Opinion
Case No: 3:18cv2171-RV/HTC
2021-08-04
Raina RICKS, Plaintiff, v. INDYNE, INC., Defendant.
Marie A. Mattox, Cynthia Ann Myers, Marie A. Mattox PA, Tallahassee, FL, for Plaintiff. Ashlei D. Richardson, Erin Leigh Centrone, Cole Scott & Kissane PA, Tampa, FL, Ross Daniel Vickers, Cole Scott & Kissane PA, Tallahassee, FL, for Defendant.
Marie A. Mattox, Cynthia Ann Myers, Marie A. Mattox PA, Tallahassee, FL, for Plaintiff.
Ashlei D. Richardson, Erin Leigh Centrone, Cole Scott & Kissane PA, Tampa, FL, Ross Daniel Vickers, Cole Scott & Kissane PA, Tallahassee, FL, for Defendant.
ORDER
ROGER VINSON, Senior United States District Judge
The plaintiff, Raina Ricks, is a black female. The defendant, Indyne, Inc., is a contractor that operates facilities at Eglin Air Force Base. The plaintiff worked for the defendant from 2009 until she was terminated in 2015, after which she filed a lawsuit in Florida state court alleging race and gender discrimination, retaliation, and hostile work environment in violation of the Florida Civil Rights Act (FCRA). The defendant timely removed the action to this federal court based on diversity. Discovery is closed and the defendant has filed a motion for summary judgment (doc. 46); the plaintiff has filed a response in opposition (doc. 51) (Pl. Resp.); and the defendant has filed a reply in further support (doc. 54). For the reasons below, the motion will be granted.
By order dated April 20, 2021, after the defendant's motion for summary judgment became ripe, I referred this action to Magistrate Judge Miles Davis for a settlement conference (doc. 55). I stated in the order that upon my "preliminary review of the motion and response/reply ," it appeared there might be genuine disputed issues of material fact that would preclude summary judgment. See id. at 2 n.2 (emphasis added). However, I went on to stress that I was not "conclusively ruling one way or the other" at that time. Id. The parties appeared for the settlement conference but were unable to settle the case, at which point the motion was referred back to me for resolution. After having now carefully reviewed the full record—not just the summary judgment memoranda—I have determined that summary judgment is appropriate.
I. Applicable Law
A. Standard of Review
Summary judgment is appropriate if all the pleadings, discovery, affidavits, and disclosure materials on file show there is no genuine disputed issue of material fact, and the movant is entitled to judgment as matter of law. Fed. R. Civ. P. 56(a), (c). The plain language of Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against any party that fails to make a showing sufficient to prove the existence of an element essential to that party's case and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Summary judgment is inappropriate "[i]f a reasonable factfinder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact[.]" Allen v. Board of Public Educ. for Bibb Cty. , 495 F.3d 1306, 1315 (11th Cir. 2007). An issue of fact is "material" if it might affect the outcome of the case under the governing law. Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is "genuine" if the record, viewed as a whole, could lead a reasonable fact finder to return a verdict for the non-movant. Id. In considering a motion for summary judgment, the non-movant's evidence is to be believed and all reasonable inferences drawn in her favor. Id. at 255, 106 S.Ct. 2505.
Employment discrimination claims are fact-intensive, but it is well established that "the summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to be placed on either side of the scale." Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079, 1086 (11th Cir. 2004) ; accord Abdu-Brisson v. Delta Air Lines , 239 F.3d 456, 466 (2d Cir. 2001) ("[I]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.").
B. Substantive Law
The FCRA prohibits race and gender discrimination in the workplace, as well as hostile work environment based thereon. Mosley v. MeriStar Mgmt. Co., LLC , 137 F. App'x 248, 251-52 (11th Cir. 2005). The statute also prohibits retaliation against an employee who complains of such mistreatment. Muggleton v. Univar USA, Inc. , 249 F. App'x 160, 163 (11th Cir. 2007). Because the FCRA was patterned after Title VII, claims filed under the former statute are analyzed the same way as claims filed under the latter. Harper v. Blockbuster Entm't Corp. , 139 F.3d 1385, 1387 (11th Cir. 1998) ; see also, e.g., Alvarez v. Royal Atlantic Developers, Inc. , 610 F.3d 1253, 1271 (11th Cir. 2010) (noting that claims brought under the FCRA "are analyzed under the same framework" as claims brought under Title VII). Therefore, I will rely on Title VII case law in deciding this case. See Harper , 139 F.3d at 1387 ("[D]ecisions construing Title VII are applicable when considering claims under the [FCRA] because the Florida act was patterned after Title VII.... No Florida court has interpreted the Florida statute to impose substantive liability where Title VII does not."); see also Jones v. Lakeland , 318 F. App'x 730, 734 n.8 (11th Cir. 2008) ("courts routinely apply Title VII case law to discrimination claims brought under the FCRA") (citing Harper ).
(i) Race and Gender Discrimination
A plaintiff alleging race and gender discrimination under Title VII can establish her claim with either direct or circumstantial evidence. See, e.g., Mathis v. Wachovia Bank , 255 F. App'x 425, 429 (11th Cir. 2007) (citing Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d 1354, 1358 (11th Cir. 1999) ). In the absence of direct evidence (and none has been alleged on the facts of this case), a plaintiff will usually establish her discrimination claim with circumstantial evidence pursuant to the burden-shifting framework set forth in McDonnell Douglas Corporation v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
McDonnell Douglas is not the sine qua non for a plaintiff to survive summary judgment in a discrimination case. See Smith v. Lockheed-Martin Corp. , 644 F.3d 1321, 1328 (11th Cir. 2011). "Rather, the plaintiff will always survive summary judgment if she presents circumstantial evidence that creates a triable issue concerning the employer's discriminatory intent." Id. A triable issue of fact exists "if the record, viewed in a light most favorable to the plaintiff, presents a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker." Id. (citation omitted). The plaintiff doesn't claim there is a "convincing mosaic of circumstantial evidence" here—nor has she identified any evidence to meet that standard—so I will analyze this case under the McDonnell Douglas framework.
