Evans v. County School District
Filing
65
ORDER granting 48 Motion for Final Summary Judgment and Closing Case. All pending deadlines are TERMINATED and all hearings are CANCELLED. Motions Terminated: 48 Defendant's MOTION for Summary Judgment filed by St. Lucie County School District. Signed by Judge Robin L. Rosenberg on 11/5/2018. See attached document for full details. (lk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 2:17-CV-14450-ROSENBERG/REINHART
DARIEN X. EVANS,
Plaintiff,
v.
ST. LUCIE COUNTY SCHOOL DISTRICT,
Defendant.
_____________________________________/
ORDER GRANTING DEFENDANT’S MOTION FOR
FINAL SUMMARY JUDGMENT AND CLOSING CASE
THIS CAUSE is before the Court on Defendant, St. Lucie County School District’s,
Motion for Final Summary Judgment, DE 48. The Motion has been fully briefed, and the Court
had the benefit of hearing from the parties’ counsel at a Motion Hearing held on October 9,
2018, DE 63. The Court has considered Defendant’s Motion for Final Summary Judgment, DE
48, Defendant’s Statement of Material Facts, DE 58, Plaintiff Darien Evans’ Response, DE 52,
Defendant’s Second Amended Statement of Disputed Facts, DE 59, Defendant’s Reply, DE 54,
all accompanying exhibits, the arguments heard at the Motion Hearing on October 9, 2018, DE
63, and the record, and is otherwise fully advised in the premises.
I.
BACKGROUND
A. Claims Alleged in the Complaint
Plaintiff’s Complaint, DE 1, alleges six claims based on the non-renewal of his
employment at Lakewood Park Elementary, a subdivision of Defendant. Count I alleges “Racial
Discrimination” in violation of Title VII of the Civil Rights Act (Title VII), 42 U.S.C. § 1981
(Section 1981), and the Florida Civil Rights Act (FCRA) for “permitting and condoning the use
of racial slurs by staff.” DE 1, ¶ 54. Count II alleges “Racial Discrimination” in violation of Title
VII, Section 1981, and the FCRA for “failing to adequately supervise, control or discipline
and/or penalize the conduct, acts of failures to act of its agents.” DE 1, ¶ 64. Count III alleges
“Sexual Harassment” in violation of Title VII and the FCRA for “engag[ing] in co-worker sexual
harassment,” subjecting Plaintiff to “unwelcome sexual harassment . . . [and] verbal conduct of a
sexual nature that had the purpose or effect of unreasonably interfering with his work
performance or creating an intimidating, hostile or offensive work environment.” DE 1, ¶ 68.
Count IV alleges a claim of a “Hostile Work Environment” in violation of Title VII and the
FCRA for failing to “prevent the harassment from occurring” and “failing to adequately
supervise, control or discipline and/or penalize the conduct, acts or failures to act of its agent or
staff.” DE 1, ¶¶ 76–77. Count V alleges a claim of “Retaliation” in violation of Title VII and the
FCRA for subjecting Plaintiff to “intimidation, harassment, heightened scrutiny and criticism,
giving him a Letter of Reprimand, not recommending him for reappointment to his position, all
based upon his engaging in the legally protected activity of making a discrimination
complaint/grievance.” DE 1, ¶ 82. Count VI alleges a claim of “Disparate Treatment” in
violation of Title VII and the FCRA for subjecting Plaintiff to disparate treatment by removing
him from Lakewood Park Elementary during an investigation. DE 1, ¶ 89.
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B. Factual Background 1
This case arises out of Plaintiff’s employment by Defendant at the Lakewood Park
Elementary from August, 2014 through the spring of 2017. DE 1, ¶ 10. Plaintiff was employed
as a “School Assessment Support Clerk.” DE 53-1, 3. Plaintiff is an African American male. DE
59, ¶ 39.
In the spring of 2016, Plaintiff alleges that he was subjected to a hostile and intimidating
workplace. See id. ¶¶ 11–26. Specifically, Plaintiff felt pressured by his principal to fabricate a
statement against another employee of the school. DE 1, ¶¶ 11–16. In addition, colleagues used
racially charged language towards Plaintiff, see DE 58, ¶ 21, and sent offensive text messages to
Plaintiff that included profanity, see id. ¶ 20. Plaintiff felt he was “ignored” by colleagues in
responding to an incident when a child attempted to leave school grounds. See id. ¶ 35.
As a result of this perceived hostile work environment, Plaintiff filed a “grievance
alleging discrimination in the workplace,” DE 59, ¶ 50, and he met with the Director of Human
Resources Operations, Rivers Lewis, in October of 2016, see DE 1, ¶ 28. Plaintiff was
dissatisfied with Defendant’s response to his grievance, and filed a formal Charge of
Discrimination with the Equal Employment Opportunity Commission (EEOC) against Defendant
in February, 2017. See id. ¶ 36.
