Forbes v. City of North Miami
Filing
88
ORDER granting 37 Motion for Summary Judgment. Signed by Judge Paul C. Huck on 4/4/2012. (rky)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 11-21200-CIV-HUCK/BANDSTRA
KEVIN FORBES,
Plaintiff,
v.
CITY OF NORTH MIAMI,
Defendant.
_______________________________/
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Kevin Forbes, a Black Jamaican male, brings this action against the City of North Miami
(“North Miami”) pursuant to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §
2000e et seq., and the Florida Civil Rights Act (FCRA), Fla. Stat. § 760.01 et seq. Mr. Forbes
asserts claims of unlawful race discrimination and retaliation, as well as a violation of due
process. This matter is presently before the Court on North Miami’s Motion for Summary
Judgment (D.E. # 37), filed January 11, 2012. North Miami seeks summary judgment on Mr.
Forbes’ claims of race discrimination and retaliation. For the reasons discussed below, the Court
finds that there is no genuine issue of material fact as to Mr. Forbes’ discrimination and
retaliation claims, and that North Miami is entitled to judgment as a matter of law on Counts I
through IV. 1
I.
BACKGROUND
Mr. Forbes began his career with North Miami as a part-time lifeguard in 1981, and
became a code enforcement officer in 1995. His duties as a code enforcement officer included
inspecting properties, investigating complaints of ordinance violations, and preparing reports.
Mr. Forbes received reprimands in his capacity as a code enforcement officer at various times in
1
The Court has scheduled a hearing on the remaining claim in Count V (Declaratory and Other
Relief). As Count V was not a subject of the Motion for Summary Judgment, the Court confines
its analysis to the race discrimination and retaliation claims set forth in Counts I through IV.
1
2001, 2002, and 2006.
In 2005, he unsuccessfully applied for the position of Code
Administrator, but eventually received a non-competitive appointment to that position in 2007.
While he held the position of Code Administrator, Mr. Forbes received high performance ratings
from his direct supervisor, Code Director Michael J. Ferrucci.
As a consequence of budget considerations, as well as a perceived lack of effectiveness,
North Miami eliminated the positions of Code Director and Code Administrator in September
2009, and created the new position of Code Enforcement Manager. 2 Mr. Forbes and several
other applicants applied for the newly-created position. The application process involved an
interview by a three-member panel, which asked identical questions of all the applicants, and
then assigned a numerical score based on the quality of the applicant’s response to each question.
The score sheets were then tallied by North Miami’s personnel department which ranked the
applicants on the overall quality of their interviews. Mr. Forbes received an overall score that
placed him third out of six applicants. The applicant with the second-highest score was Vanessa
Willis, an African-American female. The applicant with the highest overall score, Alan Graham,
was ultimately chosen to fill the position by North Miami’s Interim Deputy City
Manager/Director of Public Works Mark Collins. Both Mr. Graham and Mr. Collins are white.
After his unsuccessful application for the Code Enforcement Manager position, and the
elimination of his position of Code Administrator, Mr. Forbes was “rolled back” to his previous
position of code enforcement officer as provided for by North Miami’s civil service rules.
However, Mr. Forbes contends that his rollback to code enforcement officer was improper
because, under the city’s civil service rules, he was entitled to “bump” a less-senior employee at
the same pay grade. Specifically, Mr. Forbes alleges that he should have been entitled to replace
Zoning Administrator Joanne Martin, because the position of Zoning Administrator is similar to
that of Code Administrator, both positions are at the same pay grade, and Ms. Martin has less
seniority than Mr. Forbes. Ms. Martin is also white.
2
On September 10, 2009, then-City Manager Clarence Patterson informed the City Council that
“I have not seen the performance [by the Code Department] that I was looking for. . . . As a
result, I’m asking it be put down to Code [Enforcement] Manager and let it function that way
under the Deputy [City] Manager.” Council Mtg. Minutes (D.E. # 74-1), at 10-11. When Mr.
Patterson was asked why the two additional officers (the Code Director and Code Administrator)
were not needed, Mr. Patterson replied that “I haven’t seen any effective, efficient Code
Enforcement in the field.” Id. at 12.
2
After reverting back to a code enforcement officer in October 2009, the relationship
between Mr. Forbes and his new supervisor, Mr. Graham, began to deteriorate. Beginning in
November 2009, Mr. Graham informed Mr. Forbes on multiple occasions of numerous
deficiencies in his work product. Specifically, on November 23, 2009, Mr. Graham notified Mr.
Forbes that Mr. Forbes had not filed his end-of-month report for October 2009, and that no
entries of code violations were made into the city’s code violation database in October or
November of 2009. According to the city, the timely entry of code violations into this database
is critical because it is the mechanism by which the city organizes, tracks, and adjudicates code
violations. On December 9, 2009, Mr. Graham again informed Mr. Forbes that he had not
submitted his November 2009 end-of-month report. On December 10, Mr. Graham sent another
e-mail to Mr. Forbes expressing concern that Mr. Forbes had not entered any new code
violations into the city’s database.
In this e-mail, Mr. Graham referenced the previous
discussions he had with Mr. Forbes regarding Mr. Forbes’ inadequate work product.
Mr.
Graham directed Mr. Forbes to devote a set period of time to back-enter code violations, which
Mr. Forbes had reported observing, into the city’s database. Mr. Forbes did not respond to this
e-mail until he was specifically requested to do so by Mr. Graham on December 13.
