Peack v. Polk County Sheriff's Office

Filing 56

ORDER: Defendant Polk County Sheriff's Office's Motion for Summary Judgment (Doc. # 48 ) is granted. The Clerk is directed to enter judgment in favor of Defendant Polk County Sheriff's Office and thereafter close the case. Signed by Judge Virginia M. Hernandez Covington on 2/2/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EVANGELENE PEACK,
Plaintiff,

v.

Case No. 8:15-cv-2859-T-33JSS

POLK COUNTY SHERIFF’S OFFICE,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Polk County Sheriff’s Office’s Motion for Summary Judgment
(Doc. # 48), filed on November 15, 2016. Pro se Plaintiff
Evangelene Peack filed a response on January 12, 2017. (Doc.
# 53). For the reasons that follow, the Motion is granted.
I.

Background
A.

Employment with the Sheriff’s Office

The

Sheriff’s

Office,

led

by

Sheriff

Grady

Judd,

operates throughout the unincorporated areas of Polk County,
Florida. (Fulse Decl. Doc. # 49-2 at ¶ 3). Additionally, the
Sheriff’s Office operates two jails: the South County Jail
and the Central County Jail. (Id.).

1

Peack was born in Trinidad and Tobago, and considers her
national origin to be Trinidadian. (Peack Dep. Doc. # 49-5 at
27:13-17). She became a United States citizen around 2005,
and identifies as Christian. (Id. at 31:10-22; 43:3-6). Peack
was hired by the Sheriff’s Office in April of 2011, for a
position in the Telecommunications Unit. (Fulse Decl. Doc. #
49-2 at ¶ 4). In July of 2011, Peack transferred to the
position of Detention Support Specialist (DSS), which is a
civilian, unsworn position. (Id.; Marcum Decl. Doc. # 49-3 at
¶ 3). As a DSS, Peack had “operational, clerical and public
relations duties” within the County’s jails: DSS’s “operate
security doors, handle inmate property, monitor movement of
visitors, monitor inmate activity, provide information to the
public, assist other Detention members, maintain office logs,
and document visitors.” (Marcum Decl. Doc. # 49-3 at ¶ 3).
Peack also received some training to become a Victim Advocate
during this time. (Doc. # 55 at 15-23).
In May and June of 2013, Peack was working as a DSS in
Central County Jail, and reported to Lts. Derwent Palmer or
Todd Borders. (Marcum Decl. Doc. # 49-3 at ¶ 4). Lt. Borders
was Peack’s primary lieutenant but on days on which Lt.
Borders was not working, Peack reported to Lt. Palmer. (Marcum
Decl. Doc. # 49-3 at ¶ 4; Borders Decl. Doc. # 49-1 at ¶ 3).

2

Both lieutenants reported to Captain Kimberley Marcum, who
reported to Major Michael Allen. (Marcum Decl. Doc. # 49-3 at
¶ 4).
The Sheriff’s Office maintains “a written policy which
encourages any [Sheriff’s Office] employee who feels that he
or

she

are

the

subject

or

victim

of

discrimination

or

harassment based upon a protected category, including race,
color, religion and/or national origin to make a complaint
with [the Sheriff’s Office’s] Human Resources Department.”
(Fulse Decl. Doc. # 49-2 at ¶ 8). Peack never filed a
complaint with the Human Resources Department during her
employment. (Peack Dep. Doc. # 49-5 at 111:8-17; Fulse Decl.
Doc. # 49-2 at ¶ 8).
B.
Peack

Scheduled Vacation
was

scheduled

to

take

a

three-week

vacation

starting June 6, 2013. (Marcum Decl. Doc. # 49-3 at ¶ 10;
Peack Dep. Doc. # 49-5 at 49:5-22). Peack emailed Lts. Palmer
and Borders on May 8, 2013, requesting to take three hours
off work on June 4 and all day off on June 5, 2013, so that
she could attend a class. (Palmer Decl. Doc. # 49-4 at ¶ 4,
Ex. A; Borders Decl. Doc. # 49-1 at ¶ 4). This class, called
“Victim Services Practitioner Designation,” was given by the
Office of the Attorney General in Orlando, Florida, from June

3

3 to June 7, 2013. (Marcum Decl. Doc. # 49-3 at ¶ 12; Peack
Dep. Doc. # 49-5 at 146:3-6; 151:18-152:2; Ex. 3). In her
email, Peack explained why she wished to take the class: “This
certificate will build my self esteem and create hope in my
life. It will positively affect my performance on my job.”
(Palmer Decl. Doc. # 49-4 at Ex. A).
On May 21, 2013, Peack again asked Lt. Borders about
taking vacation time on June 4 and 5 to attend the class.
(Borders Decl. Doc. # 49-1 at ¶ 4). Although she could not
take June 4 off as vacation time, Lt. Borders told Peack that
she could switch shifts with another DSS, if he or she agreed.
(Id.). Regarding June 5, Lt. Borders explained to Peack that
she would need to get approval from Lt. Palmer, as Peack would
be reporting to Lt. Palmer that day. (Id.).
Lt. Palmer emailed Peack on May 31, 2013, and informed
her that she could switch days with another DSS for June 5,
if the other DSS agreed. (Palmer Decl. Doc. # 49-4 at ¶ 4,
Ex. A; Peack Dep. Doc. # 49-5 at 156:11-13). The parties agree
that Lt. Palmer also spoke to Peack on the telephone later on
May 31, 2013. (Palmer Decl. Doc. # 49-4 at ¶ 4; Peack Dep.
Doc.

