TURNER v. BOB INZER

Filing 60

ORDER granting 40 Motion for Summary Judgment. All pending motions are DENIED as moot. The Clerk is directed to close the case. Signed by JUDGE RICHARD SMOAK on 9/26/2012. (jcw)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

CYNTHIA TURNER,
Plaintiff,
v.

CASE NO. 4:11-cv-567-RS-WCS

BOB INZER, in his official capacity as
LEON COUNTY CLERK OF THE COURT,
Defendant.
_________________________________/
ORDER
Before me are Defendant’s Motion for Summary Judgment (Doc. 40),
Plaintiff’s Response in Opposition (Doc. 48), and Defendants’ Reply (Doc. 56).
I. STANDARD OF REVIEW
The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986).
The moving party has the burden of showing the absence of a genuine issue as to
any material fact, and in deciding whether the movant has met this burden, the
court must view the movant’s evidence and all factual inferences arising from it in
the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398

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U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
Thus, if reasonable minds could differ on the inferences arising from undisputed
facts, then a court should deny summary judgment. Miranda v. B & B Cash
Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank
& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However,
a mere ‘scintilla’ of evidence supporting the nonmoving party's position will not
suffice; there must be enough of a showing that the jury could reasonably find for
that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson, 477 U.S. at 251).
II. BACKGROUND
I accept the facts in the light most favorable to Plaintiff. See Galvez v.
Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008) (citing Vinyard v. Wilson, 311 F.3d
1340, 1343 n.1 (11th Cir. 2002)). “ ‘All reasonable doubts about the facts should
be resolved in favor of the non-movant.’ ” Id. (quoting Burton v. City of Belle
Glade, 178 F.3d 1175, 1187 (11th Cir. 1999); Clemons v. Dougherty County, 684
F.2d 1365, 1368-69 (11th Cir. 1982).
Plaintiff is an African-American female. In March 2004, she was hired by
Defendant to be an Administrative Assistant to Finance Director Bill Bogan. In
October 2006, David Reid took the position as Finance Director, and Plaintiff
continued her work as the administrative assistant to Reid. (Doc. 42-1, p. 2). One

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of Plaintiff’s duties included taking minutes at meetings of the Leon County
Investment Oversight Committee (“IOC”). Id. at 3. The IOC meets quarterly and
makes recommendations to the Leon County Board of County Commissioners
(“Board”) about investment policy. Plaintiff would prepare the minutes from the
meetings for review and approval by Reid before submission to the IOC. Reid
would then present the recommendations by the IOC to the Board for approval.
(Doc. 42-2, p. 6)
On August 11, 2010, the IOC discussed whether the county’s investment
policy should be changed. The policy limited investments the county could buy if
the investment was more than fifteen percent of the portfolio. If an investment is
over fifteen percent, then the Finance Director must approve the investment. Id. at
11. Plaintiff did not prepare a draft of the meeting’s minutes until October 28,
2010. However, on September 14, 2010, Reid had already presented the IOC’s
recommendation to the Board, which the Board approved. (Doc. 42-1, p. 6).
In Plaintiff’s initial draft, she included a sentence that indicated the county
was out of compliance with the 15% policy limits. (Doc. 44-1, p. 28-28). This
was emailed to Reid and Normal Parrish, the Treasury Manager, for review.
Parrish edited Plaintiff’s proposed language by striking the portion stating “thereby
being out of compliance” and added the following language:
As money is draw down during the year, and the balance decreases, and in
some cases higher balances are left in the higher-earning pools resulting in
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some pools exceeding the 15 percent policy limits for each pool. The finance
director reviews and approves the investments and drawdowns as the market
changes.
Id. at 30-31. Parrish sent her changes to Plaintiff and Reid. Reid deleted the
language that both Parrish and Plaintiff had written regarding the investment
policy. Id. at 33-34. “Reid felt that the discussion about the policy limits was
irrelevant because that was only part of the discussion and not the conclusion or
recommendation to the committee.” (Doc. 41, p. 4).
After receiving the changes from Parrish and Reid, Plaintiff listened to the
tape of the meeting again. She re-inserted her original “out of compliance”
sentence and emailed it to Reid and Parrish and attached the recording of the
meeting. (Doc. 44-1, p. 37-42).
On October 29, 2010, Reid met with Plaintiff and Parrish about the minutes.
Reid discussed the policy changes with Plaintiff and believed that they had reached
a consensus about the minutes and that his version would be sent to the IOC.
Plaintiff, however, did not agree with Reid.
On November 1, 2010, Plaintiff went to County Auditor Sam Scallan to seek
his advice. (Doc. 42-1, p. 13). Plaintiff stated that she went to Sam Scallan as a
colleague because she considered him a person “with high morals” who would
give her good advice. Id. Scallon testified that “[Plaintiff] told me that there was a
conversation that took place in the [IOC] meeting that she felt needed to be in the

