrimination of having
"forgotten ... where he came from." (A. DeBose Dep. Tr. 172:24-173:21). DeBose
further claims that Dosal told her that "others" at USF referred to her as "an angry black
woman or black bitch or those kinds of things." (A. DeBose Dep. Tr. 171:19-23). DeBose
claims that she asked Dosal who said those things, but that "he would not disclose" the
source of his information. (A. DeBose Dep. Tr. 171 :24-172:1). 5
G.

The Ellucian audit and report

Approximately one month after DeBose filed her EEOC complaint, during February
of 2015, USF engaged a consulting firm, Ellucian, to review and assess its
implementation of Degree Works. (Doc. No. 76, at 8). As part of that review, Ellucian
selected consultant Andrea Diamond to visit the USF campus and meet with several
employees, including DeBose. (Doc. No. 76, at 8).

When DeBose met with Diamond,

(A. DeBose Dep. Tr. 166:17-167:16).
(A. DeBose Dep. Tr. 171 :8-12).
5 The "angry black woman" and "black bitch" comments allegedly occurred during 2014,
when DeBose told Dosal about an incident in which some unknown person vandalized
her car with the derogatory phrase "wild bitch." (A. DeBose Dep. Tr. 124:23-125:3;
172:2-19).
3

4

6

she claims that Diamond's body language, face, and demeanor were "angry." (A. DeBose
Dep. Tr. 97:16-23). After the meeting, Ellucian prepared a report (the "Ellucian Report")
stating, among other things, that the Registrar's Office lacked an "atmosphere of working
together for the good of the institution" and was "not willing to encompass change." (Doc.
No. 76, at 8-9).
DeBose vehemently disagrees with the conclusions and recommendations
contained in the Ellucian Report, and claims that Diamond "went out of her way ... to
cast a negative light on the registrar's office" and that Diamond did not sincerely or
honestly believed the opinions she expressed regarding the Registrar's Office. (A.
DeBose Dep. Tr. 98:3-99:24). Rather, DeBose believes that Ellucian colluded with USF
to give the school a non-discriminatory reason to fire her form her position. In support,
DeBose cites to evidence that the Registrar's Office was included in the scope of
Ellucian's review at the request or suggestion of USF. (A. DeBose Dep. Tr. 101 :18-102:3).
However, DeBose also admits that she lacks any firsthand knowledge that USF was
responsible for the inclusion of negative information or opinions about her office in the
Ellucian Report. (A. DeBose Dep. Tr. 101:4-10).

H.

DeBose's non-reappointment as Registrar

The Ellucian Report was ultimately the final nail in the coffin for DeBose's 27 year
career USF. After reviewing the Ellucian Report, Ralph Wilcox made the decision to nonrenew DeBose's employment. (Doc. No. 76, at 9). On May 19, 2015, DeBose was issued
a notice of non-reappointment, which effectively terminated her employment as of August
19, 2015. (Doc. No. 76, at 10).

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I.

USF's negative review of DeBose

Following her receipt of the notice of non-reappointment, DeBose communicated
with her friend, Albert Colom, regarding possible employment at the University of North
Florida ("UNF"). (A. DeBose Dep. Tr. 13: 15-18). On or around May 20, 2015, Colom sent
a text message to DeBose stating that "depending on what you are interested in doing I
can help here at UNF. That is if you want to stay in Florida. I have a few ideas." (Doc.
No. 79-1, at 1). DeBose responded "Love to talk about them as your time permits." (Doc.
No. 79-1, at 1).
On May 26, 2015, Ralph Wilcox had a brief telephone call with UNF Provost Dr.
Earle Traynham regarding his assessment of DeBose's professional capabilities for
possible employment at UNF. (Doc. No. 78, at 1[1[ 8-9).

Wilcox claims he was

complementary of DeBose's technical skills and abilities, but indicated that he believed
she was not collaborative and was resistant to change. (Doc. No. 78, at 1[~ 8-9). DeBose
tells a far different story, claiming that according to Colom, Wilcox told Traynham that
DeBose was "toxic," "horrible," "uncollaborative," "awful," "if he hired [her], that he would
regret it," and "he had been trying to get rid of [her] for years." (A. DeBose Dep. Tr. 15:2325-16:1-2). DeBose further claims "a guy named Lance," who "works at USF," told her
that Wilcox bragged to Traynham "about undoing [her]"; that he "wanted [DeBose] to have
nothing ... not even a shirt .... bare, exposed with nothing." (A. DeBose Dep. Tr. 290:111 ).
J.

