Cornell v. Brennan et al
Filing
35
ORDER: Defendant Megan J. Brennan's Motion for Summary Judgment (Doc. # 30 ) is GRANTED. The Clerk is directed to enter judgment in favor of Defendant and against Plaintiff Richard Cornell on both counts of the Complaint. Thereafter, the Clerk is directed to CLOSE THE CASE. Signed by Judge Virginia M. Hernandez Covington on 5/2/2018. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICHARD CORNELL,
Plaintiff,
vs.
Case No. 8:16-cv-1099-T-33TGW
MEGAN J. BRENNAN,
POSTMASTER GENERAL,
UNITED STATES POSTAL SERVICE,
Defendant.
______________________________/
ORDER
This matter comes before the Court upon consideration of
a Motion for Summary Judgment filed on January 4, 2018, by
Defendant Megan J. Brennan, who is sued in her official
capacity as Postmaster General of the United States Postal
Service. (Doc. # 30). Plaintiff Richard Cornell filed his
response to the Motion (Doc. # 31) on February 5, 2018. The
Court grants the Motion for the reasons that follow.
I.
Background
Cornell sues Brennan for violations of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et
seq. (Doc. # 1). Cornell asserts claims for discrimination
based on sex and hostile work environment based on sex.
1
Cornell first started working for the Postal Service as
a letter carrier in 1966. (Cornell Dep. I Doc. # 30-1 at 15:217). In the following years, Cornell moved between jobs with
the Postal Service in Florida and Minnesota and other nongovernment jobs. (Id. at 16:10-52:8). Then, in 1992, Cornell
began
working
at
the
Winter
Haven
Post
Office
as
a
transitional employee carrier and was later given a clerk
position in 1994. (Id. at 53:6-56:4). From then on, Cornell
continued to be employed by the Postal Service until he
retired in 2015. (Id. at 201:22-24). While with the Postal
Service, Cornell was heavily involved with the local workers’
union until he left the union in 2013. (Id. at 63:11-12). For
a few years, he was the union’s associate vice-president and
chief steward for the Winter Haven Office. (Id. at 61:1262:11).
Cornell’s problems at his job — about uniforms, who had
to wear them, and who should pay for them — began in early
2012. During that time, Cornell’s title was sales, service,
and distribution associate and his principal assignment area
was scheme distribution in the back of the Post Office. (Id.
at 87:10-16). Still, he usually covered for window clerks
during their lunch breaks because he was both scheme qualified
and
window
qualified.
(Id.
at
2
111:19-23).
According
to
Cornell, full-time window clerks have always been given a
uniform allowance and had to wear uniforms while working at
the window, where they interact with customers. (Id. at
130:11-15). But Cornell insists that employees who did not
qualify for the allowance could wear “acceptable clothing []
to be in a casual professional atmosphere” when they worked
the
window.
(Id.
at
129:15-130:1).
In
contrast,
Brennan
argues that, under Postal Service regulations, employees who
do
not
qualify
for
a
uniform
allowance
must
wear
the
appropriate uniform for the position if it is provided to
them outside of the uniform allowance program. (Id. at 133:1318, 139:7-11). Cornell disagrees and believes this standard
was not in the manual in 2012. (Id. at 133:19-21, 137:16-24,
139:12-15).
Regardless, early in 2012, the Winter Haven Post Office
came
under
the
direction
of
a
new
district
manager
who
required all employees to wear uniforms while working at the
window.
(Id.
at
143:19-22).
According
to
Cornell,
his
supervisor, Randy Hockenberry, told Cornell he had a uniform
allowance, handed him a Postal Service credit card, and
instructed him to purchase uniforms by February 29, 2012.
(Id. at 144:1-13, 151:18-152:17). Cornell insisted he was not
entitled to a uniform allowance and was worried that if he
3
used the credit card to purchase uniforms he would be written
up for fraudulent use of the credit card and fired. (Id.).
February 29, 2012, came but Cornell still was not wearing
a uniform shirt while working the window. (Id. at 151:18152:3, 153:2-5). Indeed, Cornell had not ordered a uniform
yet. (Id. at 151:18-152:1, 153:6-7). A few days later, on
March 14, 2012, Hockenberry issued Cornell a NOS-7, which is
a notice of suspension for seven days, and a letter. (Id. at
150:5-151:15).
The
letter
explained
the
basis
for
the
suspension: Cornell’s “unsatisfactory performance/failure to
follow instructions.” (Id. at 150:5-152:3). Then, because he
feared his supervisors had been “waiting to get [him] for all
this time” because of his union leadership, Cornell asked the
facility’s postmaster, Douglas Shirer, to put in writing that
Cornell would not face discipline if he agreed to use the
credit card. (Id. at 148:8-23, 160:22-161:1; Cornell Dep. II
Doc. # 30-2 at 57:21-58:3). Cornell said he would have ordered
the uniforms then had Shirer given written confirmation, so
that the NOS-7 would be rescinded. (Cornell Dep. I Doc. # 301 at 148:8-23). But Shirer refused, so Cornell refused to
order the uniforms. (Id.).