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minutes, but that Mr. Reid said didn’t need to be in the miutes. And I think she
was asking me my opinion.” (Doc. 42-2, p. 17). Scallon also that “she didn’t say
it was illegal, inappropriate. She just said that the conversation [from the meeting]
needs to be in there.” Id. at 19.
After meeting with Scallon, Plaintiff emailed her version of the minutes to
the IOC contrary to Reid’s instruction to email his version. (Doc. 44-1, p. 45).
Plaintiff also highlighted the language that Reid wanted deleted. Id. In her email,
Plaintiff wrote, “Particularly, let me know if the italicized verbiage accurately
reflects the Committee’s direction.” Id. After she sent version of the minutes,
Reid ordered Plaintiff to email his version of the minutes, which she did. On
November 17, 2010, the IOC approved Reid’s version of the minutes. Id. at 15.
On November 19, 2010, Reid and Betsy Coxen, Assistant Finance Director,
met with Plaintiff to discipline her for emailing her version of the minutes contrary
to Reid’s instruction. Id. at 15-16. Plaintiff testified that Reid insisted on speaking
first and informed her that she was being suspended for three days and transferred
to the Court’s Department to be a cashier. Id. at 16. After being informed about
the disciplinary action, Plaintiff then informed him of her conversation with
Scallon. Id. Plaintiff said, “I told [Reid] I had gone to Sam to ask for
guidance….” Id.

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On November 29, 2010, Plaintiff was transferred to Central Cashiering and
had a probationary period. Id. at 130. She was kept at the level of Court Specialist
III so there was no reduction in her salary, benefits, or pay grade. Id. at 131-34.
Plaintiff began training immediately. From January 5, 2011, to March 7, 2011,
Plaintiff took paid medical leave for surgery. Id. at 152-54. While on leave,
Plaintiff filed the Equal Employment Opportunity Commission (“EEOC”) charge
against Defendant on January 17, 2011. (Doc. 44-1, p. 61). Plaintiff continued her
training when she returned from leave.
Court’s Department Policy 4-4 addresses when data entry errors by Cashiers
cause false arrests and/or drivers’ licenses suspensions, known as “suspensions-inerror.” The policy states: “Ten or more improper suspensions within a 12 month
period may result in the following discipline: additional suspensions without pay;
probation; reduction in pay and/or grade; transfer with probation; and termination.”
(Doc. 46-39, p. 5).
Between October 25, 2011, and April 30, 2012, Plaintiff was given six
warnings for fourteen instances of suspensions-in-error and was ultimately
terminated. (Doc. 46-38). Plaintiff’s supervisor testified that Plaintiff was the only
Cashier to ever have fourteen suspensions-in-error during a twelve month period.
(Doc. 44-1, p. 7). Plaintiff contends that she did not receive adequate training and
received more intense scrutiny than other employees.

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Plaintiff filed this lawsuit on May 3, 2011, for whistleblower retaliation
under FLA. STAT. § 112.3187 and race discrimination and whistleblower retaliation
under 42 U.S.C. § 2000e et seq..
III. ANALYSIS
Whistleblower Retaliation
Plaintiff alleges both state and federal whistleblower retaliation claims under
Florida’s Whistleblower Act (“FWA”) and Title VII. In analyzing claims brought
under the FWA, courts have applies the framework from Title VII whistleblower
retaliation cases. Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125, 113233 (Fla. 4th Dist. Ct. App. 2003). To establish a prima facie case for
whistleblower retaliation, Plaintiff must show that: (1) she engaged in statutorily
protected expression, (2) she suffered an adverse employment action, and (3) there
is a causal relationship between the two events. Id. at 1132.
Throughout the case, Plaintiff alleged that the conversation she had with
County Auditor Sam Scallan about the IOC’s non-compliance with the policy was
the whistleblower complaint. Plaintiff claims she was retaliated against when she
was suspended and transferred because of this conversation with Scallan. Plaintiff
also contends that she was terminated because of this conversation and for her
EEOC charged filed in January 2011.