Under McDonnell Douglas , the plaintiff must first establish a prima facie case. To establish her prima facie case of discrimination under Title VII, the plaintiff must demonstrate that: (1) she was a member of a protected class defined by race or gender; (2) she was qualified for the job; (3) she suffered an objectively serious adverse job action; and (4) she was treated less favorably than a similarly-situated individual. See Maynard v. Board of Regents of Division of Universities of Fla. Dep't of Educ. , 342 F.3d 1281, 1289 (11th Cir. 2003). As for the third element of her prima face case, an adverse action is objectively serious if it is "tangible enough to alter [the employee's] compensation, terms, conditions, or privileges of employment." See Stavropoulos v. Firestone , 361 F.3d 610, 617 (11th Cir. 2004). "The Supreme Court has stressed that Title VII provides no protection against ‘those petty slights or minor annoyances that often take place at work and that all employees experience.’ " Harrison v. Belk, Inc. , 748 F. App'x 936, 943 (11th Cir. 2018) (quoting Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ). As for the fourth element of her prima facie case, binding precedent provides that the individuals who were allegedly treated better—known in legal speak as "comparators"—must be "similarly situated in all material respects. " Lewis v. City of Union City , 918 F.3d 1213, 1218 (11th Cir. 2019) (en banc) (emphasis added). This generally means that they must have "engaged in the same basic conduct (or misconduct) as the plaintiff" and that they " ‘cannot reasonably be distinguished.’ " Id. at 1227-28 (citations omitted). After the plaintiff establishes her prima facie case, the burden then shifts to the defendant to rebut the presumption of discrimination by giving a legitimate and non-discriminatory reason for the challenged adverse action. This intermediate burden is "exceedingly light" and, once it has been met, the burden shifts back to the plaintiff. Holifield v. Reno , 115 F.3d 1555, 1564-65 (11th Cir. 1997).
At the third and final step of the McDonnell Douglas analysis, the plaintiff must prove with "significantly probative evidence" that the asserted reason for the adverse job action was merely a pretext for discrimination. Brooks v. County Commission of Jefferson County, Ala. , 446 F.3d 1160, 1163 (11th Cir. 2006). The Eleventh Circuit has repeatedly stressed that in attempting to show pretext, a plaintiff may not simply quarrel with the wisdom of the employer's reason; instead, as long as the reason "is one that might motivate a reasonable employer" to do what it did, the plaintiff "must meet that reason head on and rebut it." See Chapman v. AI Transport , 229 F.3d 1012, 1030 (11th Cir. 2000). A reason cannot be found a pretext for discrimination "unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Center v. Hicks , 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ; Springer v. Convergys Customer Mgmt. Group Inc. , 509 F.3d 1344, 1349 (11th Cir. 2007) (noting same); see also Alvarez , 610 F.3d at 1264 ("Showing only that the employer's proffered reason is false does not necessarily entitle the plaintiff to get past summary judgment.").
Ultimately, in analyzing discrimination claims, district courts must be careful not to allow plaintiffs to litigate whether they are good employees who deserved better treatment. See Rojas v. Florida , 285 F.3d 1339, 1342 (11th Cir. 2002) ; accord Alvarez , 610 F.3d at 1266 ("the fact that [an employee] thinks more highly of her performance than her employer does is beside the point"). The issue is not the wisdom or accuracy of the employment decision, nor are courts concerned with whether it was prudent or based upon valid grounds. Alvarez , 610 F.3d at 1266 ("The inquiry into pretext centers on the employer's beliefs, not the employee's beliefs and, to be blunt about it, not on reality as it exists outside of the decision maker's head."). Instead, the court's "sole concern" is whether unlawful discrimination motivated the employment decision. Id. Simply put, the law doesn't require an employer's decisions to be fair:
We do not sit as a "super-personnel department," and it is not our role to second-guess the wisdom of an employer's business decisions—indeed the wisdom of them is irrelevant—as long as those decisions were not made with discriminatory motive. That is true no matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers.
Id. (citations and brackets omitted).
(ii) Retaliation
The burden-shifting framework of McDonnell Douglas applies to retaliation claims as well. Ring v. Boca Ciega Yacht Club Inc. , 4 F.4th 1149, 1163-64 (11th Cir. 2021). As with discrimination claims, " ‘a plaintiff must [first] establish a prima facie case of retaliation.’ " Id. (quoting Farley v. Nationwide Mutual Ins. Co. , 197 F.3d 1322, 1336 (11th Cir. 1999) ). " ‘To establish a prima facie case of retaliation under [Title VII], a plaintiff must show that (1) she engaged in statutorily protected expression; (2) she suffered an [objectively serious] adverse action; and (3) the adverse action was causally related to the protected expression.’ " Id. (quoting Higdon v. Jackson , 393 F.3d 1211, 1219 (11th Cir. 2004) ). After a plaintiff establishes her prima facie case of retaliation, the burden then shifts to the defendant to articulate legitimate nondiscriminatory reasons for the adverse action. Id. (citing Farley , 197 F.3d at 1336 ). If the defendant meets that intermediate burden (which, once again, is "exceedingly light"), "the plaintiff must ‘produce sufficient evidence for a reasonable factfinder to conclude that each of [defendant's] proffered nondiscriminatory reasons is pretextual’ to avoid summary judgment." Id. (quoting Chapman , 229 F.3d at 1037 ). As before, "a reason cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason." Id. (quoting St. Mary's Honor Center , 509 U.S. at 515, 113 S.Ct. 2742 ). Notably, "a plaintiff's failure to rebut even one nondiscriminatory reason is sufficient to warrant summary judgment." Id. (quoting Smelter v. S. Home Care Servs. , 904 F.3d 1276, 1290-91 (11th Cir. 2018) ).