Cornell filed a grievance over the NOS-7. (Id. at 127:26, 159:1-25). Eventually, Cornell’s supervisors provided him
4
three uniform shirts to wear. (Id. at 148:8-21, 161:11-15).
Cornell initially refused to wear them, arguing it was against
Post Office rules for Post Office funds to be spent to buy
his uniform shirts, but he relented. (Id. at 162:6-25).
Cornell
also
refused
to
wear
the
uniform
shirts
unless
Hockenberry laundered the shirts for him, which Hockenberry
did for a few weeks. (Id. at 163:4-164:17). Time passed and
Shirer decided on a new and more stringent uniform rule. On
May 11, 2012, Shirer announced that all window qualified
clerks had to wear their uniform polo shirts whenever they
were on the clock — not just when they were working the retail
window.
(Id.
at
168:2-7,
169:20-170:11).
That
same
day,
Shirer warned Cornell that if he did not wear the uniform
shirt they would “go farther” with discipline by giving him
a fourteen-day suspension. (Id. at 167:8-19, 168:9-19).
After May 11, 2012, Cornell fully complied and wore his
uniform shirt because the NOS-7 on his record meant he would
receive a greater suspension if he were disciplined again.
(Id. at 168:16-169:12, 172:14-175:25). Wearing the uniform
while on the workroom floor was unpleasant for Cornell. The
workroom floor, where mail is sorted and moved, is hot and
Cornell’s job involved the heavy lifting and throwing of
parcels. (Cornell Dep. II Doc. # 30-2 at 40:25-41:20). As a
5
result, when Cornell left the workroom floor to cover the
retail window, he was sweaty and unkempt in appearance. (Id.
at
41:13-18).
Some
female
employees
—
Ahn
Tran,
Yvette
Hadlock, Tinia Clark, and Tonya Keefer — did not follow the
instruction to wear uniform shirts while on the clock, yet
they were not disciplined. (Cornell Dep. I Doc. # 30-1 at
169:13-16).
Cornell eventually filed an EEO complaint in June of
2012, regarding the NOS-7 and how the new uniform rule was
not being enforced against female employees. (Id. at 165:15169:16).
In
supervisors
that
EEO
either
complaint,
“discipline
Cornell
[the
asked
female
that
employees]
his
or
rescind [his] NOS-7.” (Id. at 175:4-9). According to Cornell,
the business agent of the Postal Service then offered him a
deal. The Postal service would “kill the discipline” (i.e.,
revoke the NOS-7) if Cornell withdrew his EEO complaint and
grievance. (Id. at 183:19-184:13). Cornell did, so the Postal
Service
revoked
the
NOS-7
and
Cornell
never
served
the
suspension. (Id. at 183:19-184:13, 201:11-17). But the Postal
Service did not remove the NOS-7 from Cornell’s employee
record. (Id. at 201:22-202:11).
After he was first disciplined, Cornell documented every
time he saw a co-worker violate the uniform rules. (Id. at
6
185:5-15).
He
also
reported
violations
to
Hockenberry,
Hockenberry’s direct supervisor Dean Moseley, and Shirer.
(Doc. # 31 at 3-4; Shirer Dep. Doc. # 31-1 at 11:12-13:11).
Most violations Cornell recorded were committed by one woman,
Tran. (Cornell Dep. Doc. I at 232:16-22). However, neither
she nor the other women who broke the uniform rule were
suspended. (Id. at 176:22-177:3). Although Cornell contends
on “information and belief” that no female employee was ever
disciplined
in
any
way
for
uniform
violations,
Shirer
testified that Hockenberry had issued Tran a Letter of Warning
for her violations. (Doc. # 31 at 3; Doc. # 31-1 at 1; Shirer
Dep.
Doc.
#
31-1
at
19:11-20:19).
And
while
a
general
instruction was given to all employees about the uniform rule,
there is no evidence that the identified female employees
were given a direct order to procure and wear a uniform shirt
by a specific date, but disobeyed.
Male employees also broke the uniform rules. On April
26, 2012, Rusty Herndon violated the rule that clerks always
had to wear a uniform shirt while working the retail window.
(Cornell Dep. I Doc. # 30-1 at 188:8-190:15). After the more
stringent uniform rule was issued on May 11, 2012, Herndon
failed to wear his uniform shirt on the workroom floor on
numerous days in August and September of 2012. (Id. at 207:24-
7
208:8,
210:8-13,
212:14-213:4).
Cornell
also
recorded
a
violation in August of 2012 by a window clerk, Richard Fugate.
(Id. at 210:14-211:25). Fugate was out of uniform while he
was assigned to help on the workroom floor one Saturday, so
Hockenberry told Fugate to put on his uniform shirt. (Id.).
Fugate claimed he was unaware of the policy but complied and
put on his uniform. (Id.).