During Lakewood Elementary’s spring administration of the Florida Standards
Assessment (FSA), Plaintiff was tasked with administering the test to six students. DE 58, ¶ 4.
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The facts stated herein are derived from Plaintiff’s Complaint, DE 1, Defendant’s Statement of Material Facts, DE
58, and Plaintiff’s Statement of Material Facts, DE 59, and all of the exhibits cited therein. Where the parties’ facts
diverge, their different accounts of the facts are noted. Finally, the Court notes that at the Motion Hearing on
October 9, 2018, the parties agreed to the Court’s striking of portions of Defendant’s Statement of Material Facts,
DE 58. This procedural background is explicated more fully in subsection D (“Additional Procedural Background”),
below.
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During the administration of the test, Defendant alleges, and Plaintiff disputes, that Plaintiff
violated several testing procedures, including use of his laptop, failure to circulate around the
room to monitor the student, and providing the wrong test to a student. DE 58, ¶ 4. Defendant
conducted an investigation of the alleged violations, and found by a preponderance of the
evidence that the violations occurred. See DE 53-16, 2. Defendant’s IT Department also
subsequently ran an analysis of the websites visited by Plaintiff during the testing period, and
found extensive online activity. See 53-16, 29–58. Plaintiff disputes some of the evidence of
testing violations and whether his conduct constituted a testing violation. Motion Hearing Tr.
30–33.
Plaintiff was then placed on Temporary Duty Assignment (TDA) on April 17, 2017. DE
59, ¶ 55. On April 26, 2017, Principal Dianne Young also advised Plaintiff that she would not be
recommending him for re-appointment to his position for the next school year. DE 59, ¶ 58.
Finally, Plaintiff was issued a Letter of Reprimand for his conduct related to the FSA
administration, dated April 26, 2017. DE 58, ¶ 7, see also DE 53-4 (“Letter of Reprimand”).
Whether or not the conduct detailed in the Letter of Reprimand constituted a testing violation is
disputed. DE 59, ¶ 7.
C. Plaintiff Conceded Summary Judgment on Claims I, III, and IV.
At the Motion Hearing on October 9, 2018, Plaintiff conceded summary judgment on
three of the counts in the Complaint. Plaintiff conceded summary judgment on Counts III
(“Sexual Harassment”) and IV (“Hostile Work Environment), because they do not present
cognizable claims in the Eleventh Circuit. To begin with, counsel for Plaintiff acknowledged that
Count III was based on Plaintiff’s sexual orientation. Motion Hearing Tr. 12:23–24 (“MS.
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MOON: He believes he was sexually harassed as a homosexual male.”). Counsel for Plaintiff
confirmed that Count IV was based on Plaintiff’s sexual orientation as well. Motion Hearing Tr.
16:12–17 (“THE COURT: Are you saying the hostile work environment is based on sexual
orientation and sexual orientation only? MS. MOON: Yes, because the use of the racial slur was
only one occasion, and so it can’t possibly then rise to the level of being severe and pervasive.”).
Once Plaintiff’s counsel established that Counts III and IV were based solely on Plaintiff’s
sexual orientation, the Court raised the Eleventh Circuit’s unpublished opinion in Bostock v.
Clayton County Board of Commissioners, in which the court confirmed that there is no cause of
action for discrimination based on sexual orientation under Title VII in the Eleventh Circuit. See
Motion Hearing Tr. 21:7–21; Bostock v. Clayton Cty. Bd. of Comm’s., 723 F. App’x 964, 964–65
(citing Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) and Evans v. Ga. Reg’l Hosp.,
850 F.3d 1248, 1256 (11th Cir. 2017)). Plaintiff’s counsel did not object that this is the law of the
Eleventh Circuit. As a result, Plaintiff’s counsel conceded summary judgment on both counts:
THE COURT: So as a matter of law, then, Counts 3 and 4 would not survive.
MS. MOON: That is correct.
Motion Hearing Tr. 22:5–7.
Plaintiff also conceded summary judgment on Count I (“Racial Discrimination”), because
the Count was intended to press the Plaintiff’s contention that the use of a racial slur by one of
Defendant’s employees was illegal. At the Motion Hearing, Plaintiff’s counsel conceded that the
one-time use of a slur was not sufficient to sustain the claim:
THE COURT: [S]o I guess I want to go back to Count 1. . . . It is not a racially hostile
work environment claim, so, it is what?
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MS. MOON: It is a race discrimination claim based upon the single use of a racial slur.
THE COURT: Okay. But you are conceding that does not give rise to a racially hostile
work environment.
MS. MOON: I am. . . .
THE COURT: I’m trying to understand how Count 1 states a cause of action. . . . If it is
not a racially hostile work environment, what is Count 1?
MS. MOON: I don’t believe that the single use of the racial slur arises to the hostile work
environment claim which is why it was made separately. This one was based upon
race. . . I don’t think Count 1 survives the Court’s analysis in any form.