#

49-5

at

159:23-160:6).

But

the

parties

disagree

regarding the content of the conversation. According to Lt.
Palmer, he emphasized to Peack that she could not take June

4

5 off unless another DSS agreed to switch days with her.
(Palmer Decl. Doc. # 49-4 at ¶ 4). The Sheriff’s Office also
asserts that Lt. Palmer informed Peack that she had to consult
with Lt. Borders regarding whether Peack could take off June
4. (Id.). On the contrary, Peack insists that Lt. Palmer told
her that her vacation could begin on June 4. (Peack Dep. Doc.
# 49-5 at 84:10-17).
Q:
So you’re saying that somebody told you that
you could take the 4th and 5th off and you didn’t
have any obligation to obtain coverage from another
DSS?
A:
Absolutely. Derwent Palmer did indeed call me
and tell me to go ahead and take those two days off
at around 5:30 that – around 5:30 the last day I
worked before I took those two days off.
(Id.). Lt. Palmer denies giving Peack permission to take June
4 or 5 off. (Palmer Decl. Doc. # 49-4 at ¶ 4).
Then, on June 3, 2013, Peack faxed a note to Lt. Borders
stating that Lt. Palmer had allowed her to begin her vacation
on June 4, 2013. (Borders Decl. Doc. # 49-1 at ¶ 5, Ex. A).
The note states in part: “Lt. Palmer told me that I’m on
vacation from June 4th for 3 weeks. I asked him if he can
change it to 3 weeks from tommorow and he said he will see
what he can do . . .” (Id.). The note also stated that Peack
had misplaced her cellular telephone so she would have to be
reached on her home telephone. (Id.).

5

After

attempts

to

reach

Peack

by

telephone

were

unsuccessful, Lt. Borders emailed Peack at 6:02 PM on June 3,
stating:
We have not discussed your vacation. Lt. Palmer
not who you are assigned to. You need to contact
by phone. I do not conduct business via Fax
Email. You never discussed anything with me
confirmed any time off. I strongly urge you
contact me before you leave.

is
me
or
or
to

(Borders Decl. Doc. # 49-1 at ¶ 5, Ex. B). Peack states that
she did not see this email until June 4, 2013, because she
did not check her email account that night. (Peack Dep. Doc.
# 49-5 at 167:12-16; 172:14-173:10).
C.

Events of June 4, 2013

On June 4, 2013, Peack did not report to work at 6:00 AM
as she was scheduled to do. (Borders Decl. Doc. # 49-1 at ¶
6).

Because

Lt.

Borders

was

unable

to

reach

Peack

by

telephone, Capt. Marcum directed Lt. Borders to drive to
Peack’s home to contact her, where he left a note on the door
after Peack failed to answer. (Marcum Decl. Doc. # 49-3 at ¶
7).
Peack then called the jail and sent an email, saying
that she would come to the jail when her son woke up. (Marcum
Decl. Doc. # 49-3 at ¶ 7; Borders Decl. Doc. # 49-1 at ¶ 6).
When Peack arrived at the jail with her young son, she spoke

6

with Capt. Marcum and Lt. Borders in a conference room where
Peack explained that she thought she was on vacation that day
and had attended the class in Orlando that morning. (Marcum
Decl. Doc. # 49-3 at ¶¶ 8-9; Borders Decl. Doc. # 49-1 at ¶
7; Peack Dep. Doc. # 49-5 at 152:25-153:2). According to Capt.
Marcum and Lt. Borders, Peack at that time stated that she
had not seen Lt. Borders’s June 3 email because she could not
open email on her home computer. (Marcum Decl. Doc. # 49-3 at
¶ 8; Borders Decl. Doc. # 49-1 at ¶ 7).
During the meeting, Peack asked if she could take time
off the next day, June 5, to attend the remainder of the class
in Orlando. (Marcum Decl. Doc. # 49-3 at ¶ 9; Borders Decl.
Doc. # 49-1 at ¶ 7). Capt. Marcum emphasized to Peack that
she had to switch shifts with another DSS if she wanted to
take time off work on June 5. (Marcum Decl. Doc. # 49-3 at ¶
9; Borders Decl. Doc. # 49-1 at ¶ 7). Additionally, Peack was
ordered to obtain a telephone number on which she could be
reliably reached, to contact Lt. Palmer immediately regarding
switching shifts with another DSS on June 5, and to submit a
report about her absence from work on June 4. (Marcum Decl.
Doc. # 49-3 at ¶ 9; Borders Decl. Doc. # 49-1 at ¶ 7).
Peack’s son was seated outside the conference room,
where he heard the entirety of the meeting and became upset.

