Veasy v. Sheriff of Palm Beach County

Filing 76

ORDER ON DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT. Defendant's Renewed Motion for Summary Judgment, ECF No. 63 is GRANTED. To the extent not otherwise disposed of, all pending motions are DENIED as moot. Final Judgment will be e ntered by separate order. All pending hearings are CANCELLED. The Clerk is instructed to CLOSE this case.granting 63 Motion for Summary Judgment Signed by Judge Beth Bloom on 6/12/2017. (mc) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-80486-BLOOM/Valle
WILBUR VEASY,
Plaintiff,
v.
RIC L. BRADSHAW,
as Sheriff of Palm Beach County,
Defendant.
_____________________________________/
ORDER ON DEFENDANT’S
RENEWED MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendant Ric. L. Bradshaw’s (“Defendant” or
“Sheriff Bradshaw”) Renewed Motion for Summary Judgment, ECF No. [63] (the “Motion”),
following remand from the United States Court of Appeals for the Eleventh Circuit, see ECF No.
[60] (Mandate of the Eleventh Circuit, or “Mandate”). The Court has reviewed the Motion, all
opposing and supporting submissions, the record and the applicable law, and is otherwise fully
advised. For the reasons set forth below, the Motion is granted.
I.

BACKGROUND
Plaintiff, an African American man, was hired by the Palm Beach County Sheriff’s

Office (“PBSO”) on October 1, 1987 as a corrections officer to work in the Palm Beach County
jail. Defendant’s Statement of Undisputed Material Facts, ECF No. [64] (“Def. SOF”) at ¶ 1;
Plaintiff’s Verified Response to Defendant’s Renewed Statement of Undisputed Material Facts,
ECF No. [68] (“Pl. SOF”) at ¶ 1. More than twenty-five years later, on April 19, 2013, PBSO
fired Plaintiff. Def. SOF at ¶ 1; Pl. SOF at ¶ 1. During the period of his employment, Plaintiff
was subject to multiple disciplinary actions taken by PBSO, a number of which were the result of

Case No. 15-cv-80486-BLOOM/Valle
what PBSO classified as insubordination offenses. See Def. SOF at ¶ 2. 1 The last of those
disciplinary actions—which would ultimately include Plaintiff’s termination—stemmed from
events that took place on February 5, 2013. See id. at ¶¶ 7-13; Pl. SOF at ¶¶ 7-13.
On February 5, 2013, Plaintiff was notified by the secretary of the Division of Internal
Affairs (“Internal Affairs”) that he had been randomly selected to submit to a drug test pursuant
to PBSO’s random drug and alcohol testing policy. 2 Def. SOF at ¶ 7. According to Defendant,
Sergeant Brett Combs (“Sergeant Combs”) with Internal Affairs first advised Plaintiff via
telephone to drive his personal vehicle to the testing site when Plaintiff asked how he was
supposed to get to the testing site. Plaintiff refused, and was thereafter ordered to report to
Internal Affairs. Id. at ¶ 8. Apparently disputing that he was initially advised to drive his
personal vehicle to the testing site, however, Plaintiff asserts that Sergeant Combs informed him
via telephone to appear at Internal Affairs, to which he complied. Pl. SOF at ¶ 8.
Relatedly, the parties dispute certain aspects of PBSO’s random drug and alcohol testing
policy, particularly as they relate to the location of where a corrections officer selected for
random testing is to report. Defendant asserts that a corrections officer selected for random
testing was previously required to report to Internal Affairs for testing. However, in November of
2011, PBSO switched to an outside company to administer the sample collection and testing.
Def. SOF at ¶¶ 5-6. Defendant also asserts that at the time of Plaintiff’s random selection,
approximately 250 corrections employees had participated in the drug-testing program by
reporting directly to the outside company for testing. Id. at ¶ 6. Plaintiff, on the other hand,

1

Where a fact is uncontroverted by the opposing party, the Court cites only to the originating Statement
of Facts.
2
Pursuant to that policy, an employee has four hours to take a drug or alcohol test once randomly selected
to do so, and an employee’s refusing to submit, failing to appear when directed, refusing to sign any
necessary consent forms, or attempting to tamper with a random test is cause for discipline, up to and
including termination for a first offense. Def. SOF at ¶ 3.

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denies those assertions, stating that “[t]here was no written policy change until after my
termination.” Pl. SOF at ¶¶ 5-6.
Once at Internal Affairs, Plaintiff twice refused orders by Sergeant Combs to report to the
testing site in his personal vehicle. Def. SOF at ¶ 9; see also Pl. SOF at ¶ 11. Plaintiff’s
response to being ordered to drive to the testing site in his personal vehicle was subsequently
“escalated” to Sheriff Bradshaw, who gave Plaintiff the option of either driving to the test site in
his personal vehicle or being placed on administrative leave. Def. SOF at ¶ 10. Plaintiff
responded that his “2007 red four door Tacoma is not going,” and Plaintiff was subsequently
placed on administrative leave.

Id.

Thereafter, PBSO conducted an Internal Affairs

investigation into the matter and concluded that Plaintiff had violated two rules and regulations.
Id. at ¶ 11; Pl. SOF at ¶ 11. Captain Frank Milo (“Captain Milo”), who was assigned to review
the Internal Affairs investigation and to make a discipline recommendation, recommended
termination. This was based upon his review, Plaintiff’s prior disciplinary history, and what was
perceived as Plaintiff’s “recurring problem with insubordination.” Def. SOF at ¶ 12. On April
19, 2013, following a pre-disciplinary hearing, Plaintiff’s employment was terminated. 3 Id. at ¶
13.
Plaintiff subsequently filed a claim for unemployment benefits, which was denied after a
hearing before an appeals referee.

Id. at ¶ 14.