THE COURT: So the Plaintiff would not object to – so, what are you saying with respect
to Count 1, it is being –
MS. MOON: I think Count 1 goes the way of Counts 3 and 4 simply because he didn’t
even hear it himself, which we didn’t learn until deposition.
THE COURT: Plaintiff is conceding that the Defendant would prevail on summary
judgment as to Count 1, as to Count 3, and as to Count 4?
MS. MOON: Correct, your Honor.
Motion Hearing Tr. 22–24.
As a result of Plaintiff’s counsel’s concession of summary judgment on Counts I, III, and
IV, the remainder of this opinion analyzes only the claims of racial discrimination (Count II),
retaliation on the basis of race (Count V), and disparate treatment on the basis of race (Count
VI).
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D. Additional Procedural Background
The Court notes that the factual record in this case is not a model of clarity. However, the
Court will endeavor to elucidate what has transpired in this case.
Defendant filed its Motion for Summary Judgment, DE 48, on September 5, 2018.
Defendant’s Motion improperly incorporated its Statement of Facts into its Motion in violation
of Local Rule 56.1. Plaintiff responded on September 19, 2018 at DE 52, and properly filed his
Statement of Facts separately at DE 53 on September 20, 2018. Defendant filed its Reply on
September 21, 2018 at DE 54. On September 24, 2018, Plaintiff moved to file an amended
Statement of Facts, because his previous filing was intended only as a draft. Compare DE 53
with DE 55-1. The Court at this point sought to clean up the briefing, by ordering Defendant to
file a separate Statement of Facts, as required by Local Rule 56.1(a) and in compliance with the
Court’s Trial Order at DE 6. DE 56. Plaintiff was ordered to file a Statement of Facts in
response. Id. Defendant was specifically instructed to only present those facts that had been
contained within Defendant’s original Motion for Summary Judgment. Id. Defendant thereupon
filed its Statement of Facts at DE 58, and Plaintiff filed its responsive Statement of Facts at DE
59. In addition, Plaintiff moved to file additional argument, because he pointed out, correctly,
that Defendant had in fact introduced facts in its Statement of Facts, DE 58, that were not
presented in Defendant’s original Motion for Summary Judgment, DE 48. See DE 60.
The parties proceeded to a Hearing on the Motion for Summary Judgment on October 9,
2018. At the Motion Hearing, the Court raised these issues with the parties. Motion Hearing Tr.
2–10. In an effort to be able to consider the motion expeditiously and efficiently, the Court
proposed to the parties that it would accept Defendant’s recommendation, DE 61, and strike the
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paragraphs of Defendant’s Statement of Facts, DE 58, that Plaintiff had objected to; DE 59, DE
60; so that the Court could consider the Motion, DE 48, without any additional briefing. See
Motion Hearing Tr. 2–10. The parties agreed that the Court would still be entitled to consider all
of the record evidence, see Fed. R. Civ. Pro 56, even though the offending paragraphs would not
themselves be considered in ruling on the Motion. Motion Hearing Tr. 8–10. Both parties agreed
to striking the specified paragraphs of Defendant’s Statement of Facts at DE 58 (¶¶ 11–17, 22,
26–29, 31–33), and further agreed that the Court could consider the entire record, including
Defendant’s Rule 30(b)(6) witness, Mr. Clements’ deposition, Principal Young’s deposition,
Assistant Principal Ricksecker’s deposition, and Plaintiff’s deposition. Motion Hearing Tr. 9–10.
Finally, the parties agreed that the Motion was fully briefed and ripe for ruling. Id. at 10.
As a result of this procedural history, the Court has proceeded in evaluating Defendant’s
motion based as much as possible on the Statements of Facts as filed, DE 58 and DE 59, but
where necessary, has considered the record holistically.
II.
SUMMARY JUDGMENT 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). The existence of a factual dispute is not by itself sufficient grounds to defeat a motion for
summary judgment; rather, “the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is genuine if “a
reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of
Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson, 477 U.S.
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at 247–48). A fact is material if “it would affect the outcome of the suit under the governing
law.” Id. (citing Anderson, 477 U.S. at 247-48).
In deciding a summary judgment motion, the Court views the facts in the light most
favorable to the non-moving party and draws all reasonable inferences in that party’s favor.
See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting
evidence. See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Thus, upon
discovering a genuine dispute of material fact, the Court must deny summary judgment. See id.
The moving party bears the initial burden of showing the absence of a genuine dispute of
material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the moving
party 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, “[t]he 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Accordingly, the non-moving
party must produce evidence, going beyond the pleadings, to show that a reasonable jury could
find in favor of that party. See Shiver, 549 F.3d at 1343.
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III.
DISCUSSION
A. Count II – Racial Discrimination 2
Title VII of the Civil Rights Act makes it unlawful for any employer “to limit, segregate,
or classify his employees or applicants for employment in any way which would deprive or tend
to deprive any individual of employment opportunities or otherwise adversely affect his status as
an employee, because of such individual's race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(2). Similarly, Section 1981 provides that “‘[a]ll persons . . . shall have the
same right . . . to make and enforce contracts . . . as is enjoyed by white citizens,’ which in an
employment context means protection against discrimination based on race and color. 42 U.S.C.