7

(Peack Dep. Doc. # 49-5 at 181:21-182:15). Peack too was
deeply upset by the conversation with Capt. Marcum and Lt.
Borders, and felt physically ill as a result. (Id. at 185:917). She immediately travelled to a clinic to see her doctor.
(Id.). Later that night, Peack faxed the doctor’s note she
had obtained from “Doctor Today Urgent Care, LLC” to the jail,
which stated that Peack should be excused from work until
June 6, 2013 — the first day of her scheduled vacation.
(Marcum Decl. Doc. # 49-3 at ¶ 10, Palmer Decl. Doc. # 49-4
at ¶ 5, Ex. B).
D.

Events of June 5, 2013

Yet, at 5:45 AM on June 5, Peack reported to work in
uniform. (Marcum Decl. Doc. # 49-3 at ¶10; Palmer Decl. Doc.
# 49-4 at ¶ 6). Lt. Palmer asked Peack if she was able to
work, and Peack informed him that “she was supposed to be
taking a prescription but was too ill to pick up the medicine
the previous day” and “was experiencing migraine headaches
and possible vertigo.” (Palmer Decl. Doc. # 49-4 at ¶ 6). Lt.
Palmer told Peack that she could not stay at work because of
the doctor’s note and Peack’s statements about her condition
but that “if she was not sick and could work, she would need
to obtain an updated doctor’s note allowing her to return to
work.” (Id. at ¶ 7). According to Lt. Palmer, he “instructed

8

her to call [him] and let [him] know if she was able to get
such a note,” but Peack never called. (Id.). Peack understood
Lt. Palmer’s instruction as an option:
Lt. Palmer says, “If you feel well enough to work
today, go to your doctor and get a clearance.” He
gave it as an option. . . . Because he gave me that
option — it was optional — I didn’t do what he told
me to do because I could either do that or disregard
it and go home.
(Peack Dep. Doc. # 49-5 at 199:11-19).
Although multiple calls were made to Peack that day, she
did not respond. (Id.). The Sheriff’s Office then sent “a
deputy sheriff to [Peack’s] house in an attempt to make
contact with her, but no one was at her home” at 2:30 PM.
(Id.; Marcum Decl. Doc. # 49-3 at ¶ 11). The Sheriff’s Office
maintains a policy that “deputies that are out sick are to
remain home (or at any place of treatment).” (Marcum Decl.
Doc. # 49-3 at ¶ 11). But, Peack was a DSS — not a deputy —
so the applicability of that policy to Peack is unclear.
At 3:30 PM on June 5, Capt. Marcum called Donna Burch
who was teaching the class in Orlando. (Marcum Decl. Doc. #
49-3 at ¶ 12). Burch confirmed that Peack had attended the
class “on the morning of June 4, 2013 and had been present
since 8:00 AM that morning” of June 5, 2013. (Id.).

9

E.

Investigation

Thereafter, Capt. Marcum initiated an investigation of
Peack’s
Marcum

conduct.
with

Lts.

memoranda

Borders

and

recounting

Palmer
their

provided

versions

Capt.

of

the

events. (Marcum Decl. Doc. # 49-3 at ¶ 15). In his memorandum
to Captain Marcum, Lt. Borders recommended finding that Peack
“violated General Order 26.1.E.10.ll (Untruthfulness) and
General Order 26.1.E.10.rr (Conduct Unbecoming a Member of
the Sheriff’s Office) by deliberately omitting information
and misleading her supervisors.” (Borders Decl. Doc. # 49-1
at ¶ 10). Lt. Borders recommended that Peack’s employment be
terminated. (Id.). Similarly, Lt. Palmer recommended in his
memorandum that “Peack be terminated for violating General
Order 26.1.E.10.ll (Untruthfulness)” after concluding that
“Peack had been untruthful with me about her ability to
perform her work duties on June 5, 2013 and that the purpose
of her dishonesty was to attend a certification class in
Orlando.” (Palmer Decl. Doc. # 49-4 at ¶ 8, Ex. C).
Peack

also

submitted

a

memorandum,

which

in

Capt.

Marcum’s opinion “differed from the solid verifiable evidence
as to what [Peack] was told and when” and in which Peack “gave
conflicting information when questioned about her absences.”