(iii) Hostile Work Environment
To establish hostile work environment under Title VII, the employee must show that: (1) she belongs to a protected group; (2) she was subjected to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) the harassment was based on her sex; (4) it was sufficiently severe or pervasive to alter the terms and conditions of her employment and create an abusive working environment; and (5) there exists a basis for holding the employer liable. See Mendoza v. Borden, Inc. , 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc).
Hostile work environment can also be based on race, but the plaintiff here expressly limits her argument to gender. See Pl. Resp. at 23 (arguing that "the harassment was based on plaintiff's gender," and describing her gender as "the protected class" at issue in the hostile work environment claim).
While Title VII's prohibition of sex discrimination includes sexual harassment, Title VII is not a federal "civility code," nor is it designed " ‘to purge the workplace of vulgarity, for a certain amount of ‘vulgar banter, tinged with sexual innuendo’ is inevitable in the modern workplace.’ " See id. at 1245 & 1251 n.9. Sexual harassment constitutes sex discrimination under the statute only when the harassment materially alters the terms or conditions of employment. Id. at 1245. In the absence of explicit quid pro quo harassment (and none has been alleged in this case), a plaintiff alleging hostile environment must "connect allegations of sexual harassment to a violation of Title VII." Id. at 1245. Ultimately, as noted above, an employer's harassing actions toward an employee don't constitute employment discrimination for Title VII "unless the conduct is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’ " See id. (internal quotation marks, brackets, and citations omitted).
Proving that the harassing conduct was sufficiently severe or pervasive under the law includes both a subjective and an objective component. Id. at 1246. In other words, the employee must "subjectively perceive" the harassment to have been severe or pervasive, and, further, that perception must be "objectively reasonable." Id. With respect to the latter, the objective severity of the harassment must be judged from the perspective of a reasonable person in the plaintiff's position, considering all relevant circumstances. Id. (citation omitted). Although fact intensive, the Supreme Court of the United States and our circuit have identified four factors that may be considered in deciding whether the objective standard has been met: (1) the frequency of the conduct; (2) its severity; (3) whether it was physically threatening and humiliating "or a mere offensive utterance;" and (4) whether it unreasonably interfered with the employee's job performance. See, e.g., Allen v. Tyson Foods, Inc. , 121 F.3d 642, 647 (11th Cir. 1997) (citing Harris v. Forklift Systems, Inc. , 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) ).
Courts should examine the challenged conduct in context (not as isolated acts) to decide under a totality of circumstances whether it was severe or pervasive enough to have altered the terms and conditions of plaintiff's employment and create a hostile work environment, always keeping in mind that " ‘simple teasing’, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ " Mendoza , 195 F.3d at 1245-46 (citations omitted).
II. Background
The below facts are either undisputed or, if disputed, resolved in the plaintiff's favor where supported by evidence in the record. Indeed, most of these facts are from the plaintiff's deposition (doc. 50-2) (Pl. Dep.) and from three separate "timelines" that she provided to the Equal Employment Opportunity Commission (EEOC) prior to bringing this litigation (doc. 50-4, doc. 50-12, and doc. 47-3) (Timeline 1, Timeline 2, and Timeline 3, respectively). The relevant facts derived from these documents can be stated briefly. The plaintiff began working for the defendant in September 2009. See Pl. Dep. at 11. She was initially hired as a Personal Assistant II in the Human Resources (HR) Department and was later promoted to Personal Assistant III. Id. at 12-13. When the plaintiff was hired her direct supervisor was Jeanie Weber, but she (Weber) was later replaced by Jerry Johnson, a white male, who in turn reported to the Deputy General Manager, Harry Schubele, also a white male. Id. at 15, 33. As a Personal Assistant, the plaintiff's job responsibilities consisted of, inter alia , answering the telephone, creating personnel action forms, gathering information for terminations, and helping process new employees. Id. at 12. There were other employees in the HR department during this time, many of whom—like plaintiff—were members of a minority and/or female, including Cindi Wood (Native American), Georgiana Nance (black), Norma Shoemaker (Hispanic), Sarah Marshall-Carter (black), and Patricia Ross (white). Id. at 14, 16-17, 22, 32.