Although
notebook,
Cornell
Cornell
recorded
testified
no
that
such
incidents
Hockenberry
and
in
his
Moseley
would flirt and show “frequent favoritism and inordinate
attention” toward attractive female employees. (Id. at 234:216; Doc. # 31 at 17). According to Cornell, the flirting was
common knowledge. (Cornell Dep. I Doc. # 30-1 at 239:10-15).
As an example of greater attention being paid to female
employees, Cornell recounted a time when Moseley had “put the
‘moves’ on one of the attractive female[]” employees in his
office. (Id. at 234:17-235:20; Doc. # 31 at 14, 17). The
female employee was “clearly upset” when she left Moseley’s
office and told Cornell’s wife Joyce, who was also an employee
at the Post Office, about the unwelcome sexual advances. (Doc.
# 31 at 14). Cornell’s wife encouraged the female employee
not
to
tolerate
such
treatment.
(Id.).
Having
overheard
Cornell’s wife, Moseley called her into his office and told
8
her “to mind her own business.” (Id. at 14, 17; Cornell Dep.
I Doc. # 30-1 at 234:17-235:15). Cornell “consider[ed] that
[incident and the flirting] to be part of the hostile work
environment based on sex.” (Cornell Dep. I Doc. # 30-1 at
235:16-24).
The continued refusal to punish female employees who
failed to wear uniform shirts and supervisors’ flirtatious
treatment towards female employees led Cornell to file two
more EEO complaints in December of 2012 and April of 2013.
(Doc. # 31-1 at 3-4). Cornell subsequently initiated this
action on May 6, 2016, asserting claims for discrimination
based on sex and hostile work environment based on sex under
Title VII. (Doc. # 1). Brennan filed her Answer on July 18,
2016. (Doc. # 11). The parties mediated on November 14, 2017,
but reached an impasse. (Doc. # 27). Then Brennan filed her
Motion for Summary Judgment. (Doc. # 30). Cornell responded
in opposition on February 5, 2018. (Doc. # 31). Brennan failed
to file a reply.
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
9
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
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 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)(quoting Celotex, 477 U.S. at 324).
10
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, 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). But, if the non-movant’s
response consists of nothing “more than a repetition 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.
Discrimination Based on Sex
In Count I, Cornell claims the Postal Service violated
Title VII because he was forced to wear a uniform while
similarly situated female employees were not.
Under Title VII, it is unlawful for an employer “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
11
national origin.” 42 U.S.C. § 2000e–2(a)(1). A plaintiff may
establish
his
circumstantial
Title
VII
evidence
claim
of
with
either
discrimination.
direct
Wilson
v.
or
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
Cty. Comm’rs, Orange Cty., 256 F.3d 1095, 1105 (11th Cir.
2001)).
Cornell
relies
on
circumstantial
evidence
to
establish his claim.
In analyzing allegations of single-motive discrimination
supported by circumstantial evidence, the Court follows the
burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and its progeny. See
Marcelin v. Eckerd Corp. of Fla., 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
12
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
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
Cir. 1998). 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).
Here, the Court is concerned only with the prima facie
case stage of the McDonnell Douglas framework. Brennan does
13
not
assert
that
a
legitimate
non-discriminatory
reason
existed for any disparate treatment. Rather, Brennan merely
argues that Cornell cannot establish a prima facie case of
sex discrimination. (Doc. # 30 at 6-7). To establish a prima
facie case of disparate treatment, Cornell must demonstrate
that he: “(1) belongs to a protected class; (2) suffered an
adverse employment action; (3) was qualified to do [his] 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.
Brennan
does
not
challenge
two
of
the
elements
of
Cornell’s prima facie case. The parties agree Cornell is a
member of a protected class — men — and he was qualified to
do his job. (Doc. # 30 at 6). The disagreement involves
whether Cornell was subjected to an adverse employment action
and whether similarly situated female employees were treated
more favorably. (Id. at 6-7). The Court will address these
elements separately.
1.
Adverse Employment Action
“[T]o prove adverse employment action in a case under
Title VII’s anti-discrimination clause, an employee must show
a serious and material change in the terms, conditions, or
14
privileges of employment.” Davis v. Town of Lake Park, 245
F.3d 1232, 1239 (11th Cir. 2001). “An adverse employment
action is an ultimate employment decision, such as discharge
or
failure
to
hire,
or
other
conduct
that
alters
the
employee’s compensation, terms, conditions, or privileges of
employment, deprives him or her of employment opportunities,
or adversely affects his or her status as an employee.” Gupta
v.
Fla.
Bd.
of
Regents,
212
F.3d
571,
587
(11th
Cir.
2000)(citation and internal quotation marks omitted). “[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 reasonable
person in the circumstances.” Davis, 245 F.3d at 1239.
Brennan argues Cornell’s “claim that he was required to
wear the retail clerk polo shirt does not constitute an
adverse employment action” because Cornell has failed to show
that wearing the shirt “impacted the terms, conditions or
privileges of employment in a real and demonstrable way.”
(Doc. # 30 at 9).
In response, Cornell invokes case law espousing that
maintenance of different uniform requirements for different
sexes is discrimination. (Doc. # 31 at 8-9); see Carroll v.