On February 2, 2010, Mr. Forbes filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (EEOC), and the Florida Commission on Human
Relations (FCHR), alleging racial discrimination based on the city’s failure to promote him, and
its failure to bump another employee in favor of Mr. Forbes under the city’s applicable civil
service rules. Specifically, Mr. Forbes alleged that North Miami had discriminated against him
by failing to promote him to Code Enforcement Manager, and for refusing to bump Ms. Martin
despite her lower seniority. Mr. Forbes alleges that he informed Mr. Graham of the EEOC
complaint. Mr. Graham, however, testified that he first learned of Mr. Forbes’ EEOC complaint
after Mr. Forbes left North Miami’s employ.
Mr. Forbes continued to receive complaints about his work product in the months
following his EEOC complaint. On February 9, 2010, Mr. Graham expressed concern over Mr.
Forbes’ large number of outstanding open cases. He directed Mr. Forbes not to open any new
cases, but rather to concentrate on reducing his current caseload by “scheduling follow-up
inspections, issuing notice of violation letters, issuing civil violation tickets, setting cases for
enforcement hearings, and submitting maintenance and service order packet[s].” Feb. 9, 2010 E-
3
mail (D.E. # 38-13), at 6. Mr. Graham also directed Mr. Forbes to record all of his activities in
the city’s database. Rather than respond to the Mr. Graham’s specific directive, and how he
would comply, Mr. Forbes instead responded to Mr. Graham: “Alan, I do not appreciate you
sending me an e-mail with directive [sic] of how to do my job. How I achieve compliance and
how I enforce the city codes in my assigned area is [sic] of my discretion.” Feb. 10, 2010 E-mail
(D.E. # 38-13), at 7.
On February 24, 2010, Mr. Forbes received a written reprimand outlining the numerous
performance-related concerns Mr. Graham had communicated to Mr. Forbes over the preceding
months, including discrepancies in his data entries, duplicative data entries, and failure to follow
up with several open cases. Mr. Graham continued to issue complaints to Mr. Forbes regarding
his performance after the reprimand was issued. On April 26, 2010, Mr. Graham wrote to Mr.
Forbes seeking an explanation of why Mr. Forbes had not furnished requested documentation
regarding two zoning violation appeal hearings. Mr. Graham also requested an activity report
from Mr. Forbes on April 26, 2010 and again on May 2, 2010. Mr. Graham subsequently
expressed concern that Mr. Forbes only opened one new case in May 2010, and that “there was
little to no follow-up on the 116 cases going back to March and April of this year.” June 5, 2010
E-mail (D.E. # 38-14), at 4. On June 14, 2010, Mr. Graham again informed Mr. Forbes that his
work was unacceptable. Specifically, Mr. Graham pointed to eighty-six of Mr. Forbes’ cases
that had not been resolved, including several that had been outstanding for three to four months.
Although he did not have authority to terminate employees, on July 9, 2010 Mr. Graham
informed Mr. Forbes that he was recommending Mr. Forbes’ termination. Mr. Graham further
criticized Mr. Forbes for opening and closing “a few selected cases without bringing any failed
cases forward for enforcement action before the Special Magistrate or Code Enforcement
Board.” July 9, 2010 Letter (D.E. # 74-3), at 28. Mr. Graham also noted that Mr. Forbes had not
complied with numerous directives, had missed meetings, and had opened zoning violation cases
without actually going to the property to observe the alleged infraction.
Mr. Forbes was
ultimately terminated on July 19, 2010 by Rebecca Jones, North Miami’s Director of Personnel
Administration, with the City Manager’s approval.
Mr. Forbes commenced the instant action on April 6, 2011. The Complaint alleges five
counts against North Miami: racial discrimination in violation of Title VII (Count I); racial
discrimination in violation of the FCRA (Count II); retaliation in violation of Title VII (Count
4
III); retaliation in violation of the FCRA (Count IV); and deprivation of due process in violation
of the Fifth and Fourteenth Amendments and the Florida Constitution for failing to provide him
with an appeal of the city’s termination decision (Count V).
Mr. Forbes alleges racial
discrimination on two separate grounds: North Miami’s failure to promote him to the position of
Code Enforcement Manager, and North Miami’s refusal to bump Ms. Martin. Mr. Forbes also
claims that North Miami retaliated against him because of his EEOC Charge of Discrimination
by issuing a written reprimand that began the progressive discipline process that ultimately
culminated in his termination.
In its Motion for Summary Judgment, North Miami argues that it is entitled to final
summary judgment on Mr. Forbes’ discrimination and retaliation claims. Specifically, North
Miami argues that Mr. Forbes cannot demonstrate that North Miami’s stated reasons for
promoting Mr. Graham rather than Mr. Forbes, and its refusal to bump Ms. Martin in favor of
Mr. Forbes, were pretext. North Miami also argues that Mr. Forbes cannot establish a prima
facie case of retaliation or pretext. For the reasons discussed below, the Court grants North
Miami’s Motion for Summary Judgment on Mr. Forbes’ claims of discrimination and retaliation.
II.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings, depositions, and affidavits show
“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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An
issue is “material” if it is a legal element of the claim under applicable substantive law, and
might affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). An issue of fact is
“genuine” if a rational trier of fact may find for the non-moving party based on the record taken
as a whole. Allen, 121 F.3d at 646. In determining whether summary judgment is appropriate,
facts and inferences from the record are viewed in the light most favorable to the non-moving
party. Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009); Mayfield v. Patterson Pump Co., 101
F.3d 1371, 1374 (11th Cir. 1996).