DeBose is not selected for employment at UNF

Following the Traynham conversation, on May 27, 2015, DeBose received a text
message from Colom stating "Hello spoke to my provost and we decided to pass on the

8

idea. I had good hope we could work together again. I am so sorry." (Doc. No. 79-1, at
2). Ultimately, DeBose did not obtain employment with UNF.
Ill.

Standard of Review

"Federal Rule of Civil Procedure 56 requires that summary judgment be granted if
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show 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." U.S. Commodity Futures
Trading Com'n v. Am. Derivatives Corp., 2008 WL 2571691, at *2 (N.D. Ga. June 23,

2008) (internal quotations omitted). "The moving party bears the initial responsibility of
informing the court of the bases for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact." Id. (internal quotations omitted). "Where the moving party makes such a
showing, the burden shifts to the non-movant, who must go beyond the pleadings and
present affirmative evidence to show that a genuine issue of material fact does exist." Id.
"A fact is not material if a dispute over that fact will not affect the outcome of the suit under
the governing law." Id. "An issue is genuine when the evidence is such that a reasonable
jury could return a verdict for the non-moving party." Id.
Importantly, on a motion for summary judgment, the Court "may consider only that
evidence which can be reduced to an admissible form." Rowell v. Bel/South Corp., 433
F.3d 794, 800 (11th Cir. 2005). "To be admissible in support of or in opposition to a
motion for summary judgment, a document must be authenticated by and attached to an
affidavit that meets the requirements of Rule 56[c][4], and the affiant must be a person
through whom the exhibits could be admitted into evidence." Sauders v. Emory

9

Healthcare, Inc., 360 F. App'x 110, 113 (11th Cir. 2010).

Here, DeBose has not

authenticated any of the approximately 550 pages of documents attached to Doc. Nos.
165, 166, 187, and 188 and, as a result, none of those documents will be considered in
response to or in support of the Summary Judgment Motions. Instead, the Court will
restrict its analysis to those materials properly before the Court, including DeBose's
deposition transcript and the affidavits submitted by representatives of the Defendants.
IV.

Discussion

In her third amended complaint (Doc. No. 45) (the "TAC"), DeBose asserts the
following claims: Count I - gender and/or race (primarily gender) discrimination under
Title Vll 6 and the FCRA7 based on USF's failure to promote her to the AVP EPM position
and her non-reappointment as Registrar; Count II - retaliation under Title VII and the
FCRA based on her gender coupled with USF's failure to promote her to the AVP EPM
position, her non-reappointment as Registrar, and Wilcox's poor reference to UNF; Count
Ill gender and/or race discrimination (primarily race) under Title VII and the FCRA based
on USF's failure to promote her to the AVP EPM position and based on her nonreappointment as Registrar; Count IV - retaliation under Title VI I and the FCRA based on
her race coupled with USF's failure to promote her to the AVP EPM position, her nonreappointment as Registrar, and Wilcox's poor reference to UNF; Count V - disparate
impact based on her gender under Title VI I and the FCRA related to the direct
appointment of Hamilton to the AVP EPM position; Count VI - disparate impact based on
her race under Title VII and the FCRA related to the direct appointment of Hamilton to the
AVP EPM position; Count VII - breach of contract; Count VIII -tortious interference based

All references to "Title VII" are to Title VII of the Civil Rights Act of 1964 ("Title VII").
7 All references to the "FCRA" are to Chapter 760 of the Florida Statutes (the "FCRA").

6

10

on Ellucian's conduct in drafting the Ellucian Report; Count IX - tortious interference
based on USF's conduct in giving her a negative review to UNF; and Count X - civil
conspiracy between Ellucian and USF related to the Ellucian Report.

Because both

Defendants have moved for summary judgment on all of the Plaintiff's claims, the Court
will address each category of claims, in turn, below.
A.