Talman Fed. Sav. & Loan Ass’n of Chicago, 604 F.2d 1028, 1032
15
(7th Cir. 1979)(holding it was discrimination based on sex
when “two sets of employees performing the same functions are
subjected on the basis of sex to two entirely separate dress
codes one including a variety of normal business attire and
the other requiring a clearly identifiable uniform” (citation
omitted)); O’Donnell v. Burlington Coat Factory Warehouse,
Inc.,
656
F.
Supp.
263,
266
(S.D.
Ohio
1987)(“[I]t
is
demeaning for one sex to wear a uniform when members of the
other sex holding the same positions are allowed to wear
professional business attire. . . . [D]efendants have several
non-discriminatory alternatives for achieving the goal of
sales clerk identification: both sexes could wear the smock,
a
distinguishing
blazer
or
identifying
badges
on
their
professional attire.”).
But,
in
those
cases,
the
uniform
policies
facially
discriminated between sexes. Here, the rule applied equally
to men and women, but was allegedly only enforced against
men. Thus, those cases do not stand for the proposition that
the institution of a facially gender-neutral uniform rule
qualifies as “a serious and material change in the terms,
conditions, or privileges of employment.” Davis, 245 F.3d at
1239.
16
Still, Cornell insists that “requiring [him] to wear the
uniform on the workroom floor was an adverse employment
action” because the unequal application of the uniform rule
resulted in a loss of prestige and humiliated him. (Doc. # 31
at 9). According to Cornell, his wearing a uniform shirt on
the workroom floor resulted in an unkempt appearance when he
worked the retail window. That appearance, combined with his
being seen in uniform while female employees were seen in
non-uniform shirts, reduced his prestige amongst his coworkers. (Id.). The Eleventh Circuit has recognized that
“loss of prestige, either within an organization or with
regard to the general public, is an objective factor that a
court should consider as part of the reasonable person test.”
Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1452 n.19
(11th Cir. 1998).
More recently, however, the court has expressed some
skepticism about the circumstances under which an employment
action causing a loss of prestige qualifies as adverse. The
Eleventh Circuit clarified its holding in Doe, emphasizing
that
“an
asserted
loss
of
prestige
[cannot]
transform
employer conduct which does not alter the ‘terms, conditions,
or privileges’ of the plaintiff’s employment into a proper
basis for suit under Title VII’s anti-discrimination clause.”
17
Davis, 245 F.3d at 1242 n.4. In the context of a verbal
reprimand, the Davis court warned: “Simply put, the loss of
prestige or self-esteem felt by an employee who receives what
he believes to be unwarranted job criticism or performance
review will rarely — without more — establish the adverse
action necessary to pursue a claim under Title VII’s antidiscrimination clause.” Id. at 1242.
Even if a loss of prestige great enough to alter the
terms and conditions of employment could result from being
seen in a sweaty uniform shirt, Cornell has not presented
evidence beyond his own declaration that he actually suffered
a loss of prestige. There is no objective evidence Cornell
lost prestige amongst his coworkers or supervisors — there is
only Cornell’s subjective belief that he did so. See L’Argent
v. United Space All., LLC, No. 6:04-cv-1787-Orl-31, 2006 WL
680806, at *10 (M.D. Fla. Mar. 16, 2006)(“L’Argent has offered
no testimony from other witnesses to support her assertion
that her transfer to HMF was a transfer to a less prestigious
facility, and thus relies solely on her own assertion, which
is insufficient.”). This is insufficient to show that Cornell
lost prestige because of his wearing the uniform at all times.
See Davis, 245 F.3d at 1244 (“[E]ven accepting that Davis may
have felt some blow to his professional image when he was
18
removed as OIC, that is simply not enough to prevail on this
record.”). Therefore, Cornell’s perceived loss of prestige
does not qualify as an adverse employment action.
Furthermore, the Court notes that Cornell’s response
mentions his NOS-7 and Shirer’s warning that Cornell would
receive a larger suspension if he violated the more stringent
uniform rule. (Doc. # 31 at 9). Cornell does not identify
either act explicitly as discipline constituting an adverse
employment action. To the extent Cornell may be relying on
the unequal application of discipline to support his claim,
Cornell cannot establish an adverse employment action in the
form of actual discipline taken against him.
The only formal discipline Cornell actually received was
the issuance of the NOS-7 on March 14, 2012. Again, Cornell
does not explicitly claim in his response that issuance of
the NOS-7 was an adverse employment action undergirding his
claim. And Cornell’s Complaint never mentions the issuance of
the NOS-7 at all. (Doc. # 1). Rather, the Complaint alleges
that, from March of 2012 to May of 2014, Cornell’s supervisors
“required
Cornell
to
wear
a
uniform
at
all
times
and
threatened Cornell with discipline if he did not,” so “Cornell
complied with the rules regarding the uniform.” (Id. at ¶ 6).
Thus, the Complaint theorizes only that the wearing of the
19
uniform shirt itself was an adverse employment action and,
perhaps, that the threat of discipline for noncompliance was
also an adverse employment action.