§ 1981(a).” Mosley v. Ala. Unified Judicial Sys., Admin. Office of Courts, 562 F. App’x 862, 868
(11th Cir. 2014). “Both of these statutes have the same requirements of proof and use the same
analytical framework, therefore [the Court] shall explicitly address the Title VII claim with the
understanding that the analysis applies to the § 1981 claim as well.” Standard v. A.B.E.L. Serv.,
Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). In addition, Florida’s Civil Rights Act (FCRA)
mirrors the federal Civil Rights Act, and uses the same analysis. Diaz v. Florida., 219 F. Supp.
3d 1207, 1214–15 (S.D. Fla. 2016) (“Florida’s equivalent, the FCRA, contains an identical
prohibition on . . . race discrimination. See Torres–Skair v. Medco Health Sols., Inc., 595 F.
App’x 847, 852 (11th Cir. 2014) (“Title VII and the FCRA prohibit certain employers from
discriminating ‘against any individual with respect to [his] compensation, terms, conditions, or
2
At the outset, the Court notes that at the Motion Hearing, Plaintiff’s counsel confirmed that this count is based
factually on Plaintiff’s assignment to temporary duty. Motion Hearing Tr. 18:21–23 (“THE COURT: Count 2 is
about temporary duty assignment only? MS MOON: Correct.”); see also Motion Hearing Tr. 20:17–22 (“THE
COURT: So, Count 2 and Count 6 are making the same argument, that Mr. Evans was discriminated against by the
Defendant based on his race for his temporary assignment. Count 2 and Count 6, is that how the Court should be
viewing those two counts? MS. MOON: Yes, your honor.”).
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privileges of employment, because of such individual’s [membership in a protected class]’ ”
(citing 42 U.S.C. § 2000e–2(a)(1); Fla. Stat. § 760.10(1)(a)))).
To establish a prima facie case of racial discrimination under Title VII, “a plaintiff must
show (1) []he belongs to a protected class; (2) []he was qualified to do the job; (3) []he was
subjected to adverse employment action; and (4) [his] employer treated similarly situated
employees outside [his] class more favorably.” Crawford v. Carroll, 529 F.3d 961, 970 (11th
Cir. 2008).
The burden is on the plaintiff to establish the fourth prong by producing a comparator
who “must be similarly situated in all relevant respects” and who was treated differently than
Plaintiff. See Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1192 (11th Cir. 2016).
“Where, as here, the plaintiff claims that the employer discriminated against [the plaintiff] in
meting out discipline, in determining whether the plaintiff and the employees []he says 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.’” Cuevas v. Am. Exp. Travel Related Serv.
Co., Inc., 256 F. App’x 241, 243 (11th Cir. 2007) (quoting Burke–Fowler v. Orange County,
Fla., 447 F. 3d 1319, 1323 (11th Cir. 2006)). Furthermore, “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.” Cuevas, 256 F. App’x at
243 (citing Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)).
Here, Plaintiff claims he was discriminated against on the basis of his race when his
employer moved him to Temporary Duty Assignment (TDA). See Motion Hearing Tr. 20:17–22.
However, he has not produced an appropriate comparator to establish his prima facie case.
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In Plaintiff’s Statement of Material Facts, Plaintiff attempts to put forth another
Lakewood Elementary Employee, Justin Keim, as a comparator:
78. Dianne Young did not report Justin Kiem’s alleged testing violation to Human
Resources or the District Testing Office for investigation. Exhibit C, pg. 35 lines 5-25,
pg. 36 lines 1-8, pg. 75 lines 10-25 and pg. 76 lines 1-9.
79. Justin Kiem had a history of complaints concerning sexual harassment and
unprofessional conduct. Exhibits L and M.
DE 59, ¶¶ 78–79. The referenced sections of the Young deposition all relate to an accusation that
Mr. Kiem (a teacher at Lakewood Elementary) may not have been circulating enough during the
administration of the FSA. See DE 53-3; 35:5–36:8, 75:10–76:9. In regards to the other evidence
proffered by Plaintiff, “Exhibit L” is an email from a former employee, Tammy Smith, to
Principal Dianne Young. DE 53-13. This exhibit is hearsay 3 and cannot be considered for
summary judgment purposes. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 (11th Cir.