The movant bears the initial responsibility of informing the Court of the basis for its
motion, and the particular parts of the record demonstrating the absence of a genuine issue of
material fact. Fed. R. Civ. P. 56(c)(1)(A); Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir.
5
2008). Once the movant satisfies this burden, “the nonmoving party ‘must do more than simply
show that there is some metaphysical doubt as to the material facts.’” Ray v. Equifax Info.
Servs., LLC, 327 F. App’x 819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Instead, “the non-moving party must make a
sufficient showing on each essential element of the case for which he has the burden of proof.”
Id. (citing Celotex, 477 U.S. at 322). Accordingly, the non-moving party must produce evidence,
going beyond the pleadings, and by its own affidavits, or by depositions, answers to
interrogatories, and admissions on file, designate specific facts suggesting that a reasonable jury
could find in its favor. Shiver, 549 F.3d at 1343. If the non-moving party fails to make a
sufficient showing on an essential element of the case, or proffers only conclusory allegations,
conjecture, or evidence that is merely colorable and not significantly probative, the moving party
is entitled to summary judgment. Celotex, 477 U.S. at 322.
III.
ANALYSIS
A.
Race Discrimination Claims
Mr. Forbes asserts that he was the victim of racial discrimination by North Miami for (1)
failing to promote him, and (2) for refusing to bump a junior employee, in violation of Title VII
and the FCRA. 3
Title VII provides a civil remedy for employees who are victims of
discrimination in the workplace by making it 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)(1). Where, as here, a
summary judgment motion is before the Court in a Title VII case involving circumstantial
3
The FCRA is patterned after Title VII; thus Title VII case law is applicable to claims brought
under the FCRA. The Court therefore need not analyze the claims separately. See Smith v.
Naples Cmty. Hosp., Inc., 433 F. App’x 797, 799 (11th Cir. 2011) (citing Wilbur v. Corr. Servs.
Corp., 393 F.3d 1192, 1195 n.1 (11th Cir. 2004) (“Because the FCRA is patterned after Title
VII, courts generally apply Title VII case law to discrimination claims brought under the
FCRA)); Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (internal
citations omitted) (“The Florida courts have held that decisions construing Title VII are
applicable when considering claims under the Florida Civil Rights Act, because the Florida act
was patterned after Title VII. No Florida court has interpreted the Florida statute to impose
substantive liability where Title VII does not.”).
6
evidence, the Court analyzes the case under the burden-shifting test set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 252-56 (1981); Greer v. Birmingham Beverage Co., 291 F. App’x 943, 944 (11th Cir.
2008); Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002); Walker v. NationsBank of Fla.,
N.A., 53 F.3d 1548, 1556 (11th Cir. 1995).
Under the McDonnell Douglas framework, Mr. Forbes must first establish a prima facie
case of discrimination by submitting “evidence to allow a reasonable jury to determine that he
has satisfied the elements of his prima facie case.”
Greer, 291 F. App’x at 944 (citing
McDonnell Douglas, 411 U.S. at 802). To establish a prima facie case of discrimination under
Title VII for failure to promote, an employee must show that (1) he is a member of a protected
class; (2) he was qualified for and applied for the promotion; (3) he was rejected; and (4) the
position was filled by someone outside of his protected class.
Watkins v. Sec’y Dep’t of
Homeland Sec., 401 F. App’x 461, 466 (11th Cir. 2010) (citing Walker v. Mortham, 158 F.3d
1177, 1186 (11th Cir. 1998)); see also Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768
(11th Cir. 2005) (listing the elements of a failure to promote claim). If Mr. Forbes establishes a
prima facie case of discrimination, a rebuttable presumption arises that North Miami unlawfully
discriminated against him, thereby shifting the burden to North Miami “to articulate a legitimate,
nondiscriminatory reason for the employment decision.” Greer, 291 F. App’x at 944 (citing
McDonnell Douglas, 411 U.S. at 802-03). “If the employer meets its burden of production, the
presumption of discrimination raised by the plaintiff’s prima facie case is rebutted and thus
disappears.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325-26 (11th Cir. 2011). The
employer’s articulated reason is legitimate as long as it is honestly and reasonably held. Elrod v.
Sears, Roebuck & Co., 939 F.2d 1466, 1470-71 (11th Cir. 1991). The burden on the employer to
rebut a prima facie case of discrimination is light, requiring only that “the [employer] produce,
not prove, a nondiscriminatory reason.” Walker, 53 F.3d at 1556.
If North Miami is able to proffer a legitimate, nondiscriminatory reason for its
employment decision, the burden then shifts back to Mr. Forbes to show that this reason was
pretextual. Greer, 291 F. App’x at 944 (citing McDonnell Douglas, 411 U.S. at 804). “It is at
this stage that the plaintiff’s ‘burden . . . merges with the ultimate burden of persuading the court
that [the plaintiff] has been the victim of intentional discrimination.’” Smith, 644 F.3d at 1327
(quoting Burdine, 450 U.S. at 256). “[I]n order to show pretext, the plaintiff must demonstrate
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such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.” Goodman v. Georgia Southwestern, 147 F. App’x 888, 891 (11th Cir.
2005) (citing Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004)); see also Humphrey v.