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In Plaintiff’s Second Amended Complaint, she claims that she is entitled to
whistleblower protection because she “reported malfeasance, misfeasance, and
other acts” pursuant to FLA STAT. § 112.3187(5). (Doc. 26-1, p. 6). In Plaintiff’s
Response to Defendant’s Motion for Summary Judgment, Plaintiff changes her
argument to say that her conversation with Scallon was part of an “investigation,
hearing, or other inquiry” under FLA. STAT. § 112.3187(7). Additionally, Plaintiff
alleges that the emails she sent to Reid and the IOC constitute a written complaint,
which is required by FLA. STAT. § 112.3187(7).
First, Plaintiff’s argument that she was part of an “investigation, hearing, or
other inquiry” is unfounded because FLA. STAT. § 112.3187(7) requires that the
person must be “requested to participate” in the investigation. Scallon did not
request Plaintiff’s participation in any inquiry, and therefore, this section is
inapplicable.
Second, throughout the case until Plaintiff’s recent response, Plaintiff
characterized her conversation with Scallon as seeking advice from a colleague,
not a complaint. In her response to First Interrogatory No. 10, Plaintiff wrote, “I
sought Mr. Scallon’s guidance in the situation.” In Plaintiff’s deposition, Plaintiff
testified that she was just seeking advice from Scallon:
Q: And why did you feel that the auditor was the appropriate person to go
talk to about this?

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A: I did not. I knew Sam was a person with high morals, and I knew he
would tell me, he would give me good advice.
Q: So you were just asking for advice from a colleague?
A: Yes.
(Doc. 42-1, p. 13).
Scallon’s deposition testimony supports that Plaintiff simply went to him
seeking advice. Scallon testified that “[s]he told me that there was a conversation
that took place in the committee meeting that she felt needed to be in the minutes,
but that Mr. Reid said didn’t need to be in the minutes. And I think she was asking
me my opinion.” (Doc. 42-2, p. 17). He went on to say that “she didn’t say say it
was illegal, inappropriate. She just said, that conversation I think needs to be in
there.” Id. at 19.
Plaintiff’s testimony, which is corroborated by Scallon’s testimony, shows
that her conversation with Scallon was not a complaint that would qualify as
whistleblowing. As she said numerous times, she was seeking advice.
FLA. STAT. § 112.3187(7) states, “[t]his section protects employees and
persons who disclose information on their own initiative in a written and signed
complaint… or employees who file any written complaint to their supervisory
officials.” (emphasis added). In her Second Amended Complaint, Plaintiff alleges
that the written communications were the emails that she sent to Reid and the IOC.

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However, after being asked numerous times in her deposition, Plaintiff repeatedly
answered that she blew the whistle to Sam Scallon, not Reid or the IOC. (Doc. 421, p. 52). She never said that the email she sent to Reid or the IOC constituted her
complaint.
Additionally, the evidence shows that even if I do consider the email as her
written communication, it still isn’t a complaint protected by FWA. When
Plaintiff sent her version of the minutes to Reid and the IOC, the body of the email
stated, “Please make necessary changes/corrections and forward. Particularly, let
me know if the italicized verbiage accurately reflects the Committee’s direction.”
(Doc. 44-1, p. 45). Even when the Court construes the FWA liberally, this email
still cannot be considered a written complaint. See Irven v. Dep’t of Health &
Rehab. Servs., 790 So. 2d 403, 405 (Fla. 2001).
Without a whistleblowing complaint, Plaintiff fails to meet the first prong
for whistleblower retaliation.
Race Discrimination
To establish a prima facie case of discrimination, Plaintiff must show that
(1) she is a member of a protected class; (2) she was subjected to an adverse
employment action; (3) her employer treated similarly situated employees outside
of his protected class more favorably than he was treated; and (4) she was qualified
to do the job. Burke-Fowler v. Orange County, Fla. 447 F.3d 1319, 1323 (11th

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Cir. 2006). To establish a claim for disparate treatment discrimination, a plaintiff
can use direct evidence or circumstantial evidence of discrimination. Id. The
framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), and Texas Department of Community
Affairs v. Burdine, 460 U.S. 248, 101 S.Ct. 1089 (1981), is used in evaluating
disparate treatment claims supported by circumstantial evidence. See Wilson v.
B/E Aerospace, 376 F.3d 1079, 1087 (11th Cir. 2004). Mere speculation of a
discriminatory motive is insufficient. Edwards v. Acadia Realty Trust, Inc., 141
F.Supp.2d 1340, 1346-47 (M.D. Fla. 2001).
Once a plaintiff has presented evidence of discrimination, the employer must
articulate a legitimate, non-discriminatory reason for the employee’s rejection. Id.
at 1089-90. If the employer meets this burden of production, the plaintiff must
then establish that the proffered reason is pretextual. Id. at 1090.
Defendant contends that Plaintiff has not provided any evidence of similarly
situated employees outside of her protected class that were treated more favorably,
and therefore, fails to meet the third prong of the test. “When a plaintiff alleges
discriminatory disciple, to determine whether employees are similarly situated, we
evaluate ‘whether the employees are involved in or accused of the same or similar
conduct and are disciplined in different ways.’ ” Burke-Fowler, 447 F.3d at 1323
(quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)(citations and