2012). “Exhibit M” is a letter from Principal Young to Keim scheduling a meeting to discuss
“discourteous conduct or language to an employee on your part.” DE 53-14. None of this
evidence establishes Keim as an appropriate comparator to Plaintiff. Even if the Court accepted
all of the proffered evidence as both true and as admissible, Keim is still insufficient as a
comparator because he is not sufficiently similar to Plaintiff. Plaintiff has not introduced
evidence to show that he and Keim were similar in their roles, responsibilities, training, or even
3
The exhibit is an email from former employee, Tammy Smith, to the principal, Dianne Young. The email is offered
for the truth of the matter asserted, namely that Keim was “not monitoring during FSA.” This is hearsay within
hearsay, without an applicable exemption from the definition of hearsay under Federal Rule of Evidence 801 or an
exception to the rule against hearsay under Federal Rule of Evidence 803. Although Smith’s statement to Keim that
he was not monitoring his students may be classified as non-hearsay because it was spoken by an employee within
the scope of her employment while she was employed by Defendant, pursuant to Federal Rule of Evidence
801(d)(2)(D), the subsequent email, reporting that conversation to Young, would not be covered under the same
non-hearsay exclusion. See Fed. R. Ev. 801(d)(2)(D). Smith was not acting within the scope of her employment in
sending the email and it is unclear whether she was even employed by Defendant at the time the email was sent. See
Fed. R. Ev. 801(d)(2)(D).
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the alleged misconduct, as required by Cuevas, 256 F. App’x 241, Burke-Fowler, 447 F.3d 1319,
and Maniccia, 171 F.3d 1364. From this record, the Court also does not have evidence of Keim’s
race, to establish whether or not Plaintiff was treated differently on the basis of his race.
At the Motion Hearing, Plaintiff initially stated that the comparators were employees
Jones and Dawson. Motion Hearing Tr. 26. There, Plaintiff’s counsel acknowledged that these
two employees did not have similar job titles to Plaintiff, did not commit testing violations, and
did not undergo the testing training that Plaintiff did. Id. at 26–28. Later on in this discussion,
Plaintiff’s counsel identified Justin Keim as a third comparator. Id. at 28:24–29:5. Again,
Plaintiff’s counsel acknowledged Keim and Plaintiff did not have similar titles. Id. at 29:8. In
addition, Plaintiff’s counsel acknowledged that while Keim was found to have violated testing
policy by “failing to monitor,” id. at 29:16, there was “no record evidence similar to the
Plaintiff’s use of a computer,” id. at 30:17–18.
Accordingly, Plaintiff has not met his burden of producing a comparator to demonstrate
that Defendant treated similarly situated individuals differently on the basis of their race. This
failure in establishing a prima facie cases entitles Defendant to summary judgment as a matter of
law on Plaintiff’s claim of racial discrimination under Title VII, Section 1981, and the FCRA in
Count II for the reasons stated above.
In the alternative, these claims are also subject to burden shifting under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and even if a prima facie case had been properly
established, Plaintiff also failed to demonstrate that Defendant’s proffered explanation for his
temporary duty assignment was pretextual. This analysis is fully explicated in subsection B
“Count V – Retaliation” below.
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B. Count V – Retaliation 4
Title VII prohibits “retaliation against an employee ‘because [s]he has opposed any
practice made an unlawful employment practice by [Title VII], or because [s]he has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing [thereunder].’ 42 U.S.C. § 2000e–3(a).” Crawford v. Carroll, 529 F.3d 961, 970 (11th
Cir. 2008). “[D]ecisions construing Title VII guide the analysis of claims under the Florida Civil
Rights Act. Accordingly, [if] the plaintiff[] cannot maintain a retaliation claim under Title VII,”
Plaintiff also cannot maintain an a retaliation claim under the FCRA. Harper v. Blockbuster
Entertainment Corp., 139 F.3d 1385, 1389 (11th Cir. 1998). The Court proceeds to analyze the
Title VII claim, with the understanding that the analysis would be the same under the FCRA.
“To establish a prima facie case of retaliation under Title VII, a plaintiff must show that
(1) he engaged in statutorily protected expression; (2) he suffered an adverse employment action;
and (3) there is some causal relation between the two events.” Pennington v. City of Huntsville,
261 F.3d 1262, 1266 (11th Cir. 2001); see also Alvarez v. Royal Atl. Developers, 610 F.3d 1253,
1268 (11th Cir. 2010). The Eleventh Circuit uses the burden shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), to analyze indirect claims of Title VII retaliation.
See Crawford, 529 F.3d at 976. If the plaintiff successfully establishes a prima facie case of
4
At the outset, the Court notes that at the Motion Hearing, Plaintiff’s counsel confirmed that this count is based
entirely on Plaintiff’s status as an African-American. Motion Hearing, Tr. 16:20–25 (“THE COURT: What is the
basis for the retaliation? I understand the alleged protected activity is making a discriminat[ion] complaint or
grievance, but what does it relate back to, what class? MS MOON: I think that would have to be as an AfricanAmerican, not sexual orientation.”). In addition, Plaintiff’s counsel confirmed that this count is based factually on
Defendant’s non-renewal of Plaintiff and the Letter of Reprimand. Motion Hearing Tr. 19:1–12 (“MS. MOON: If
you look at Count 5, retaliation, paragraph 82, subjected Mr. Evans to intimidation, harassment, heightened scrutiny
and criticism, giving him a letter of reprimand and not recommending him to reappointment to his position. THE
COURT: Count 5, retaliation, is based on race only and the basis of the retaliation claim based on race is the letter of
reprimand? MS. MOON: It is the letter of reprimand and the nonrenewal. THE COURT: And the nonrenewal. MS.
