Demps v. Hillsborough County Clerk of the Circuit Court

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ANGEL V. DEMPS,

Plaintiff,

v. Case No: 8:18-cv-2672-T-36TGW

HILLSBOROUGH COUNTY CLERK OF

THE CIRCUIT COURT,

Defendant.

___________________________________/

ORDER

This cause is before the Court upon Defendant’s Motion for Summary Judgment (Doc. 28)

and the filings in support (Docs. 29, 30, 31), Plaintiff’s response in opposition (36) and supporting

filings (Doc. 35), and Defendant’s reply to Plaintiff’s response (Doc. 37). Defendant presents

several arguments, including that the claim is time barred and that there is no genuine issue of

material fact that Plaintiff was not qualified for the position at issue. The Court, having considered

the parties’ submissions and being fully advised in the premises, will GRANT Defendant’s Motion

for Summary Judgment.

I. BACKGROUND AND FACTS1

This is an action for employment discrimination under Title VII and the Florida Civil

Rights Act. (Doc 1-2). Plaintiff, Angela Demps, alleges that the Defendant, Pat Frank, Clerk of

the Circuit Court of Hillsborough County passed her over for a promotion that she was qualified

for because of her race. See id. Plaintiff is a Black female. See id. at ¶ 5. She was employed by the

1 The Court has determined the facts, which are undisputed unless otherwise noted, based on the

parties’ submissions, including depositions, affidavits and attachments thereto (Docs. 29, 30, 31,

35, 36).

Clerk of the Court in September 1994. See id. After twenty years of service, she applied for

promotion to the position of Manager in the Plant City Clerk’s Office in October 2014. See id. at

¶ 7. At the time, she was working as a Court Clerk II in the same office. See id. at ¶ 6.

The recruitment for the manager position was conducted by the Hillsborough County Civil

Service Board. (Doc. 30 ¶ 4). In doing so, the Board identified the minimum qualifications, job

specific competencies, and representative duties for the position; posted the opening; and evaluated

the applications received for the opening based on the eligibility criteria contained in the

recruitment bulletin. See id. The Board then provided a list of qualified applicants to the Clerk.

See id. at ¶ 6. From that list, the Clerk selected some candidates for interviews. See id. at ¶ 9.

The minimum qualification for the position—as determined by the Board—was listed in

the job posting as follows:

MINIMUM QUALIFICATIONS

Graduation from an accredited four year degree granting college or

university; and Two years of experience preparing, processing and

maintaining legal records, court files, or court proceedings;

and

One year of experience supervising a staff of five or more which

included the following: completing performanc[e] reviews;

reporting, managing and achieving goals and productivity measures;

and effectively utilizing best practices of management and

supervision.

Or

An equivalent combination of education, training and experience

that would reasonably be expected to provide the job-specific

competencies noted below.

See id at ¶ 3; Doc. 30-1. The Board determined that Plaintiff did not meet the minimum

qualifications for the position. See id. at ¶ 8; Doc. 30-4; Doc 29-4. In fact, Plaintiff indicated in her

application that she did not meet the minimum requirements. (Doc. 29-10). She explained at her

deposition that she did not have one year of experience supervising a staff of four or more. (Doc

29, 68: l. 13 – 70: l. 10). However, Plaintiff also indicated on the application that she had an

equivalent combination of education, training, and experience that would provide the job-related

competencies, stating—among other things—that she helped to “train personnel on the front

counter and in court.” (Doc. 29-10, p. 9). Even then, she stated during her deposition that this form

of training was not allowed to be used as a qualification for the manager position. (Doc. 29, 70: l.

5 – 71: l. 2). Moreover, Plaintiff worked as a Clerk II and was unsuccessful for the Clerk III

position in Plant City on at least one previous occasion. See id. at 19: l. 10 – l. 24. She explained

that the Court Clerk III is a trainer and that the position is also used as a steppingstone to promote

an employee to the position of manager. See id. at 31: l. 4 – l. 13. In fact, all of the Managers in

the Plant City Office that she worked with were Court Clerk IIIs before they became a manager.

See id. at 32: l. 5 – l. 8. Eventually, the Manager position was filled by Lynne Bullington, a white

female, who worked as a Court Clerk III. (Doc. 31 ¶ 5; Doc. 29, 19: l. 25 – 20: l. 10).