As it did not form the basis of his claim as framed in
the Complaint, Cornell cannot now rely on the issuance of the
NOS-7
as
the
basis
for
his
discrimination
claim.
See
GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1258 n.27
(11th Cir. 2012)(“After arguing before the District Court on
numerous
occasions
that
they
did
not
have
to
allege
a
constitutionally impermissible burden on a sincerely held
religious
facts
belief,
with
their
Plaintiffs
motion
chose
for
to
include
summary
additional
judgment.
These
additional facts do not appear in the Amended Complaint. It
is well-settled in this circuit that a plaintiff may not amend
the complaint through argument at the summary judgment phase
of proceedings.”). Regardless, the NOS-7 would not qualify as
an
adverse
employment
action
because
it
was
revoked
in
exchange for Cornell’s withdrawing his EEO complaint based on
the suspension. See Harris v. Atlanta Indep. Sch. Sys., No.
1:07-CV-2086-RWS/AJB, 2009 WL 10665027, at *25 (N.D. Ga. Aug.
9,
2009)(“Ordinarily,
a
suspension
without
pay
would
constitute an adverse employment action. . . . [But] where an
employment action is rescinded or fails to take effect before
20
an employee suffers a harm, the action is not an adverse
employment action.” (citations omitted)).
After the NOS-7 was issued, Cornell acknowledges he did
not violate the uniform rule and was not disciplined. Shirer
had warned Cornell on the day the more stringent uniform rule
was announced that violation of the rule would result in
further discipline. Importantly, the threat of discipline
that is never implemented is not an adverse employment action.
See Medearis v. CVS Pharmacy, 92 F. Supp. 3d 1294, 1312 (N.D.
Ga. 2015)(“[N]umerous courts have concluded that ‘[v]erbal
reprimands
and
threats
of
termination
do
not
constitute
adverse employment actions.’” (quoting Mistretta v. Volusia
County Dep’t of Corrections, 61 F. Supp. 2d 1255, 1260 (M.D.
Fla. 1999)), aff’d sub nom. Medearis v. CVS Pharmacy, Inc.,
646 F. App’x 891 (11th Cir. 2016); see also Mitchell v.
Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004)(“Mere
threats of alleged adverse employment action are generally
not sufficient to satisfy the adverse action requirement.”).
Following Shirer’s warning, Cornell complied with the rule
that he wear the uniform shirt while on the clock and was
never punished for violating the rule. (Cornell Dep. I Doc.
# 30-1 at 168:9-169:12). So, Cornell suffered no discipline
that could qualify as an adverse employment action.
21
Cornell has not shown an adverse employment action and
has not established a prima facie case of sex discrimination
claim under the McDonnell Douglas framework. Summary judgment
is granted on Count I.
2.
Treatment of Similarly Situated Employees
Although
precludes
the
lack
Cornell’s
of
an
claim,
the
adverse
Court
employment
will
also
action
analyze
Brennan’s argument that Cornell has also failed to establish
the
existence
of
similarly
situated
employees.
Brennan
contends that the four identified female employees were not
similarly situated to Cornell. (Doc. # 30 at 9). To determine
whether employees are similarly situated to the plaintiff, a
court must evaluate “whether the employees are involved in or
accused of the same or similar conduct and are disciplined in
different ways.” McCann v. Tillman, 526 F.3d 1370, 1373 (11th
Cir. 2008)(quoting Burke-Fowler v. Orange County, 447 F.3d
1319, 1323 (11th Cir. 2006)). “In doing so, ‘the quantity and
quality
of
the
comparator’s
misconduct
[must]
be
nearly
identical to prevent courts from second-guessing employers’
reasonable decisions and confusing apples with oranges.’”
McCann, 526 F.3d at 1373 (quoting Burke-Fowler, 447 F.3d at
1323).
22
In Brennan’s eyes, the four female employees named in
the Complaint were not similarly situated to Cornell because
they were “not involved or accused of the same misconduct” as
Cornell and “were [not] issued a notice of suspension for
unsatisfactory performance and failure to obey an order of a
supervisor.”
(Doc.
characterization.
essentially
#
30
at
According
arguing
that
11).
to
Cornell
Cornell
disputes
this
Cornell,
Brennan
“is
and
[]
Tran
were
not
similarly situated because he was discriminatorily punished
when she was not punished” and that Brennan’s “argument
actually shows the discrimination here.” (Doc. # 31 at 10).
Cornell stresses that after every employee was ordered to
wear the uniform shirt at all time in May of 2012, the female
employees failed to comply while Cornell complied. (Id.).
The Court agrees with Brennan that the female employees
were not similarly situated to Cornell. Again, issuance of
the NOS-7 is not the adverse employment action underlying
this claim. Even if it were, the misconduct for which Cornell
was issued the NOS-7 differed from the conduct engaged in by
the female employees. In February of 2012, Cornell had been
issued a direct order to purchase a uniform using Postal
Service funds by a specific date because his supervisor,
Hockenberry,
considered
Cornell
23
eligible
for
a
uniform
allowance. That date came and went with Cornell refusing to
order the uniform shirt. Thus, the NOS-7 and accompanying
letter
indicate
that
Cornell
was
being
disciplined
for
“unsatisfactory performance/failure to follow instructions.”