MOON: Correct.”).
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retaliation, the burden shifts to the defendant to offer a “legitimate, non-discriminatory reason for
the adverse employment action.” Id. (citing Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir.
1997)). If the employer offers legitimate reasons for the employment action, the plaintiff must
then demonstrate that the employer's proffered explanation is a pretext for retaliation. Holifield,
115 F.3d at 1566.
Disputes regarding the ultimate merits of the employer’s proffered explanation do not
suffice to demonstrate pretext: “An employer who fires an employee under the . . . honest
impression that the employee violated a work rule is not liable for discriminatory conduct.”
Damon v. Fleming Supermarkets of Fla., 196 F.3d 1354, 1363, n.3 (11th Cir. 1999).
Furthermore, an employer has the “right to interpret its rules as it chooses, and to make
determinations as it sees fit under those rules.” Nix v. WLCY Radio, 738 F.2d 1181, 1187 (11th
Cir. 1984). “Federal courts do not sit as a super-personnel department that reexamines an
entity’s business decisions.” Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.
1991).
The Court assumes, without deciding, that Plaintiff has established his prima facie case of
Title VII for race-based retaliation, based on the Letter of Reprimand and Defendant’s nonrenewal of Plaintiff.
Nevertheless, the Court finds that Defendant has proffered a legitimate and nondiscriminatory explanation for both the Letter of Reprimand and the decision not to renew
Plaintiff’s employment. Defendant points to the various alleged testing violations to explain its
decision to both reprimand and non-renew Plaintiff. DE 58, ¶ 4–7. Specifically, in its Statement
of Facts, Defendant alleges that Plaintiff’s cell phone went off during the standardized Florida
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test, that Plaintiff was surfing the internet on his laptop during the test (and specifically,
searching the internet for “how to sue the school board”), that Plaintiff was not circulating
around the room to monitor students properly, and that Plaintiff gave the wrong test to one
student. Id. Plaintiff disputes these paragraphs, and instead states that the cell phone ringing was
not a testing violation, that Defendant did not put forth evidence as to whether Plaintiff searched
for “how to sue the school board,” that failing to monitor the students was not a testing violation,
and that Plaintiff was not disciplined for giving a student the wrong test. DE 59, ¶ 5. Notably,
Plaintiff did not dispute the more general allegation that Plaintiff was using the internet during
the test, and the Court focuses its analysis on that internet usage. See id.
Both parties direct the Court’s attention to the “Investigative Report” appended to
Defendant’s Rule 30(b)(6) witness, Aaron’s Clements’ deposition. See DE 50-1 and Plaintiff’s
“Exhibit O,” DE 53-16. The Report contains the initial misconduct reporting form submitted by
Heather Ricksecker; DE 53-16, 6–7; written statements by Plaintiff’s six students; id. at 8–13; a
Notice to Plaintiff regarding the investigation and his placement on temporary duty; id. at 14–15;
a copy of the “Test Administrator Prohibited Activities Agreement,” signed by Plaintiff; id. at
16–17; further communications about the investigation between Plaintiff and Defendants’
employees; id. at 18–28; and Defendant’s IT department’s analysis of Plaintiff’s internet use
during the testing period; id. at 29–58.
The Investigative Report states that when confronted by Defendant’s employees about
the allegations of his misconduct, Plaintiff “did not deny that he was looking at this computer
during testing. He stated, ‘I do not believe I was doing that, but I cannot remember.’” Id. at 3.
Later in the report, Plaintiff argues with this characterization of his statements, and states instead
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in an email to Clements that “In actuality, I stated that, ‘I do not recall bringing my computer in
the testing room, but I do not believe I did.’ Nevertheless, although I did not deny the
allegations, ‘looking’ at my computer or any computer for that matter, is not prohibited.” Id. at
26 (emphasis in original). This is not a denial of the facts as alleged. Following this exchange,
Defendant tasked its IT department with analyzing Plaintiff’s computer’s internet traffic during
the time of the exam. See id. at 29–58. This forensic analysis uncovered substantial internet
activity during the relevant testing period, including visits to sites such as facebook.com,
instragram.com, orbitz.com, and jetblue.com. Id.
At Plaintiff’s deposition, he again did not dispute the allegation that he used his computer
during the administration of the state standardized test. DE 49-1, 22–24 (Plaintiff’s Deposition,
Vol. II, p. 186–89). He only stated that he did not recall whether he was on his computer, despite
his previous admissions. Id.