On or about March 13, 2015, Plaintiff filed a charge of race discrimination with the Florida

Commission on Human Relations and Equal Employment Opportunity Commission, alleging as

follows:

I was advised that I was not considered for the Manager position

because I do not have the supervisory experience. The position

required a 4 year degree, plus 2 years of experience, plus 1 year of

supervisory experience. I do not have the 1 years supervisory

experience. The White female selected has stated she does not have

a degree, yet she was considered qualified for the position.

(Doc 29-3). A Notice of Right to Sue was allegedly issued on September 21, 2015. Doc 1-2 ¶ 4.2

Plaintiff then filed an action on or about December 21, 2015 in the Circuit Court of the Thirteenth

2 The Complaint alleged that the notice was attached. However, the notice was not attached.

Judicial Circuit in and for Hillsborough County, FL (Doc. 1-2). By order dated May 26, 2017, the

action was administratively closed for lack of prosecution. (Doc. 5-1). In that order, the circuit

court advised that “[t]he case may be reopened or reactivated by either party upon the filing of an

appropriate motion and payment to the Clerk of the Circuit court of any reopen fee.” See id.

Plaintiff moved to reopen the action on August 9, 2017. (Doc. 1-1). The action was then removed

to this Court by Defendant on October 31, 2018. (Doc. 1).

In its Motion for Summary Judgment, Defendant argues that (1) the Title VII claim is

time-barred because the action was filed more than ninety days after the notice was issued—even

though the complaint was timely; (2) Plaintiff cannot establish a prima facie claim for failure to

promote because she did not qualify for the position; (3) there is a legitimate non-discriminatory

reason for the hiring decision; and (4) Plaintiff cannot establish pretext. (Doc. 28). Additionally,

Defendant argues that to the extent Plaintiff claimed that she was qualified for the manager position

in the past, the minimum qualifications for the position were different then. See id. at n.5; Doc. 29-

2, Ex. C.

Plaintiff responds that she established a prima facie case and was more qualified that the

person who was hired. (Doc. 36). In addition, she lists various individuals she believed received

promotions in the past despite not meeting the minimum qualification standard and attached

deposition transcripts purportedly supporting her assertions. See id. This includes testimony from

Kathleen Rocamora, the Senior Director of Civil Courts,3 that prior to working as a manager in

the traffic department she was never a courtroom clerk but received on the job training as a clerk.4

(Doc. 35-2, 6: l. 6 – l. 23). Christina Carroll testified that before she started working as a manager

3 She held positions in Tampa and testified she had never worked in Plant City.

4 It is unclear from her deposition and the record in this case what race Ms. Rocamora identifies

as or when she was hired as a manager.

in Tampa in 2006, she worked as a Court Clerk II. (Doc. 35-3, 5: l. 4 – 6: l. 21). Leticia Smith, a

Black female, worked as a Court Clerk II in Tampa before she received a manager position in Plant

City in 2013. (Doc. 35-4, 7: l. 21 – 8: l. 5; 18: l. 25 – 19: l. 1). When she was hired for the position,

she did not have a college degree or a year of supervisory experience. See id. at 19: l. 10 – l. 23;

21: l. 14 – l. 19. Plaintiff also provides testimony from Lisa Mann who explained that she started

at the Clerk’s office in 1986 and had served in all three clerk positions, among others, before she

was hired as the director over Plant City and two satellite offices. (Doc. 35-5, 5: l. 2 – 7: l. 22).

Plaintiff also presents testimony from Lynne Bullington, the successful candidate. (Doc. 35-6).

Ms. Bullington identifies as Irish American.5 See id. at 25: l. 3 – l. 8. Among other things, she

testified that she was a Court Clerk III, had experience supervising attorneys and secretaries at a

prior job, and had an associate’s degree. See id. at 16: l. 20 – l. 23; 18: l. 3 – l. 24; 64: l. 19 – l. 21;

65: l. 5 – 66: l. 6).

In reply, Defendant argues that Plaintiff did not demonstrate the existence of a genuine

issue of material fact in her response; failed to address the facts cited in Defendant’s motion; failed

to provide pinpoint citations supporting her own allegations; used misleading citations to the

record; and alleged facts having no relevance to the promotional decision at issue. (Doc. 37).

Additionally, Defendant argues that Plaintiff did not address its argument that the Title VII claim

was time barred and did not show that her qualifications satisfied the minimum qualifications for

the position, again pointing out that the requirements for the position changed over time. See id.

In response to this Court’s order dated May 4, 2020, (Doc. 44), Plaintiff addresses Defendant’s

time bar claim (Doc. 45). Plaintiff argues that the initial complaint was timely; no new complaint

5 Ms. Bullington initially identified as American Indian on her employment application, but

clarified at her deposition that, after testing with a DNA kit, she had recently found out she was

not American Indian.

was filed; and the statute of limitations did not run against her. (Doc. 45). She also distinguishes

some of the cases Defendant relied on. See id.