Employment Discrimination Claims

In Counts I and Ill of the TAC, the Plaintiff asserts claims for gender and race
discrimination, respectively, under Title VII and the FCRA. "Title VII prohibits an employer
from discriminating 'against any individual with respect to [her] compensation, terms,
conditions, or privileges of employment because of such individual's race, color, religion,
sex, or national origin."' Vickers v. Fed. Express. Corp., 132 F.Supp.2d 1371, 1377 (S.D.
Fla. 2000) (quoting 42 U.S.C. § 2000e-2(a)). "Since the FCRA essentially mirrors Title
VII, Florida courts look to federal case law construing Title VII" when ruling on FRCA

claims. McCabe v. Excel Hospitality, Inc., 294 F.Supp.2d 1311, 1313 n.1 (M.D. Fla. 2003).
Discriminatory intent, the hallmark of a claim for employment discrimination under
Title VII and the FRCA, "can be established through either direct or circumstantial
evidence." Vickers, 132 F.Supp.2d at 1377 (S.D. Fla. 2000). Here, while the Plaintiff's
deposition testimony references a plethora of racially charged remarks during her tenure
at USF, most of those statements were remote in time from the adverse employment
actions at issue in this case and, in any event, do not specifically address USF's reasons
for terminating DeBose's employment. See (A. De Bose Dep. Tr. 186: 11-18) (referencing
an alleged "backdrop" of statements about her "race, black woman, angry black woman,
black bitch, those kinds of things," but not specifically linking any of the foregoing
statements to the alleged adverse employment actions). Thus, given the lack of direct

11

evidence of discrimination, the Court must consider whether there is sufficient
circumstantial evidence of USF's alleged discriminatory intent for the Plaintiff to survive
summary judgment.
Where the "plaintiff seeks to prove intentional discrimination through circumstantial
evidence of the employer's intent ... [the] [p]lainitiff has the initial burden of establishing
a prima facie case of discrimination." Id. at 1378-79. A plaintiff makes out a prima facie
case of discrimination when she shows, by a preponderance of the evidence, that (1) she
is a member of a protected class, (2) she was qualified for the position, (3) she
experienced an adverse employment action, and (4) she was replaced by someone
outside of her protected class or received less favorable treatment than a similarly
situated person outside of her protected class." Flowers v. Troup Cty., Ga., Sch. Dist.,
2015 WL 6081186, at *6 (11th Cir. Oct. 16, 2015).
"[T]he establishment of a prima facie case creates a presumption that the employer
discriminated against a plaintiff on the basis of race." Id. "[T]he burden then shifts to the
employer to produce a legitimate nondiscriminatory reason for the action taken against
the plaintiff." Id. "Once the employer advances its legitimate, nondiscriminatory reason
the plaintiff's prima facie case is rebutted and all presumptions drop from the case." Id.
The plaintiff then bears the "ultimate burden of persuading the court that she has been
the victim of intentional discrimination." Id. Accordingly, merely establishing a prima facie
case of racial discrimination "is not, and never was intended to be, the sine qua non for a
plaintiff to survive a summary judgment motion." Id.

Rather, the "critical decision that

must be made is whether the plaintiff has created a triable issue concerning the
employer's discriminatory intent." Id.

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Here, USF acknowledges that (1) DeBose is a member of a protected class, (2)
Hamilton's promotion to AVP EPM and DeBose's non-renewal as Registrar constituted
adverse employment actions, and (3) genuine issues of material fact exist regarding
whether DeBose was qualified for her position as Registrar. However, USF disputes that
DeBose has carried her initial burden of establishing that the written reprimand she
received following the Alexis Mootoo episode constituted an adverse employment action,
or that she received less favorable treatment than a similarly situated person outside of
her protected class. Moreover, even if DeBose can make out a prima facie case on her
promotion discrimination claim, USF contends that DeBose has failed to show that USF's
decision to promote Hamilton was pretextual. The Court will address each issue in turn
below.
1.

Written Reprimand

For starters, Counts I and Ill of the TAC assert claims for employment
discrimination based on the adverse employment actions of "failure to promote" and for
"termination" of employment. (TAC, at

,m 129, 142).

Since the written reprimand that

DeBose received in connection with the Alexis Mootoo incident has not been identified as
an adverse employment action in either Count I or Ill of the TAC, DeBose has failed to
plead, much less prove, that the written reprimand was issued with discriminatory intent.
Moreover, even if the Court were to liberally construe the TAC to include such a claim,
"to prove adverse employment action ... an employee must show a serious and material
change in the terms, conditions, or privileges of employment." Anderson v. United Parcel
Serv., Inc., 248 F. App'x 97, 100 (11th Cir. 2007) (emphasis in original).

"[T]he

employee's subjective view of the significance and adversity of the employer's action is
not controlling; the employment action must be materially adverse as viewed by a

13

reasonable person in the circumstances." Id. Here, DeBose has failed to demonstrate
that the written reprimand resulted in a serious and material change in the terms,
conditions, or privileges of her employment. To the contrary, the record is devoid of any
evidence that the written reprimand had any adverse effect on DeBose's employment.
For that reason alone, USF is entitled to summary judgment on any claim for employment
discrimination based on the written reprimand.
2.