Sears, Roebuck, and Co., 192 F. Supp. 2d 1371, 1375-76 (S.D. Fla. 2002). However, “[i]f the
proffered reason is one that might motivate a reasonable employer, a plaintiff cannot recast the
reason but must meet it head on and rebut it. Quarreling with that reason is not sufficient.”
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004) (internal citations omitted).
Although the same evidence used to establish a prima facie case can be used to cast doubt on an
employer’s proffered motive, “the plaintiff cannot simply stand on her prima facie case; instead,
she must convince the court that the evidence in the case as a whole preponderates in favor of a
finding of intentional discrimination by the defendant.” Mortham, 158 F.3d at 1184-85, 1184
n.12.
North Miami has properly conceded that Mr. Forbes has established a prima facie case of
discrimination. See Def. Mot. Summ. J., at 6. Thus, under the burden-shifting test outlined in
McDonnell Douglas and its progeny, North Miami must offer a legitimate, nondiscriminatory
reason for its employment decision. Should North Miami meet this burden of production, Mr.
Forbes must offer evidence to establish that North Miami’s reason was merely pretext for
discrimination. As Mr. Forbes’ failure to promote claim and refusal to bump claim have separate
factual bases, the Court analyzes the merits of each claim individually.
1.
Failure to Promote
North Miami has offered a legitimate, nondiscriminatory reason for selecting Mr.
Graham as the Code Enforcement Manager—that he was the most qualified candidate of the six
applicants. The interview scores reflect the highest score for Mr. Graham, and that based on the
applicants’ relative scores, he was the successful candidate. 4 As stated above, North Miami’s
4
As indicated above, Mr. Forbes did not have the second highest score among the applicants.
That score was given to Vanessa Willis, an African-American female. North Miami has
established that Ms. Willis was not hired for the Code Enforcement Manager position because of
her relative lack of supervisory experience. Def. Stmt. of Facts (D.E. # 38), ¶¶ 16-17; Collins
Aff. (D.E. # 38-8), at 2. Mr. Forbes has not offered any contrary evidence.
8
hiring process for the Code Enforcement Manager position involved an interview with a threemember panel that asked identical questions to each applicant.
Each of the interviewers
submitted affidavits attesting that (1) race played no factor in their consideration of each
applicant, (2) all applicants were asked identical questions, (3) the ranking of applicants was
done by North Miami’s personnel department, and (4) Mr. Graham’s final ranking as the top
candidate was consistent with his performance in his interview. See Geimer Aff. (D.E. # 37-1),
at 1-2; Calloway Aff. (D.E. # 37-1), at 3-4; Warren Aff. (D.E. # 37-1), 5-6. Moreover, the
interview score sheets submitted into evidence indicate that Mr. Graham received noticeably
higher marks than did Mr. Forbes. One interviewer remarked that Mr. Graham was “well
prepared for interview [with] handouts and graphs.” Score Sheet (D.E. # 37-2), at 3. The Court
also notes that none of the interviewers’ scores were anomalous—no particular interviewer gave
a considerably lower or higher score to any particular candidate vis-à-vis the other interviewers.
After the score sheets were tallied by North Miami’s personnel department, and the
overall quality of each candidate’s interview was determined, the scores were transmitted to Mr.
Collins, North Miami’s Interim Deputy City Manager/Director of Public Works. See Sept. 24,
2009 E-mail (D.E. # 78-5), at 1. Mr. Collins informed the Assistant Director of Personnel
Administration that “I have selected Alan Graham who was rated number one from the
interviews to fill the Code Enforcement Managers [sic] new position.” Id. Mr. Collins also
testified that he believed that Mr. Graham was the best candidate to lead the Code Enforcement
Division. Collins Aff. (D.E. # 38-8), at 2; Collins Depo. (D.E. # 78-1), at 38. Mr. Collins also
stated that both Mr. Graham and Mr. Forbes had previously worked under his direction, and that
he had to discipline Mr. Forbes for “his behavior as it related to his supervisor.” Collins Aff., at
1. Mr. Collins was also of the opinion that Mr. Forbes “lacks good interpersonal skills and has
exhibited problems with authoritative positions.” Id.
Mr. Forbes alleges that North Miami’s reason for hiring Mr. Graham was merely pretext
to racial discrimination. First, Mr. Forbes argues that pretext is evidenced by the high marks he
received on his pervious performance reviews as Code Administrator. See Ferrucci Aff. (D.E. #
74-1), at 3; Performance Eval. (D.E. # 74-1), at 6-7. However, evidence that a plaintiff was
qualified for a position is rarely sufficient to demonstrate pretext “unless those disparities are so
apparent as virtually to jump off the page and slap you in the face.” Lee v. GTE Florida, Inc.,
226 F.3d 1249, 1254 (11th Cir. 2000) (quoting Deines v. Texas Dep’t of Protective and
9
Regulatory Servs., 164 F.3d 277, 280 (5th Cir. 1999)); accord Alexander v. Fulton County, Ga.,
207 F.3d 1303, 1339 (11th Cir. 2000); Rogers-Libert v. Miami-Dade County, 184 F. Supp. 2d
1273, 1279 (S.D. Fla. 2001). Tellingly, Mr. Forbes does not dispute Mr. Graham’s strong
qualifications for the position of Code Enforcement Manager. Indeed, Mr. Graham previously
served as Police Chief of Mulberry, Florida, and was Division Commander of the City of North
Miami Beach Police Department. Graham Depo. (D.E. # 78-2), at 8. As the Eleventh Circuit
explained in Alexander v. Fulton County, a “plaintiff must show not merely that the defendant’s
employment decisions were mistaken but that they were in fact motivated by race . . . ‘a plaintiff
may not establish that an employer’s proffered reason is pretextual merely by questioning the
wisdom of the employer’s reasons, at least not where . . . the reason is one that might motivate a
reasonable employer.’” Alexander, 207 F.3d at 1339 (quoting Combs v. Plantation Patterns, 106
F.3d 1519, 1543 (11th Cir. 1997)).