Plaintiff appealed that denial, which was

ultimately affirmed by both the Reemployment Assistance Appeals Commission and the Florida
Fourth District Court of Appeal. Id. Plaintiff also filed a grievance and requested arbitration
pursuant to a Collective Bargaining Agreement (“CBA”). Id. at ¶ 15. The arbitrator found that
PBSO had just cause to terminate Plaintiff under the CBA. That determination was confirmed by
3

Plaintiff acknowledges that the only reason ever given to him for his termination was the result of the
Internal Affairs investigation. Id. at ¶ 21.

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the Palm Beach County Circuit Court when it denied a subsequent motion to vacate filed by
Plaintiff. Id.
On April 14, 2015, Plaintiff brought suit against Defendant under 42 U.S.C. §§ 1981 and
1983 and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, alleging
employment discrimination and retaliation based on his race. More specifically, Plaintiff’s
Complaint asserts a discrimination claim alleging that Defendant terminated Plaintiff because of
Plaintiff’s race (Count I) and a retaliation claim alleging that Defendant terminated Plaintiff after
Plaintiff complained of race discrimination (Count II). 4 On February 23, 2016, this Court
granted summary judgment in favor of Defendant with respect to both of Plaintiff’s claims upon
determining that Defendant was entitled to Eleventh Amendment immunity. See ECF Nos. [41][42].5 Plaintiff then appealed. See ECF No. [47].
Ultimately, the Eleventh Circuit reversed this Court’s Order granting summary judgment
in favor of Defendant and remanded the case, holding that Defendant is not entitled to Eleventh
Amendment immunity. See ECF No. [60] at 4 (citing Stanley v. Broward Cnty. Sheriff, 843 F.3d
920 (11th Cir. 2016)). In remanding the case, the Eleventh Circuit left it to this Court to decide
in the first instance whether Defendant is entitled to summary judgment on the merits. Id. at 4
n.2. In the instant Motion, Defendant renews his request for summary judgment. Defendant
argues that Plaintiff has failed to establish a prima facie case of race discrimination and
retaliation and has also failed to demonstrate that Defendant’s legitimate, non-discriminatory and
non-retaliatory reason for the termination of Plaintiff is mere pretext. See ECF No. [63].
4

For purposes of his retaliation claim, the protected activity Plaintiff alleges that he engaged in and that
served as the basis for the retaliation against him relates to the following: a 2005 lawsuit for race
discrimination and retaliation decided against him in 2006; a 2001 Charge of Discrimination and a 2014
Charge of Discrimination; and a grievance filed in 2004. See id. at ¶ 16.
5
Defendant had also moved for summary judgment on the merits in addition to moving for summary
judgment on Eleventh Amendment grounds, but this Court addressed only Defendant’s entitlement to
Eleventh Amendment immunity.

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Case No. 15-cv-80486-BLOOM/Valle
II.

LEGAL STANDARD
A court may grant a motion for summary judgment “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 parties may support their positions by citation to the record,
including, inter alia, depositions, documents, affidavits, or declarations. See Fed. R. Civ. P.
56(c).

An issue 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) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact
is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting
Anderson, 477 U.S. at 247-48). The Court views the facts in the light most favorable to the
non-moving party and draws all reasonable inferences in the party’s favor.

See Davis v.

Williams, 451 F.3d 759, 763 (11th Cir. 2006). “The mere existence of a scintilla of evidence in
support of the [non-moving party’s] position will be insufficient; there must be evidence on
which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. The
Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130,
1140 (11th Cir. 2007) (quoting Carlin Comm’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352,
1356 (11th Cir. 1986)).
The moving party shoulders the initial burden to demonstrate the absence of a genuine
issue of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a 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., L.L.C., 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

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essential element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)). 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, designating specific facts to suggest that a reasonable jury could find in
the non-moving party’s favor. Shiver, 549 F.3d at 1343.
In resolving the issues presented under Fed. R. Civ. P. 56, “the court may not weigh
conflicting evidence to resolve disputed factual issues; if a genuine dispute is found, summary
judgment must be denied.” Carlin Commc’n, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d
1352, 1356 (11th Cir. 1986); see also Aurich v. Sanchez, 2011 WL 5838233, at *1 (S.D. Fla.
Nov. 21, 2011) (“If a reasonable fact finder could draw more than one inference from the facts,
and that inference creates an issue of material fact, then the court must not grant summary
judgment.” (citing Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913 (11th Cir. 1993)).
Even “where the parties agree on the basic facts, but disagree about the factual inferences that
should be drawn from those facts,” summary judgment may be inappropriate.

Warrior

Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).
III.

DISCUSSION
A. Discrimination Claim under 42 U.S.C. §§ 1981 and 1983 (Count I) 6
Similar to Title VII, which prohibits an employer from discriminating against a person

based on race or sex, see 42 U.S.C. §§ 2000e–2(a)(1), under 42 U.S.C. § 1981, “an employee has
the right to be free of intentional racial discrimination in the performance of a contract.”

6

See generally Bryant v. Jones, 575 F.3d 1281, 1288 n.1 (11th Cir. 2009) (explaining that the Eleventh
Circuit has “held that § 1981 does not provide an implicit cause of action against state actors; therefore, §
1983 constitutes the exclusive federal remedy for violation by state actors of the rights guaranteed under §
1981”) (citing Butts v. County. of Volusia, 222 F.3d 891, 894-95 (11th Cir. 2000)); Flowers v. Troup
Cnty., Ga., Sch. Dist., 2014 WL 842934, at *4 (N.D. Ga. Mar. 5, 2014) (“Race-discrimination claims
levied against state actors . . . must be brought under § 1983.”)

