Opinion
CASE NO. 8:18-cv-1575-T-23AAS
2020-04-06
Tamara ZWICK, Plaintiff, v. UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES, Defendant.
Christopher D. Gray, Scott L. Terry, Wolfgang M. Florin, Florin Gray Bouzas Owens, LLC, Lutz, FL, for Plaintiff. Thomas M. Gonzalez, Nathan J. Paulich, GrayRobinson, PA, Tampa, FL, for Defendant.
Christopher D. Gray, Scott L. Terry, Wolfgang M. Florin, Florin Gray Bouzas Owens, LLC, Lutz, FL, for Plaintiff.
Thomas M. Gonzalez, Nathan J. Paulich, GrayRobinson, PA, Tampa, FL, for Defendant.
ORDER
STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE
The University of South Florida hired Tamara Zwick, a woman with multiple sclerosis, as an assistant professor in the history department. Because Zwick allegedly failed to satisfy tenure requirements and forbore applying for tenure, USF — as the collective bargaining agreement requires — discharged Zwick on April 24, 2014. Zwick sues (Doc. 1) the University of South Florida Board of Trustees and alleges that, during her employment with USF's history department, USF discriminated against Zwick (1) on the basis of her disability, (2) on the basis of her sex, and (3) in retaliation to Zwick's complaining about discrimination. USF moves (Doc. 34) for summary judgment on each count and insists that the reasons for Zwick's termination were legitimate and non-discriminatory.
Zwick abandons her claim for sexual harassment. (Doc. 46 at 13, n.88)
When USF hired Zwick in August 2005, Zwick began a six-year tenure track. According to the terms of the collective bargaining agreement (CBA), "[b]y the end of six (6) years at the University, an employee eligible for tenure shall either be awarded tenure by the Board of Trustees or given notice that further employment will not be offered." (Doc. 35-10 at 9) Despite this six-year timeline, the CBA provided that the "tenure clock may be stopped for medical or related reasons for up to one (1) year upon the request of the employee and the recommendation of the supervisor and dean ... and upon approval of the appropriate administrator." (Doc. 35-10 at 9)
Before accepting a position with USF, a doctor diagnosed Zwick with multiple sclerosis (MS). (Doc. 46 at 2) Although Zwick was scheduled to "come up for tenure" in August of 2011, Zwick requested, and USF granted, four "medical leaves" because of her MS. USF provided Zwick with an extension of the time within which to obtain tenure during each of these several absences. Despite these extensions, Zwick alleges that USF subjected her to discrimination during her work in the history department. Specifically, the discrimination that Zwick alleges occurred through action (and inaction) by Dr. Fraser Ottanelli, Associate Dean Elizabeth Bell USF, and other USF officials. Tenure application at USF comprises seven levels of review — three from within a department and four from without. At each level of review, a professor's research, teaching, and service is considered and rated. To obtain tenure in the history department, "a faculty member must demonstrate outstanding performance in either teaching or scholarship, at least a strong performance in the other, plus a satisfactory performance in service." (Docs. 40-10 at 2, 46 at 2, 35 at 3) Regarding research, the standard expectation in the history department was the publication of a scholarly monograph (along with other scholarly publications and peer-reviewed articles). (Docs. 38 at 47, 35 at 172, 40-11 at 3, 40-13, 40-14, 35-14 at 2–5) Nevertheless, the parties dispute whether obtaining tenure unconditionally requires an applicant to publish a monograph. (Doc. 46 at 3; Doc. 34 at 4)
USF granted Zwick "medical leave" (1) from August 14, 2006 to December 19, 2006 (Doc. 42-1), (2) from January 8, 2010 to May 6, 2010 (Doc. 42-2), (3) from August 7, 2011 to December 22, 2011 (Doc. 42-4), and (4) from December 20, 2012 to March 20, 2013 (Doc. 42-7).
The department's executive committee, the department chair, and each of the department's tenured employees review an application from within the department. After two levels of outside review from the college of arts and sciences, the provost conducts an independent review of an applicant. Finally, USF's president independently decides whether to award tenure.
After Zwick worked with the history department for two years, Ottanelli became the chair of the history department, an appointment that Ottanelli retained until after Zwick's departure from USF. (Doc. 1 at 3) Zwick alleges that from 2007 to 2012, Ottanelli subjected her to discrimination. In particular, Zwick alleges that Ottanelli remarked — offensively — about his sexual life ; inappropriately commented on Zwick's appearance ; told Zwick's colleagues that "she was ‘crazy’ and that she would never receive tenure"; disclosed Zwick's MS diagnosis to faculty and students despite Zwick's requests for privacy; discouraged students from working with Zwick and "told colleagues that [Zwick] was faking her disability so that [Zwick] could receive favorable treatment"; spread rumors about Zwick's sexual relationship with her husband and spread rumors that Zwick's "physician provided Professor Zwick [FMLA] paperwork ... in a quid pro quo exchange for sexual favors"; suggested that Zwick did not need to work because she was married to a "wealthy attorney"; failed to afford Zwick sufficient time to complete her book and assigned Zwick heavier teaching assignments; and refused during Zwick's medical leave to allow Zwick to participate in a search for a new history professor. (Doc. 1 at 3–8)
For example, Zwick alleges that "Ottanelli frequently bragged to Professor Zwick, who is Jewish, about a sexual relationship that Ottanelli purportedly had with an Italian (and Jewish) journalist." (Doc. 1 at 3)
For example, Zwick alleges that "Ottanelli approached Professor Zwick from behind and whispered in her ear that he liked her hair." (Doc. 1 at 3)
For example, Zwick alleges that "Ottanelli made wildly inappropriate comments to colleagues in the department speculating that Professor Zwick's marriage failed for sexual reasons." (Doc. 1 at 4)
In 2012, Zwick reported to USF's Office of Diversity, Inclusion, and Equal Opportunity (DIEO) that Ottanelli had engaged in offensive and discriminatory conduct. After these accusations, Ottanelli began contacting DIEO each time Zwick complained about discrimination, and Ottanelli began communicating with Zwick exclusively through e-mail or in the presence of other people. (Doc. 34 at 9–10)
USF and Zwick designate the office "DIEO."
Zwick's mid-tenure review, which considers an applicant's progress toward tenure, occurred in Spring 2009. (Doc. 46 at 4) Although Zwick received positive reviews in teaching and service, Ottanelli, the history department faculty committee, and Associate Dean John Cochran rated Zwick as "weak" in research. Zwick received one "strong" in research from the college of arts and science's review committee, which rated Zwick favorably because the committee expressed confidence that "Zwick's book will soon be accepted for publication." (Doc. 35-14 at 3) In contrast, Associate Dean Cochran noted that Zwick "needs to get her book in press" before she applies for tenure, the college of arts and science's tenure and promotion committee stated that Zwick would "meet the requirements for tenure" only if she "produces a monograph that is in press by the time she applies for tenure," and the department faculty committee identified Zwick's published record as "currently weak" and emphasized Zwick's need to "produce a monograph that is in press by the time she applies for tenure." (Doc. 35-14 at 2–8) From 2009 until 2013, Ottanelli and other executive committee members continually exhorted Zwick to publish a book if she aspired to tenure. (Docs. 42-4, 42-5, 42-6, and 42-8)
During the 2011–2013 academic years, USF's denial of tenure to two history department professors became a "divisive issue" in the history department. (Doc. 34 at 8) USF denied Gregory Milton tenure in 2012, and Ottanelli voted against Milton's tenure. During the same term, Julie Langford obtained tenure by a narrow margin, and Ottanelli voted in favor of Langford's tenure. And in 2013, Scott Ickes was denied tenure despite the history department's and Ottanelli's voting in favor of Ickes's tenure. (Doc. 34 at 8–9)
In January 2013, Zwick discussed Ottanelli's alleged discrimination with Lorna Gibson, the assistant director of human resources, who later filed an incident report. (Doc. 35-13 at 1) In response to the report, Rhonda Ferrell-Pierce, a consultant in DIEO, contacted Zwick and identified for her several agencies that could help her address the alleged discrimination. On February 6, 2013, Ferrell-Pierce informed Zwick that she had 120 days after a discriminatory act to submit a formal complaint to DIEO. (Doc. 35-13 at 2) And on February 18, 2013, Ferrell-Pierce wrote in an "initial contact report" that Zwick "said that she wanted to think about filing a complaint with DEO because she did not know what would happen to her if she did." (Doc. 35-13 at 1) Zwick filed nothing.