Here, Mr. Forbes has not shown that North Miami’s
employment decision was motivated by race, and has not established pretext by showing that he
previously received a favorable employment evaluation. Indeed, the city acknowledges that he
was qualified.
Mr. Forbes also argues that North Miami’s reasons for promoting Mr. Graham were
pretextual because Mr. Forbes was told by Maxine Calloway that she heard Mr. Collins state that
“hell would freeze over” before he would promote Mr. Forbes. Forbes Decl. (D.E. # 75), at 6.
This comment, however, is inadmissible and therefore is not considered by the Court because
this statement is hearsay. Mr. Forbes offers no supporting testimony from Ms. Calloway who
allegedly overheard the comment. 5 Furthermore, even if this statement were considered, Mr.
Collins expressly disputes making such a comment. See Collins Depo. (D.E. # 78-1), at 14.
Moreover, this alleged statement is not probative as to any racial motivation or bias on the part of
Mr. Collins. Indeed, Mr. Forbes admits that he does not know of any statements made by any
North Miami official that would indicate that he was discriminated against based on his race, and
in what context Mr. Collins’ alleged statement was made. Interrog. (D.E. # 38-1), at 2. This
5
Mr. Forbes did not offer any testimony from Ms. Calloway attesting that Mr. Collins made this
alleged statement. However, North Miami offered Ms. Calloway’s affidavit which states, inter
alia, that “Mr. Graham’s final ranking as number one was consistent with his performance
during his interview,” and that her evaluation of the applicants was not racially motivated.
Calloway Aff. (D.E. # 37-1), at 4.
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alleged statement, even if it is admissible, is insufficient to demonstrate pretext, or to create a
question of material fact for a jury’s consideration.
Mr. Forbes’ remaining arguments are also insufficient to establish pretext of racial
discrimination.
Mr. Forbes argues that pretext can be demonstrated because Mr. Collins
“praised” Mr. Graham, and assisted in the reorganization of the Code Enforcement Division that
eliminated Mr. Forbes’ previous position of Code Administrator. However, Mr. Forbes does not
elaborate, and the Court does not deduce, how racial motivation can be established from these
assertions. With regard to Mr. Graham’s praise, North Miami acknowledges that Mr. Forbes was
qualified, and the record indicates that former City Manager Clarence Patterson recommended to
the City Council that the department be reorganized, and the Code Director and Code
Administrator positions be eliminated in light of the city’s budget and a perceived lack of
effectiveness. Council Mtg. Minutes, at 10-11. Mr. Collins admits in his deposition that he
“worked with the city manager” and recommended that code enforcement become its own
department within the city. Collins Depo. (D.E. # 74-1), at 22. However, when asked about
whether he was involved in any discussions about the elimination of Mr. Forbes’ job, Mr. Collins
testified that he wasn’t employed by the city at the time. Id. at 23. The record fails to show any
evidence of pretext or racial motivation on the part of North Miami. Therefore, North Miami is
entitled to summary judgment on Mr. Forbes claim of racial discrimination based on his failure
to be promoted.
2.
Failure to Bump
Mr. Forbes also asserts that he was the victim of racial discrimination based on North
Miami’s refusal to bump an employee with a lower layoff score, as provided for by North
Miami’s civil service rules. However, Mr. Forbes misconstrues the applicable rule. Rule XIII of
North Miami’s Civil Service Rules provides in relevant part:
Layoff shall be restricted to found to have [sic] the lowest layoff
score in the classification(s) identified by the City Manager. The
laid off employee shall be entitled to fill any existing vacancy in
the City which he/she is eligible [sic].
Should there be no vacancy, the employee with the lowest layoff
score shall be entitled to replace the employee with the lowest
layoff score City-wide. Such action shall be designated as a
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“rollback”. A laid off employee shall have the right to replace
another employee (with a lower layoff score), provided that the
laid off employee held regular status in the lower classification.
Such action shall also be designated as a “rollback” or a “bump”.
North Miami Civ. Serv. R. XIII K(1) (D.E. # 38-9), at 9-10 (emphasis added). Mr. Forbes
argues that he, as a code enforcement officer and former Code Administrator, was entitled to
bump Joanne Martin the Zoning Administrator. As North Miami concedes that Mr. Forbes has
established a prima facie case of racial discrimination, the burden now falls upon North Miami to
proffer a legitimate, nondiscriminatory reason for its refusal to bump Ms. Martin.
North Miami proffers two legitimate, nondiscriminatory reasons for its refusal to bump
Ms. Martin. First, North Miami asserts that under its civil service rules, an employee must have
previously held the position to be qualified to bump into it. See Jones Depo. (D.E. # 78-8), at 64.
Second, North Miami asserts that the positions of Code Administrator and Zoning Administrator
are significantly different, and because of these differences, Mr. Forbes was not entitled to bump
Ms. Martin. See Gonzalez Depo. (D.E. # 78-7), at 26. North Miami asserts that under its civil
service rules, Mr. Forbes was entitled to be rolled back to the lower position in which he held
regular status, that of code enforcement officer.