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Summers v. City of Dothan, Ala., 444 F. App'x 346, 347 (11th Cir. 2011); see also Domino's
Pizza, Inc. v. McDonald, 546 U.S. 470, 474-75 (2006) (“Among the many statutes that combat
racial discrimination, § 1981 . . . has a specific function: It protects the equal right of ‘[a]ll
persons within the jurisdiction of the United States' to ‘make and enforce contracts' without
respect to race.”) (quoting 42 U.S.C. § 1981(a)); 42 U.S.C. § 1981(b) (including in the definition
of the phrase “make and enforce contracts” “the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of
the contractual relationship.”). As such, the elements of a § 1981 discrimination claim are the
same as those of a Title VII discrimination claim. Summers, 444 F. App’x at 347 (citing Rice–
Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 843 n. 11 (11th Cir. 2000)).
A plaintiff may establish a discrimination claim through the presentation of direct or
circumstantial evidence of discrimination. Dixon v. The Hallmark Companies, Inc., 627 F.3d
849, 854 (11th Cir. 2010). Where, as here, the plaintiff relies on circumstantial evidence of
discrimination, 7 courts are to apply the burden-shifting framework articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Alvarez v. Royal Atl. Developers, Inc., 610
F.3d 1253, 1264 (11th Cir. 2010); see also Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1060
(11th Cir.1994) (“The McDonnell Douglas scheme for the allocation of burdens and the order of
presentation of proof also applies in § 1981 cases involving discriminatory treatment in
employment situations.”). Pursuant to that framework, the plaintiff must first establish a prima
facie case of discrimination, whereby the plaintiff “must show that (1) []he is a member of a
protected class; (2) []he was qualified for the job; (3) []he suffered an adverse employment
action; and (4) [his] employer treated similarly situated employees outside the protected class
7

Plaintiff concedes that no racially related remarks or comments were ever made to him by Defendant or
other PBSO officials involved in the investigation that led to his termination. Def. SOF at ¶ 21.

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more favorably or, for a termination, was replaced by a person outside the protected class.”
Addison v. Florida Dep't of Corr., --- F. App’x ----, 2017 WL 1130175, at *2 (11th Cir. 2017)
(citing Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)); see also Alvarez, 610 F.3d at
1264; Burke–Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006). Once a prima facie
case is shown, a presumption of unlawful discrimination is created and the burden of production
shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse
employment action. Alvarez, 610 F.3d at 1264; Texas Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 254 (1981). Once the defendant proffers such a reason, the burden shifts back to the
plaintiff to show that the proffered reason is a mere pretext for unlawful discrimination. Alvarez,
610 F.3d at 1264.
Additionally, in the Eleventh Circuit, a determination as to whether employees are
similarly situated in cases involving allegedly discriminatory discipline requires evaluating
“whether the employees [were] involved in or accused of the same or similar conduct and [were]
disciplined in different ways.” Burke–Fowler, 447 F.3d at 1323 (internal quotation marks
omitted). “The quantity and quality of the comparator's misconduct must be ‘nearly identical’ to
the plaintiff's misconduct, in order ‘to prevent courts from second-guessing employers'
reasonable decisions.” Summers, 444 F. App'x at 347 (quoting Burke–Fowler, 447 F.3d at
1323). In other words, “alleged comparators must be similarly situated in all relevant respects.
Otherwise, the alleged preferential treatment towards non-identical comparators does not
indicate pretext.” Addison, 2017 WL 1130175, at *4 (quoting Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1091 (11th Cir. 2004)) (internal quotation marks and citation omitted).
Importantly, “[i]f a plaintiff fails to show the existence of a similarly situated employee,

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summary judgment is appropriate where no other evidence of discrimination is present.” Wilson,
376 F.3d at 1092 (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
i. Prima Facie Case Assumed
Defendant argues that Plaintiff fails to show a prima facie case of race discrimination
because there is no evidence that Defendant treated similarly situated employees outside his
protected class more favorably. See ECF No. [63] at 2-3 (citing Holifield, 115 F.3d at 1562). In
the Defendant’s view, the two purported comparators relied upon by Plaintiff—Deputy Sheriff
Joshua Plant (“Deputy Plant”) and Sergeant Daniel Burrows (“Sergeant Burrows”) (both
white)—are not similarly situated. See id. Defendant further argues that even if Plaintiff could
show a prima facie case, Defendant has articulated a legitimate, non-discriminatory reason for
Plaintiff’s termination, which Plaintiff has failed to demonstrate was merely a pretext. See id. at
3. The Court agrees with the latter. Thus, Plaintiff’s discrimination claim fails even if he has
established a prima facie case. See generally Morrison v. City of Bainbridge, GA, 432 F. App'x
877, 881 n.2 (11th Cir. 2011) (explaining that in applying the McDonnell Douglas framework,
“when an employer has offered a legitimate, nondiscriminatory reason for an employee's
termination, whether a plaintiff made out a prima facie case is almost always irrelevant in
considering a motion for summary judgment.”) (citing Brady v. Office of Sergeant at Arms, 520
F.3d 490, 492 (D.C. Cir. 2008)).
As an initial matter, Plaintiff argues that a prima facie case for race discrimination
does not require the existence of a comparator, and not without good reason. In Flowers v.
Troup Cty., Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015), the Eleventh Circuit explained
that in race discrimination cases, a plaintiff makes out a prima facie case “when he shows by a
preponderance of the evidence (1) that he is a member of a protected racial class, (2) that he was