(Cornell Dep. I Doc. # 30-1 at 151:11-15). Indeed, Cornell’s
refusal to obey Hockenberry’s instruction was overt. Rather
than order the uniform, Cornell argued with his supervisors
about the proper interpretation of Postal Service regulations
and implied that his supervisors were setting a trap to
justify firing him. (Id. at 144:1-13, 148:8-18, 160:22-161:1;
Cornell Dep. II Doc. # 30-2 at 57:21-58:3).
In contrast, no one issued a specific order to purchase
and wear a uniform shirt by a specific date to Tran or the
other female employees. There is no evidence the female
employees argued with their supervisors about the uniform
rule. Rather, Tran sometimes failed to wear the uniform shirt
she owned when working at the retail window. And, in May of
2012, all employees who were window qualified were informed
of the new policy that they needed to wear their uniform
shirts when they were on the clock. Yet, female employees
often set about their duties on the workroom floor in nonuniform shirts anyway. This conduct is not “nearly identical”
to that which led to Cornell’s NOS-7. Even taking the facts
24
in the light most favorable to Cornell, openly disobeying a
supervisor’s order to obtain a uniform by a specific date
differs from sometimes wearing a non-uniform shirt without
otherwise calling attention to yourself. One is an overt
challenge, the other a covert defiance.
Beyond Cornell’s refusal to buy and wear the uniform
shirt that precipitated the NOS-7, there is no other similar
misconduct by Cornell and the female employees. After Shirer
warned that the next disciplinary step would be a fourteenday suspension if Cornell still refused to wear a uniform,
Cornell complied with the uniform rule. (Cornell Dep. I Doc.
# 30-1 at 168:16-169:12, 172:14-175:25). Cornell claims he
committed no misconduct after Shirer’s threat because he
feared the uniform rule would be strictly enforced against
him. Essentially, Cornell complains of the lack of discipline
the female employees received for their misconduct, but he
received
different
begrudging
no
discipline
from
the
himself.
female
rule-follower,
Again,
employees’:
the
female
his
conduct
Cornell
employees
became
is
a
remained
furtive rule-breakers.
Furthermore, there is evidence that Tran — the co-worker
inspiring most of Cornell’s ire — was disciplined at least
once for failure to wear her uniform. Shirer testified that,
25
at his direction, Hockenberry issued Tran a Letter of Warning.
(Shirer Dep. Doc. # 31-1 at 19:11-20:19). Although the Court
must take all the facts in the light most favorable to
Cornell, the Court need not credit Cornell’s assertion based
“on information and belief” that Tran was never disciplined.
See
Ellis
v.
England,
432
F.3d
1321,
1326
(11th
Cir.
2005)(“[S]tatements in affidavits that are based, in part,
upon information and belief, cannot raise genuine issues of
fact,
and
thus
also
cannot
defeat
a
motion
for
summary
judgment.”). The record suggests that Tran was disciplined
for violating the uniform rule, while Cornell did not need to
be disciplined because he followed the uniform rule.
Here,
similarly
the
identified
situated
to
female
nor
employees
were
neither
more
favorably
treated
than
Cornell. Therefore, Cornell has not established a prima facie
case of sex discrimination. While the lax enforcement of the
uniform policy understandably frustrated Cornell, the Court
is
mindful
that
it
does
not
“sit
as
a
super-personnel
department that reexamines an entity’s business decisions.”
Davis, 245 F.3d at 1244 (citation omitted). Summary judgment
is granted for Brennan on Count I.
26
B.
In
Hostile Work Environment
Count
II,
Cornell
alleges
that
his
supervisors’
conduct created a hostile work environment based on sex. “To
establish a claim of a hostile work environment, an employee
must
prove
that
‘the
workplace
is
permeated
with
discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of
the
victim’s
employment
and
create
an
abusive
working
environment.’” Adams v. Austal, U.S.A., L.L.C., 754 F.3d
1240, 1248 (11th Cir. 2014)(quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)). Establishing a prima facie
case of hostile work environment requires a plaintiff to show:
(1) that he belongs to a protected group; (2) that
he has been subject to unwelcome harassment; (3)
that the harassment must have been based on a
protected characteristic of the employee, such as
[sex]; (4) that the harassment was sufficiently
severe or pervasive to alter the terms and
conditions
of
employment
and
create
a
discriminatorily abusive working environment; and
(5) that the employer is responsible for such
environment under either a theory of vicarious or
of direct liability.
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002).
Regarding the first element, both parties agree that
Cornell was a member of a protected group — men. Brennan
raises no arguments for the second, third, or fifth elements.
27
But Brennan disputes the fourth element, writing that Cornell
“has
not
demonstrated
that
the
complained-of
conduct
unreasonably interfered with his job performance.” (Doc. # 30
at 13).