Also, in February 2013, Zwick and two other USF history professors met with Eric Eisenberg, the dean of arts and sciences. (Doc. 46 at 5) During the meeting, Zwick complained about the atmosphere that Ottanelli had created as department chair and, according to Zwick (but contrary to Eisenberg's recollection), Eisenberg acknowledged Zwick's inability to obtain tenure while Ottanelli remained the department chair and assured Zwick that Eisenberg would "take [Zwick's] tenure review outside the history department." (Doc. 46 at 6–7)
(Doc. 34 at 12, n.10)
In August 2013, Elizabeth Bell became the associate dean of arts and sciences. Zwick states that, following further inquiry about Eisenberg's mention of review outside the history department, Eisenberg "just referred her to Associate Dean Elizabeth Bell." Zwick alleges that Bell failed to seriously consider Zwick's grievances against Ottanelli. (Doc. 46 at 6)
After Zwick returned from her fourth medical leave in March 2013, Bell met with Zwick to discuss Zwick's tenure timeline and further encouraged Zwick to publish a scholarly monograph. (Doc. 34 at 12) During Zwick's annual review for 2013, Zwick submitted no research-related data and the executive committee expressed doubt about Zwick's progress toward tenure. (Doc. 42-8 at 3) Ottanelli echoed the executive committee's doubt in his review of Zwick. (Doc. 42-8 at 3)
Zwick's tenure application was scheduled to begin in the spring of 2014. Zwick was required to submit by April 18, 2014, a list of external reviewers, and Bell sent Zwick several e-mails prompting Zwick to submit the list. (Doc. 34-3 at 18–23) Zwick responded to a March 31, 2014 e-mail, which requested external reviewers, and stated:
[T]his is simply ridiculous. I have done everything I can to communicate with every level of administrator here at USF about the enormous problems in my department and quite specifically with the Chair, Fraser Ottanelli.... I would never expose my reputation to further damage by putting anything about my future into Fraser Ottanelli's hands.
(Doc. 34-3 at 19)
In a reply e-mail, Bell stated (1) that Zwick could submit external reviewers directly to Bell (thus allowing Zwick to circumvent the "standard practice" of USF), (2) that Zwick could request an extension of, or accommodation for, her tenure application deadline, and (3) that, if Zwick did not plan to submit reviewers, Bell and Zwick "need to visit about next year." (Doc. 35-12 at 1) After receiving neither a response from Zwick nor a list of external reviewers, Bell met with Vice-Provost Dwayne Smith and USF's General Counsel to discuss Zwick's employment status.
On April 24, 2014, after Bell sent Zwick another e-mail asking whether Zwick planned to apply for tenure, Bell informed Zwick that she would not receive re-appointment and that her USF employment would "end on May 6, 2015." (Doc. 36-3) USF granted Zwick a "grace year" in which Zwick "retain[ed] full privileges and benefits of a USF faculty member," and Zwick worked as a visiting scholar at the University of Cincinnati during the "grace year." (Doc. 40-37) USF argues that, because the plaintiff decided not to apply for tenure, "USF had no choice but to non-reappoint her probationary employment, as required under the CBA." Zwick alleges no discriminatory conduct that occurred after her termination. (Doc. 34 at 15)
On July 7, 2014, Adriana Novoa, a USF history professor, filed on Zwick's behalf an internal complaint with DIEO. (Doc. 35-8) While DIEO's internal investigation pended, Novoa contacted the EEOC about filing on Zwick's behalf a charge of discrimination. On January 29, 2015, Novoa completed an EEOC intake questionnaire, and Novoa a few days later sent a seven-page letter to the EEOC describing USF's alleged discrimination against Zwick. (Docs. 40-42, 40-32) In response to a March 11, 2015 EEOC letter, which expressly designates Novoa's submissions as "a charge of employment discrimination" subject to the ADA, Novoa submitted to the EEOC on March 20, 2015, a Form 5 charge of discrimination. (Docs. 40-45, 40-33) Although the March 11, 2015 letter acknowledges only disability as the basis of discrimination, in her Form 5 charge Novoa checked the box marked "sex" as the basis of discrimination, and the Form 5 charge includes references to sex and disability discrimination. (Doc. 40-33)
On the DIEO complaint form, Novoa checked "disability" and "marital status" as the basis of discrimination.
On January 31, 2018, the EEOC sent Novoa an e-mail explaining that her "case was forwarded to the Director for a determination and granting of Notice of Right to Sue." (Doc. 40-49) On February 7, 2018, the EEOC sent the right-to-sue notice to "17707 Parway Green Tampa, FL 33647," an incorrect address supplied by Novoa on the Form 5 charge. (Doc. 40-33) The U.S. Postal Service attempted to deliver the notice to Novoa on February 14, 2018, and left a notice of non-delivery describing the USPS's failed delivery attempt. (Doc. 35-7) Novoa attests that she never received the notice of non-delivery, and on March 19, 2018, Novoa e-mailed an EEOC representative to inquire about the status of the investigation and right-to-sue notice. (Doc. 40-56 at 15) In response, the EEOC representative stated that Novoa's "address information is not current" and sent the right-to-sue notice by e-mail. (Doc. 40-56 at 26) Zwick asserts that Zwick did not receive the right-to-sue notice until April 3, 2018, when Novoa sent the notice to Zwick. Zwick sued USF on June 29, 2018.
Novoa's intake questionnaire supplied the correct address. (Doc. 40-42)
DISCUSSION
Moving for summary judgment, USF argues that Zwick failed to satisfy the procedural requirements of Title VII and the ADA, that Zwick identifies no comparator who received preferential treatment, and that Zwick fails to create a factual issue about USF's legitimate, non-discriminatory reasons for firing Zwick.
Opposing summary judgment, Zwick argues that she exhausted her administrative remedies because Novoa satisfied the administrative procedural requirements on Zwick's behalf. Also, Zwick contends that sufficient evidence exists from which a reasonable juror could conclude that USF discriminated against Zwick on the basis of sex and disability and retaliated against her.
I. Exhaustion of Administrative Remedies
The procedural requirements to sue for an ADA claim and a Title VII claim are identical. See Zillyette v. Capital One Fin. Corp. , 179 F.3d 1337, 1339 (11th Cir. 1999) (noting the identical procedural requirements that exist under Title VII and the ADA). To exhaust administrative remedies under Title VII and the ADA, a plaintiff must first file a timely charge with the EEOC. 42 U.S.C. § 2000e–5(e) ; see also Wilkerson v. Grinnell Corp. , 270 F.3d 1314, 1317 (11th Cir. 2001) (discussing the filing requirements); Francois v. Miami Dade Cnty. , 432 F. App'x 819, 821 (11th Cir. 2011) (observing the requirements a plaintiff must satisfy "[i]n order to file a judicial complaint under Title VII"). Under Section 706 of the Civil Rights Act of 1964 (as amended, 42 U.S.C. § 2000e–5 ), a charge of discrimination "shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires." Further, a charge "shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e–5(e)(1). The failure to adhere to this three-hundred-day requirement "bars the claim." EEOC v. Summer Classics, Inc. , 471 F. App'x 868, 870 (11th Cir. 2012).
USF argues that Novoa initiated Zwick's only charge of discrimination on March 20, 2015, and that, consequently, Zwick can allege only discriminatory conduct that occurred after May 23, 2014, within three-hundred days before the charge. (Doc. 34 at 18) Because Zwick's "non-reappointment" occurred on April 24, 2014, and because Zwick identifies no adverse employment action occurring after the non-reappointment, USF argues that no timely charge was filed within three hundred days after USF's last allegedly discriminatory act. In a word, USF requests "summary judgment on all of the Title VII and ADA claims because they are time barred." (Doc. 34 at 18)
Zwick responds that Novoa's EEOC intake questionnaire (completed on January 29, 2015) and Novoa's seven-page letter (submitted to the EEOC on February 2, 2015) "qualify as a charge" because the papers identify the appropriate parties, accuse USF of sex and disability discrimination against Zwick, and initiate the EEOC's administrative review. (Doc. 46 at 9–10) Zwick claims that she exhausted her administrative remedy because the EEOC knew about Zwick's charges "by February 2, 2015 at the latest," and because February 2, 2015, is fewer than three hundred days after Zwick's termination on April 24, 2014. (Doc. 46 at 11)
A. Whether the Intake Questionnaire and Supplementary Letter Constitute a Timely Charge
Although Zwick alleges that Ottanelli mistreated her for several years, USF's last alleged discriminatory act, the termination letter of April 24, 2014, governs the timeliness of Zwick's claim. See Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ("Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the ... 300-day time period after the discrete discriminatory act occurred."). If considering the Form 5 charge only, Zwick failed to exhaust her administrative remedies because neither Zwick nor Novoa (on Zwick's behalf) filed a Form 5 charge within three hundred days after Zwick's non-reappointment.