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quotation marks omitted)). “When making that determination, ‘[w]e require that
the quantity and quality of the comparator’s misconduct be nearly identical to
prevent courts from second-guessing employers’ reasonable decisions and
confusing applies with oranges.’ ” Id.(citation omitted).
Plaintiff offers two potential comparators: Serita Teal, a white employee
who had to be retrained and had ten suspensions-in-error but was not terminated,
and Daphne Pinedo-Ramos, a white employee who was arrested for shoplifting and
was terminated a year after her arrest for stealing. (Doc. 48, p. 21). Serita Teal had
ten suspensions-in-error in a one-year period. (Doc. 56-1, p. 9-43). Like Plaintiff,
she received written warnings and was put on probation for those errors. Teal’s
fifth warning stated, “In light of this 10th suspension, Serita will be placed on
probation through at least the end of June 2009, and may not make any further
‘original error’ improper DL suspensions in that time. If she does, she will be
terminated.” Id. at 37. Teal did not cause any suspensions-in-error during her
probationary period. Pursuant to Clerk’s Office policy, after a year from her first
corrective action, Teal’s warnings were reset to zero, and she started the year with
a fresh start. (Doc. 46-39).
Teal’s situation is unlike Plaintiff’s because Plaintiff made fourteen errors in
a six month period, while Team made ten errors in a twelve month period.
Additionally, Plaintiff was not put on probation until after her thirteenth error,

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whereas Teal was put on probation after her tenth error. Lastly, Plaintiff was
terminated after her fourteenth error, but Teal would have been terminated after her
eleventh. Therefore, the evidence shows that Teal was not treated more favorably,
but less favorably.
Daphne Pinedo-Ramos is also not a similarly situated comparator. PinedoRamos worked in the remote traffic office, not in Central Cashiering downtown
with Plaintiff. Additionally, fourteen suspensions-in-error leading to termination is
not similar to Pinedo-Ramos arrest and theft.
However, the inquiry does not stop there. If Plaintiff presents other
circumstantial evidence suggesting racial discrimination, Plaintiff could still
establish a prima facie case. Burke-Fowler, 447 F.3d at 1325. Plaintiff must
present “a convincing mosaic of circumstantial evidence that would allow a jury to
infer intentional discrimination by the decisionmaker.” Smith v. Lockheed-Martin,
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)(citations omitted). The circumstantial
evidence in lieu of a comparator “must suggest discrimination with force similar to
that implied by treated nearly identical offenders differently.” Bell v. Crown
Management, LLC, 844 F.Supp.2d 1222, 1234 (S.D. Ala. 2012).
Plaintiff fails to offer “a convincing mosaic of circumstantial evidence.”
Plaintiff frequently refers to the lack of training she received, the monitoring of her
work, and the discipline she received as circumstantial evidence of race

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discrimination. However, the example that Plaintiff herself provided, Serita Teal,
shows that other employees were disciplined similarly, if not more harshly, than
Plaintiff. Plaintiff also relied on testimony of two black co-workers that believed
they were treated differently because of their race, but their complaints about their
experiences are irrelevant to the issue of Plaintiff’s discrimination claims. (Doc.
47, p. 17-18). Without strong circumstantial evidence in lieu of a similarly situated
comparator, Plaintiff cannot make a prima facie case for discrimination.
Additionally, even if Plaintiff could make a prima facie case, Defendant had
a legitimate non-discriminatory reason for terminating Plaintiff’s employment: she
had fourteen suspensions-in-error in less than twelve months. According to the
department’s policy, “[t]en or more improper suspensions within a 12 month
period may result in the following discipline: additional suspensions without pay;
probation; reduction in pay and/or grade; transfer with probation; and termination.”
(Doc. 46-39). Plaintiff does not offer any evidence that would suggest her
termination was pretextual.
IV. CONCLUSION
1. Defendant’s Motion for Summary Judgment (Doc. 40) is GRANTED.
2. All pending motions are DENIED as moot.
3. The Clerk is directed to close the case.

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ORDERED on September 26, 2012.
/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE

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