The plaintiff's deposition and written EEOC statements are lengthy and detailed, and they describe myriad complaints set forth on a sometimes day-by-day (or month-by-month) basis. The overwhelming majority of the complaints are either unrelated to her legal claims (she provides them merely as "background information") or they are not actionable as matter of law. To highlight just a few of numerous examples, she asserts that: (1) her supervisor was "insensitive" and didn't send flowers after her father died, see Pl. Dep. at 185-86; (2) on a separate occasion the same supervisor once gave her an "evil smile" and said "good" when she told him that she was leaving for the day, See id. at 200; (3) a fellow employee once made a "sarcastic retort" in reply to her answering a co-employee's question, see Timeline 1 at 14; (4) her supervisor would sometimes refuse to say "good morning" or provide a similar greeting when he walked by her desk, instead he gave her a "sort of silent treatment," see id. ; (5) during an award ceremony her supervisor spoke to her in a "demeaning way" and "condescending tone" while telling her how to operate a camera, see Timeline 2 at 2; (6) she received two "nit-picking" emails after she left work early one day that "insinuated" she was not handling an assignment properly, See id. at 5; (7) her supervisor once told her to complete a project but "it was unnecessary for him to say that" since she already knew what she had to do, See id. at 6; and (8) "I have even been contacted ... on my days off with work related questions that were not critical and could have waited until I returned to work," see Timeline 3 at 1. As previously noted, federal courts are not "super-personnel departments," and the law doesn't concern itself with "petty slights or minor annoyances" in the workplace. I will not address any of these or similar complaints in this order. I will instead limit my discussion to the facts relevant to the discrimination, retaliation, and hostile work environment claims.
In her memo in opposition to summary judgment, the plaintiff also makes vague and passing references to other (more serious) claims, to wit (1) a fellow employee said that another employee once saw another employee showing a naked photo of himself on his phone, see Pl. Resp. at 4, (2) white employees would routinely use "the ‘N’ word" at work (although she doesn't allege that it was directed at her, in her presence, or that she ever even heard it), See id. at 15; (3) a fellow employee said that a white employee once exhibited a picture of himself in "black face" to another employee, see id. ; and (4) some male employees were caught with pornography (including child pornography) on their work computers, See id. at 16. However, at no point during her 350+ page deposition or in her three "everything but the kitchen sink" EEOC timelines does she mention anything about any of these purported incidents (even though she included a sometimes day-by-day breakdown of her negative experiences at work). Thus, even if it is accepted as true that those things happened (and the plaintiff has provided very few details), she doesn't allege that she personally witnessed, heard, or even knew anything about them when she worked for the defendant. Binding precedent holds that "a plaintiff's workplace circumstances does not include other employee's experiences of which the plaintiff is unaware." Adams v. Austal, USA , 754 F.3d 1240, 1250 (11th Cir. 2014) (emphasis added). Thus, I will not address these allegations in this order either, except as noted briefly in III.A, infra.
The plaintiff claims that during her employment she was sexually harassed by James Humbarger, a software engineer who worked for the defendant (doc. 50-10). She alleges that he made inappropriate racist and sexual comments to her, specifically, he once asked her to sit on his lap and "let me feel your rear end," and he told her that anyone in the office "would love to have sex" with her. Id. And then on June 9, 2014, Mr. Humbarger stopped by her desk to talk with her, which she described as follows:
In the afternoon, around 1:00, employee James Humbarger came to my desk in the HR office area. Mr. Humbarger frequently will stop by and chat; so at first, I did not see anything uncommon about his visit. Mr. Humbarger began talking to me about some events that transpired over his weekend and even though he has a louder voice that carries, he was unusually loud on that afternoon. Several times during his visit I whispered to him to keep his voice down as Mr. Johnson was in his office as well as Ms. Wood in hers. Mr. Humbarger would take my advice and quiet down but eventually his voice would get louder again. While talking to me, Mr. Humbarger said several curse words, not directed at me, just in conversation. In addition to curse words he said inappropriate words of a sexual nature, saying "pussy" and "semen." He also made a racial comment concerning the texture of the skin on my hands asking if "it was a black thing" and in reference to the color I dye my hair he said "Only black and Hispanic women do that, white girls don't do that." ... Before he started to leave he leaned in to hug me and tried to kiss me. I moved my face several times so he couldn't make contact and then he also told me "You and me should hook up."
Timeline 1 at 15. Mr. Johnson knew of Mr. Humbarger's behavior as he heard this conversation from his office (which he described as "a little racy"), but he did nothing about it. See id. at 16. So, on or about November 4, 2014, the plaintiff filed a charge of discrimination with the EEOC. In addition to alleging hostile work environment, she alleged race and gender discrimination and retaliation arising from the following facts.
The plaintiff had no further problems with Mr. Humbarger after she filed her charge. It was subsequently discovered that he was coming into work intoxicated (as he had a drinking and drug problem), and he was eventually terminated.
According to the "Timeline of Events" attached to her charge, in late 2012, Mr. Johnson expressed his desire to impose an Alternative Work Schedule (AWS) for the HR department. See Timeline 1 at 1. The proposed AWS would require employees to work 9 hour days Monday through Thursday, followed by an 8 hour day on Friday, with an Earned Day Off every other Friday. Id. Mr. Johnson asked the plaintiff for her opinion on the proposed AWS, and she responded that she didn't think it was a good idea. Id. She told him that she didn't believe the department would be able to follow the schedule for an extended length of time, and she further told him that it wouldn't work with her personal schedule as she had a "standing appointment" every Thursday afternoon. Id. Mr. Johnson responded that he believed the employees could follow the AWS and that he would accommodate her Thursday appointments. Id. The AWS was eventually implemented in February 2014, after which the plaintiff complained and "reiterated" that she was "never happy" about it. See id. at 5, 9.
In or about June or July 2013, the plaintiff complained to Mr. Johnson that a co-employee, Ms. Wood, was using a company credit card for personal use. See Timeline 1 at 1. This was one of many times that the plaintiff complained to Mr. Johnson about Ms. Wood, who she believed was stealing from the company and engaging in various unethical practices, e.g. , claiming mileage reimbursement for conferences she didn't drive to. Id. at 2-3, 5; see also id. at 4 ("I had gone to [Mr. Johnson] more than once about Ms. Wood."). Mr. Johnson refused to take action on the matter, so the plaintiff sent a letter to the corporate office complaining of Ms. Wood's alleged misuse and theft of company funds, which led to an investigation. Id. at 1, 5.