II. LEGAL STANDARD

Summary judgment generally

Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Jepsen v. Lornamead, Inc., No.

8:12-CV-1811-T-30TGW, 2013 WL 5944189, at *1 (M.D. Fla. Nov. 6, 2013). The moving party

bears the initial burden of stating the basis for its motion and identifying those portions of the

record demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323;

Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be

discharged if the moving party can show the court that there is “an absence of evidence to support

the nonmoving party’s case.” Celotex, 477 U.S. at 325.

When the moving party has discharged its burden, the nonmoving party must then

designate specific facts showing that there is a genuine issue of material fact. Id. at 324. Issues of

fact are “genuine” only if a reasonable jury, considering the evidence present, could find for the

nonmoving party, and a fact is “material” if it may affect the outcome of the suit under governing

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). In determining whether a

genuine issue of material fact exists, the court must consider all the evidence in the light most

favorable to the nonmoving party. Celotex, 477 U.S. at 323. However, a party cannot defeat

summary judgment by relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198

Fed. Appx. 852, 858 (11th Cir. 2006).

Title VII claims

Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer “to

discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). “The purpose of Title VII ‘is to promote hiring on the basis

of job qualifications, rather than on the basis of race or color.’ ” Ricci v. DeStefano, 557 U.S. 557,

582, 129 S. Ct. 2658, 2675, 174 L. Ed. 2d 490 (2009) (citing Griggs v. Duke Power Co., 401 U.S.

424, 434 (1971)). The Florida Civil Rights Act mirrors Title VII6 and is usually construed with

reference to federal case law construing Title VII. DeBose v. Univ. of S. Fla., No. 8:15-CV-2787-

T-17AEP, 2017 WL 4381696, at *5 (M.D. Fla. Sept. 29, 2017), aff'd sub nom. DeBose v. USF Bd.

of Trustees, No. 18-14637, 2020 WL 1983182 (11th Cir. Apr. 27, 2020); Ifill v. United States

Sugar Corp., No. 2:18-CV-713-FtM-29UAM, 2019 WL 2476676, at *3 (M.D. Fla. June 13, 2019)

(“The Florida Civil Rights Act of 1992 ‘is patterned after Title VII [and is] analyzed using the

same framework as Title VII claims and Title VII precedent.’ ”) (quoting Thompson v. Baptist

Hosp. of Miami, Inc., 279 F. App'x 884, 888 n.5 (11th Cir. 2008)). “To prevail on a failure-to-

promote claim, a plaintiff must establish that: (1) she belongs to a protected class; (2) she was

qualified for and applied for the promotion; (3) she was rejected; and (4) other employees outside

the protected class were promoted.” Belton v. U.S. Dep't of Agric., No. 6:17-CV-989-Orl-40TBS,

2019 WL 1130008, at *6 (M.D. Fla. Mar. 12, 2019) (citation omitted).

6 Plaintiff alleges a violation of Florida Statute § 760.10 (1)(a) which states “[i]t is an unlawful

employment practice for an employer [t]o discharge or to fail or refuse to hire any individual, or

otherwise to discriminate against any individual with respect to compensation, terms, conditions,

or privileges of employment, because of such individual's race, color, religion, sex, pregnancy,

national origin, age, handicap, or marital status.”

In employment discrimination cases, the plaintiff must show that the defendant

intentionally discriminated against him or her. Reeves v. Sanderson Plumbing Prods., 530 U.S.

133, 143 (2000). Direct evidence of discrimination is rarely available, and plaintiffs usually rely

on circumstantial evidence to prove discriminatory intent. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 (1973). The prima facie burden on plaintiff is to establish facts adequate to permit

an inference of discrimination. Jones v. Bessemer Carraway Medical Ctr., 137 F.3d 1306, 1310-

11, reh’g denied and opinion superseded in part,151 F.3d 1321 (11th Cir.1998); see Texas Dep’t

of Community Affairs v. Burdine, 450 U.S. 248, 253-254 (1981). By establishing a prima facie

case, the plaintiff creates a rebuttable presumption that the challenged action was motivated by a

discriminatory intent. Equal Employment Opportunity Comm’n v. Joe’s Stone Crabs, Inc., 296

F.3d 1265, 1272 (11th Cir. 2002), cert. denied, 539 U.S. 941 (2003); see also Burdine, 450 U.S.

at 254.