In her deposition, Zwick suggests that USF's discrimination against her was ongoing because, although USF notified her of her termination on April 24, 2014, Zwick suffered harm from the non-reappointment that continued until after the "grace" period. Although Zwick's response (Doc. 46) lacks this argument, her argument during her deposition lacks precedential support.
Delaware State College v. Ricks , 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), examines the timeliness of a professor's EEOC charge, which the professor filed after he was denied tenure and which alleged that the professor was discriminated against on the basis of his national origin. After tenure denial, the university offered the professor a "terminal" contract that allowed the professor an additional year before his employment expired. Ricks , 449 U.S. at 253, 101 S.Ct. 498. The professor argued that the school's discrimination constituted a "continuing violation" and that the time for evaluating the timeliness of his EEOC complaint began the day of his final termination. Ricks holds that "[m]ere continuation of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Ricks , 449 U.S. at 257, 101 S.Ct. 498. The relevant discriminatory practice was the university's notice of termination. Thus, "[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." Ricks , 449 U.S. at 258, 101 S.Ct. 498.
Because Zwick alleges no discriminatory act after Bell handed Zwick the termination letter, April 24, 2014, constitutes the last adverse act for the purposes of administrative exhaustion.
However, Novoa completed an EEOC intake questionnaire within the statutory time, and Novoa supplemented the questionnaire four days later with a seven-page letter describing Zwick's grievances against the university. Even though "as a general matter an intake questionnaire is not intended to function as a charge," Pijnenburg v. W. Georgia Health Sys., Inc. , 255 F.3d 1304, 1305 (11th Cir. 2001), in an exceptional circumstance an intake questionnaire might serve as the equivalent of a charge. Thus, Zwick's claim is timely only if Novoa's intake questionnaire, submitted on January 29, 2015, satisfies the substantive requirements of a charge of discrimination under Section 706. Wilkerson v. Grinnell Corp. , 270 F.3d 1314 (11th Cir. 2001), addresses the standard by which a questionnaire might serve as a charge:
To determine whether the intake questionnaire ... can function as a charge, we must ask the following question: Would the circumstances of this case convince a reasonable person that [a plaintiff] manifested her intent to activate the machinery of Title VII by lodging her intake questionnaire with the EEOC? Some facts relevant to our inquiry include what [the plaintiff] and EEOC personnel said to each other, what the questionnaire form itself indicated, and how the EEOC responded to the completed questionnaire. This list of relevant facts is, of course, not exhaustive.
Wilkerson , 270 F.3d at 1320 (internal citations omitted). Interpreting and applying Wilkerson ’s standard for an EEOC charge, Francois v. Miami Dade Cty. , 432 F. App'x 819, 821–22 (11th Cir. 2011), explains that an intake questionnaire serves as a charge if "the questionnaire [i]s verified; the questionnaire contain[s] the basic information required by a charge; and the form's language c[an be] interpreted to represent a charge."
For an intake questionnaire to serve as a charge, the questionnaire requires verification, that is, the questionnaire must be "sworn to or affirmed before a notary public, designated representative of the Commission, or other person duly authorized by law to administer oaths and take acknowledgments, or supported by an unsworn declaration in writing under penalty of perjury." 29 C.F.R. § 1601.3(a). Novoa's intake questionnaire lacked verification, but her untimely Form 5 charge included verification. However, in some circumstances, a "charge may be amended to cure technical defects or omissions, including failure to verify the charge.... Such amendments ... will relate back to the date the charge was first received." 29 C.F.R. § 1601.12(b). At issue is whether the verification of Novoa's Form 5 "relates back" to Novoa's intake questionnaire. See Masters v. City of Glencoe , 2007 WL 9711640, at *9 (N.D. Ala. 2007) ("[I]f plaintiff's August 13, 2004 letter can be considered a ‘charge’ under the pertinent statutory and regulatory provisions, then the May 5, 2005 formal, verified, Form 5 Charge of Discrimination will be considered an amendment to the earlier charge; the filing date of the formal charge will relate back to the date of the August 13, 2004 letter; and plaintiff's administrative complaint will be considered timely."). In effect, (1) if the charge is verified before the EEOC requires an employer to respond and (2) if the charge otherwise conforms to Section 706, an untimely verification "relates back."
Also, Edelman v. Lynchburg College , 535 U.S. 106, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002), addresses whether Section 706 permits verification of a charge after the time for filing a charge expires. Because "a long history of practice with oath requirements supports the relation-back cure" and because relation back accords with a reasonable interpretation of Section 706, Edelman holds that Section 706 permits an untimely verification to "relate back" to an unverified EEOC filing. 535 U.S. at 113, 122 S.Ct. 1145. Edelman reasons that, although the "point of the [statutory] limitation is to encourage ... a discrimination claim before it gets stale, ... [t]he verification requirement has the different object of protecting employers from the disruption and expense of responding to a claim unless a complainant is serious enough ... to support it by oath." Edelman , 535 U.S. at 112–13, 122 S.Ct. 1145.
See Butler v. Greif, Inc. , 325 F. App'x 748, 749 (11th Cir. 2009) ("In certain situations, the EEOC regulations permit an otherwise timely charge to be verified or amended after the time for filing has expired, but the deadline to verify is the time the employer is obliged to respond to the EEOC charge.").
Both the intake questionnaire and the letter could "convince a reasonable person that [Novoa] manifested her intent to activate the machinery of Title VII by lodging her intake questionnaire." Wilkerson , 270 F.3d at 1320 (internal citations omitted). Novoa checked the box on the intake questionnaire that states "I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I described above." Further, Novoa's supplementary letter announces that "[she] file[s] this complaint in the hope that Dr. Zwick's case will be fully investigated." (Docs. 40-42, 40-41) The words in these discrete filings sufficiently manifest an intent to activate the "machinery of Title VII."
Also, "what the questionnaire form itself indicated" supports interpreting the questionnaire as a charge. Wilkerson , 270 F.3d at 1320. The result might differ if conspicuous words in the intake questionnaire denied explicitly, or even were ambiguous about, the questionnaire's treatment as a charge. See, e.g. , Francois , 432 F. App'x at 822 (finding on the questionnaire no "indicat[ion] it would be considered a charge"); Bost v. Fed. Express Corp. , 372 F.3d 1233, 1241 (11th Cir. 2004) ("[T]he questionnaire form itself did not suggest that it was a charge."); Wilson v. Sprint/United Mgmt. Co. , 2011 WL 2670184, at *6 (M.D. Fla. 2011) (Conway, J.) (finding "dispositive" the fact that the questionnaire states that "[f]illing out and bringing us or sending us this questionnaire does not mean that you have filed a charge."). But Novoa's intake questionnaire lacks any indication that the questionnaire could not, or would not, convey a charge. In fact, the bottom of Novoa's questionnaire reads, "[T]his questionnaire may serve as a charge if it meets the elements of a charge." (Doc. 40-42 at 4)
The EEOC's treatment of the completed questionnaire is another factor in determining whether the questionnaire serves as a charge. Wilkerson , 270 F.3d at 1320. In response to Novoa's questionnaire and supplemental letter, the EEOC sent Novoa a letter stating:
Because the document that you submitted to us constitutes a charge of employment discrimination, we have complied with the law and notified the employer that you filed a charge.... For purposes of meeting the deadline for filing a charge, the date of your original signed document will be retained as the original filing date.
(Doc. 40-45 at 1). Further, when notifying USF of the charge, the EEOC explained that "no action is required by [USF] at this time." (Doc. 40-46) That the EEOC treated the questionnaire like a charge and required no action from USF until after the filing of Novoa's Form 5, which relates back to her charge, commends the conclusion that Novoa's charge complies with Section 706. See Butler v. Greif, Inc. , 325 F. App'x 748, 749 (11th Cir. 2009) (noting that a charge can receive retroactive verification only if the EEOC requires no action from an employer before an employee verifies a charge).