10

(Marcum Decl. Doc. # 49-3 at ¶ 15, Ex. F). In her memorandum,
Peack states:
The reason that I was absent on the 4th of June
2013 was because to the best of my knowledge and
belief, I thought that I was on vacation. I had
spoken to Lt. Palmer the Friday before the 4th of
June 2013 and thought I heard Lt. Palmer say that
my vacation was starting on the 4th of June for
three weeks. I honestly thought that I had
vacation.
I
now
believe
that
I
may
have
misunderstood what I heard or did not correctly
hear what I thought I heard. At the time I thought
I was sure about what I heard.
(Marcum Decl. Doc. # 49-3 at Ex. F).
During her investigation, Capt. Marcum also reviewed
Peack’s disciplinary record and found that Peack had been
disciplined previously for attendance issues, including a
suspension without pay. (Marcum Decl. Doc. # 49-3 at ¶ 16;
Borders Decl. Doc. # 49-1 at ¶ 10).
After reviewing the evidence and memoranda, Capt. Marcum
prepared a memorandum to Major Allen, in which she recommended
that Peack be terminated from her position with the Sheriff’s
Office. (Marcum Decl. Doc. # 49-3 at ¶ 16-18, Ex. G). Capt.
Marcum’s recommendation was approved and Peack was terminated
on July 19, 2013. (Marcum Decl. Doc. # 49-3 at ¶ 18; Fulse
Decl. Doc. # 49-2 at ¶ 5).
During her deposition, Peack stated: “I know of other
people

in

similar

situations

11

like

me

that

were

not

terminated.” (Peack Dep. Doc. # 49-5 at 207:1-2). When asked
to

identify

those

individuals,

Peack

could

not

identify

anyone but stated that she had requested that information
from the Sheriff’s Office and “will present in court that I
did request it.” (Id. at 207:21-22). But, as shown by the
Sheriff’s

Office,

in

the

five

years

before

Peack’s

termination, every employee who was found to have violated
the untruthfulness policy was terminated. (Fulse Decl. Doc.
#

49-2

at

¶

6).

A

total

of

thirty-four

employees

were

terminated: twenty-two men and nine women. (Id.). Of the
thirty-four

employees,

“22

were

white,

7

were

African-

American, 4 were Hispanic and one was Indian.” (Id.). The
Sheriff’s Office does not track the religious affiliations of
its employees. (Id.).
After Peack was denied unemployment benefits following
her termination, Peack appealed that decision within the
Florida Department of Economic Opportunity. (Doc. # 55 at 37).

The

issue

involved

was

“[w]hether

the

claimant

was

discharged for misconduct connected with work or voluntarily
left work without good cause,” because benefits could only be
denied to Peack if the Sheriff’s Office established that
Peack’s employment ended for one of those reasons. (Id. at
4). The appeals referee reversed the denial of her benefits

12

after finding that the Sheriff’s Office had not met its burden
of proving that Peack was dismissed for misconduct by a
preponderance of the evidence. (Id. at 5). The appeals referee
found

Peack’s

testimony

of

the

events

surrounding

her

termination to be “more credible” than that provided by her
supervisors. (Id.).
F.

Procedural History

After Peack filed a charge with the Equal Employment
Opportunity Commission (EEOC), alleging race, religion, and
national

origin

discrimination

and

retaliation,

the

EEOC

issued Peack a right to sue letter on September 10, 2015.
(Doc. # 48 at 13; Doc. # 55 at 8). Then, Peack, proceeding
pro se, filed her Complaint in this Court on December 12,
2015.

(Doc.

Complaint

on

#

1).

Subsequently,

February

1,

2016.

Peack
(Doc.

filed
#

an

17).

Amended

The

Court

dismissed the Amended Complaint without prejudice, and Peack
filed her Second Amended Complaint on May 12, 2016. (Doc. #
36). On May 26, 2016, the Sheriff’s Office filed its Answer.
(Doc. # 37).
At

the

Court’s

direction,

the

parties

mediated

on

October 18, 2016, but met an impasse. (Doc. ## 29, 44). Also
on October 18, 2016, Peack moved for an extension of time to
complete discovery, but that motion was denied because the

13

discovery deadline had already passed. (Doc. ## 46-47). Then,
on November 15, 2016, the Sheriff’s Office filed its Motion
for Summary Judgment. (Doc. # 48). Peack responded on January
12, 2017, (Doc. # 53). The Sheriff did not file a reply. The
Motion is ripe for review.
II.

Legal Standard
Summary Judgment is appropriate “if the movant shows

that 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 factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are

14

no genuine issues 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)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact
finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988)(citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists

of

However,

nothing

“more

if

the

than

15

non-movant’s
a

repetition

response
of

his

conclusional

allegations,”

summary

judgment

is

not

only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III. Analysis
A.

Disparate Treatment Claim

Pursuant to Title VII, it is unlawful for an employer
“to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of
employment,

because

of

such

individual’s

race,

color,

religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a).
A plaintiff may establish her Title VII claim with either
direct or circumstantial evidence of discrimination. Wilson
v.

B/E

Aerospace,

Inc.,

376

F.3d

1079,

1085

(11th

Cir.

2004)(citing Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th
Cir. 1999)).
“Direct evidence of discrimination is evidence which, if
believed, would prove the existence of a fact in issue without
inference or presumption. Only the most blatant remarks,
whose intent could be nothing other than to discriminate on
the basis of [a protected characteristic] constitute direct
evidence of discrimination.” Tippie v. Spacelabs Med., Inc.,
180 F. App’x 51, 54 (11th Cir. 2006)(quoting Bass v. Bd. of

16

Cty. Comm’rs, Orange Cty., Fla., 256 F.3d 1095, 1105 (11th
Cir. 2001)). Peack presents no direct or statistical evidence
of

discrimination.