Once the plaintiff establishes a prima facie case, the burden then shifts to the defendant to

“articulate some legitimate, nondiscriminatory reason” for the adverse employment action.

McDonnell Douglas Corp., 411 U.S. at 802; Jones, 137 F.3d at 1310. If the defendant articulates

one or more such reasons, the presumption of discrimination is rebutted and the burden shifts back

to the plaintiff to prove that the reasons offered by the defendant are a pretext for unlawful

discrimination. McDonnell Douglas, 411 U.S. at 805; Chapman v. AI Transport, 229 F.3d 1012,

1024 (11th Cir. 2000). “A reason is not pretext for discrimination ‘unless it is shown both that the

reason was false, and that discrimination was the real reason.’ ” Brooks v. Cty. Comm'n of

Jefferson Cty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (quoting St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). A plaintiff cannot prove

pretext merely by baldly asserting that he or she was better qualified than the person who received

the position at issue. Stuart v. Jefferson Cty. Dep't of Human Res., 152 F. App'x 798, 802 (11th

Cir. 2005). The plaintiff has to proffer evidence that the disparity in qualification was of such

weight and significance that no reasonable person could have chosen the person employed over

the plaintiff. Id. “Although the intermediate burdens of production shift back and forth, the ultimate

burden of persuading the trier of fact that the employer intentionally discriminated against the

employee remains at all times with the plaintiff.” Joe’s Stone Crabs, Inc., 296 F.3d at 1273.

The McDonnell Douglas-Burdine proof structure “was never intended to be rigid,

mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in

light of common experience as it bears on the critical question of discrimination.” United States

Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983); see also Grigsby v. Reynolds

Metals Co., 821 F.2d 590, 594 (11th Cir.1987). This framework of shifting burdens of proof is a

valuable tool for analyzing evidence in cases involving alleged disparate treatment, but the

framework is only a tool. Nix v. WLCY Radio/Rahall Comm., 738 F.2d 1181, 1184 (11th Cir.

1984). The “ultimate question” is not whether a plaintiff has established a prima facie case or

demonstrated pretext, but “whether the defendant intentionally discriminated against the plaintiff.”

Id., 738 F.2d at 1184 (quoting Aikens, 460 U.S. at 713-14; see also Jones, 137 F.3d at 1313. The

plaintiff retains the ultimate burden of proving that the defendant is guilty of intentional

discrimination. Burdine, 450 U.S. at 253.

A plaintiff is entitled to survive a defendant’s motion for summary judgment if there is

sufficient evidence to demonstrate the existence of a genuine issue of material fact regarding the

truth of the employer’s proffered reasons for its actions. Combs v. Plantation Patterns, 106 F.3d

1519, 1529 (11th Cir.1997). A prima facie case along with sufficient evidence to reject the

employer’s explanation is all that is needed to permit a finding of intentional discrimination.

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); see also St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 511 (1993); Combs, 106 F.3d at 1529.

III. DISCUSSION

The time bar argument

Defendant first argues that summary judgment is warranted because the claim is time

barred. Pursuant to 42 U.S.C. § 2000e-5(f)(1), Plaintiff is required to bring her action within ninety

days of receiving the notice of her right to sue, but Defendant claims that she failed to do so. Citing

Price v. Digital Equip. Corp., 846 F.2d 1026 (5th Cir. 1988) and Bost v. Fed. Express Corp., 372

F.3d 1233, 1242 (11th Cir. 2004), Defendant contends that while the Plaintiff had timely filed the

initial action—on the last permissible day—the motion to reopen the case, which was closed for

lack of prosecution, was filed more than ninety days after issuance of the notice of the right to sue.

Notably, the circuit court administratively closed the case with directions that it could be

reopened by either party upon appropriate motion and reserved jurisdiction to take further and

appropriate action with respect to the case. (Doc. 5-1). This fact distinguishes the case at bar from

Price and Bost, because the district court in those cases dismissed the actions without prejudice.

See Price, 846 F.2d at 1027; Bost, 372 F.3d at 1242. While an administrative closure can operate

as a dismissal for all relevant intents and purposes, Grosso v. HSBC Bank USA, N.A., 204 So. 3d

139, 141 (Fla. 4th DCA 2016),7 the Eleventh Circuit has recognized that

“administratively closing a case is not the same as dismissing a case,” Martinez v. Carnival Corp.,

744 F.3d 1240, 1244 (11th Cir. 2014). See also Latele Television, C.A. v. Telemundo Commc'ns

Grp. LLC, No. 12-22539-CIV, 2015 WL 11201166, at *1 (S.D. Fla. Sept. 25, 2015) (stating same);

7 See also Dribin v. Estate of Nolan, 801 So. 2d 249, 251 (Fla. 4th DCA 2001) (“In administratively

closing the Estate, the court dismissed the case for failure to prosecute.”).