Congress regarded Title VII as a "remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process." EEOC v. Commercial Office Products Co. , 486 U.S. 107, 124, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988). The EEOC's treatment of Novoa's submissions, as well as the open-ended language on the intake questionnaire, "would ... convince a reasonable person that [Novoa, a layperson,] manifested her intent to activate the machinery of Title VII by lodging her intake questionnaire with the EEOC." Wilkerson , 270 F.3d at 1320. In plain words, if it reads like a charge, is filed like a charge, and is treated like a charge, it's probably a charge.
Because Novoa's questionnaire contains the basic information required under Section 706 and 29 C.F.R. § 1601, because Novoa's letter features a short and plain statement of the alleged discrimination, and because Novoa filed these documents within three hundred days after Zwick's termination, Novoa's intake questionnaire and supplementary letter, considered together, satisfy the requirements for a valid charge. Because these initial submissions to the EEOC serve as a charge, Novoa's Form 5 verification "relates back" to the initial submissions and Novoa brought her charge within the statutory time.
B. Whether Zwick Timely Sued After Receiving the Right-to-sue Notice
Next, USF argues that Zwick's Title VII and ADA claims are time-barred because Zwick failed to sue within ninety days after the EEOC's right-to-sue notice. (Doc. 34 at 20) In response, Zwick contends (1) that the EEOC sent the notice to Novoa, who was not the "person aggrieved" under Section 706; (2) that USF presented no evidence that the package listed the EEOC as the sender; and (3) that Zwick lacked knowledge of the right-to-sue notice until April 3, 2018, when Novoa e-mailed Zwick. (Doc. 46 at 12–13)
"[W]ithin ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge." 42 U.S.C. § 2000e-5(f)(1).
On February 7, 2018, the EEOC issued a right-to-sue notice, which the EEOC sent to "[a stated address]" specified in the Form 5. (Doc. 35-4) Although the United States Postal Service's tracking form states that a non-delivery notice was left at the residence because no authorized recipient was available, the tracking form specifies neither the address at which the notice was left nor the identity of the package's sender. (Doc. 40-35) On April 3, 2018, in response to two e-mails from Novoa asking about the status of the investigation, an EEOC representative admitted that the EEOC used the incorrect address for Novoa, and the representative attached to the response the right-to-sue notice. (Doc. 35-5) Novoa informed Zwick about the right-to-sue notice, and Zwick sued USF on June 29, 2018, within ninety days after Zwick's alleged receipt of the notice. (Doc. 1)
Unsurprisingly, no precedent decisively addresses whether a plaintiff's claim is time-barred if (1) a co-worker completes an EEOC charge on the plaintiff's behalf; (2) the co-worker incidentally leaves the EEOC an incorrect address; (3) an attempted delivery to the co-worker's incorrect address fails; (4) a postal service notice, which the co-worker denies receiving, specifies that the delivery was unsuccessful; (5) the co-worker never obtains the mail, which USPS returns to the sender; (6) the EEOC never sends the right-to-sue notice directly to the plaintiff; (7) the co-worker inquires about the right-to-sue notice and the EEOC later e-mails a copy to the co-worker; and (8) the plaintiff sues within ninety days after receiving the right-to-sue notice by e-mail from the co-worker. Despite the absence of controlling precedent, resort to guiding principles under Title VII and the ADA illumines resolution of the issue.
Under 42 U.S.C. § 2000e-5(b), if the Commission determines after an investigation "that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify" the employee. After receiving a notice of dismissal from the Commission, the employee under 42 U.S.C. § 2000e-5(f)(1) must sue the employer within ninety days. The employee bears "the initial burden of establishing that he filed his Complaint within ninety days of his receipt of the EEOC's right-to-sue letter," and "[o]nce the defendant contests this issue, the plaintiff has the burden of establishing that he met the ninety day filing requirement." Green v. Union Foundry Co. , 281 F.3d 1229, 1233–34 (11th Cir. 2002) (internal citations omitted).
Nothing suggests that a "plaintiff should enjoy a manipulable open-ended time extension which could render the statutory minimum meaningless." Zillyette v. Capital One Fin. Corp. , 179 F.3d 1337, 1340 (11th Cir. 1999). Administrative exhaustion requires a plaintiff to "assume some minimum responsibility in resolving their claims." Zillyette , 179 F.3d at 1340. However, a claimant incurs responsibility "without ‘conditioning a claimant's right to sue under Title VII on fortuitous circumstances or events beyond his control which are not spelled out in the statute.’ " Zillyette , 179 F.3d at 1340 (quoting Franks , 495 F.2d at 404 ). Of course, an "unexplained failure to visit a post office box for a long period of time might result in a" time-barred claim, Zillyette , 179 F.3d at 1341 n.3 (citing Sousa v. NLRB , 817 F.2d 10, 11 (2d Cir. 1987) ), even if, as in some instances, some delinquency is attributable to coordination with a third party. See, e.g. , Law v. Hercules, Inc. , 713 F.2d 691 (11th Cir. 1983) (dismissing a suit as untimely because the plaintiff's son procured a notice of right to sue at the plaintiff's direction and placed the letter in a common area); Bell v. Eagle Motor Lines, Inc. , 693 F.2d 1086 (11th Cir. 1982) (finding the plaintiff's claim time-barred because, after the plaintiff's wife received the letter at a residence shared with the plaintiff, the plaintiff failed to timely sue). But if a plaintiff lacks a notice "through no fault of his or her own or because of circumstances beyond his or her control, ... the time must begin to run from the time of actual receipt." Zillyette , 179 F.3d at 1340–41.
Zwick asserts that Novoa never received the right-to-sue notice by mail, that the EEOC failed to send the notice to the "person aggrieved," and that the delivery notification lacked information about the sender's identity. (Doc. 46 at 12) In reply, USF presents neither evidence that the delivery notification specified the sender of the package nor evidence that the EEOC mailed the notice directly to Zwick. And USF offers nothing to rebut Zwick's assertion that neither Novoa nor Zwick received the right-to-sue notice before April 3, 2018, nor that no delinquency from Zwick caused the delayed receipt of the notice.
From Zwick's allegations, the person or persons "at fault" for the "delayed" notice remain unclear. See Hornsby v. United States Postal Service , 787 F.2d 87, 91 (3d Cir. 1986) (rejecting the argument that a non-delivery notice sufficiently triggered the statutory ninety days because the delivery notice did "not disclose the name or address of the sender nor d[id] it convey any other relevant information; it state[d] simply that an unknown person has mailed a certified letter to the addressee."). However, when Novoa apprised Zwick of the right-to-sue notice, Zwick sued USF within ninety days. (Doc. 34 at 20) Therefore, because the record permits no inference that Zwick's delinquency caused a delayed receipt of the right-to-sue notice, Zwick's suing USF more than ninety days after the EEOC issued the notice presents no impediment to her claim. Franks v. Bowman Transp. Co. , 495 F.2d 398, 405 (5th Cir. 1974), rev'd on other grounds , 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976) ("Where, however, it is shown that the claimant through no fault of his own has failed to receive the suit letter, ... the delivery of the letter to the mailing address cannot be considered to constitute statutory notification."). C. Whether Zwick's Claim Includes Sex Discrimination and Retaliation
Next, USF asserts that "Novoa had no intent to allege sex discrimination," that Novoa "accidentally checked ‘sex’ " on the charge, and that Novoa sought an EEOC investigation into disability discrimination only. (Doc. 34 at 19–20) Further, USF asserts an entitlement to summary judgment on Zwick's sex discrimination claim because no allegation of sex discrimination can "be reasonably expected to grow out of the charge" and because "neither the charge nor any of the information [Novoa] provided to the EEOC alleged sex discrimination." (Doc. 34 at 20) Similarly, USF moves for summary judgment on Zwick's retaliation claims because the box for "retaliation" remained unchecked and because the charge lacked an allegation of Zwick's engaging in statutorily protected activity. (Doc. 34 at 20)
By contrast, Zwick asserts that "the scope of a lawsuit is not strictly limited to what box is or is not checked" and that "USF ignores the much broader allegations" in Novoa's supplementary letter to the EEOC. (Doc. 46 at 10–11) Further, Zwick says, because the "EEOC would have investigated the intertwined sex, disability, and retaliation issues," dismissal of Zwick's sex discrimination and retaliation claims is improper.