Mr. Forbes asserts that these reasons are merely pretext to racial discrimination because
the positions of Zoning Administrator and Code Administrator are similar. However, Mr. Forbes
does not base this assertion on competent, admissible evidence, but rather relies solely on his
unsupported, conclusory statement that the Zoning Administrator and Code Administrator
positions are materially the same because both positions involve interpreting city codes, and both
positions were combined in one person until approximately 1999. Forbes Decl. (D.E. # 75), at
4. Furthermore, the applicable rule requires that the bumping employee “held regular status in
the lower classification” in order to bump. Mr. Forbes admits in his deposition that he never
held the position of Zoning Administrator. Forbes Depo. (D.E. # 78-6), at 152. Mr. Forbes also
admits that he did not prepare ordinances and regulations involving land use, that he never
worked with the board of adjustment, and that he does not hold a bachelor’s degree in public
administration, urban development, or urban or regional planning, all of which are requirements
of the position of Zoning Administrator. Id. at 154-56; see also Zoning Admin. Job Description
(D.E. # 75), at 17-18. Mr. Forbes’ unsupported statement that the positions were sufficiently
similar to permit him to bump Ms. Martin is not supported by the record and is insufficient to
12
establish pretext of racial discrimination. Accordingly, North Miami is entitled to summary
judgment on Mr. Forbes’ claim of racial discrimination on the grounds that he was entitled to
bump Ms. Martin.
B.
Retaliation Claim
North Miami also argues that summary judgment is appropriate with respect to Mr.
Forbes’ claim that North Miami retaliated against him for filing his Charge of Discrimination
with the EEOC on February 2, 2010. North Miami contends that Mr. Forbes cannot establish a
prima facie case of retaliation. North Miami also argues that even if Mr. Forbes can establish a
prima facie case of retaliation, North Miami legitimately terminated Mr. Forbes without regard
to the filing of his Charge of Discrimination. For the reasons discussed below, the Court finds
that Mr. Forbes has not established a prima facie case of retaliation, and assuming arguendo that
a prime facie case for retaliation exists, Mr. Forbes has not demonstrated that his reprimand or
termination were pretext for retaliation.
Title VII and the FCRA’s anti-retaliation clauses prohibit an employer from
discriminating against an employee “because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a); Fla. Stat. § 760.10(7). 6 An employee may pursue a claim for retaliation
even if the employee’s complaints of discrimination are ultimately meritless, so long as the
employee has a “good faith, reasonable belief that challenged practices violate Title VII.”
Rollins v. State of Fla. Dep’t of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989) (citing
Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1137 (5th Cir. Unit A Sept.
1981)); see also Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1312 (11th Cir. 2002); Sullivan v.
Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999) (“retaliation is a separate
offense under Title VII; an employee need not prove the underlying claims of discrimination for
the retaliation claim to succeed”); Little v. United Techs., Carrier Transicold Div., 103 F.3d 956,
960 (11th Cir. 1997).
“As with claims of substantive discrimination, Title VII retaliation claims require that
‘[o]nce the plaintiff establishes [a] prima facie case, the employer must proffer a legitimate, non6
The Court again analyzes Mr. Forbes’ retaliations claims under Title VII and the FCRA
together.
13
discriminatory reason for the adverse employment action. If the employer offers such legitimate
reasons for the employment action, the plaintiff must then demonstrate that the employer’s
proffered explanation is a pretext for retaliation.’” Crawford v. Carroll, 529 F.3d 961, 976 (11th
Cir. 2008) (quoting Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997)). “A reason is not
pretext for [retaliation] ‘unless it is shown both that the reason was false, and that [retaliation]
was the real reason.’” Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1163
(11th Cir. 2006) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). An
employee can meet this burden “‘either directly by persuading the Court that a [retaliatory]
reason more likely motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.’” Id. (quoting Jackson v. Ala. State Tenure
Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). However, “[p]rovided that the proffered reason
is one that might motivate a reasonable employer, an employee must meet that reason head on
and rebut it, and the employee cannot succeed by simple quarreling with the wisdom of that
reason.” Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000).
North Miami contends that Mr. Forbes cannot establish a prima facie case of retaliation.
To establish a prima facie case of retaliation under Title VII, Mr. Forbes must show (1) that he
engaged in statutorily protected activity; (2) that he suffered a materially adverse employment
action; and (3) that there was some casual relationship between the two events. Goldsmith v.
Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008); Olmsted v. Taco Bell Corp., 141 F.3d
1457, 1460 (11th Cir. 1998); Holifield, 115 F.3d at 1566. North Miami concedes that Mr. Forbes
engaged in statutorily protected speech when he filed a Charge of Discrimination with the
EEOC.
However, North Miami argues that a casual relationship between Mr. Forbes’
statutorily-protected speech and any adverse employment action is lacking. Specifically, North
Miami argues (1) that a five month period between Mr. Forbes’ filing the Charge of
Discrimination and his termination does not support a reasonable inference of a casual
relationship, and (2) that Mr. Forbes’ February 24, 2010 reprimand was not an adverse
employment action within the meaning of Title VII.
1.