According to the allegations in her EEOC claim, the plaintiff believed that she was viewed as a "trouble maker" after complaining about the AWS and Ms. Wood's misuse of company funds. See Timeline 1 at 6 (wherein Johnson allegedly told her "I don't seem to have this problem with anyone else in the department like I do with you with the way you see things."); see also id. at 7, 13. As a result, she felt that she was being targeted and that management was looking for a reason to fire her. See, e.g., id. at 7 ("I received backlash for doing what I thought was right"); id. at 8 ("feeling I was being targeted"); id. at 10 ("I [was] being singled out"); id. at 12 ("I felt I was being targeted by management for speaking up on unethical issues in my department"); id. at 13 ("I was looked at as a trouble maker"); id. at 15 ("[I] feel as if I am wanted out of the HR department"); id. at 16 (stating that "I believe that I am being targeted as well as being retaliated against because I chose to speak up when I see things happen that are against InDyne's policies or because I stated I don't agree with a schedule that Mr. Johnson and my co-workers want"); see also Pl. Dep. at 102-03 (alleging that the retaliation started "after I made a complaint about Cindi Wood"). This (along with Mr. Humbarger's misconduct) was the basis of the first EEOC charge, which as noted was filed on or about November 4, 2014.
During this time period, it is undisputed that the defendant had a problem with employees in the HR department—including the plaintiff—not working the hours they were supposed to work under the AWS, i.e. , they were arriving after 7:30 a.m. and/or leaving early (doc. 47-12 at 40); see also Timeline 1 at 8 (wherein the plaintiff stated that Mr. Johnson complained to her that "people have become relaxed with not putting in time off requests or arriving on time, etc., and we are supposed to adhere to our new AWS schedules"); Pl. Dep. at 44-45 (wherein the plaintiff testified that Mr. Johnson "went around ... speaking to everyone in the department" about people not adhering to the AWS). So, management made the decision to require all HR employees to send Mr. Johnson their "start and stop times" via email every workday (doc. 47-12 at 40). Essentially, the email to Mr. Johnson was "to serve as an olden day punch clock." Id. Notably, as the plaintiff concedes, management had at one time required employees to do the same thing under the prior HR supervisor, Ms. Weber. See Timeline 1 at 8 (noting that sending "start and stop times" via email had also been required under the former HR manager but that Mr. Johnson originally didn't want to do that as it would "seem like he was babysitting us like our previous HR manager").
The plaintiff doesn't dispute that she would sometimes arrive late or leave early. See, e.g. , Timeline 1 at 8 (acknowledging that she left early one day for an appointment and that she arrived late several other times due to a traffic detour); see also Pl. Dep. at 152 (conceding that she would "occasionally ... run late" because "no one is 100 % not tardy"). She just disputes that it was as bad as the defendants claim. See Timeline 1 at 9 (alleging that Mr. Johnson told her one morning "You know you don't come in at 7:30 a.m. ... [c]ome on now, it's rare that you are here at 7:30," which rendered her "speechless" because it implied she was lying and "I take pride in my honesty").
Although the plaintiff was required (like all other HR employees) to email Mr. Johnson when she arrived and left work each day, she readily admits that she didn't do so—at least not consistently and accurately. For example, while she was supposed to be at the office by 7:30 a.m. and send the email to prove it, she testified that she was often too busy to send the email after she arrived (answering telephones or helping people), or she had computer problems or just forgot to send it, which resulted in Mr. Johnson believing that she was late a vast majority of the time. See Pl. Dep. at 162-71, 282-83. Mr. Johnson approached her about it and told her that, according to her daily emails, she was tardy 80-90% of the time. See id. at 169-70. The plaintiff knew the time reflected in her morning emails was wrong, See id. at 165 (conceding that she was "putting in inaccurate information ... [a] majority of the time"), but she made no effort to tell Mr. Johnson or explain why that was so. She testified that, in her mind, all she was required to do was send Mr. Johnson a daily email at some point after she arrived at work, whether it correctly reflected the time she showed up or not. See id. at 166 ("They said they wanted an email, so they got an email."); id. at 176 (testifying that by sending the email—even late—"I did what we were instructed"). To the extent that she got busy, had computer problems, or otherwise forgot to send the email at the time she arrived in the office, she believed that is a problem that management "should have thought of" when they decided to implement the policy in the first place, See id. at 166, so she never brought it to their attention:
Notably, although the plaintiff testified that she felt Mr. Johnson was "scrutinizing my time card very closely," she answered "I do not know" when asked if he was reviewing everybody else's time card the same way. See Pl. Dep. at 188.
Q: Did you come in and talk to Mr. Johnson, Mr. Schubele, and say, here's where the problem is, when they first told you that you were having 80, 90% tardiness?
A: No.
Q: You didn't tell them that? They did tell you you had an 80% tardiness rate, you had a 90% tardiness rate, they did tell you that, isn't that correct?
A: But telling me that doesn't make it true.
Q: They did tell you that; isn't that correct?
A: Yes.
Q: So when they told you that, and you're saying it wasn't true, did you explain to them what the situation was, that you were giving them bad input?
A: It wasn't bad input, it was the input that they required [i.e., an email]. So no, I did not.
* * *
Q: So are you saying that all the times that you put in, that are after 7:30, the time that you were there, were times where you were working with people and you couldn't put the [correct] time in?