A "plaintiff's judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination ..." Gregory v. Georgia Dep't of Human Res. , 355 F.3d 1277, 1280 (11th Cir. 2004) (quoting Evans v. U.S. Pipe & Foundry Co. , 696 F.2d 925, 929 (11th Cir. 1983)). However, even though "allegations of new acts of discrimination are inappropriate[,] ... the scope of an EEOC complaint should not be strictly interpreted," and a plaintiff can bring a claim if the claim amplifies or clarifies an allegation in the EEOC complaint. Gregory v. Georgia Dep't of Human Res. , 355 F.3d 1277, 1279–80 (11th Cir. 2004). For example, in Gregory v. Georgia Dep't of Human Res. , 355 F.3d 1277 (11th Cir. 2004), the plaintiff mentioned only race and sex discrimination in her EEOC charge and failed to check the box for "retaliation." Nonetheless, the plaintiff's charge encompassed a claim for retaliation because the facts alleged in the plaintiff's EEOC charge "could have reasonably been extended to" a retaliation claim and "were inextricably intertwined with her complaints of race and sex discrimination." Gregory v. Georgia Dep't of Human Res. , 355 F.3d 1277, 1280 (11th Cir. 2004). Thus, determining the scope of Zwick's allegations requires a consideration of whether the "facts alleged in her EEOC charge could have reasonably been extended to encompass a claim" for retaliation or sex discrimination. Gregory v. Georgia Dep't of Human Res. , 355 F.3d 1277, 1280 (11th Cir. 2004).
"The purpose of the filing requirement is to insure that the settlement of grievances be first attempted through the office of the EEOC." Wu v. Thomas , 863 F.2d 1543, 1548 (11th Cir. 1989).
In the intake questionnaire, Novoa checked the box marked "disability" but left the boxes for "sex" and "retaliation" unchecked. (Doc. 40-42) Zwick attempts to address this oversight by noting that Novoa's supplementary letter alleges that Zwick "had suffered a pattern of discrimination related to her gender, marital status, and disability." (Doc. 35-9 at 1) Zwick asserts that because the letter included this allusion to "gender" discrimination, the "EEOC reasonably would have investigated the intertwined sex" issue and, consequently, Zwick's complaint implicitly encompasses claims for sex discrimination and retaliation. (Doc. 46 at 11) Zwick overestimates the flexibility of the requirements governing the scope of a discrimination charge. Novoa's supplementary letter alleges facts confined to disability discrimination, and Novoa mentions "gender" discrimination only to allude to Novoa's "surprise" to learn that "most of the claims that showed a pattern of discrimination against Dr. Zwick over the years were by the time [Novoa] filed [her] grievance too old." (Doc. 35-9 at 1) Novoa's intake questionnaire and supplementary letter allege few facts, if any, that "could have reasonably been extended to encompass a claim" for sex discrimination.
That said, a retaliation claim manages to find expression in Novoa's supplementary letter. Novoa not only reports in the supplementary letter that Zwick "had been complaining of ethical violations and discriminatory practices by Dr. Ottanelli to the Deans for years," but Novoa also discusses the non-reappointment and other adverse employment actions. (Doc. 35-9 at 4–5) Consequently, the absence of a checked "retaliation" box creates no impediment to Zwick's retaliation claim.
Although Novoa's intake questionnaire and supplementary letter allege no facts pertaining to sex discrimination, on her Form 5 Novoa checked "sex" as a basis for discrimination, Novoa stated that Zwick "had suffered harassment," and Novoa reported that USF discriminated against Zwick "due to her sex (female) ... in violation of Title VII of the Civil Rights Act of 1964." (Doc. 35-4 at 1–2) Further, Novoa completed the Form 5 in response to the EEOC's letter, which instructed Novoa to "review the enclosed charge form and make corrections" and explained Novoa's obligation to complete the form "[b]efore [the EEOC] investigate[s her] charge." (Doc. 40-45 at 1)
Also, Novoa's supplementary letter states, "I am attaching the grievances I have filed with DIEO at USF to provide context." (Doc. 35-9 at 4) And Novoa explains that the DIEO grievances allege "discrimination related to [Zwick's] gender." (Doc. 35-9 at 1) More importantly, the "attached grievances" filed with Novoa's DIEO complaint include information about, and factual allegations about, sex discrimination and retaliation. (Doc. 35-8) Thus, like the plaintiff's charge in Gregory v. Georgia Department of Human Resources , Novoa submitted enough facts to reasonably apprise the EEOC that she sought investigation into sex discrimination and retaliation. Considered together, the documents submitted to EEOC include a constellation of allegations that enable Zwick's complaint to encompass sex discrimination and retaliation claims that "grow out of the charge of discrimination." Gregory v. Georgia Dep't of Human Res. , 355 F.3d 1277, 1280 (11th Cir. 2004).
To recapitulate, Novoa's timely intake questionnaire, the supplementary letter, and the Form 5 collectively satisfy Section 706's requirements for a valid charge; Zwick sued USF within ninety days after receiving the right-to-sue notice; and Zwick's tardy receipt of the notice occurred "through no fault of ... her own." Finally, Zwick's complaint encompasses a sex discrimination claim and a retaliation claim. Therefore, each of USF's "administrative exhaustion" challenges fails, and no procedural infirmity bars any of Zwick's claims.
II. Substantive Analysis of Discrimination Claims
A. Whether Discrimination Motivated the Non-reappointment
USF asserts that no reasonable juror could find that either sex discrimination or disability discrimination motivated Zwick's non-reappointment. Nor can Zwick rebut USF's legitimate, non-discriminatory reasons for terminating Zwick. (Doc. 34 at 21–4) USF argues that, despite several years of urging, Zwick failed to complete a scholarly monograph "by the time she had to go up for tenure." (Doc. 34 at 21) Zwick knew that she would not achieve tenure without a monograph, and because she did not apply for tenure, the terms of the CBA necessitated Zwick's non-reappointment. (Doc. 34 at 21) Also, according to USF, neither a non-disabled comparator nor a male comparator received more favorable treatment from USF throughout Zwick's employment. (Doc. 34 at 21, 24) And even if Ottanelli (for whatever reason) harbored biases against Zwick, the decision to terminate Zwick involved "Vice Provost Dwayne Smith, Dr. Bell, and USF General Counsel Gerard Solis ... [and] Ottanelli was not a decision-maker and could not have stopped the non-reappointment." (Doc. 34 at 15, 21–2)
For her part, Zwick asserts the existence of "considerable evidence from which a juror could reasonably conclude that USF discriminated against Dr. Zwick." (Doc. 46 at 14) Regarding disability discrimination, Zwick's evidence consists of testimony (1) that Ottanelli disclosed Zwick's MS diagnosis, (2) that Ottanelli stated that "Zwick had taken too much time off ... [and] was manipulating her sickness to extend her tenure clock," and (3) that "USF administrators did not believe that Dr. Zwick's use of medical leave was proper." (Doc. 46 at 14–5) Regarding sex discrimination, Zwick's evidence consists of testimony that "Dr. Ottanelli and others in the department questioned why Dr. Zwick needed her job given that her husband was a ‘wealthy attorney’ " and other allegedly "sexist" commentary. (Doc. 46 at 15)
Also, Zwick contends that questions of fact exist about whether USF was required to terminate Zwick after she refrained from applying for tenure and whether the completion of a scholarly monograph was unconditionally required for tenure. Further, Zwick argues that questions of fact exist about Ottanelli's role in USF's discrimination, that is, whether Ottanelli exercised significant "influence over tenure and promotion considerations," whether Ottanelli "treat[ed] Dr. Zwick unfairly," and whether "Ottanelli and USF assigned Dr. Zwick an abnormally large case load." (Doc. 46 at 18–20)
Because the charge was timely filed, analysis of Zwick's discrimination claims requires identifying the "last discriminatory act." See Morgan , 536 U.S. at 113, 122 S.Ct. 2061 (observing that a charge "must be filed within the ... 300-day time period after the discrete discriminatory act occurred.") Under 42 U.S.C. § 2000e-5(e)(1), Zwick identifies only her termination as an adverse employment action after April 8, 2014. Accordingly, Zwick brings a plausible claim only if USF discharged Zwick because of her disability or her sex or her complaining about discrimination.