9

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qualified for the position, (3) that he experienced an adverse employment action, and (4) that he
was replaced by someone outside of his protected class or received less favorable treatment than
a similarly situated person outside of his protected class.” (citing Maynard v. Bd. of Regents,
342 F.3d 1281, 1289 (11th Cir. 2003)) (emphasis added). However, two very recent unpublished
decisions by the Eleventh Circuit indicate that comparators are a necessary component in this
context. See Addison, 2017 WL 1130175, at *2 (“To establish a prima facie case of race []
discrimination a plaintiff must show that . . . [his] employer treated similarly situated employees
outside the protected class more favorably or, for termination, was replaced by a person outside
the protected class”) (citing Maniccia, 171 F.3d at 1368) (emphasis added); Brooks v. U.S. Dep't
of the Air Force, 2017 WL 1360769, at *1 (11th Cir. 2017) (“To make out a prima facie case [of
race discrimination], a plaintiff must demonstrate . . . he was replaced by a person outside his
protected class or was treated less favorably than a similarly-situated individual outside his
protected class.”) (citing McDonnell Douglas, 411 U.S. at 802) (emphasis added). Nonetheless,
in Wilson, the Eleventh Circuit affirmed summary judgment in favor of the defendant with
respect to the plaintiff’s discrimination claim which alleged that the defendant terminated the
plaintiff on the basis of her sex. 376 F.3d 1079. Relevant to the Eleventh Circuit’s decision was
the plaintiff’s failure to identify a comparator, which the district court found pertinent in the
prima facie determination. See id. at 1091-92. But on appeal the Eleventh Circuit clarified as
follows:
The district court found that Wilson failed to establish a prima facie case of
discrimination in the termination of her employment. . . . Wilson’s failure to
identify a comparator does not end the analysis of her termination claim, however.
If a plaintiff fails to show the existence of a similarly situated employee, summary
judgment is appropriate where no other evidence of discrimination is present.

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Id. (internal quotation marks omitted) (emphasis in the original) (quoting Holifield, 115 F.3d at
1562). According to Plaintiff, he has established a prima facie case because he “is a member of
a protected class, [] was qualified for his employment and was discharged[.]” ECF No. [67] at 9.
The Court gives Plaintiff the benefit of the doubt and assumes, without deciding, that he has
established a prima facie case irrespective of any purported comparators. 8
ii. Legitimate Non-discriminatory Reason for Plaintiff’s Termination
The Court next considers whether Defendant has articulated a legitimate, nondiscriminatory reason for Plaintiff’s termination, which Defendant surely has. Defendant states
that the reason for Plaintiff’s termination was insubordination—namely, Plaintiff “repeatedly
refus[ed] to comply with directives from Internal Affairs to go . . . for drug testing as the final
incident in a history of multiple insubordination offenses.” ECF No. [63] at 9. This reason
undoubtedly qualifies as legitimate and nondiscriminatory. See, e.g., Jarvis v. Siemens Medical
Solutions USA, Inc., 460 F. App’x 851 (11th Cir. 2012) (“insubordination” found to be a
legitimate and nondiscriminatory proffered reason for the plaintiff’s termination). Plaintiff must
therefore demonstrate that this proffered reason is mere pretext for unlawful discrimination.
iii. No Evidence of Pretext
“A plaintiff may show pretext by either directly persuading the court that a
discriminatory reason motivated the employer, or by indirectly showing that the employer’s
proffered explanation is unworthy of credence.” Ivey v. Paulson, 222 F. App’x 815, 818 (11th
Cir. 2007) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
Under the second method, a plaintiff must establish “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons .
8

In his Motion, Defendant assumes that Plaintiff has satisfied all other elements required to establish a
prima facie case. See ECF No. [63] at 2.

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. . that a reasonable factfinder could find them unworthy of credence.” Moore v. Jefferson Cnty.
Dep’t of Human Res., 277 F. App’x 857, 859 (11th Cir. 2008) (citing Cooper v. S. Co., 390 F.3d
695, 725 (11th Cir. 2004)). Importantly, “[t]he inquiry into pretext centers upon the employer’s
beliefs and not the employee’s own perceptions of his performance.”

Mitchell v. City of

LaFayette, 504 F. App'x 867, 871 (11th Cir. 2013) (quoting Holifield, 115 F.3d at 1565); see
also Wilson, 376 F.3d at 1088 (“If 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.”).
Here, Plaintiff essentially makes two arguments that Defendant’s proffered reason for
Plaintiff’s termination is unworthy of credence. See ECF No. [67] at 9-15. First, Plaintiff
contends that Defendant deviated from its own PBSO policies in terminating him. See id. at 912. More specifically, Plaintiff states that he did not actually violate the applicable work place
rule because he appeared at Internal Affairs ready and able to provide a urine sample. Plaintiff
emphasizes that PBSO’s random drug and alcohol testing policy at the time required employees
to report to Internal Affairs for testing; the policy did not require employees to report to any
other location for testing. See id. at 12. Moreover, according to Plaintiff, Defendant’s claimed
consideration of “all of [] Plaintiff’s past disciplinary history” violated PBSO’s policy providing
that discipline implemented more than three years prior to any potential infraction at issue should
be disregarded. Id. Second, although Plaintiff argues that comparators are not a required
element of a prima facie case of race discrimination, as evidence of pretext, Plaintiff equally
contends that Defendant “treated similar [sic] situated white employees, who violated the same
rule Plaintiff is falsely accused of violating, preferentially.” Id.; see generally Williams v.
Florida Atl. Univ., 2017 WL 1881676, at *8 (S.D. Fla. May 9, 2017) (“The similarly situated
prima facie case inquiry and the pretext inquiry ‘are not hermetically sealed off from one

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another.’”) (quoting Coleman v. Donahoe, 667 F.3d 835, 857-58 (7th Cir. 2012)); Coleman, 667
F.3d at 858 (explaining that often “the prima facie case and the pretext analysis overlap,” and
“the similarly situated inquiry dovetails with the pretext question”). The Court finds both
arguments unavailing.
With respect to Plaintiff’s first argument, it does appear that at the time Plaintiff was
randomly selected for a drug test on February 5, 2013, PBSO’s random drug and alcohol testing
policy had not been formally changed in writing to reflect that as of November of 2011, testing
was to be conducted off-site by a designated third-party company. See ECF No. [69] at 3. But,
under the circumstances, the point proves immaterial.