The fourth element requires a plaintiff to show the work
environment is both subjectively and objectively hostile.
Adams, 754 F.3d at 1249. “The employee must subjectively
perceive the harassment as sufficiently severe and pervasive
to alter the terms or conditions of employment, and this
subjective
perception
must
be
objectively
reasonable.”
Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.
1999)(citation and internal quotation marks omitted). The
Supreme Court has stressed that the objective component is
“crucial” to “ensure that courts and juries do not mistake
ordinary socializing in the workplace — such as male-on-male
horseplay
or
intersexual
flirtation
—
for
discriminatory
‘conditions of employment.’” Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998).
“In
assessing
the
objective
component,
four
factors
should be considered: (1) the frequency of the conduct, (2)
the severity of the conduct, (3) whether the conduct is
physically threatening or humiliating, or a mere offensive
utterance,
and
(4)
whether
28
the
conduct
unreasonably
interferes with the employee’s job performance.” Body v.
McDonald, No. 8:13-cv-1215-T-33TGW, 2014 WL 7224814, at *8
(M.D. Fla. Dec. 17, 2014), aff’d sub nom. Body v. Sec’y, Dep’t
of Veterans Affairs, 616 F. App’x 418 (11th Cir. 2015). Even
if
the
plaintiff
can
prove
one
factor,
this
“does
not
compensate for the absence of the other factors.” Mendoza,
195 F.3d at 1248.
While wearing the uniform shirt on the workroom floor
made Cornell’s job less pleasant, there is no evidence that
Cornell’s supervisors’ and his female co-workers’ behavior
unreasonably
Although
interfered
harassment
need
with
not
Cornell’s
be
so
job
extreme
performance.
it
produces
tangible effects on job performance to be actionable, it is
notable that there is no evidence that Cornell’s actual
performance of his job duties suffered. See Manganiello v.
Town of Jupiter Inlet Colony, No. 12-80722-CIV, 2013 WL
6577377,
at
*10
(S.D.
Fla.
Dec.
16,
2013)(“Plaintiff,
however, presents no argument or evidence to support this
allegation that Pierson’s conduct unreasonably interfered
with her job performance. To the contrary, Plaintiff stated
during her deposition that she believed she had been doing
well at work, received multiple pay raises, and had not had
any work performance issues prior to her salary reduction in
29
2011.”). Although Cornell felt irritated or stressed at work
because of the uniform rule (Doc. # 31 at 18-19), Cornell has
not presented evidence that female employees’ wearing nonuniform shirts and supervisors’ failure to discipline them
unreasonably interfered with his performance of his job. See
Mendoza, 195 F.3d at 1249 (“[N]othing in the record indicates
that Page’s conduct impaired Mendoza’s job performance.”).
Cornell
subjectively
found
the
alleged
harassment
severe. But, taking the facts in the light most favorable to
Cornell, the alleged harassment was not objectively severe
and pervasive. The conduct — female employees’ wearing nonuniform shirts on the workroom floor with impunity while
Cornell
wore
his
uniform
shirt
—
was
not
physically
threatening or humiliating. See Colon v. Envtl. Techs., Inc.,
184 F. Supp. 2d 1210, 1220–21 (M.D. Fla. 2001)(granting
summary judgment on hostile work environment based on sex
claim and finding that no “reasonable person would have
believed that [the harassing co-worker’s] conduct created any
threat of physical harm or intimidation” because although the
co-worker made offensive remarks about women and engaged in
“crotch-grabbing” directed at Plaintiff, the co-worker “had
not touched Plaintiff or any other female employees”); see
also Hall v. Gus Const. Co., 842 F.2d 1010, 1012 (8th Cir.
30
1988)(hostile work environment based on sex established with
evidence that, among other things, female employees were held
down so other employees could touch their breasts and legs).
Cornell declared he found the uneven application of the
uniform rule humiliating. (Doc. # 31 at 5). But there is
nothing in the record to support that a reasonable person
would feel humiliated because he wore an assigned uniform
shirt all day while some female co-workers frequently wore
the uniform shirt for only a few hours per day in violation
of the employer’s rules. Besides Shirer’s warning to Cornell
to follow the uniform rule or face progressive discipline,
Cornell
was
not
even
verbally
threatened
with
formal
discipline — let alone physical harm — if he did not wear the
uniform shirt. And there was evidence from Cornell’s own logs
that two male employees sometimes failed to wear the uniform
shirt. (Cornell Dep. I Doc. # 30-1 at 188:8-190:15, 207:24208:8, 210:8-13, 212:14-213:4). These men were not subjected
to harassment or even formal discipline when they broke the
uniform rule. At worst, one male employee, Fugate, was told
by a supervisor to put his uniform shirt on. (Id. at 210:14211:25). Fugate complied and no discipline was issued. The
conduct involving the uniform rule was neither humiliating
nor threatening.
31
The conduct, which involved no offensive comments about
men, sexual jokes, or touching, occurred over approximately
sixteen
months
and
was
far
less
severe
than
that
found
insufficient in other hostile work environment cases. See
Mendoza, 195 F.3d at 1249 (“[N]one of the conduct alleged by
Mendoza
is
severe.