Thus,

Peack’s

case

is

limited

to

circumstantial evidence.
In analyzing allegations supported by circumstantial
evidence under Title VII, the Court follows the burdenshifting analysis established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), and its progeny. See Marcelin v.
Eckerd Corp. of Florida, No. 8:04-cv-491-T-17MAP, 2006 WL
923745, at *4 (M.D. Fla. Apr. 10, 2006)(citing Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). Under the
McDonnell Douglas framework, the plaintiff bears the initial
burden of establishing a prima facie case of discrimination,
which creates a rebuttable presumption that the employer
acted illegally. McDonnell Douglas, 411 U.S. at 802–03. Once
the plaintiff has established a prima facie case, the burden
of proof shifts to the defendant. Id.; Dickinson v. Springhill
Hosps., Inc., 187 F. App’x 937, 939 (11th Cir. 2006).
To rebut the presumption of discrimination created by
the plaintiff’s prima facie case, the defendant must provide
“legitimate, nondiscriminatory reason[s]” for the employment
action taken against the plaintiff. Burdine, 450 U.S. at 254;
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th

17

Cir. 1998). However, “[t]his is a burden of production, not
persuasion.” Standard, 161 F.3d at 1331. A defendant “must
merely produce evidence that could allow a rational fact
finder

to

conclude”

its

actions

were

not

motivated

by

discriminatory animus. Id.
If the defendant produces such evidence, the burden
shifts again to the plaintiff. McDonnell Douglas, 411 U.S. at
802–03. The plaintiff then “has the opportunity to come
forward

with

evidence,

including

the

previously

produced

evidence establishing [his] prima facie case, sufficient to
permit a reasonable fact-finder to conclude that the reasons
given by the employer were not the real reasons for the
adverse employment decision.” Combs v. Plantation Patterns,
106 F.3d 1519, 1528 (11th Cir. 1997).
In the instant case, Peack has failed to establish a
prima facie case but, assuming she had, she failed to carry
her burden of showing the Sheriff’s Office’s proffered nondiscriminatory reason was pretextual. 1

1

The Sheriff’s Office argues that summary judgment should be
granted on the basis of its requests for admission, to which
Peack did not timely respond, and therefore admitted. See
Fed. R. Civ. P. 36(a)(3)(“A matter is admitted unless, within
30 days after being served, the party to whom the request is
directed serves on the requesting party a written answer or
objection addressed to the matter and signed by the party or
its attorney.”). But, while the Sheriff’s Office lists a

18

1.

Prima Facie Case

In order to establish a prima facie case of disparate
treatment, Peack must demonstrate that she: “(1) belongs to
a protected class; (2) suffered an adverse employment action;
(3) was qualified to do her job; and (4) was treated less
favorably than similarly situated employees outside of the
protected class.” Martin v. Rumsfeld, 137 F. App’x 324, 325
(11th Cir. 2005); see also Wilson, 376 F.3d at 1087.
The Sheriff’s Office does not argue that Peack was
unqualified for her job as DSS. Additionally, it is undisputed
that Peack belongs to a protected class for her race and
national origin. (Doc. # 48 at 13). The parties dispute,
however, whether Peack is a member of a protected class
regarding her religion — she identifies as Christian. (Id. at
13 n.5; Peack Dep. Doc. # 49-5 at 43:3-6). Regardless, Peack
has not identified any similarly situated employees outside
of any of the three protected classes.
“When

determining

whether

employees

are

similarly

situated for the purposes of establishing a prima facie case

sampling of the requests for admission in its Motion, (Doc.
# 48 at 11), the requests for admission themselves are not
attached to the Motion. As the Court cannot review the
requests for admission, summary judgment will not be granted
on that basis.

19

of discrimination, we must consider whether the employees are
involved in or accused of the same or similar conduct and are
disciplined in different ways.” Castillo v. Roche Labs.,
Inc., No. 11–12219, 2012 WL 1648873, at *2 (11th Cir. May 11,
2012).

“The

quantity

and

quality

of

the

comparator’s

misconduct must be ‘nearly identical’ to the plaintiff’s
misconduct, in order ‘to prevent courts from second-guessing
employers’ reasonable decisions.’” Rose v. Wal-Mart Stores
E., Inc., 631 F. App’x 796, 799 (11th Cir. 2015)(quoting
Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th
Cir. 2006)).
The Court finds no evidence of a similarly situated
employee whom the Sheriff’s Office treated differently than
Peack. Peack has not presented evidence of an employee who
was

found

to

have

violated

the

Sheriff’s

Office’s

untruthfulness policy but who was not terminated. Indeed,
Peack has presented no evidence to refute the Sheriff’s
Office’s evidence that all employees found to have violated
the policy in the five years before Peack’s termination —
thirty-four employees in total — were all terminated. (Fulse
Decl. Doc. # 49-2 at ¶ 6). Nor has Peack presented evidence
of employees who engaged in similar conduct — missing work
without