To begin with, Plaintiff does not

genuinely dispute Defendant’s claim that approximately 250 corrections employees had
previously undergone drug testing with the third-party company by the time Plaintiff was
selected. Compare Def. SOF at ¶ 6 (citing ECF No. [31-3] at 7; ECF No. [31-9] at 19), with Pl.
SOF at ¶ 6 (“Unknown, therefore denied.”).

Furthermore, and perhaps most importantly,

Plaintiff does not dispute that while at Internal Affairs, he twice refused Sergeant Combs’ orders
to report to the testing facility in his personal vehicle and subsequently declined the same when
Sheriff Bradshaw offered him the options of that reporting or being placed on administrative
leave. See Def. SOF at ¶¶ 9-10. This Court’s “sole concern is whether unlawful discriminatory
animus motivates a challenged employment decision[,]” Wilson, 376 F.3d at 1092 (quoting
Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999)). Here,
both of these considerations undercut, rather than support, such a conclusion. At most, the
overall circumstances surrounding the orders given to Plaintiff to submit to a drug test conducted
away from Internal Affairs by a third-party company and Plaintiff’s refusal to comply with those
orders were unfair, given what was reflected in PBSO’s written policy at the time; or, as Plaintiff

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suggests, he was not technically insubordinate as he did not actually violate a written work place
rule. But this is not enough. “An employer who fires an employee under the mistaken but
honest impression that the employee violated a work rule is not liable for discriminatory
conduct.” Damon v. Fleming Supermarkets of Florida, 196 F.3d 1354, 1363 n.3 (11th Cir.
1999); see also Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (“An employer
may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for
no reason at all, as long as its action is not for a discriminatory reason.”) (quoting Nix v. WLCY
Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)). “Indeed, an employer is
under no obligation to be fair and has the ‘right to interpret its rules as it chooses, and to make
determinations as it sees fit under those rules.’” Williams, 2017 WL 1881676, at *7 (quoting
Nix, 738 F.2d at 1187). Ultimately, Plaintiff may have arrived at Internal Affairs willing and
able to submit to a drug test so long as it was administered in a manner consistent with what
PBSO’s policy on the books specifically provided. However, that does not extinguish the natural
import of his three refusals to comply with direct orders given to him by individuals with
supervisory authority over him—that import being that a perception of insubordination, rather
than discriminatory intent, was the driving factor in the subsequent decision to terminate
Plaintiff. See generally Wilson, 376 F.3d at 1092 (explaining that whether “[the plaintiff’s]
conduct was insubordinate is not an issue for this Court to referee”).
The same can be said for the other purported deviation from PBSO policy asserted by
Plaintiff—that is, that Defendant reviewed all of Plaintiff’s disciplinary history rather than
limiting such review to the three years preceding the February 5, 2013 incident. The PBSO rule
cited to by Plaintiff provides for the implementation of disciplinary measures, and it states in part
that “[m]inor infractions [] that occurred more than one year prior to the current infraction. . . .

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[and] [m]ajor infractions that occurred more than three years prior to the current infraction
should be disregarded.” ECF No. [67-2] at 3 (emphasis added). However, beyond the fact that
the rule does not appear to be a mandate, the rule, when read in context, expressly contemplates
the comprehensive review purportedly employed by Defendant. It provides as follows: “Major
infractions that occurred more than three years prior to the current infraction should be
disregarded. Nevertheless, supervisors should be alert to prior misconduct which indicates a
trend, particularly in cases involving possible violence or criminal conduct.” Id.
The Court concludes that neither fact - that PBSO’s written random drug and alcohol
testing policy did not reflect the specific testing procedures or that all of Plaintiff’s disciplinary
history was considered - represents such a deviation from PBSO policy so as to allow a
reasonable factfinder to view Defendant’s proffered reason for Plaintiff’s termination unworthy
of credence. See Ivey, 222 F. App’x at 818. Moreover, Plaintiff’s attempt to analogize Munoz v.
Oceanside Resorts, Inc., 223 F.3d 1340 (11th Cir. 2000), only serves to further illuminate how
short the above mentioned evidence falls in demonstrating pretext. In Munoz, the plaintiff, a
room service waiter, brought an age discrimination claim against his former resort-employer
after he was fired on the stated basis of insubordination. Id. at 1333-34. In affirming the district
court’s denial of the defendant’s motions for judgment as a matter of law following a jury verdict
in the plaintiff’s favor, the Eleventh Circuit noted a “substantial quantum of evidence” of pretext
offered by the plaintiff. See id. at 1345. That evidence included, inter alia, the following:
“Munoz was employed with the Resort for twenty-seven years, during which he never before
received a documented reprimand. . . . Munoz was terminated following a single warning, which
Munoz alleges contravened the Resort’s policy as outlined in its employee handbook that
termination would follow three warnings[.]” Id. at 1345 n.5. Here, Plaintiff has failed to provide

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Case No. 15-cv-80486-BLOOM/Valle
a substantial quantum of pretext evidence comparable to the one provided by the plaintiff in
Munoz.