Because Novoa's intake questionnaire lacked sufficient allegations of discrimination, Novoa's supplementary letter determines the time by which an adverse employment decision must have occurred for Zwick to complain timely. Also, February 2, 2014, is the day after which a state-law discriminatory act must have occurred to permit a timely claim. However, aside from Zwick's non-reappointment, Zwick alleges no plausible instance of an adverse employment decision occurring after either date. Bell's requiring Zwick to submit a physician's note before receiving an accommodation — an accommodation that USF ultimately granted without a physician's note — constitutes no plausibly adverse employment decision. (Docs. 36-1, 34-3 at 18) Nor can dissatisfaction with an investigation constitute an adverse employment decision. See Entrekin v. City of Panama City Fla. , 376 F. App'x 987, 995 (11th Cir. 2010) (noting that "trivial harms" and "pretty slights" are not adverse employment actions and holding that dissatisfaction with the "failure to sustain" a complaint and the "failure to investigate" constitutes no adverse employment action).
An FCRA claim receives the same analysis as an ADA claim, D'Angelo v. ConAgra Foods, Inc. , 422 F.3d 1220, 1224 n.2 (11th Cir. 2005), and "[t]he burden-shifting analysis of Title VII employment discrimination claims is applicable to ADA claims." Holly v. Clairson Indus., LLC. , 492 F.3d 1247, 1255 (11th Cir. 2007) (quoting Earl v. Mervyns, Inc. , 207 F.3d 1361, 1365 (11th Cir. 2000) ).
Because Zwick's federal-law claims and state-law claims require the same analysis and because neither of the parties’ papers include substantial arguments about Zwick's state-law discrimination claims, Zwick's claims receive written analysis under federal precedent only.
Because Zwick can establish a prima facie case under only a disparate-treatment theory, USF's liability "depends on whether [Zwick's] protected trait ... actually motivated the employer's decision" to terminate Zwick. Raytheon Co. v. Hernandez , 540 U.S. 44, 52, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003) (quoting Hazen Paper Co. v. Biggins , 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) ). A plaintiff who alleges disparate treatment must demonstrate that the employer "acted with discriminatory intent." Jefferson v. Sewon Am., Inc. , 891 F.3d 911, 921 (11th Cir. 2018) (Pryor, J.) (internal quotation omitted). A plaintiff establishes discriminatory intent through either direct evidence of discrimination or circumstantial evidence that allows an inference of discrimination. Desert Palace, Inc. v. Costa , 539 U.S. 90, 91, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003). Direct evidence consists of "only the most blatant remarks, whose intent could mean nothing other than to discriminate." Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079, 1086 (11th Cir. 2004) (quoting Rojas v. Florida , 285 F.3d 1339, 1342 n.2 (11th Cir. 2002) ). More commonly, circumstantial evidence reveals discriminatory intent.
University of Pennsylvania v. EEOC , 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990), holds Title VII fully applicable to a tenure determination. USF possessed fixed criteria for determining fitness for tenure — specifically, teaching, research, and service — and a tenure decision "necessarily rel[ies] primarily on judgments about academic potential, and there is no algorithm for producing those judgments." Namenwirth v. Board of Regents of University of Wisconsin System , 769 F.2d 1235, 1243 (7th Cir. 1985). However, USF did not deny Zwick's tenure; USF terminated her employment. More importantly, Zwick brings no claim that USF wrongfully denied her tenure, but instead generally alleges disparate treatment. Therefore, no analysis of tenure denial is warranted.
Because Zwick complains of no flagrantly discriminatory remark occurring after either February 2, 2014 (state), or April 8, 2014 (federal), that, if believed, would constitute direct evidence of discrimination, McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), governs. First, Zwick must establish a prima facie claim of discrimination. If Zwick successfully establishes a prima facie claim, USF must offer a legitimate, non-discriminatory basis for USF's employment decision. If USF provides a legitimate basis, Zwick must offer something in the record to support that USF's stated basis was pretextual. Zwick retains the burden of persuasion.
To establish a prima facie claim of discrimination under McDonnell Douglas , Zwick must show "(1) that she belongs to a protected class, (2) that she was subjected to an adverse employment action, (3) that she was qualified to perform the job in question, and (4) that her employer treated ‘similarly situated’ employees outside her class more favorably." Lewis v. City of Union City, Georgia , 918 F.3d 1213, 1220–21 (11th Cir. 2019). Zwick and USF acknowledge (Doc. 34 at 21, n.24) that Zwick belongs to a protected class and that Zwick's termination was an adverse employment action. (Doc. 34 at 24) However, the parties dispute whether Zwick "was qualified to perform the job" and whether USF treated more favorably a similarly situated employee outside of Zwick's protected class.
USF suggests that Zwick lacked qualifications because, according to USF, Zwick "needed to finish her book ... to be a viable tenure candidate," Zwick "had to obtain tenure within six years of service at USF," and Zwick needed to submit external reviewers to obtain tenure and become qualified for employment. Because Zwick satisfied none of these requirements and because the CBA contemplates termination if a professor fails to obtain tenure within six years, Zwick lacked the qualifications to continue employment at USF. Zwick's termination necessarily followed Zwick's refusal to apply. (Doc. 34 at 21)
Zwick challenges the notion that Zwick's refusal to apply for tenure obligated USF to terminate her employment. Zwick argues (1) that Michael Decker, her former colleague, expressed "flexibility" in both the requirement to complete a monograph and the requirement to obtain tenure in six years, and (2) that "USF had the authority to retain Dr. Zwick [as an instructor], offer her another teaching role, extend her tenure clock, or take any other actions i[t] deemed appropriate to address the discrimination that she faced." (Doc. 46 at 17) Further, Zwick cites performance reviews suggesting that she satisfied USF's expectations. Thus, Zwick insists that she was qualified.
To establish qualification for an employment position, "a Title VII plaintiff need only show that he or she satisfied an employer's objective qualifications." Vessels v. Atlanta Indep. Sch. Sys. , 408 F.3d 763, 769 (11th Cir. 2005). Under the ADA, to prove that a plaintiff is a "qualified individual," a plaintiff must prove that the plaintiff "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds." 42 U.S.C. § 12111(8). Although "the ADA does not require the employer to eliminate an essential function of the plaintiff's job" to accommodate an employee, D'Angelo , 422 F.3d at 1229 (quotation marks and alterations omitted), "the ADA may require an employer to restructure a particular job by altering or eliminating some of its marginal functions." Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249, 1260 (11th Cir. 2001).
With reasonable accommodation, Zwick performed the essential functions of her employment position as an assistant professor — that is, she taught, researched, wrote, and advised. And if viewed in the light most favorable to Zwick, a question of material fact regarding the research requirement exists. Although everyone at USF seemed to consider publication of a monograph necessary for tenure, neither the CBA nor the departmental tenure guidelines specify unconditionally that a professor must publish a monograph to obtain tenure. Also, some testimony challenges the monograph requirement. (Doc. 35-10 at 9; Doc. 40-10 at 5–6; Doc. 40-12 at 3; Doc. 46 at 18) (employing equivocal language in discussing the book requirement). Nevertheless, USF's review of Zwick's tenure confirmed Zwick's failure to satisfy at least one inescapable qualification — an application. With her external reviewers lacking, Zwick refused to apply. And, according to the terms (Doc. 35-10 at 9) of Zwick's employment, Zwick's time within which to obtain tenure was six years. Her time expired. She relinquished or repudiated or forbore — or whatever — the opportunity that USF offered. Actions (and inactions) have consequences. Had Zwick applied for tenure, Zwick could more forcefully argue that a reasonable juror might find a basis for discrimination. But USF hired Zwick as a tenure-track assistant professor, and — because Zwick refused to submit to peer review and to satisfy a threshold and universal qualification for tenure — the terms of Zwick's employment prescribed and directed Zwick's termination. (Doc. 35-10 at 9) ("By the end of six years of service at the University, an employee eligible for tenure shall either be awarded tenure by the Board of Trustees or given notice that further employment will not be offered.").
Although she argues that the six-year requirement was flexible, nowhere in Zwick's complaint does she assert an entitlement to relief on that basis. USF's reply is incorporated to the extent that the reply addresses this issue. (Doc. 51 at 1–4) The sole basis pleaded was Ottanelli's allegedly discriminatory acts during her employment, USF's failure to accommodate, and USF's ineffective investigation of her claims. Zwick lacked the requisite qualifications because, as a tenure-track employee, Zwick refused to apply for tenure, submitted no accommodation request for tenure, and failed to obtain tenure within six years. Thus, despite the contested monograph requirement, Zwick fails to demonstrate that Zwick was qualified for employment when she was terminated.