permission

—

but

who

20

were

not

investigated

for

dishonesty

or

disciplined

because

they

belonged

to

a

different race, religion, or national origin.
Throughout
controverting

her
the

response,
version

Peack

of

states

events

that

recounted

evidence
by

the

Sheriff’s Office “can be presented as evidence.” (Doc. # 53
at ¶ 15, 19-20, 24-25). But a non-moving party’s response to
a summary judgment motion is her opportunity to present
evidence that contradicts that provided by the moving party.
See Jeffery, 64 F.3d at 593-94 (noting that the non-moving
party

must

‘go

beyond

the

pleadings,’

and

by

its

own

affidavits, or by ‘depositions, answers to interrogatories,
and admissions on file,’ designate specific facts showing
that there is a genuine issue for trial” to survive summary
judgment); see also Johnson v. Cambridge Indus., Inc., 325
F.3d 892, 901 (7th Cir. 2003)(“[S]ummary judgment is the ‘put
up or shut up’ moment in a lawsuit, when a party must show
what evidence it has . . .” (citation and internal quotation
marks omitted)). A motion for summary judgment otherwise
establishing that no genuine issue of material fact exists
should not be denied merely because the non-moving party
alleges unpresented contradictory evidence could later be
acquired for trial.

21

Furthermore, the Court notes that Peack would not be
able to acquire new evidence to present at trial because
discovery closed on October 14, 2016, and the Court denied
Peack’s motion to extend the discovery deadline, which she
filed on October 18, 2016. (Doc. ## 46-47); see also Ashmore
v. Sec’y, Dep’t of Transp., 503 F. App’x 683, 686 (11th Cir.
2013)(concluding district court did not abuse its discretion
by (1) denying motion to extend discovery deadline and (2)
denying motion to reopen discovery where party filed motion
one

day

before

outstanding,

discovery

and

party

closed,
delayed

even

to

had

no

the

discovery
beginning

was
the

discovery process).
“If

a

plaintiff

fails

show

existence

of

a

similarly situated employee, summary judgment is appropriate
where

no

other

evidence

of

discrimination

is

present.”

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
Because Peack has failed to identify a similarly situated
employee or other evidence of discrimination, she has failed
to establish her prima facie case of disparate treatment and
summary judgment is appropriate on this claim.
2.

Legitimate Non-Discriminatory Reason

Even if Peack had established her prima facie case, the
Sheriff’s Office contends that it had a legitimate, non-

22

discriminatory reason for firing Peack: her failure to report
for duty on June 4 and 5, 2013, and the finding of Peack’s
supervisors that she violated the untruthfulness policy.
The

Sheriff’s

Office’s

burden

of

rebuttal

is

“exceedingly light,” and it “need not persuade the court that
its proffered reasons are legitimate; the defendant’s burden
is merely one of production, not proof.” Weston–Brown v. Bank
of Am. Corp., 167 F. App’x 76, 80 (11th Cir. 2006)(quoting
Cooper v. S. Co., 390 F.3d 695, 725 (11th Cir. 2004)). “The
reason offered by an employer for an action does not have to
be a reason that the judge or jurors would act on or approve.
Instead, all that matters is that the employer advance an
explanation for its action that is not discriminatory in
nature.” Schoenfeld, 168 F.3d at 1269 (internal citation and
quotations omitted).
The Sheriff’s Office has presented evidence to establish
the existence of its legitimate non-discriminatory reason for
terminating

Peack;

namely,

the

declarations

of

Peack’s

supervisors and the reports drafted by those supervisors
finding that Peack had been untruthful about her absences in
violation of the Sheriff’s Office’s policy. (Borders Decl.
Doc. # 49-1 ¶ 10; Marcum Decl. Doc. # 49-3 at ¶ 17; Palmer
Decl.

Doc.

#

49-4

at

¶

8).

23

Additionally,

Peack

had

a

disciplinary record for poor attendance. (Marcum Decl. Doc.
# 49-3 at ¶ 16; Borders Decl. Doc. # 49-1 at ¶ 10). “Poor job
performance — including excessive absences or late arrivals
— is a legitimate, non-discriminatory reason for adverse
employment action.” Penaloza v. Target Corp., No. 8:11-cv2656-T-33AEP, 2012 WL 6721011, at *10 (M.D. Fla. Dec. 27,
2012)(citations omitted).
Peack asserted in her deposition that Lt. Palmer told
her on May 31, 2013, that she could take June 4 and 5, 2013,
off as vacation in order to sabotage her. (Peack Dep. Doc. #
49-5 at 84:10-17). Even taking as true that Lt. Palmer,
motivated

by

discriminatory

animus,

told

Peack

over

the

telephone on May 31, that she could take June 4 and 5 off,
the Sheriff’s Office has still presented a legitimate, nondiscriminatory reason for her termination. Indeed, Peack’s
absence from work on June 4 was not the only incident of
perceived untruthfulness on which Peack’s supervisors based
their decision to fire her, but only her absence on June 4
could be attributed to Lt. Palmer’s telephone call. Capt.
Marcum and Lt. Borders called Peack in for a meeting on June
4 during which they explained that Peack was not on vacation
and could not take June 5 off work unless she switched shifts
with another DSS. (Marcum Decl. Doc. # 49-3 at ¶ 9; Borders

24

Decl. Doc. # 49-1 at ¶ 7). Capt. Marcum concluded that Peack’s
subsequent use of a doctor’s note to excuse herself from work
on June 5 was untruthful because Peack then attended the class
in Orlando that day. (Marcum Decl. Doc. # 49-3 at ¶ 17).
3.