Given all of this evidence, and the parties’ agreement to the Court’s consideration of that
evidence, Motion Hearing Tr. 9–10, the Court deems Plaintiff’s previous statements as
admissions that he was using his computer inappropriately during the administration of the state
test. He has not properly disputed this fact in his Statement of Facts or his deposition by stating
“I don’t recall,” so the fact that he was on his computer during the test is deemed admitted. In the
alternative, even if Plaintiff had not admitted to the computer use, no reasonable juror, when
confronted with this compilation of data points, could reach the conclusion that Plaintiff was not
on his laptop during the test administration. As a final note, the Court gave Plaintiff’s counsel the
opportunity to clarify whether Plaintiff disputes the internet activity as a basis for Defendant’s
actions at the Motion Hearing. See Motion Hearing Tr. 31–32. There, Plaintiff’s counsel stated
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on the record that Plaintiff’s use of his laptop was not in dispute. Id. at 31:23–32:2 (“THE
COURT: Is it in dispute that the Plaintiff was using his desktop during testing? MS. MOON: I
don’t believe so. THE COURT: So, it is not? MS. MOON: It is not.). Thus, no reasonable juror
could conclude that Plaintiff did not use his laptop during the test administration. Furthermore,
there is no evidence to suggest that Plaintiff’s use of his computer was authorized or appropriate,
and no reasonable juror could conclude otherwise. Defendant has therefore offered a legitimate
explanation for issuing the Letter of Reprimand and choosing not to renew Plaintiff’s contract
with the school.
Plaintiff also disputes that his actions constituted testing violations, but this dispute does
not vitiate Defendant’s satisfaction of its burden to demonstrate a legitimate reason for its
adverse actions against Plaintiff. Defendant is entitled to deference on its interpretation and
application of the rules and regulations applied to its staff. See Damon, 196 F.3d at 1363, n. 3;
Nix v. WLCY, 738 F.2d at 1187. Therefore, the Defendant’s legitimate, non-retaliatory reason for
issuing the Letter of Reprimand and choosing to not renew Plaintiff’s employment still stands.
The burden therefore shifts to Plaintiff to demonstrate that this proffered explanation is
pretextual, and Plaintiff has not met this burden. In response to Defendant’s proffered
explanation, Plaintiff takes issue with “Defendant’s investigative summary” of the testing
violations in a few respects. DE 52, 6. First, Plaintiff argues with the identification of Plaintiff as
a “testing coordinator” versus a “School Assessment Support Clerk.” Id. There is no material
distinction between these titles for the purposes of this case. Plaintiff’s “Duties and
Responsibilities” clearly included maintenance of the “security of all tests” and compliance with
testing protocols. See DE 53-1, 3. Second, Plaintiff argues that having his cell phone and
18
computer in the testing room was not a violation, that silencing his cell phone was not a
violation, and that looking at a computer during the test was not a violation. While the Court
recognizes that there may be some ambiguity in whether an inadvertent cell phone ring, without
more, would be a violation, the same cannot be said for the computer use. See DE 53-5 (“Test
Administrator Prohibited Activities”) (“I may not: . . . Use my cell phone, check email, grade
papers, or engage in other activities that will result in my attention not being on students at all
times”). The training slide deck referred to by Plaintiff at DE 59, ¶ 5, “Spring 2017 Florida
Standards Assessments Training Materials for Paper-Based Assessments,” clearly states “Your
full attention should be on students at all times during testing, and a testing room must never be
left unattended. If issues arise during testing, you may need to use your computer or phone to
contact your school assessment coordinator; however, it is not appropriate to use the computer or
phone for unrelated activities (such as grading or personal communication) during a test
session.” By citing to this slide deck, Plaintiff conflates an exception for contacting the
Assessment Coordinator with the general rule against computer use during testing. When
Defendant investigated Plaintiff’s computer activity during the testing period, the IT department
found extensive online activity between during the testing period. See DE 50-1, 35–64 (showing
visits to facebook.com, jetblue.com, orbitz.com, and instagram.com, among others).
Aside from these disputes about the details of the Defendant’s explanation for issuing the
Letter of Reprimand and choosing to not renew Plaintiff, Plaintiff has put forth no evidence of
his own to suggest that the Letter of Reprimand and his non-renewal were instead causally
connected to Plaintiff’s decision to file a Charge of Discrimination with the EEOC. See DE 59.
“Title VII retaliation claims require proof that ‘[the] protected activity was a but-for cause of the
19
alleged adverse action by the employer.’” Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d
1179, 1194 (11th Cir. 2016) (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362
(2013)); see also Diaz v. Florida, 219 F. Supp. 3d 1207, 1220 (S.D. Fla. 2016).