Even
if
somehow
offensive,
Page’s
statement ‘I’m getting fired up,’ the three sniffing sounds,
the
one
instance
of
physical
conduct,
and
the
following/staring are much less severe than the incidents of
sexual banter and inappropriate touching described, and found
insufficient [in other cases].”); see also Scott v. Pizza Hut
of
Am.,
Inc.,
92
F.
Supp.
2d
1320,
1326
(M.D.
Fla.
2000)(“[T]he complained-of acts are insufficiently severe to
amount to a Title VII violation. Scott complains of rude
language, comments to her that ‘[i]f she’d go out and get
some sex, she wouldn’t be so bitchy,’ seeing the tracing of
an
obscene
gesture
in
an
air-conditioner’s
condensation,
another employee being picked up and touched, foul lyrics
being played in a song and threatening stares from other
employees. All of these incidents, while boorish, stupid, and
inconsiderate, do not rise to the level of the complained-of
treatment in Mendoza, Sullivan, Hall or Hopkins.”).
32
Cornell also attempts to base his claim on two of his
supervisors’
supposed
flirtatious
treatment
of
female
employees. (Doc. # 31 at 17-18). He notes that Hockenberry
and
Moseley
showed
“frequent
favoritism
and
inordinate
attention” toward attractive female employees. (Id. at 17).
But the only example Cornell provides of such “favoritism” is
actually an example of inappropriate treatment of a female
employee. Cornell writes that he “was also aware that Moseley
had put the ‘moves’ on one of the attractive females” in the
office. (Id. at 14, 17). This “attractive female” employee
was “clearly upset” and told Cornell’s wife, another Post
Office employee, about Moseley’s unwelcome advances. (Id.;
Cornell Dep. I Doc. # 30-1 at 234:17-235:20). When Cornell’s
wife confronted Moseley about it, Moseley told Cornell’s wife
“to mind her own business.” (Cornell Dep. I Doc. # 30-1 at
234:17-235:20; Doc. # 31 at 14, 17).
There are multiple problems with Cornell’s insistence
that a male supervisor’s unwelcome sexual advances toward a
female employee — and then his upbraiding another female
employee who opposed such conduct — is evidence that male
employees were being harassed based on their sex. First, no
such
allegations
are
included
in
the
Complaint.
See
GeorgiaCarry.Org, 687 F.3d at 1258 n.27 (“It is well-settled
33
in this circuit that a plaintiff may not amend the complaint
through
argument
at
the
summary
judgment
phase
of
proceedings.”). Therefore, the theory of “favoritism” shown
to attractive female employees should not be considered.
Next,
even
if
the
theory
of
“favoritism”
could
be
considered, this conduct does not establish the existence of
a hostile work environment for male employees. Cornell is
partially correct that “incidents of harassment directed at
employees other than the plaintiff can be used as proof of
the plaintiff’s claim of a hostile work environment.” (Doc.
# 31 at 17). But, for those cases, the claim is based on the
harassment experienced by other members of the plaintiff’s
protected class. See Walker v. Ford Motor Co., 684 F.2d 1355,
1359 (11th Cir. 1982)(“The fact that many of the [racial]
epithets [about African-Americans] were not directed at [the
African-American
plaintiff]
is
not
determinative.
The
offensive language often was used in Walker’s presence after
he had voiced objections to Ford. Accordingly, we find that
under
the
circumstances
Northgate’s
conduct
‘creat[ed]
a
working environment heavily charged with ethnic or racial
discrimination.’”); see also Sousa v. Bay Shore Dev. Corp.,
Case No. 93-8107-CIV-RYSKAMP, 1994 U.S. Dist. LEXIS 10984 at
*12 (S.D. Fla. June 24, 1994)(“The Eleventh Circuit and many
34
other federal courts have consistently allowed plaintiffs to
sue
under
Title
plaintiff,
but
VII
for
directed
harassment
at
members
not
of
directed
the
at
the
plaintiff’s
protected class in the plaintiff’s presence.”). Cornell is
male, but mentions only supervisors’ flirting and making the
“moves” on female employees. The record does not support that
the supervisors’ flirtatiousness — or worse — towards female
employees created an objectively hostile work environment for
male employees.
Because Cornell has not established a prima facie case
of hostile work environment based on his sex, the Court grants
Brennan’s Motion for Count II.
IV.
Conclusion
Because Cornell failed to establish a prima facie case
for
his
sex
discrimination
and
hostile
work
environment
claims, Brennan’s Motion for Summary Judgment is granted on
both counts.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)
Defendant Megan J. Brennan’s Motion for Summary Judgment
(Doc. # 30) is GRANTED.
35
(2)
The Clerk is directed to enter judgment in favor of
Defendant and against Plaintiff Richard Cornell on both
counts of the Complaint.
(3)
Thereafter, the Clerk is directed to CLOSE THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this
2nd day of May, 2018.
36
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