Less Favorable Treatment than a Similarly Situated Person Outside
of DeBose's Protected Class

As part of the Title VII plaintiff's prima facie case, the plaintiff must show that "[s]he
was replaced by someone outside of [her] protected class or received less favorable
treatment than a similarly situated person outside of [her] protected class." Flowers, 2015
WL 6081186, at *6.

Importantly, "when a Title VII plaintiff alleges that an employer

discriminates against black females, the fact that ... white females are not subject to
discrimination is irrelevant and must not form any part of the basis for a finding that the
employer did not discriminate against the black female plaintiff." Jefferies v. Harris Cty.
Community Action Ass'n., 615 F.2d 1025, 1034 (5th Cir. 1980).

With respect to the Plaintiff's promotion discrimination claim, it is undisputed that
Hamilton is a white female. Thus, while DeBose has failed to establish a prima facie case
of gender discrimination with respect to the AVP EPM position, see Jefferies, 615 F.2d at
1030 (noting that "where both the person seeking to be promoted and the person
achieving that promotion were women, 'because the person selected was a woman, we
cannot accept sex discrimination as a plausible explanation for (the promotion) decision."'
(quoting Adams v. Reed, 567 F.2d 1283, 1287 (5th Cir. 1978))), the Plaintiff has made a
prima facie case of intersectional race and gender discrimination with respect to

14

Hamilton's promotion. See (A. DeBose Dep. Tr. 127:21-24) (stating that DeBose believes
"race/gender" was the reason for her failure to be promoted the AVP EPM position).
As to the Plaintiff's termination claim, the record contains an unverified statement
in DeBose's statement of disputed facts that Carrie Garcia, a white female, "was
appointed by Wilcox and Dosal as Acting University Registrar following DeBose's
termination." (Doc. No. 170, at 33). Since USF does not appear to contest that DeBose's
position was filled by someone outside of her protected class as a black female, and it is
likely that DeBose would properly support this assertion of fact if "give[n] an opportunity
to properly support or address the fact" under Rule 56(e)(1), the Court will presume for
purposes of this order that the Acting University Registrar position was filled by a white
female. Interestingly, however, at her deposition, DeBose testified that race, and race
alone, was the reason for her termination. (A. DeBose Dep. Tr. 128:12-23). Since it is
undisputed that the Registrar position was filed by a female, and DeBose appears to have
abandoned her claim of intersectional discrimination with respect to her termination claim,
USF is entitled to summary judgment on DeBose's termination claim based on gender
discrimination. However, because the Registrar position was filled by a white female,
DeBose has carried her burden of establishing a prima facie claim for race discrimination
on her termination claim.

3.

Whether USF's Decisions to Promote Hamilton and Terminate
DeBose were Pretextual

USF has proffered a legitimate, non-discriminatory reason for its decision to
promote Hamilton, and not DeBose, to the position of AVP EPM, as well as for its decision
to terminate DeBose's employment as Registrar. See (Doc. No. 77, at 1117) (stating that
DeBose was not selected for the AVP EPM position because she was not as qualified for

15

the position as Hamilton); (Doc. No. 78, at 1J 6) (stating that DeBose was terminated for
not acting in a collaborative manner and based on the opinions stated in the Ellucian
Report). The question thus becomes whether DeBose has identified sufficient evidence
of intentional discrimination to create a triable issue on her claims for employment
discrimination. See Wheatfall v. Bd. of Regents of Univ. System of Ga., 9 F.Supp.3d 1342,
1356 (N.D. Ga. 2014) ("[T]he ultimate question in every employment discrimination case
involving a claim of disparate treatment is whether the plaintiff was the victim of intentional
discrimination.").
With respect to the AVP EPM position, DeBose supports her claim that she was
subjected to race/gender discrimination on the fact that (1) Dosal gave Hamilton the
opportunity to "go back to her position exclusively as director of financial aid" if she didn't
do well as AVP EPM; (2) "the [AVP EPM] position was not posted or advertised and that
... people [including DeBose] were given no knowledge or awareness of the position";
and (3) Dosal attempted to make "concessions" to DeBose regarding her salary and job
title if she would "go along" with Hamilton's appointment. (A. DeBose Dep. Tr. 147:2148:20). Frankly, DeBose's own testimony demonstrates that USF's decision to promote
Hamilton over her had nothing to do with the fact that she is a black female. Perhaps
Dosal exercised poor judgment by not conducting a nationwide search or hand-picking
DeBose for the position.