Even assuming Zwick were to possess ample qualification, Zwick nonetheless fails to show that USF preferentially treated a similarly situated employee outside Zwick's protected class. Zwick identifies not even one comparator, male or otherwise, similarly situated "in all material respects." Lewis v. City of Union City, Georgia , 918 F.3d 1213, 1224 (11th Cir. 2019). Although Zwick testifies that USF allotted Dr. Langford seven years to obtain tenure, Langford was completing her Ph.D. when USF initially placed her on a tenure track. (Doc. 35 at 121, 134) Accordingly, Langford and Zwick were not similarly situated in all material respects. Notwithstanding this distinction, Zwick can identify no professor who retained employment with USF's history department after the professor (1) failed to publish a scholarly monograph (a matter that, even if not dispositive, at least constitutes a weighty consideration), (2) submitted no external reviewer, (3) refused to apply for tenure, (4) submitted neither a request for an extension of the tenure deadline nor a request for an accommodation for tenure, and (5) never requested to serve as a non-tenured teaching professor. In fact, USF terminated two of Zwick's colleagues — both male, both without a disability, and both with a published monograph — shortly before Zwick left USF. (Docs. 34 at 8–9, 40 at 62)
See Vessels v. Atlanta Indep. Sch. Sys. , 408 F.3d 763, 768 (11th Cir. 2005) (holding that the plaintiff failed, in part, to establish a prima facie case because, "[t]hough AISS had no formal list of qualifications for the interim position, its regulations deemed it ‘desirable’ that the interim appointee hold the qualifications necessary for the position on a permanent basis.").
In a word, Zwick can identify no male or non-disabled employee, similarly situated in all material respects, whom USF treated more favorably. Zwick fails to establish a prima facie case of discrimination. If a plaintiff fails to show the existence of a preferentially treated and similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.
B. Whether USF Provides a Legitimate, Non-discriminatory Basis for Termination
Even if Zwick established a prima facie case, USF contends that USF had legitimate, non-discriminatory reasons for terminating Zwick and that Zwick cannot rebut USF's reasons. Once a plaintiff establishes a prima facie case of discrimination, "the defendant-employer must articulate a legitimate, non-discriminatory reason for the challenged action.... [T]he defendant's evidence [must] raise[ ] a genuine issue of fact as to whether it discriminated against the plaintiff." Wascura v. City of S. Miami , 257 F.3d 1238, 1242–43 (11th Cir. 2001).
Before Zwick's termination, Dean Bell attempted to contact Zwick regarding both Zwick's intention to apply for tenure and Zwick's future at USF. Zwick failed to respond to some of these messages and, to another message, Zwick expressed her affirmative refusal to apply. (Doc. 34-3 at 19–22) Zwick's refusal to submit external reviewers, her refusal to apply for an accommodation or extension, and her refusal to submit a tenure application, considered singly and especially together, warranted Zwick's dismissal from the history department. Zwick's contract with USF agreed to USF's terminating Zwick's employment if she failed to obtain tenure within six years. After USF provided four accommodations, Zwick failed to obtain tenure because she refrained from applying. USF — in the ordinary course of academic practice — legitimately and non-discriminatorily discharged Zwick because of her failure to obtain tenure. To say the least, USF proffers legitimate, non-discriminatory reasons for discharging Zwick.
Further, Zwick's reviews in teaching and service declined over time. (Docs. 42-3, 42-5, 42-6, 42-8, 42-9, and 34 at 13) And although the monograph requirement is potentially debatable, a strong presumption that tenure required a monograph pervaded the history department and the tenure guidelines. (Doc. 40-11 at 3)
C. Whether Zwick Evidences that USF's Basis for Termination Was Pretextual
Having articulated a non-discriminatory reason for Zwick's termination, USF shifts the burden to Zwick to offer something to support that USF's stated reasons for her termination are pretextual. Cleveland v. Home Shopping Network, Inc. , 369 F.3d 1189, 1193 (11th Cir. 2004). A plaintiff can support pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Carter v. City of Miami , 870 F.2d 578, 584 (11th Cir. 1989). Assuming (hypothetically) that Zwick established a prima facie case and assuming (actually) that USF provided a non-discriminatory rationale for Zwick's termination, Zwick adduces insufficient evidence from which a reasonable juror could find that USF's non-discriminatory reasons for Zwick's termination were pretextual.
Zwick suggests that Ottanelli served an integral role in the tenure review process. (Doc. 46 at 18–9) But Zwick was terminated — an employment action distinguishable from tenure denial — by USF after a discussion involving only Dwayne Smith, USF's General Counsel, and Dean Bell (Doc. 36 at 83–4); Ottanelli exercised no authority (Docs. 36 at 83–4, 41 at 178) in the decision to terminate Zwick. Even if Ottanelli played a minor role, review of an employment decision by an independent and unbiased decision-maker defeats an argument for pretext. And isolated and remote remarks alone cannot establish pretext. The record is devoid of support for the proposition that Ottanelli's stray remarks — "isolated and unrelated to the challenged employment decision" — played a role in USF's non-reappointment decision. Rojas v. Florida , 285 F.3d 1339, 1342–43 (11th Cir. 2002).
If Ottanelli terminated Zwick's employment or if Zwick demonstrated that Dean Bell acted at Ottanelli's urging (as in a so-called "cat's paw" episode), Zwick might argue that her termination was pretextual. However, no such evidence exists, and Zwick advances no such argument. Zwick provides no explanation for, or evidence of, a discriminatory reason that more likely motivated her termination, and USF proffers an explanation for the termination — clear, rational, deliberative, understandable, supported by the record, and worthy of credence.
Thus, Zwick establishes a prima facie case for neither sex discrimination nor disability discrimination. Although Zwick's failure to establish a prima facie case of discrimination entitles USF to summary judgment, USF proffers legitimate reasons for terminating Zwick, and Zwick fails to identify a genuine issue about whether the validity of USF's stated reasons for terminating Zwick were pretextual.
D. Zwick's Retaliation Claim
Counts VII and VIII allege that USF terminated Zwick's employment in retaliation against Zwick's opposing USF's ostensibly unlawful employment practices. To succeed on her retaliation claim under Title VII, Zwick must demonstrate that "(1) she engaged in statutorily protected activity, (2) an adverse employment action occurred, and (3) the adverse action was causally related to the plaintiff's protected activities." Gregory v. Georgia Dep't of Human Res. , 355 F.3d 1277, 1279 (11th Cir. 2004) (quoting Little v. United Technologies, Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir. 1997) ).
USF argues that Zwick's retaliation claim requires dismissal because "it is undisputed no materially adverse action occurred after" Novoa filed the charge and because Zwick "engaged in [no] statutorily protected opposition." (Doc. 34 at 25) Therefore, USF claims that no retaliation occurred — or was even possible — against Zwick. Zwick counters that "the record includes substantial evidence that Dr. Zwick lodged many complaints with USF administrators and HR." (Doc. 46 at 16) According to Zwick, her "repeatedly complaining of discrimination" shows that USF's decision to discharge Zwick "resulted from unlawful retaliation." (Doc. 46 at 16)
USF correctly observes that Zwick "participated in [no] investigation, proceeding, or hearing" before USF terminated Zwick. Yet, contrary to USF's contention, Section 704(a) imposes no exclusive requirement for a plaintiff to participate in an official EEOC investigation, proceeding, or hearing. Section 704(a) prohibits an employer's discriminating against an employee for a retaliatory purpose and contains two different clauses that protect two similar (but distinct) types of activity. The "participation clause" in Section 704(a) protects an employee who "participated in any manner in an investigation, proceeding, or hearing"; the "opposition clause," on the other hand, extends protection to an employee who "has opposed any practice made an unlawful employment practice." 42 U.S.C. § 2000e–3(a). Thus, the "opposition clause" provides broader protection. See, e.g. , Valentin-Almeyda v. Municipality of Aguadilla , 447 F.3d 85, 94 (1st Cir. 2006) (explaining that under the opposition clause, "protected conduct includes ... complaining to one's supervisors"); Wasek v. Arrow Energy Servs. , Inc., 682 F.3d 463, 469 (6th Cir. 2012) ("[C]omplaining about allegedly unlawful conduct to company management is classic opposition activity."). But the opposition clause's broader protection is freighted with an important limitation — the employment practice that the plaintiff opposes must typically constitute "an unlawful employment practice." If an employee opposes a practice that Title VII permits, opposition receives protection only if the employee held a "reasonable" and "good faith" belief that the practice opposed violated Title VII. See Sullivan v. National R.R. Passenger Corp. , 170 F.3d 1056, 1058 (11th Cir. 1999) ("The fact that the jury concluded that [the plaintiff's] claim did not meet all the elements for a successful sexual harassment action does not mean that it could not have found that [the plaintiff] reasonably believed himself the victim of sexual harassment.").