A: Or something—not just necessarily people. It could have been—whatever it may have been, I can't remember or recall each individual time.
Q: And during your whole time of employment [during this period] you didn't inform Mr. Schubele or Mr. Johnson that that was problem, you were having that problem; is that correct?
A: No.
Q: You did tell them?
A: No.
Pl. Dep. at 169-71. The plaintiff denies that she was tardy 80-90% of the time, and she claims to have photographic evidence to prove it. Specifically, she avers by affidavit and deposition testimony that she took photos of the clock at her desk which show that she arrived at or near 7:30 on several days that the defendant said she was late. I take this evidence as true. As just discussed, however, the plaintiff concedes that she never told Mr. Johnson or Mr. Schubele that the time reflected in her emails wasn't the time that she arrived, which led them to think that she was late an overwhelming majority of the time.
The defendant fired the plaintiff on May 4, 2015 (doc. 47-7), which was six (6) months after she filed her EEOC charge of discrimination. Her termination letter states that she was being discharged for "excessive tardiness." Id. The plaintiff subsequently filed a second administrative charge of discrimination (to include her termination) and this lawsuit followed.
III. Discussion
This is not a close case and only little discussion is required.
The defendant argues that certain of the plaintiff's FCRA claims are barred by the statute of limitations. The plaintiff appears to concede that some allegations "fall outside the typical statute of limitations" period, but she argues they may be considered here under the "continuing violations doctrine." See Pl. Mem. at 16-19. I need not, so do not, address this issue—but will instead reach the merits of plaintiff's claims—as summary judgment is appropriate even if the claims aren't barred by the statute of limitations.
A. Race and Gender Discrimination
The defendant argues that the plaintiff has failed to establish a prima facie case of race or gender discrimination as she hasn't identified an adequate comparator, i.e., a similarly situated employee outside of her protected class who was engaged in the same basic misconduct but was treated better. I agree. The plaintiff has not identified anyone outside her protected class who (insofar as the defendant knew ) was tardy 80-90% of the time yet wasn't fired.
The plaintiff testified at deposition that there was another employee in the HR department who "was excessively tardy but she was not terminated." Pl. Dep. at 150. But there is no evidence that this employee, Sarah Marshall-Carter, was tardy (or that management thought she was tardy) 80-90% of the time. Moreover, even if there was such evidence, Ms. Marshall-Carter is a black female, which undercuts the argument that plaintiff was discriminated against based on her race and gender.
In her opposition to summary judgment, the plaintiff maintains that "Johnson and Wood are comparators as Defendant allowed them to harass, verbally abuse and discriminate against Plaintiff, unchecked." See Pl. Mem. at 20-21. This fundamentally misconstrues what a comparator is under the law. Again, comparators are individuals outside the plaintiff's protected class who engaged in the same basic misconduct yet were treated better. They are not the people who engaged in the discrimination itself.
The plaintiff suggests that while there may not be other HR employees outside her protected class who engaged in the same misconduct, there were employees who engaged in "far more egregious" misconduct but were not fired. See Pl. Mem. at 14-16. This included employees who bullied others, used the "N" word, committed sexual harassment, and had pornography on their work computers. Id. But this argument fails under the law of the Eleventh Circuit. In Feise v. North Broward Hosp. Dist. , 683 F. App'x 746 (11th Cir. 2017), for example, a pediatric nurse, Stacie Feise, was allegedly fired for sleeping on the job, and she filed suit alleging that she was really terminated in retaliation for taking FMLA leave. Because she couldn't identify an employee who had engaged in the same misconduct, she attempted to prove her prima facie case by pointing to a medical technician who abandoned his post while he was supervising an at-risk child, which she argued was misconduct that was "objectively more serious than [hers]." Id. at 751. In rejecting this argument, the Eleventh Circuit said:
Feise does not argue that she is similarly situated to the medical technician who abandoned his post supervising an at-risk child. Instead, Feise asserts that the medical technician is an appropriate comparator because he was not fired even though his misconduct was objectively more serious than Feise's. But this is precisely the kind of analysis in which we are not permitted to engage. "On-the-ground determinations of the severity of different types of workplace misconduct and how best to deal with them are exactly the sort of judgments about which we defer to employers." Flowers v. Troup Cty., Ga., School Dist. , 803 F.3d 1327, 1341 (11th Cir. 2015). We have repeatedly noted that "federal courts do not sit as a super-personnel department that reexamines an entity's business decisions." Chapman v. AI Transp. , 229 F.3d 1012, 1030 (11th Cir. 2000). Consequently, the appropriate question is not whether the technician's "alleged violations were worse than [Feise's]," but instead whether the technician's violations "were sufficiently similar" to Feise's. Flowers , 803 F.3d at 1341.
Id. at 751-52.
Even if it could be said that the plaintiff proved her prima facie case here—and she hasn't—the defendant has discharged its "exceedingly light" intermediate burden of offering a non-discriminatory reason for her termination, i.e. , as far as they knew, she was tardy 80-90% of the time. The burden then shifts back to the plaintiff to show that the proffered reason was both false and that her race and/or gender was the "real reason." This she has utterly failed to do. Although she testified at deposition that she just "feels" she was treated differently on account of her race, see Pl. Dep. at 45-46, that is not "significantly probative evidence" of discrimination.