To the extent that Plaintiff presumes that the temporal proximity of the EEOC Complaint
and Plaintiff’s reprimand and non-renewal proves causality, Plaintiff has not articulated this
clearly, nor would the timeline of events in this case support such a theory. Temporal proximity
must be “very close” to prove causation. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001). Plaintiff filed his EEOC Complaint in February, but did not receive the Letter of
Reprimand or notice of his non-renewal until April of 2016. See DE 1. In addition, “[i]ntervening
acts of misconduct can break any causal link between the protected conduct and the adverse
employment action.” Diaz, 219 F. Supp. 3d at 1221 (quoting Henderson v. FedEx Express, 442
F. App’x 502, 506 (11th Cir. 2011). Here, the EEOC Complaint and the adverse employment
actions were separated by two months, and in the intervening period, Defendant became aware of
evidence, which Defendant could reasonably believe, that Plaintiff violated the testing
procedures, in direct violation of his job description. See DE 1, DE 53-1. Accordingly, Plaintiff
has not met his burden of establishing that the adverse employment actions taken against him
were causally connected to his EEOC Complaint or that Defendant’s proffered explanation is
pretextual. Defendant is therefore entitled to summary judgment on Plaintiff’s Claim for
retaliation in violation of Title VII and the FCRA in Count V.
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C. Count VI – Disparate Treatment 5
Title VII also prohibits disparate treatment of employees on the basis of their race. See
Denney v. City of Albany, 247 F.3d 1172, 1182 (2001). Once again, the Court notes that
“[d]ecisions construing Title VII guide the analysis of claims under the Florida Civil Rights
Act.” Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1389 (11th Cir. 1998).
Accordingly, the Court’s analysis of Plaintiff’s claim under Title VII would be the same under
the FCRA.
“To establish a prima facie case for disparate treatment in an employment discrimination
case, the plaintiff must show that: “(1) []he is a member of a protected class; (2) []he was
subjected to an adverse employment action; (3) [his] employer treated similarly situated
employees outside of [his] protected class more favorably than [he] was treated; and (4) []he was
qualified to do the job.” Burke–Fowler v. Orange County, Fla., 447 F. 3d 1319, 1323 (11th
Cir.2006). To produce evidence of the third prong, the plaintiff must produce a comparator
employee who “must be similarly situated ‘in all relevant respects’” to the plaintiff. Wilson v.
B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004) (citation omitted). “The comparator
5
In his Response, Plaintiff argues that Defendant has not presented Plaintiff’s “disparate treatment [claim] to the
court [sic] for consideration in its Motion for Final Summary Judgment.” DE 52, 3. However, Defendant’s Motion is
for “Final Summary Judgment,” DE 48 (emphasis added), implying that the Motion was intended to address all
counts of the Complaint. The Court confirmed the same with Defendant’s counsel on the record at the Motion
Hearing. Motion Hearing Tr. 34:3–5. Accordingly, the Court proceeds to consider the parties’ arguments on the
disparate treatment claim.
In addition, the Court notes that at the Motion Hearing, Plaintiff’s counsel confirmed that this count, like Count V, is
based entirely on Plaintiff’s status as an African-American. Motion Hearing, Tr. 16:20–17:4 (“THE COURT: What
is the basis for the retaliation? I understand the alleged protected activity is making a discriminatory complaint or
grievance, but what does it relate back to, what class? . . . And disparate treatment [alleged in Count VI]? MS
MOON: Race as well, your Honor.”). In addition, Plaintiff’s counsel confirmed that this count is based factually on
Defendant’s placement of Plaintiff on TDA. Motion Hearing Tr. 20:17–22 (“THE COURT: So, Count 2 and Count
6 are making the same argument, that Mr. Evans was discriminated against by the Defendant based on his race for
his temporary assignment. Count 2 and Count 6, is that how the Court should be viewing those two counts? MS.
MOON: Yes, your honor.”).
21
must be ‘nearly identical’ to the plaintiff[] to prevent courts from second-guessing a reasonable
decision by the employer.” Trask, 822 F.3d at 1192 (citing Wilson, 376 F.3d at 1091 (11th
Cir.2004)).
Plaintiff here fails to establish the prima facie case for Title VII disparate treatment for
the same reasons he failed to establish the prima facie case for racial discrimination, as discussed
above, in Section III – A (Count II – Racial Discrimination). Plaintiff has not put forth a
sufficiently similar comparator to establish his prima facie case. Accordingly, Defendant is
entitled to summary judgment on Plaintiff’s claim for disparate treatment in Count VI.
IV.
CONCLUSION
For the reasons stated herein, the Court hereby GRANTS Defendant’s Motion for
Summary Judgment, DE 48, in favor of Defendant on all counts of Plaintiff’s Complaint, DE 1.
For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion for Final Summary Judgment [DE 48] is GRANTED as to
all counts alleged in the Complaint.
2. Because there are no remaining claims in this case, the Clerk of the Court is
ordered to CLOSE this case.
3. All pending deadlines are TERMINATED and all hearing are CANCELLED.
4. Defendant is ORDERED to submit a proposed Final Judgment Order to the
Court’s email address (Rosenberg@flsd.uscourts.gov) in Microsoft Word format
within two days of the rendition of this Order.
DONE and ORDERED in Chambers at West Palm Beach, Florida, this 5th day of
November, 2018.
_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to Counsel of Record
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