Perhaps he made the right choice.

Regardless, whether

promoting Hamilton was the right or wrong choice is unimportant because DeBose herself
does not cite race or gender as a reason for Hamilton's promotion.
To the contrary, DeBose obfuscates the true reasons for Hamilton's selection by
making vague references to a handful of allegedly racial statements uttered by Dosal and

16

Wilcox during her tenure at USF. Most of these statements, including Dosal's statements
about "leaving the hood" and not wanting DeBose to be a "token" were remote in time
from Hamilton's promotion. Moreover, even if Wilcox is "a nasty son of a bitch" who was
never "going to think highly of [DeBose] ... because ... [she is] black," it is undisputed
that Dosal, not Wilcox, promoted Hamilton to the AVP EPM position. See (Doc. No. 76,
at 5) (stating that Dosal appointed Hamilton); (Doc. No. 170, at 12) (failing to dispute that
Dosal appointed Hamilton). Since the record is devoid of evidence that race and gender
played a role in Dosal's decision to appoint Hamilton to the AVP EPM position, or that
Wilcox's alleged racial animus towards DeBose influenced Dosal's hiring decision,
DeBose has failed to show that USF's proffered non-discriminatory reason for not
promoting DeBose was pretextual.
As for DeBose's claim of race-based termination discrimination, it is undisputed
that Wilcox made the decision to terminate DeBose. See (Doc. No. 68, at

1J 6)

(stating

that Dosal "was not involved in the decision to non-renew DeBose's employment). While
Wilcox claims that he made the decision to non-renew DeBose's employment after
reviewing the Ellucian Report, USF does not attempt to deal with the so-called evidentiary
elephant in the room: DeBose's deposition testimony that Dosal told her that Wilcox was
never "going to think highly of [DeBose] ... because ... [she is] black." At this stage of
the proceedings, the Court is required to draw all reasonable inferences in favor of the
non-moving party, DeBose, and given DeBose's testimony that Wilcox harbored racial
animus towards her, she is entitled to a reasonable inference that her termination was
discriminatory. This is true even though Dosal's alleged statement that Wilcox harbored
racist views towards DeBose was remote in time from her termination. Stated simply,

17

DeBose's sworn testimony that Wilcox is a virulent racist cannot be discounted on
summary judgment and, as a result, is enough to get her to a jury on her claim for racebased termination discrimination.
B.

Retaliation Claims

"Title Vll's retaliation provision makes it unlawful to discriminate against any
individual because she has opposed any practice made an unlawful practice by the Act."
Demers v. Adams Homes of Nw. Fla., Inc., 321 F. App'x 847, 852 (11th Cir. 2009). "To

. establish a prima facie case of retaliation, the plaintiff must show: (1) that [s]he engaged
in statutorily protect expression; (2) that [s]he suffered an adverse employment action;
and (3) that there is some causal relationship between the two events." Holifield

v. Reno,

115 F.3d 1555, 1566 (11th Cir. 1997). Once the plaintiff establishes her prima facie case,
the employer must proffer a legitimate, non-discriminatory reason for the adverse
employment action. Id. "If the employer offers legitimate reasons for the employment
action, the plaintiff must then demonstrate that the employer's proffered explanation is a
pretext for retaliation." Id.
In Counts II and IV of the TAC, the Plaintiff asserts claims for retaliation based on
her gender and race, respectively.

Specifically, the Plaintiff alleges that she was

retaliated against for filing internal complaints with USF, charges of discrimination with
the EEOC, and an action seeking a preliminary injunction before this Court. See (Doc.
No. 45, at 1f 147). DeBose claims that because she engaged in the foregoing protected
activities, she was denied a promotion to the AVP EPM position, terminated from her
position as Registrar, and given a poor reference to the Provost of UNF. (Doc. No. 45,a t

1f 148).