Plaintiff concedes that during his employment with PBSO he was disciplined for

insubordination-related offenses on several occasions. Def. SOF at ¶ 2. With respect to his
refusal to submit to a drug test as ordered by Internal Affairs on February 5, 2013, the relevant
PBSO rule provides in relevant part that “[r]efusing to submit[] [or] failing to appear when
directed . . . is cause for discipline up to, and including, termination for a first offense.” ECF No.
[67-1] at 14 (emphasis added). Further, and perhaps even more determinative, the underlying
event that formed the basis of the defendant’s decision to terminate the plaintiff in Munoz—i.e.,
the plaintiff’s purported insubordination—was in legitimate dispute. See Munoz, 223 F.3d at
1333-34. Specifically, after receiving his first and only reprimand from the defendant, the
plaintiff was instructed not to discuss the reprimand with anyone—which the defendant claimed
the plaintiff did, and the plaintiff denied. Id. The Eleventh Circuit found the “factual conflict”
especially relevant with respect to the plaintiff’s theory, which was based in part on a “false
accusation of insubordination,” particularly as the conflict related to credibility determinations
the jury may have made. See id. at 1345. Here, by contrast, there are no factual conflicts
regarding the circumstances surrounding Plaintiff’s purported insubordination in refusing to
submit to a drug test as ordered by Internal Affairs, and thus no related credibility concerns that
would require resolution. For these reasons, Plaintiff’s reliance on Munoz is simply inapposite.
Plaintiff’s second argument for pretext fares no better than his first, as Sergeant Burrows
and Deputy Plant—who were both found by Internal Affairs to have violated certain PBSO rules
but whose respective disciplinary measures did not rise to termination—were not similarly
situated to Plaintiff. As such, neither are proper comparators. First, with respect to Sergeant
Burrows, the record reflects that he became the subject of an Internal Affairs investigation after

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Case No. 15-cv-80486-BLOOM/Valle
PBSO received a complaint that he was using controlled substances illegally obtained from a
retired PBSO employee. See generally ECF No. [67-6] at 84-108; see also ECF No. [67-5] at 67.

Upon receiving an order to submit to a drug test by Sergeant Lawrence Colagiovanni

(“Sergeant Colagiovanni”) at the outset of that investigation, Sergeant Burrows informed
Sergeant Colagiovanni that he would be checking himself into a drug detox facility through
assistance provided by PBSO’s Employee Assistance Program (“EAP”). ECF No. [67-5] at 14.
According to Sergeant Burrows, he was advised by Sergeant Colagiovanni shortly afterwards not
to worry about the drug test and to report to the treatment facility. Id. Importantly, there is no
genuine dispute that Sergeant Burrows was never found to have refused an order from Internal
Affairs to take a drug or alcohol test. See Def. SOF at ¶ 18; see also ECF No. [67-5] at 14 (“Q
Did they ask you to submit a sample? A Yes. Q And you refused? A No. Q You agreed to give a
sample? A I informed them that I was - - had already contacted EAP and was en route to a
facility. . . . [A]bout ten or 15 minutes pass by and [Colagiovanni] called me back and said,
Don’t worry about the urine sample, just go to your treatment facility. That’s the last I heard
about it.”).
Plaintiff inaccurately asserts otherwise, see Pl. SOF at ¶ 18 (asserting without citation to
the record that “Burrows refused to submit to a drug test”); ECF No. [67] at 13 (“Colagiovanni
detremined [sic] in his investigation that Burrows violated several rules, including the refusing to
submit to a urinalysis . . . .”) (citing ECF No. [67-6] at 35-37), and these efforts are misleading at
best. The relevant rule violation actually reflected by the record evidence Plaintiff cites to—
namely, the deposition testimony of Sergeant Colagiovanni (who investigated Sergeant Burrows’
case)—is that Sergeant Burrows failed the drug test administered at the treatment facility he

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checked himself into the same day he checked in, the results of which were made available to
PBSO:
Q. Okay. Let’s talk about your findings . . . . What were your findings on this
case?
A. I found that in charge Number 1, which was “Violation of laws, policies, or
rules and regulations relating to the Office of the Sheriff to wit, General Order
300.001 A, drug/alcohol testing,” a preponderance of evidence did exist, that he
violated that rule and regulation.
....
Q. I’m sorry, you said you found a standard of conduction violation for Count I
that had to do with drug and alcohol testing?
A. Right. Well, the first one for the drug and alcohol testing falls under IX (54)
which was violation of laws, policies, or rules and regulations relating to the
Office of the Sheriff. . . .
Q. I believe that somewhere along the line I read somewhere that Burrows had
said that you folks can get the drug testing from the facility he’s going to. Was
that made available at any point?
A. It was. . . . [T]hey actually drafted the consent form for me to get his medical
records inclusive of his drug testing at the detox facility he went to.
Q. And what was the result of that testing?
A. I don’t remember the specifics, but I know he tested positive for one of the - - I
can’t remember if it’s hydrocodone, oxycodone. It was one of those.
Q. Did he have a prescription to use the medication?
A. For the one that he tested positive for, he did not. That’s why I found a
preponderance of evidence existed for that standard of conduct violation.
Q. Do we know - - or do you know when he took the actual test at this facility as
opposed to the day that you and the other sergeant were going to test him?
A. If I remember correctly, I can’t say for certain, but I believe it’s the same date.
...
Q. You found a violation of 300.001 A which is drug and alcohol testing. What
specifically did he violate in that policy?
A. Sure. Let’s see. The main crux I remember was he had taken a medication that
he didn’t have a valid prescription for.
ECF No. [67-6] at 35-38 (emphasis added). As the record makes clear, unlike Plaintiff, the
disciplinary measures imposed against Sergeant Burrows, based in part on a failed drug test, 9 had
nothing to do with insubordination in the form of a refusal to submit to a drug test. For that
reason alone, the Court does not consider Sergeant Burrows as similarly situated to Plaintiff.
9

Internal Affairs also found that Sergeant Burrows had violated PBSO rules by possessing a controlled
substance without a valid prescription and generally for conduct unbecoming. See ECF No. [67-6] at
107-08; see also ECF No. [67-5] at 28; ECF No. [67-6] at 35-37.