Pretext

Even if Peack’s failure to appear at work on June 4 and
5

was

the

result

of

an

honest

misunderstanding

of

her

supervisors’ orders, Peack has still failed to establish that
the investigation in which her supervisors determined she had
been dishonest was a pretext for discrimination.
“A legitimate nondiscriminatory reason proffered by the
employer is not a pretext for prohibited conduct unless it is
shown that the reason was false and that the real reason was
impermissible retaliation or discrimination.” Worley v. City
of Lilburn, 408 F. App’x 248, 251 (11th Cir. 2011)(citing St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). “If
the proffered reason is one that might motivate a reasonable
employer, a plaintiff cannot merely recast the reason, but
must meet it ‘head on and rebut it.’” Id. (quoting Chapman v.
AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)).
“An employer who fires an employee under the mistaken
but honest impression that the employee violated a work rule
is not liable for discriminatory conduct.” Damon v. Fleming

25

Supermarkets of Fla., Inc., 196 F.3d 1354, 1363 (11th Cir.
1999). As the Eleventh Circuit has explained:
[I]n carrying out its business and in making
business
decisions
(including
personnel
decisions), the employer can lawfully act on a
level of certainty that might not be enough in a
court of law. In the workaday world, not every
personnel decision involving a false statement (or
a cover-up) has to be treated as something like a
trial for perjury. Therefore, an employer, in these
situations, is entitled to rely on its good faith
belief about falsity, concealment, and so forth.
E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th
Cir. 2000).
The record reveals that the Sheriff’s Office concluded
Peack had violated its untruthfulness policy when (1) she
stated that she was absent from work on June 4 because she
misunderstood that she was on vacation and (2) when she
subsequently provided a doctor’s note stating that she was
too ill to report to work on June 5 but still attended the
class in Orlando. Whether the Sheriff’s Office’s conclusion
was correct is inconsequential. Damon, 196 F.3d at 1363.
Rather, what matters at this stage is that Peack has not
presented any evidence to establish the Sheriff’s Office’s
proffered reason is pretextual. That is, Peack has failed to
show the reason was not the true reason for her termination.
Cf. Oliver v. TECO Energy, Inc., No. 8:12-cv-2117-T-33TBM,

26

2013 WL 6836421, at *10 (M.D. Fla. Dec. 26, 2013)(“The record
shows that TECO’s decision makers were operating under the
belief that her absence from the meeting was unauthorized,
and Oliver has not pointed to any contrary evidence regarding
the decision maker’s beliefs.”).
Although Peack insists her supervisors lied in their
memoranda and declarations to have her employment terminated,
Peack has presented no evidence in support of that argument.
See Combs, 106 F.3d at 1528 (noting that a plaintiff must
provide evidence “sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer
were

not

the

real

reasons

for

the

adverse

employment

decision”).
Peack’s evidence that the Florida Department of Economic
Opportunity granted her appeal and reversed the denial of her
unemployment benefits does not refute the Sheriff’s Office’s
stated

non-discriminatory

reason

—

that

it

fired

Peack

because of perceived untruthfulness. The appeals referee in
that case found that the Sheriff’s Office had not carried its
burden of proving Peack’s misconduct by a preponderance of
the evidence, and that Peack’s testimony in that proceeding
was “more credible.” (Doc. # 55 at 5).

27

But unemployment benefits appeals are different than
Title VII discrimination and retaliation cases. That appeal
involved a different legal issue — whether the Sheriff’s
Office had proven misconduct by Peack sufficient to warrant
the denial of unemployment benefits — and a different legal
standard — a preponderance of the evidence burden placed on
the

Sheriff’s

Office.

Here,

the

burden

is

on

Peack

to

establish a prima facie case of race, national origin, or
religious
rebut

by

discrimination,
producing

an

which

the

alternative

Sheriff’s
reason

Office

can

for

Peack’s

prove

Peack’s

termination.
That

the

Sheriff’s

Office

did

not

misconduct by a preponderance of the evidence in a separate
legal proceeding is not evidence that its stated reason for
Peack’s termination was pretextual. At most, this evidence
suggests the conclusion by the Sheriff’s Office regarding
Peack’s truthfulness was incorrect. But, again, so long as an
action is not motivated by a discriminatory reason, it is not
illegal, even if the reason was incorrect. See Smith v. City
of Fort Pierce, Fla., 565 F. App’x 774, 779 (11th Cir.
2014)(citing Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d
1181, 1187 (11th Cir. 1984)); Thomas v. Nicholson, 263 F.