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For starters, the Plaintiff's claims that she was denied the AVP EPM promotion due
to unlawful retaliation are without merit. It is undisputed that DeBose did not engage in
any statutorily protected activity until after she learned that Hamilton had been appointed
to the AVP EPM position. Compare (Doc. No. 79-8) (demonstrating that DeBose's first
ethics point complaint was submitted on July 28, 2014), with (Doc. No. 77, at 1J 19) (stating
that Dosal notified DeBose of Hamilton's appointment to the AVP EPM position on July
15, 2014). Thus, Counts II and IV, to the extent they are based on Hamilton's promotion
to AVP EPM, fail as a matter of law due to a lack of causation. See Univ. of Tex. Sw. Med.
Center v. Nassar, 133 S.Ct. 2517, 2534 (2013) (stating that to satisfy the causation

element, the plaintiff "must establish that his or her protected activity was a but for cause
of the alleged adverse action by the employer.").
The Plaintiff's claims that she was terminated and given a poor reference in
retaliation for engaging in statutorily protected activities, however, require a more
thorough analysis. USF does not dispute that the Plaintiff engaged in statutorily protected
activity, or that she suffered an adverse employment action when she was terminated
and given a negative reference to the Provost of UNF. To the contrary, USF attacks the
Plaintiff's ability to establish the causation element of her prima facie case and, to the
extent she can make out a prima facie case, USF contends that DeBose cannot show
that her termination and any poor review were pretext for retaliation.
Prior to the Supreme Court's Nassar decision, a plaintiff could satisfy this
requirement by showing, among other things, "close temporal proximity" between the
protected activity and the adverse employment action. Higdon v. Jackson, 393 F.3d 1211,
1220 (11th Cir. 2004).

Following Nassar, however, a plaintiff must show more than

19

temporal proximity between the protected activity and their termination. Cf. Smith v. City
of New Smyrna Beach, 588 F. App'x 965, 981-82 (11th Cir. 2014). Instead, to establish
a claim for retaliation, the plaintiff must present evidence "that the unlawful retaliation
would not have occurred in the absence of the alleged wrongful action or actions of the
employer." Nassar, 133 S.Ct. at 2533.
Here, the record contains testimonial evidence that after DeBose filed her EEOC
complaint on January 15, 2015, (Doc. No. 76, at 6), she was "asked into meetings with
no agenda." (A. DeBose Dep. Tr. 230:6-20).

Shortly thereafter, the Alexis Mootoo

incident occurred, which DeBose claims was part of a deal in which Dosal promised
Mootoo more favorable "pay and position." (A. Dep. Tr. 84:2-86:24). Approximately one
month later, in February of 2015, USF engaged Ellucian to review and assess its
implementation of Degree Works. (Doc. No. 76, at 8). This, as we now know, ultimately
culminated in the Ellucian Report, which USF cited as its basis for its decision not to
renew DeBose's employment. Shortly thereafter, Ralph Wilcox acknowledges that he
told UNF Provost Earle Traynham that DeBose was "not collaborative and that she was
resistant to change." (Doc. No. 78, at 1f 9). DeBose's version of the negative reference is
far more colorful, with DeBose claiming that people at USF and elsewhere told her Ralph
Wilcox told Traynham he wanted DeBose "to have nothing ... not even a shirt .... bare,
exposed with nothing." (A. DeBose Dep. Tr. 290: 1-11 ).
Clearly, things between DeBose and USF went sideways between 2014 and 2015,
and during that period of time, DeBose filed multiple internal and external complaints
alleging discrimination. DeBose's version of the facts, i.e. that she was the victim of a
massive conspiracy because she filed complaints of discrimination, may not ultimately be

20

accepted by a jury, but there is certainly enough circumstantial evidence of retaliation to
afford DeBose her day in Court. Specifically, given the close temporal proximity between
DeBose's EEOC complaint and USF's decision to engage Ellucian, DeBose's testimony
that the Registrar's Office was included in the scope of Ellucian's engagement at the
request of USF, DeBose's testimony that she was treated differently following her
complaints of discrimination, and the timing and circumstances surrounding the
Traynham conversation, a reasonable jury could find that USF's actions were retaliatory.
Thus, USF's motion for summary judgment is denied as to DeBose's claims that her
termination and poor reference were retaliatory.
C.