B. Retaliation
The plaintiff's retaliation claim fares no better. As previously noted, to prove her prima facie case, she must show (1) that she had engaged in statutorily protected expression; (2) that she suffered an adverse job action; and (3) that the adverse action was causally related to the protected expression. See Higdon , 393 F.3d at 1219. The defendant argues that the plaintiff fails at the third step of her prima facie case as there was a six month gap between the statutorily protected expression (the filing of her first EEOC charge on November 4, 2014) and the adverse action (her termination on May 4, 2015). Once again, I agree. As the Eleventh Circuit has observed:
The Supreme Court has stated that "mere temporal proximity between knowledge of protected activity and an adverse action must be ‘very close.’ " Clark County School Dist. v. Breeden , 532 U.S. 268, 273, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001) (citations omitted). The Court cited with approval decisions in which a three to four month disparity was found to be insufficient to show causal connection. See id. (citing Richmond v. ONEOK , 120 F.3d 205, 209 (10th Cir. 1997) (3–month period insufficient) and Hughes v. Derwinski , 967 F.2d 1168, 1174–75 (7th Cir. 1992) (4–month period insufficient)). 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. In Wascura v. City of South Miami , we held that "Wascura failed to present evidence from which a reasonable jury could find any causal connection between Wascura's notice to the Commissioners in January 1995 of her potential need to take time off to care for her son and her subsequent termination [four months later] on May 16, 1995." 257 F.3d 1238, 1248 (11th Cir. 2001).
Id. at 1220 ; see also, e.g., Hughes v. Wal-Mart Stores East, LP , 846 F.App'x 854, 858 (11th Cir. 2021) ("Hughes cannot rely on temporal proximity to create a jury issue on causation because nearly six months passed between her EEOC complaint on January 7, 2016, and the alleged retaliatory action—her suspension—on July 6, 2016.").
Furthermore, even if I were to assume arguendo that the plaintiff has satisfied her prima facie case, because the defendant has discharged its intermediate burden the burden then shifts back to her to show that the reason for her termination—excessive tardiness—was both false and that retaliation for filing the EEOC charge was the true reason. This, again, she has failed to do. C. Hostile Work Environment
There is a fundamental problem with the plaintiff's retaliation argument: she has alleged that the retaliation began after and because she complained about the AWS and Ms. Wood's stealing from the company. Indeed, as earlier detailed, her initial EEOC timeline contains numerous claims that she was "targeted" and that they "wanted [her] out of the HR department" because she was seen as "trouble maker" after she made those initial complaints. But those complaints had nothing to do with race, gender, or any other protected class, so they do not constitute statutorily protected activity in the first instance. See Hawk v. Atlanta Peach Movers , 469 F. App'x 783, 785-86 (11th Cir. 2012) (complaint that employer "acted unfairly towards" employee was not statutorily protected activity because nothing in the complaint "suggested that [the employer] was discriminating against him based on a protected ground"); Saffold v. Special Counsel, Inc. , 147 F. App'x 949, 951 (11th Cir. 2005) (informal complaints about issues with co-workers did not qualify as protected activity). In other words, even if the defendant was targeting the plaintiff because she had complained about the AWS and Ms. Wood, that wouldn't violate Title VII or the FCRA as her complaints were unrelated to any ground protected by those statutes.
The plaintiff's hostile work environment claim is based on her interactions with Mr. Humbarger as detailed above. Specifically, he asked her to sit on his lap and "let me feel your rear end;" he told her that anyone in the office "would love to have sex with [you];" and then one day while talking with her at her desk he said several curse words and other inappropriate words (like "pussy" and "semen") and leaned in and tried to hug and kiss her while saying "you and me should hook up."
Eleventh Circuit case law requires there to be "pervasive conduct by employers before finding that a hostile work existed." Hipp v. Liberty Nat. Life Ins. Co. , 252 F.3d 1208, 1231 (11th Cir. 2001) (emphasis added). And our circuit is not alone. Mendoza , 195 F.3d at 1246-47 (wherein the Eleventh Circuit surveyed more than a dozen cases from sister circuits for the view that "a minimum level of severity or pervasiveness [is] necessary for harassing conduct to constitute discrimination in violation of Title VII;" noting that cases finding a hostile work environment will generally involve "patterns or allegations of extensive, longlasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiff's work environment") (emphasis added). Guthrie v. Waffle House Inc. , 460 F. App'x 803 (11th Cir. 2012), is particularly notable. The plaintiff in that case, Grace E. Guthrie, filed a Title VII action against her former employer, Waffle House, alleging that she had been subjected to a hostile environment by both a supervisor and a co-worker. Specifically, she alleged that, over an eleventh month period, one of the men "grabbed [her] ‘butt’ two to five times" and put his arm around her shoulder; the other man kissed her on the cheek; and both men repeatedly "talked dirty" to her. See id. at 804-05. Nevertheless, the Eleventh Circuit held, in relevant part, that the conduct alleged in that case was not objectively severe based on the four factors previously noted. See id. at 807-08. First , the conduct (which the Court of Appeals described as "only a few dozen comments or actions ... spread out over a period of eleven months") was relatively infrequent as compared to those cases where a hostile environment was found. See id. at 807 (collecting and discussing cases, including Miller v. Kenworth of Dothan , 277 F.3d 1269 (11th Cir. 2002), where the abuse occurred "almost-daily," "daily," and up to "three to four times a day"). Second , while the harassers in Guthrie were "rude and boorish in their statements and behavior," their actions "fall well short of conduct so severe as to alter or change the terms of [the plaintiff's] working conditions, as determined by this court's case law." See id. at 807-808 (collecting cases). Third , the panel noted, there was no evidence that Guthrie felt "physically threatened" by the harassers’ behavior. See id. at 808. Fourth and finally , there was no evidence showing that the harassment prevented her from performing her job. Id. The court thus determined that the conduct at issue fell short as a matter of law and that the district court properly granted summary judgment for the employer on the hostile work environment claim. See also Mendoza , 195 F.3d at 1238 (holding there was no hostile work environment where a supervisor (1) told the plaintiff that he was "getting fired up;" (2) rubbed up against her hip, as he smiled and touched her on the shoulder; (3) twice made sniffing sounds while looking at her crotch; and (4) "constantly" followed her around and stared at her in a "very obvious fashion"); see also Dar Dar v. Associated Outdoor Club, Inc. , 248 F. App'x 82 (11th Cir. 2007) (no hostile work environment where the plaintiff was "touched repeatedly on her buttocks by coworkers"; asked if she had worn panties with a "built-in-butt"; and was told by one male employee that another employee had a "whale of a dick").