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Sergeant Burrows is therefore not an appropriate comparator in this case. See Summers, 444 F.
App'x at 347 (“The quantity and quality of the comparator's misconduct must be ‘nearly
identical’ to the plaintiff's misconduct, in order ‘to prevent courts from second-guessing
employers' reasonable decisions.’”) (quoting Burke–Fowler, 447 F.3d at 1323) (emphasis
added); Burke-Fowler, 447 F.3d at 1325 (“Different types and degrees of misconduct may
warrant different types and degrees of discipline.”); Holifield, 115 F.3d at 1562 (“In determining
whether employees are similarly situated for purposes of establishing a prima facie case, it is
necessary to consider whether the employees are involved in or accused of the same or similar
conduct and disciplined in different ways.”).
As for Deputy Plant, the comparison to Plaintiff is somewhat closer, but not close
enough. Deputy Plant was found to have violated the same PBSO rule as Plaintiff when he
refused to submit to a breath alcohol test after he was suspected of operating a PBSO patrol
vehicle off-duty while under the influence of alcohol. See Def. SOF at ¶ 19; Pl. SOF at ¶ 19; see
also ECF No. [67-1] at 18. Deputy Plant’s circumstances, however, were markedly different
from Plaintiff’s circumstances in two important aspects. First, unlike Plaintiff, Deputy Plant was
a member of the Palm Beach County Police Benevolent Association (“PBA”), the union that
represented PBSO deputies. Def. SOF at ¶ 19; Pl. SOF at ¶ 19. The PBA eventually intervened
in the matter regarding the Internal Affairs investigation of Deputy Plant, but before it did,
Internal Affairs had recommended that Deputy Plant be terminated based on the findings of its
investigation—just as it would later recommend in Plaintiff’s case. See Def. SOF at ¶ 19; Pl.
SOF at ¶ 19; see also ECF No. [62-1] at ¶ 3. Indeed, Defendant, according to him, approved that
recommendation subject to Deputy Plant’s right to a “pre-disciplinary hearing.” ECF No. [62-1]
at ¶ 3. Shortly after Internal Affairs’ recommendation and prior to a pre-disciplinary hearing

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Case No. 15-cv-80486-BLOOM/Valle
ever taking place, the PBA intervened, challenging the recommendation of termination. Id.; see
also Def. SOF at ¶ 19; Pl. SOF at ¶ 19. Then, and only then, did Defendant decide to impose a
lesser discipline—namely, an 80 hour suspension without pay—a decision Defendant states was
on the basis that the PBA had convinced him of “extenuating circumstances” for Deputy Plant’s
conduct. See ECF No. [62-1] at ¶ 3. The final product of Defendant and the PBA’s negotiations
was memorialized in a Settlement Agreement, which indicated that Deputy Plant waived any
right to have the matter heard at a pre-disciplinary meeting or hearing review board. See id. at 3.
The Settlement Agreement also indicated a mutual understanding that “the refusal of a direct
order to submit to a drug test is potentially, on its face, grounds for termination.” Id. In the
Court’s view, the PBA’s intervention on behalf of Deputy Plant with a primary goal of seeking a
reduction in Deputy Plant’s discipline (even disregarding the apparent success of the
intervention) and the lack of some comparable circumstance in Plaintiff’s case undercuts any
notion that the two were “similarly situated in all relevant aspects.”

Addison, 2017 WL

1130175, at *4 (emphasis added).
The second important distinction between Deputy Plant and Plaintiff is their respective
disciplinary histories. Unlike Plaintiff, who had been disciplined for insubordination-related
violations on several occasions throughout his employment, there is no dispute that Deputy Plant
had never before been disciplined for insubordination. Def. SOF at ¶ 19; Pl. SOF at ¶ 19.
According to Defendant, the lack of any prior discipline for insubordination in Deputy Plant’s
record played a role in his decision to impose a lesser discipline upon negotiating with the PBA.
See ECF No. [62-1] at ¶ 3; ECF No. [67-3] at 10. Notably, Plaintiff does not challenge this. The
disparity in disciplinary records also precludes a finding that Deputy Plant and Plaintiff were
similarly situated in “all relevant aspects.” Addison, 2017 WL 1130175, at *4.

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Case No. 15-cv-80486-BLOOM/Valle
Plaintiff asserts that Defendant “did not consider [his] prior disciplinary history per
[Defendant’s] deposition[,]” Pl. SOF at ¶ 19, and that Plaintiff’s prior disciplinary history is a
“new justification [] raised as an after the fact justification for the termination[,]” ECF No. [67]
at 2-3 (emphasis omitted). However, Plaintiff offers no citation to the record lending any
material support for these conclusory assertions, see generally Chavez v. Sec’y Florida Dep’t of
Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (“[D]istrict court judges are not required to ferret
out delectable facts buried in a massive record.”). 10 Moreover, on this point, the Court notes a
patent contradiction.

As discussed earlier, Plaintiff argues that Defendant’s claim that he

reviewed all of Plaintiff’s disciplinary history—particularly beyond the three year period
preceding the February 5, 2013 incident—would constitute a deviation from PBSO policy. See
ECF No. [67] at 12. Notably, Plaintiff characterizes that claimed review as a “clear deviation[]
from the Defendant’s own rules[,]” a deviation Plaintiff in turn offers as evidence of pretext.
Implying that such a review did in fact take place and factored into Plaintiff’s termination—
hence the “clear deviation” in policy—Plaintiff argues in that context as follows: “An
employer’s failure to follow its own internal employment procedures can constitute evidence of
pretext. Defendant’s failure to play it by the book, and follow its own rules, is probative that the
stated reason for terminating Plaintiff was pretextual.” Id. (internal citations omitted). Yet in his
attempt to analogize his circumstances with those of Deputy Plant’s, Plaintiff claims just the
opposite. He vehemently asserts that such a review never actually took place, let alone played a
role in his termination. See Pl. SOF at ¶ 20; ECF No. [67] at 2-3. Here, Defendant either did

10

At most, Plaintiff cites to the termination letter sent to him by PBSO on April 19, 2013, see ECF No.
[67-7], which as Plaintiff points out, “makes no mention whatsoever of the past disciplinary history being
a basis for the Plaintiff’s termination[,]” ECF No. [67] at 2. The Court, however, does not consider the
letter as indicative of pretext given that it refers generally to “the issues contained within the Division of
Internal Affairs Case# IA 13-012 where charges were investigated and sustained administratively.” ECF
No. [67-7].