Disparate Impact Claims

A disparate impact theory of discrimination "prohibits neutral employment practices
which, while non-discriminatory on their face, visit an adverse, disproportionate impact on
a statutorily-protected group." E.E.O.C. v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1274
(11th Cir. 2000) (emphasis in original). To prove a disparate impact claim, the plaintiff
must show: (1) there is a significant statistical disparity between the proportion of
minorities available in the labor pool and the proportion of minorities hired by the
employer; (2) there is a specific, facially-neutral employment practice causing the
disparity; and (3) that a causal nexus exists between the identified employment practice
and the statistical disparity. Id. Importantly, to prevail on a claim for disparate impact, "the
plaintiff must offer statistical evidence of a kind and degree sufficient to show that the
practice in question has caused the exclusion of applicants for jobs or promotions
because of their membership in a protected group." Id. At 1274-75.
Here, the only statistical evidence offered in support of the Plaintiff's disparate
impact claims is an "Affidavit of Expert Opinion" offered by Saba Baptiste-Alkebu-Lan, a

21

purported subject matter expert on employment discrimination, (Doc. No. 177), and an
unauthenticated spreadsheet attached to Doc. No. 188. See (Doc. No. 188, at 179).
Since Ms. Baptiste-Alkebu-Lan's report is dated September 5, 2017, well after the
deadline to disclose expert reports and the close of discovery, the affidavit is untimely
and inadmissible in response to USF's motion for summary judgment. The same holds
true for the spreadsheets submitted by the Plaintiff, which have not been authenticated
and, as a result, are not admissible in response to summary judgment.

Given, the

Plaintiff's failure to support her disparate impact claims with admissible evidence in
response to summary judgment, USF is entitled to summary judgment on Counts V and
VI of the TAC.
D.

Breach of Contract

To recover damages for breach of contract, the plaintiff must prove: (1) the plaintiff
and defendant entered into a contract, (2) the plaintiff did what the contract required, (3)
all conditions required by the contract for defendant's performance occurred, (4) the
defendant failed to perform under the contract, and (5) the plaintiff was harmed by that
failure. Atlantica One, LLC v. Adragna, 177 So. 3d 89, 91 (Fla. 5th DCA 2015). The Court
previously dismissed DeBose's claims for breach of contract not based on an express
contract. (Doc. No. 50, at 3-4). While DeBose previously represented that USF withheld
a copy of her written employment agreement, (Doc. No. 49, at 6), discovery is now
complete, and no written employment agreement has been shown to exist.

For this

reason alone, DeBose's breach of contract claim fails as a matter of law.
Moreover, it appears that in actuality DeBose was employed pursuant to USF
Regulation 10.210, which states that "employment is at will and ... employees may be
non-reappointed upon written notice from the CAO." (Doc. No. 206-1, at 2).

22

Under

Regulation 10.201, "the [required] period of notification prior to the effective date of nonreappointment is ... [t]hree (3) months' ... for employees with two (2) or more years of
continuous employment." (Doc. No. 206-1, at 2). "Following receipt of the notice of nonreappointment, the CAO has the option to assign the employee other duties and
responsibilities and/or to require the employee to use accrued annual leave." (Doc. No.
206-1, at 3). It is undisputed that this is exactly what happened here: DeBose was given
three months' notice of her non-renewal, and was required to use accrued annual leave
during the three month period following receipt of the notice of non-reappointment. As a
result, DeBose has failed to prove that USF breached any of its non-reappointment
procedures.
E.

Tortious Interference

Under Florida law, the elements of a claim for tortious interference are: "(1) the
existence of a business relationship that affords the plaintiff existing or prospective rights;
(2) the defendant's knowledge of the business relationship; (3) the defendant's intentional
and unjustified interference with the relationship; and (4) damage to the plaintiff." Int'/
Sales & Setv., Inc. v. Austral Insulated Products, Inc., 262 F.3d 1152, 1154 (11th Cir.
2001 ). In the TAC, the Plaintiff asserts claims for tortious interference against USF and
Ellucian, claiming that Ralph Wilcox's negative review of her performance cost her a
prospective employment opportunity at UNF, and that Ellucian's statements criticizing the
Registrar's Office in its report caused her termination from USF. Neither claim holds
water for one very simple reason: despite DeBose's plethora of allegations concerning
USF and Ellucian's improper behavior, the record is devoid of evidence that either entity
intentionally interfered with her existing or prospective rights of employment.

23

With respect to USF, the only person who could have intentionally interfered with
DeBose's prospective rights of employment at UNF is Wilcox. While DeBose claims
Wilcox told Traynham he wanted DeBose "to have nothing ... not even a shirt .... bare,
exposed with nothing," (A. DeBose Dep. Tr. 290:1-11), during her deposition DeBose was
unable to clearly articulate who informed her of Wilcox's alleged "not even a shirt"
statement. (A. DeBose Dep. Tr. 290: 12-20). The best DeBose could do was to identify
"a guy named Lance ... who works at USF." (A. DeBose Dep. Tr. 290:18-20). Given the
lack of information regarding the proponent of the "not even a shirt" comment, DeBose
has failed to demonstrate that the testimony can be reduced to an admissible form. The
same holds true for any statements regarding Wilcox's conversation with Traynham that
were relayed to her by her friend Albert Colom. Mr. Colom is not a USF employee and,
as a result, anything he told DeBose in May of 2015 is hearsay, and does not qualify as
an admission of a party opponent or under any other exception to the rule against
hearsay.