Mendoza cited, among other cases: Shepherd v. Comptroller of Public Accounts of Texas , 168 F.3d 871, 872-75 (5th Cir. 1999) (holding that several incidents over two-year period, including the comment "your elbows are the same color as your nipples," another comment that plaintiff had big thighs, touching her arm, and attempts to look down her dress, were insufficient as a matter of law to support a hostile work environment claim); Indest v. Freeman Decorating, Inc. , 164 F.3d 258, 264-67 (5th Cir. 1999) (observing that it was "dubious" whether several sexually oriented comments and gestures, with an implied threat of retaliation for refusing sexual advances, would be sufficient to support a hostile work environment claim); Quinn v. Green Tree Credit Corp. , 159 F.3d 759, 768 (2d Cir. 1998) (holding that the statement that plaintiff had the "sleekest ass" in the office plus single incident of "deliberately" touching her "breasts with some papers that he was holding in his hand" were insufficient to materially alter the terms or conditions of [plaintiff's] employment); Adusumilli v. City of Chicago , 164 F.3d 353, 357 (7th Cir. 1998) (holding actions insufficient to support hostile environment claim where co-employees teased plaintiff, made sexual jokes about her, commented about her low neck tops, repeated staring at her breasts with attempts to make eye contact, and four incidents of touching her arm, fingers and/or buttocks); Sprague v. Thorn Americas, Inc. , 129 F.3d 1355, 1365-66 (10th Cir. 1997) (concluding that five "sexually-oriented, offensive" statements over sixteen months was not sufficient to show hostile environment, even though one of the harasser's statements occurred while he put his arm around the plaintiff, looked down her dress, and said, "well, you got to get it when you can"); Galloway v. General Motors Serv. Parts Operations , 78 F.3d 1164, 1167-68 (7th Cir. 1996) (holding that offensive comments including repeatedly calling the plaintiff a "sick bitch" insufficient under Harris , supra , because it was not necessarily gender-related); Hopkins v. Baltimore Gas & Electric Company , 77 F.3d 745, 753-54 (4th Cir. 1996) (evidence that the harasser "bumped into [the plaintiff], positioned a magnifying glass over [his] crotch, flipped his tie over to see its label, gave him a congratulatory kiss in the receiving line at [a] wedding, and stared at him in a bathroom" not sufficient to establish a violation of Title VII); Black v. Zaring Homes, Inc. , 104 F.3d 822, 823-24 (6th Cir. 1997) (reversing jury's verdict and finding that conduct was "sex-based," but insufficiently severe and pervasive to state a claim where the conduct occurred over four months and involved repeated sexual jokes; one occasion of looking the plaintiff up and down, smiling and stating, there's "Nothing I like more in the morning than sticky buns"; suggesting that an area be named as "Titsville" or "Twin Peaks"; asking her, "Say, weren't you there [at a particular biker bar] Saturday night dancing on the tables?"; stating, "Just get the broad to sign it"; telling plaintiff that she was "paid great money for a woman"; laughing when plaintiff mentioned the name Dr. Paul Busam, apparently pronounced "bosom"); Baskerville v. Culligan Int'l Co. , 50 F.3d 428, 430 (7th Cir. 1995) (concluding that nine instances of offensive behavior over a period of seven months, including repeated references to plaintiff as a "tilly" and a "pretty girl"—and a separate instance of simulated masturbation—was insufficiently severe and pervasive to support hostile work environment claim); Kidwai v. McDonald's Corp. , 21 F.3d 423 (4th Cir. 1994) (holding insufficient under Harris seven incidents, including one where the harasser asked the plaintiff if "she was in bed with someone"); Weiss v. Coca–Cola Bottling Co. of Chicago , 990 F.2d 333, 337 (7th Cir. 1993) (concluding that a supervisor repeatedly asking the plaintiff about her personal life, telling her that she was beautiful, asking her out on dates, calling her a dumb blonde, putting his hand on her shoulder at least six times, placing "I love you" signs in her work space, and attempting to kiss her once at a bar and twice at work did not constitute sexual harassment).
I will not repeat the "dirty talk" detailed in Guthrie for it is extensive and highly offensive. Suffice to say, by any objective measure, it far exceeds anything that has been alleged in this case.
In light of the foregoing, the plaintiff's hostile work environment claim fails. As alleged, Mr. Humbarger's conduct appears to have been infrequent and, compared with the case law cited and discussed above, was not so severe as to alter the terms of her working conditions as a matter of law.
IV. Conclusion
The defendant's motion for summary judgment (doc. 46) is GRANTED. The clerk is directed to enter judgment in favor of the defendant, along with taxable costs, and close this case.
DONE and ORDERED this 4th day of August 2021.