Mr. Forbes’ Cannot Establish a Prima Facie Case of Retaliation
To establish the casual relationship element of his prima facie case for the employment
decisions that occurred after his February 2, 2010 EEOC filing, Mr. Forbes “need only show
14
‘that the protected activity and the adverse action were not wholly unrelated.’” Clover v. Total
Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999) (quoting Simmons v. Camden County Bd.
of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985)). Generally, the presence of a casual relationship
can be shown by a close temporal connection between the protected expression and a
termination. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). However, this temporal
proximity must be very close. If “there is a substantial delay between the protected expression
and the adverse action,” and an “absence of other evidence tending to show causation, the
complaint of retaliation fails as a matter of law.” Id. North Miami points out that the Eleventh
Circuit held in Higdon that a three month period between the protected expression and the
alleged retaliatory action did “not allow a reasonable inference of a casual relation between the
protected expression and the adverse action.” Id. at 1221 (citing Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001)). North Miami contends that because five months elapsed
between Mr. Forbes’ Charge of Discrimination and his termination, any close temporal
proximity is lacking.
Mr. Forbes must therefore establish that his written reprimand of February 24, 2010—
filed three weeks after filing his Charge of Discrimination—is an adverse employment action.
To establish the adverse employment action element of a prima facie case of retaliation, “a
plaintiff must show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington Northern & Santa Fe
Railway Co. v. White, 548 U.S. 53, 68 (2006) (internal citations omitted). The Supreme Court
has held that “the significance of any given act of retaliation will often depend upon the
particular circumstances. Context matters.” Id. at 69. North Miami contends that this reprimand
should not be considered an adverse employment action because Mr. Forbes did not suffer “a
materially adverse change in the terms and conditions of employment.” Def. Mot. Summ. J., at
12. The Court agrees; under the particular circumstances of the present case, Mr. Forbes’
reprimand was not an adverse employment action.
In order to demonstrate that Mr. Forbes’ reprimand was an adverse employment action,
Mr. Forbes has offered evidence that North Miami uses a progressive discipline process whereby
an oral reprimand is followed by a written reprimand, suspension, and finally termination.
Collins Depo. (D.E. # 74-1), at 36-37; Jones Depo. (D.E. # 74-3), at 16-17, 19; Graham Depo.
15
(D.E. # 74-2), at 44. Although it is not compulsory under every circumstance, there is evidence
to suggest that North Miami’s progressive discipline process is followed “in most cases” for
performance-related issues. See Jones Depo., at 17. Mr. Forbes argues that his reprimand should
be viewed as the opening salvo of a progressive discipline process that culminated in his
termination. See, e.g., Hamilton v. Geithner, 666 F.3d 1344, 1358 (D.C. Cir. 2012) (“given [the
employee’s] claim that [the employer] ‘ignored’ him in December 2003 when he requested
information regarding the detail, . . . it appears that [the employer] actually took a first step
toward the adverse action just two months after [the employee] filed his formal complaint”);
Heaton v. The Weitz Co., Inc., 534 F.3d 882, 888 (8th Cir. 2008) (holding a reasonable jury
could find that there was a pattern of adverse actions against the plaintiff beginning shortly after
the time he complained and lasting until he was laid off). According to Mr. Forbes, a prima facie
case of retaliation is established by the close temporal proximity between his EEOC Charge of
Discrimination and the adverse employment action (i.e. his reprimand).
The Court does not agree with Mr. Forbes’ argument. While his reprimand may serve as
a component of North Miami’s progressive discipline process, Mr. Forbes’ performance-related
problems, which were the subject of his reprimand, extended well prior to February 24, 2010.
As mentioned above, Mr. Graham had expressed multiple concerns over Mr. Forbes’ deficient
work product beginning November 23, 2009. In numerous e-mails, Mr. Graham instructed Mr.
Forbes to correct ongoing deficiencies in his job performance, including promptly entering data
into the city’s zoning violation database.
These same work deficiencies also continued
throughout the period after Mr. Forbes filed his EEOC Charge of Discrimination.
These
concerns are properly seen as legitimate responses to a continuing pattern of deficient work. The
record does not indicate that there was an onset of adverse employment actions by North Miami
after Mr. Forbes filed an EEOC complaint that would be consistent with a retaliatory intent. To
the contrary, the record simply reflects a continuation of the city’s expressed concerns similar to
those pre-EEOC complaint, not a change in its attitude toward Mr. Forbes.
“The anti-retaliation provision seeks to prevent employer interference with ‘unfettered
access’ to Title VII’s remedial mechanisms.” Burlington Northern, 548 U.S. at 68 (quoting
Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). The anti-retaliation provision does so by
“prohibiting employer actions that are likely ‘to deter victims of discrimination from
complaining to the EEOC,’ the courts, and their employers.” Id. (quoting Robinson, 519 U.S. at
16
346). Here, Mr. Forbes was informed of numerous deficiencies in his work product identified by
his superior over the three months prior to his EEOC complaint. A critical review of an
employee’s work product in and of itself would not deter a reasonable employee from making or
supporting a charge of discrimination. On the contrary, a reasonable employee who received
numerous warnings about his work product may be more inclined to expect such a review.
Under the circumstances of this case, Mr. Forbes’ reprimand was not an adverse employment
action within the meaning of Title VII. The five month period between Mr. Forbes’ termination
and his EEOC Charge of Discrimination does not support a casual connection between Mr.
Forbes’ EEOC complaint and his termination, or an inference of retaliation by North Miami. See
Higdon, 393 F.3d at 1220. Accordingly, the Court holds that Mr. Forbes has not established a
prima facie case of retaliation, and therefore North Miami is entitled to summary judgment on
Mr. Forbes’ retaliation claim.