Thus, DeBose's recitation of Colom's alleged version of the Traynham

conversation is inadmissible in opposition to USF's summary judgment motion. Since
DeBose lacks any firsthand knowledge regarding Wilcox's intentions pertaining to the
Traynham conversation, and Wilcox unequivocally denies interfering with DeBose's
prospective rights of employment, USF is entitled to summary judgment on Count V of
the TAC.
As for Ellucian, DeBose similarly lacks any firsthand knowledge regarding why
Ellucian was critical of the Registrar's Office in its report. DeBose claims that Diamond's
body language, face, and demeanor was "angry," (A. DeBose Dep. Tr. 97:16-23), that
she "went out of her way ... to cast a negative light on the registrar's office," and she that

24

did not sincerely or honestly believe the opinions she expressed regarding the Registrar's
Office. (A. DeBose Dep. Tr. 98:3-99:24). However, having an "angry" demeanor does
not equate to tortious interference, and DeBose's beliefs regarding Diamond's alleged
targeting of her office and lack of sincerity are pure conjecture. As a result, Ellucian is
entitled to summary judgment on Count VI of the TAC.
F.

Civil Conspiracy

To prove a claim for civil conspiracy, the plaintiff must show: (1) the existence of
an agreement between two or more parties, (2) to do an unlawful act, (3) the doing of
some overt act in furtherance of the conspiracy, and (4) damages. United Techs. Corp.
v. Mazer, 556 F.3d 1260, 1271 (11th Cir. 2009). In the TAC, DeBose accuses USF and

Ellucian of conspiring "to terminate. Plaintiff's employment for pretextual reasons by
knowingly including inaccurate and improper information in the Ellucian Report with the
intent of damaging Plaintiff." (Doc. No. 45, at1f 230). The problem for DeBose, however,
is that there is absolutely no record evidence of any agreement between USF and Ellucian
to include information critical of the Registrar's Office in the Ellucian Report. There are
no emails, letters, or alleged oral statements that show any anti-DeBose collusion
between USF and Ellucian. Any belief by DeBose that such collusion occurred is pure
conjecture and has not been properly supported for purposes of opposing the Defendants'
summary judgment motions. As a result, DeBose's civil conspiracy claims fail as a matter
of law.
V.

Conclusion

Accordingly, it is
ORDERED that the Summary Judgment Motions are GRANTED IN PART AND
DENIED IN PART AS FOLLOWS:

25

(1) US F's motion for summary judgment is GRANTED with respect to DeBose's
claims of gender discrimination (Count I);
(2) USF's motion for summary judgment is GRANTED with respect to DeBose's

claims of race and gender discrimination based on Hamilton's promotion to
AVP EPM (Count I and Ill);
(3) USF's motion for summary judgment is DENIED with respect to DeBose's
claims of race discrimination based on DeBose's non-reappointment as
Registrar (Counts I and Ill);
(4) USF's motion for summary judgment is GRANTED with respect to DeBose's

claims of retaliation based on Hamilton's promotion to AVP EPM (Counts II and
IV);
(5) USF's motion for summary judgment is DENIED as to DeBose's claims of
retaliation based on her non-reappointment as Registrar and Wilcox's poor
reference to UNF (Counts II and IV);
(6) USF's motion for summary judgment is GRANTED as to DeBose's claims for
disparate impact, breach of contract, tortious interference, and civil conspiracy
(Counts V, VI, VII, IX, X);
(7) Ellucian's motion for summary judgment is GRANTED as to DeBose's claims
for tortious interference and civil conspiracy (Counts VIII and X).
It is further ORDERED that DeBose and USF are directed to confer and file a status
report within 30 days that contains the following information:
(1) The status or result of any previously or currently scheduled mediation and, if
already concluded, the result of such mediation;

26

(2) Proposed dates for the mediation (if not already conducted) and trial of the
remaining claims in this matter; and
(3) Any remaining issues to be addressed by the Court.
DONE and ORDERED in Chambers, in Tampa, Florida this 29th day of

September; 2017.

Counsel of Record
Unrepresented Parties

27