28

App’x 814, 816 (11th Cir. 2008)(citing Damon, 196 F.3d at
1361)).
Additionally, Peack argues that her termination was a
breach of her employment contract because “there is clearly
a contract namely the General Order Handbook from which an
employee must breach a General Order to be justly and without
discrimination terminated.” (Doc. # 53 at ¶ 3). But this is
not a breach of contract case, because Peack listed only Title
VII as the grounds for her claim in her Second Amended
Complaint.

(Doc.

#

36

at

1).

And,

to

the

extent

that

terminating an employee in violation of an employer’s own
policy

may

be

Office

found

evidence
that

of

Peack

discrimination,

had

violated

the

the

Sheriff’s

General

Order

regarding untruthfulness. Thus, even if Peack were correct
that the Sheriff’s Office could not lawfully fire her unless
she violated a General Order, the Sheriff’s Office did not
violate that termination policy.
B.

Retaliation Claim

“To establish a prima facie case of retaliation under
Title VII, ‘the plaintiff must show (1) that she engaged in
statutorily protected expression; (2) that she suffered an
adverse employment action; and (3) that there is some causal
relation between the two events.’” Thomas v. Cooper Lighting,

29

Inc., 506 F.3d 1361, 1363 (11th Cir. 2007)(quoting Meeks v.
Comput. Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994)).
“[I]n order to constitute protected opposition activity, a
plaintiff must, at the very least, communicate her belief
that illegal discrimination is occurring.” Marcelin, 2006 WL
923745, at *9 (citing Webb v. R & B Holding Co., 992 F. Supp.
1382, 1389 (S.D. Fla. 1998)(“It is not enough for the employee
merely to complain about a certain policy or certain behavior
. . . and rely on the employer to infer that discrimination
has occurred.”)).
During her deposition, Peack acknowledged that she did
not

report

any

complaints

of

discrimination

during

her

employment with the Sheriff’s Office. (Peack Dep. Doc. # 495 at 111:8-17; Fulse Decl. Doc. # 49-2 at ¶ 8). In her
response, Peack asserts that her failure to file a complaint
is not grounds for summary judgment because Peack “did this
out of fear of losing my job out of retaliation for filing a
complaint.” (Doc. # 53 at ¶ 30).
Additionally, Peack contends in her response that she
was retaliated against by her supervisors for “requesting a
transfer from the jail to positions that were anywhere other
than the jail.” (Doc. # 53 at ¶ 30). Yet, Peack has not
provided

any

evidence

of

these

30

transfer

requests,

and

regardless, Peack’s request for a transfer, without more,
would

not

have

alerted

the

Sheriff’s

Office

to

alleged

discrimination against Peack. See Williams v. H. Lee Moffitt
Cancer Ctr. & Research Inst., Inc., No. 8:09-cv-784-T-33TGW,
2010

WL

5058513,

at

*10

(M.D.

Fla.

Dec.

6,

2010)(“[T]o

constitute protected activity, a plaintiff must, at the very
least,

tell

his

employer

that

he

believes

that

illegal

discrimination is occurring.” (citations omitted)). Indeed,
Peack specifies that the motivation for her transfer requests
was not discrimination covered by Title VII: “I requested
transfer from the jail because it was terribly understaffed
and there was no attempt to try to keep people from leaving
but instead threats to fire deputies and other employees every
morning at briefing in the jail.” (Doc. # 53 at ¶ 31).
As

Peack

acknowledges

that

she

did

not

engage

in

protected activity for fear that she would be retaliated
against, there is no genuine issue of material fact regarding
whether she was terminated in retaliation for engaging in
protected activity. Peack’s termination could not have been
caused by her engagement in protected activity. See Birdyshaw
v. Dillard’s Inc., 308 F. App’x 431, 436 (11th Cir. 2009)(“In
this

case,

it

is

undisputed

that

Dillard’s

suspended

Birdyshaw’s salary on January 17, 2001, nearly one month

31

before Birdyshaw filed her first EEOC charge on February 15,
2001. Thus, there could not have been any causal connection
between

the

suspension

of

Birdyshaw’s

salary

and

her

subsequent EEOC charge.”). The Court grants summary judgment
on the retaliation claim because Peack has failed to establish
the protected activity and causation elements of her prima
facie case.
IV.

Conclusion
The Court grants summary judgment for the Sheriff’s

Office because Peack has failed to establish a prima facie
case of disparate treatment and, even if she had, she failed
to show that the Sheriff’s Office’s proffered reason was
pretextual. In addition, Peack failed to establish a prima
facie case of retaliation.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant

Polk

County

Sheriff’s

Office’s

Motion

for

Summary Judgment (Doc. # 48) is GRANTED.
(2)

The Clerk is directed to enter judgment in favor of
Defendant Polk County Sheriff’s Office and thereafter
CLOSE THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 2nd

day of February, 2017.

32

33