2. Evidence of Pretext of Retaliation is also Lacking
However, assuming arguendo that such a prima facie case of retaliation has been
established, North Miami has offered several legitimate, nondiscriminatory reasons for its
decision.
North Miami contends that Mr. Forbes exhibited “numerous instances of
incompetency or inefficiency in the performance of assigned tasks or duties” and “fail[ed] to
obey any lawful and reasonable direction given by a supervisor when such violation or failure to
obey amounts to insubordination or serious breach of discipline.” Mot. for Summ. J., at 13.
Both before and after filing his EEOC complaint, Mr. Forbes, as a code enforcement officer, was
required to enter data regarding code violations he observed immediately into the city’s database.
Yet, Mr. Forbes’ entries did not correspond with the number of cases he actually opened or
verbally reported. See Reprimand (D.E. # 37-6), at 1; Dec. 10, 2009 E-mail (D.E. # 37-7), at 3.
As a result of this discrepancy, Mr. Forbes duplicated thirty-eight identical violations at the same
property, and failed to follow up on thirty-two separate violations of overgrown grass, swales,
and trash. Reprimand, at 2-3. Furthermore, regarding the discrepancies in reporting, Mr.
Graham noted that in February 2010, the number of cases which Mr. Forbes reported as closed
exceeded the number of inspections he reported, leading Mr. Graham to conclude that Mr.
Forbes was closing cases for violations without performing an inspection of the property.
Graham Depo. (D.E. # 78-2), at 86-87.
17
As discussed above, these concerns were first raised by Mr. Graham in November 2009,
three months prior to Mr. Forbes’ reprimand. See, e.g., Nov. 23, 2009 E-mail (D.E. # 38-13), at
1. In numerous e-mails, Mr. Forbes was given instructions as to his questionable work product,
the manner in which he entered data into the city’s database, and the submission of missing
documentation. The record does not reflect that Mr. Forbes either disputed his work deficiencies
at any time, or engaged Mr. Graham on possible strategies for improvement. Rather, Mr. Forbes
responded to Mr. Graham in one e-mail by stating “I do not appreciate you sending me an e-mail
with directive [sic] of how to do my job. How I achieve compliance and how I enforce the city
codes in my assigned area is [sic] of my discretion.” Feb. 10, 2010 E-mail (D.E. # 38-13), at 7.
Mr. Forbes argues that pretext is demonstrated because he was as productive as any other
code enforcement officers. He offers several raw database statistics that indicate that he was
opening and closing more cases than several other code enforcement officers. See Caseload
Statistics (D.E. # 74-2), at 44-50. Indeed, Mr. Graham concedes that the case load statistics
indicate that Mr. Forbes opened and closed more cases at various times than several other code
enforcement officers. Graham Depo, (D.E. # 74-2), at 20, 24-25, 28, 35-36. Mr. Graham also
states that the statistics indicate that Mr. Forbes was “as productive as any other officer” at
various times in 2009 and 2010. Id. at 29-30. This, according to Mr. Forbes, indicates that his
reprimand and termination were merely pretext to retaliation.
The record clearly indicates that Mr. Forbes opened and closed a significant number of
cases as a code enforcement officer. Unfortunately for Mr. Forbes, he has not refuted any
allegations regarding how he was improperly closing and accounting for such cases, or the
allegation of insubordination toward his supervisor Mr. Graham. When “the employer proffers
more than one legitimate, nondiscriminatory reason, the plaintiff must rebut each of the reasons
to survive a motion for summary judgment.” Palmer v. Albertson’s LLC, 418 F. App’x 885, 887
(11th Cir. 2011) (quoting Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir.
2007)). Here, Mr. Forbes does not dispute the charge that his data entries were deficient, as the
city contends. Indeed, Mr. Forbes acknowledges that he had difficulty with North Miami’s data
recording system used in managing records of his work. Forbes Decl. (D.E. # 75), at 6;
Gonzalez Depo. (D.E. # 78-7), at 25.
Mr. Forbes also does not dispute that his overall
performance is properly measured by considerations other than simply the number of cases
closed (e.g. proper recording of critical information, following instructions or working well with
18
others, etc.).
Mr. Forbes also does not dispute North Miami’s charge of insubordination.
Furthermore, the record is clear that it was not Mr. Graham who terminated Mr. Forbes, but
rather North Miami’s Director of Personnel Administration, Rebecca Jones, upon approval of the
City Manager. See Jones Depo. (D.E. # 78-8), at 23 (“I did the termination with the permission
of the city manager”); Graham Depo. (D.E. # 78-2), at 47 (“I have no authority to fire anyone”).
Because Mr. Forbes has not rebutted each of North Miami’s nondiscriminatory reasons for his
reprimand and termination, Mr. Forbes has not demonstrated that North Miami’s proffered
explanations for his termination were pretextual. Therefore, even if Mr. Forbes had established a
prima facie case, North Miami is still entitled to summary judgment on Mr. Forbes’ retaliation
claims.
IV.
CONCLUSION
For the reasons set forth above, it is hereby
ORDERED that Defendant’s Motion for Summary Judgment (D.E. # 37) is GRANTED
as to Counts I through IV.
ORDERED AND DONE, in Chambers, Miami, Florida, April 4, 2012.
Paul C. Huck
United States District Judge
Copies furnished to:
Counsel of record
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