"It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e–3(a).
USF asserts, in conclusory fashion, that "there was no good faith, reasonable belief of a Title VII/ADA/FCRA violation." (Doc. 34 at 25) However, even though Zwick presents no actionable claim for either sex discrimination or disability discrimination, the factual record teems with evidence that Zwick regarded Ottanelli and USF's actions as unlawful. (Docs. 34-3, 35-13, 43-1); see Buettner v. Arch Coal Sales Co. , 216 F.3d 707, 714 (8th Cir. 2000) ("A plaintiff need not establish the conduct which she opposed was in fact discriminatory but rather must demonstrate a good faith, reasonable belief that the underlying challenged conduct violated the law."). Zwick's belief is expressed in e-mail correspondence, complaints with DIEO, and Zwick's refusal to apply for tenure. Zwick might have been incorrect about USF's alleged discrimination, but she exhibited an arguably "good faith" belief that USF discriminated against her. And because Ottanelli allegedly commented inappropriately and Zwick believed that USF only negligibly investigated her complaints, Zwick's belief was not inarguably unreasonable when viewed in the light most favorable to Zwick.
Next, USF argues that Zwick identifies no "specific time she allegedly engaged in statutorily protected opposition." Statutorily protected activity "is not limited to individuals who have filed formal complaints, but extends as well to those ... who informally voice complaints to their superiors or who use their employers’ internal grievance procedures." Rollins v. State of Fla. Dep't of Law Enf't , 868 F.2d 397, 400 (11th Cir. 1989) ; see also Casna v. City of Loves Park , 574 F.3d 420, 427 (7th Cir. 2009) ("[A]n informal complaint may constitute protected activity for purposes of retaliation claims."); Green v. Franklin Nat'l Bank of Minneapolis , 459 F.3d 903, 914 (8th Cir. 2006) (holding that the plaintiff's reporting to supervisors and executives about a co-worker's alleged harassment constitutes "the very essence of protected activity under Title VII"); Reed v. A.W. Lawrence & Co. , 95 F.3d 1170, 1181 (2d Cir. 1996) (holding that the plaintiff's complaining to an employer about a co-employee's vulgar comments regarding gender roles could constitute "protected opposition").
Zwick presents evidence (1) that she complained about Ottanelli's allegedly harassing and discriminatory conduct and (2) that she accused USF of discrimination, both of which constitute "opposition" under Section 704(a). Hence, Zwick alleges engaging in "statutorily protected conduct" because she issued complaints that otherwise comply with Section 704(a). Accordingly, Zwick satisfies the first requirement for a prima facie retaliation claim because Zwick engaged in statutorily protected conduct when she opposed USF by lodging complaints about conduct that Zwick in arguable good faith believed was unlawful.
Further, an employee's conduct can constitute opposition "if an employee took a stand against an employer's discriminatory practices by not ‘instigating’ action, but by standing pat." Crawford v. Metropolitan Government of Nashville , 555 U.S. 271, 276–77, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009). Refusing to apply for tenure — a potential form of "standing pat" — might constitute a form of statutory "opposition."
Because the parties acquiesce to Zwick's termination constituting an adverse employment action, Zwick must provide record support for the conclusion that the "adverse action was causally related to the plaintiff's protected activities." Gregory v. Georgia Dep't of Human Res. , 355 F.3d 1277, 1279 (11th Cir. 2004). Univ. of Texas Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), addresses which "causation" standard applies to a retaliation claim under Title VII.
The plaintiff in Nassar alleged that the teaching hospital that employed the plaintiff constructively discharged him after he complained about his supervisor's alleged discrimination and harassment. In clarifying the standard that applies to proving causation, Nassar holds that "retaliation claims must be proved according to traditional principles of but-for causation." Nassar , 570 U.S. at 360, 133 S.Ct. 2517. This requires proof that retaliation against the plaintiff's protected conduct constituted more than a motivating factor in the adverse employment action. Nassar , 570 U.S. at 360, 133 S.Ct. 2517. Applied to Zwick, proving retaliation requires a showing that USF would not have discharged Zwick "but for" Zwick's opposition to putatively unlawful employment actions. That is, Zwick must prove that, if she had raised no complaint about her allegedly unfair treatment by USF and if USF had no "desire to retaliate," USF would not have terminated Zwick's employment. This Zwick cannot prove.
The publication of a scholarly monograph was at least a salient component of tenure, and Zwick never published a monograph. Also, Zwick's teaching record, which earlier offered her tenure candidacy a "fighting chance," had declined — as had her "service." Each annual review, which included a sizeable contingent of USF faculty, indicated that termination loomed if Zwick failed to generate gratifying scholarship. (Docs. 42-6, 42-8, 42-9) The record singularly establishes that USF intended to terminate Zwick's employment because Zwick failed to publish a monograph, declined in performance, and refused to submit external reviewers. Zwick creates no genuine issue of fact about whether, absent her opposition to activity she considered unlawful, USF would have retained Zwick; USF would not have.
The discrimination of which Zwick chiefly complains pertained to Ottanelli, and the record establishes that executive decision-makers — Ottanelli not among them—decided Zwick's termination. See Sherrod v. American Airlines, Inc. , 132 F.3d 1112, 1122 (5th Cir. 1998) (holding that causality is diminished "if there is evidence that the ultimate decision maker did not merely ‘rubber stamp’ the recommendation of the employee with knowledge of the protected activity, but conducted an independent investigation into the circumstances surrounding the employee's termination"), aff'd mem. , 211 F.3d 592 (5th Cir. 2000) ; Willis v. Marion Cnty. Auditor's Office , 118 F.3d 542, 547 (7th Cir. 1997) (holding that the plaintiff could not demonstrate that her complaints about an immediate supervisor, who was not the decision-maker, affected the actual decision-maker — a higher-level manager). Further, stray remarks by a non-decision-maker, without much more, fail to establish the requisite record to advance a discrimination claim. Rojas v. Florida , 285 F.3d 1339, 1342–43 (11th Cir. 2002) ; Walden v. Georgia-Pacific Corp. , 126 F.3d 506, 515 (3d Cir. 1997). Because a retaliation claim "require[s] proof that the desire to retaliate was the but-for cause of the challenged employment action," Zwick establishes no causation and, consequently, no prima facie case. Nassar , 570 U.S. at 360, 133 S.Ct. 2517. In any event, if an employer asserts a legitimate reason for an adverse decision, the plaintiff retains the burden of proving that the defendant's putative reasons for the adverse action are pretextual. USF alleges that Zwick's declining work performance, failure to publish a monograph, and refusal to apply for tenure constitute non-retaliatory rationales for terminating Zwick. Zwick fails to offer support for a plausible rebuttal to USF's non-retaliatory reasons.
Even though Zwick alleges no so-called "cat's paw" theory of causation — suggesting that a biased supervisor influenced the termination so extensively that a court imputes bias to an employer — a retaliatory inference is dispelled if (1) an unbiased person investigated and finalized the adverse employment action, (2) the biased supervisor was not the proximate cause of the adverse employment action, or (3) the unbiased decision-maker lacked knowledge of the biased supervisor's influence. Staub v. Proctor Hosp. , 562 U.S. 411, 419, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011).
CONCLUSION
Although Zwick properly exhausted her administrative remedies, Zwick fails to establish a prima facia case for each count of alleged discrimination. Further, even if Zwick established a prima facie case in any count, Zwick fails to rebut USF's legitimate, non-discriminatory reasons for terminating Zwick's employment. USF is entitled to summary judgment on each count. USF's motion (Doc. 34) for summary judgment is GRANTED . The clerk is directed to enter judgment for USF and against Zwick on each of Counts I–VIII.
ORDERED in Tampa, Florida, on April 6, 2020.