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consider all of Plaintiff’s disciplinary history in his decision to terminate Plaintiff, as he
contends, or Defendant did not. That Defendant did so is plausible given the lack of dispute that
Defendant made essentially the same consideration in deciding to reduce Deputy Plant’s
discipline and that PBSO’s disciplinary policy specifically calls for “supervisors [to] be alert to
prior misconduct which indicates a trend . . . .” ECF No. [67-2] at 3. The Court concludes that,
like Sergeant Burrows, Deputy Plant is not an appropriate comparator in this case. See Summers,
444 F. App'x at 347; Burke-Fowler, 447 F.3d at 1325; Holifield, 115 F.3d at 1562.
Accordingly, Plaintiff has failed to provide sufficient evidence from which a rational trier
of fact could conclude that the legitimate, non-discriminatory reason for his termination as
proffered by Defendant was pretextual. As explained above, neither what Plaintiff characterizes
as Defendant’s deviation in PBSO policy nor Defendant’s handling of Sergeant Burrows’ and
Deputy Plant’s respective disciplinary cases qualifies as such evidence. Defendant is therefore
entitled to summary judgment on Count I.
B. Retaliation Claim under 42 U.S.C. §§ 1981 and 1983 (Count II)
Under 42 U.S.C. § 1981, retaliation claims relying solely on circumstantial evidence
essentially employ the same analytical framework used for addressing discrimination claims that
also rely solely on circumstantial evidence. See Bryant, 575 F.3d at 1307 (“Absent direct
evidence of discrimination, when analyzing claims for race-based retaliation brought under §
1981, [the Eleventh Circuit] employ[s] the tripartite analytical framework developed by the
Supreme Court in [McDonnell Douglas, 411 U.S. 792].”). “Under this framework, a plaintiff
alleging retaliation must first establish a prima facie case by showing that: (1) he engaged in a
statutorily protected activity; (2) he suffered an adverse employment action; and (3) he
established a causal link between the protected activity and the adverse action.” Id. at 1307-08.

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In turn, the prima facie case creates a presumption that “the adverse action was the product of an
intent to retaliate.” Id. at 1308. The burden of production then shifts to the defendant to rebut
the presumption by articulating a legitimate, non-discriminatory reason for the adverse
employment action. Id. Once the defendant makes this showing, the burden shifts back to the
plaintiff to show that the proffered reason is a mere pretext to mask discriminatory actions. Id.
Plaintiff argues that Defendant’s decision to terminate him was retaliation for his
“complaints of discrimination from 2006 to 2012.” ECF No. [67] at 18. Regardless of whether
the discrimination complaints Plaintiff refers to are sufficient to establish a prima facie case of
retaliation, 11 the Court finds that, as explained above, Plaintiff has failed to rebut Defendant’s
legitimate, non-discriminatory reason for Plaintiff’s termination—that is, Plaintiff’s repeated
refusal to comply with directives from Internal Affairs to submit to a drug test in light of his
disciplinary history. See id. at 18-19 (relying on the same pretext arguments raised in support of
Plaintiff’s discrimination claim). Accordingly, Defendant is also entitled to summary judgment
on Count II.

11

In any event, the Court finds that they are not, as Plaintiff has failed to establish a causal link between
them and his termination. To begin with, Plaintiff concedes that neither Defendant nor any other PBSO
officials involved in the investigation that led to his termination ever mentioned to Plaintiff any of his
prior complaints or litigation, Def. SOF at ¶ 21. Plaintiff ultimately relies on the same evidence to prove
his retaliation claim that, as explained, is insufficient to prove his discrimination claim, see ECF No. [67]
at 18-19. Moreover, although Plaintiff references complaints made by him between 2006 to 2012, he
does not identify any corresponding record evidence, see ECF No. [67] at 18, and the Court has not
identified such through its own independent review of the record. Instead, the undisputed material facts
reflect that the last claimed protected activity Plaintiff engaged in prior to his termination was a 2005
lawsuit for race discrimination—more than seven years prior to his termination in 2013. See Def. SOF at
¶ 16; Pl. SOF at ¶ 16; see generally Chavez, 647 F.3d at 1061 (“[W]e are not obligated to cull the record
ourselves in search of facts not included in the statements of fact.”) (quoting Johnson v. City of Fort
Lauderdale, 126 F.3d 1372, 1373 (11th Cir.1997)). To that extent, the substantial gap in time is
dispositive. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (“If there is a substantial delay
between the protected expression and the adverse action in the absence of other evidence tending to show
causation, the complaint of retaliation fails as a matter of law.”); see also, e.g., Grant v. Miami-Dade Cty.
Water & Sewer Dep't, 636 F. App'x 462, 469 (11th Cir. 2015) (no causal link where nine-month period
elapsed between filing of last discrimination charge and occurrence of alleged adverse employment
action) (citing Higdon, 393 F.3d at 1220).

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IV.

CONCLUSION
For the reasons stated herein, it is ORDERED AND ADJUDGED that Defendant’s

Renewed Motion for Summary Judgment, ECF No. [63], is GRANTED. To the extent not
otherwise disposed of, all pending motions are DENIED as moot. Final Judgment will be
entered by separate order. All pending hearings are CANCELED. The Clerk is instructed to
CLOSE the case.
DONE AND ORDERED in Miami, Florida this 12th day of June, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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