Lincoln Gen. Ins. Co. v. Bornstine, No. 807-CV-467-T-24-MAP, 2007 WL 3119641, at *1 (M.D.

Fla. Oct. 23, 2007) (“[T]he Court finds that administratively closing the case, instead

of dismissing the case without prejudice, is not warranted.”); Quiroz v. MSC Mediterranean

Shipping Co. S.A., 522 F. App'x 655, 660 (11th Cir. 2013) (“Our precedents establish that a district

court administratively closes a case when it retains jurisdiction to perform specific acts and then

closes the case instead of dismissing it.”).

Dismissal has a markedly different effect from administrative closure of a case. Dismissal

has “the effect of placing the parties in a position as if the suit had never been filed.” Abram-Adams

v. Citigroup, Inc., 491 F. App'x 972, 975 (11th Cir. 2012) (citing Dade County v. Rohr Industries,

Inc., 826 F.2d 983, 989 (11th Cir.1987)); Valpak Direct Mktg., Sys., Inc. v. Maschino, No. 8:08-

CV-594-T-26MSS, 2008 WL 11336258, at *2 (M.D. Fla. July 17, 2008) (“[T]he general effect of

an order of dismissal is to “restore the status quo ante.”).8 To the contrary, an administrative

closure has no such effect and does not require the filing of a new complaint. A party revives the

action by complying with the requirements laid out in the order closing the case. As such, the

statute of limitations is not implicated when a matter is administratively closed. See In re Heritage

Sw. Med. Grp. PA, 464 F. App'x 285, 287 (5th Cir. 2012) (“The bankruptcy court and the district

court correctly rejected Aetna's limitations argument on the theory that statutes of limitation and

equitable tolling are not implicated where claims are initially timely filed and, thereafter, the case

is stayed or administratively closed by the bankruptcy or district court, as the case may be. As we

have said many times, administrative closure does not have any effect on the rights of the parties

8 If dismissal occurs after the statute of limitations has already expired, it is treated as a dismissal

with prejudice. See Lebron v. Brooks Bros., No. 3:10-CV-1054-J-34MCR, 2012 WL 503592, at

*2 (M.D. Fla. Jan. 23, 2012), report and recommendation adopted as modified, No. 3:10-CV-

1054-J-34MCR, 2012 WL 503589 (M.D. Fla. Feb. 15, 2012).

and is simply a docket-management device.”); Vasiliades v. Angud, No. CV 17-11764 (RMB),

2018 WL 1004637, at *3 (D.N.J. Feb. 21, 2018) (“Plaintiff is informed that administrative

termination is not a ‘dismissal’ for purposes of the statute of limitations, and that if the case is

reopened, it is not subject to the statute of limitations time bar if it was originally filed timely.”).

Defendant has not explained why the administrative closure in this case would constitute a

dismissal such that the statute of limitations would be implicated. The action was timely filed and

the circuit court did not dismiss it. Accordingly, Defendant’s argument that the action is barred

because the motion to reopen the case was filed more than 90 days after the notice of right to sue

was issued is unconvincing. The motion for summary judgment is therefore denied as to this

ground.

The Prima Facie Case

Defendant next argues that there is no genuine issue of material fact that Plaintiff did not

qualify for the position due to her lack of supervisory experience and she thus cannot establish a

prima facie case of discrimination.9 The Court agrees. The qualifications for the position were set

by the Board. (Doc. 30). The minimum qualification included at least “one year of experience

supervising a staff of five or more” or “an equivalent combination of education, training and

experience that would reasonably be expected to provide the job-specific competencies.” (Doc.

30-A). One such competency was listed as “[s]kill in the application of supervisory techniques.”

See id. Another was the “[a]bility to effectively manage and guide group efforts.” See id.

Plaintiff’s own application sounded the impending doom of her candidacy for the position.

In her application, she indicated that she did not meet the minimum requirements for the job. (Doc.

9 The parties do not dispute that Plaintiff is a member of a protected class, she applied for the

promotion to Manager, she was rejected, and Lynne Bullington, an Irish American was hired for

the position.

29-10). While she provided a description of education and experience that she believed qualified

her for the position, she did not list any form of supervisory experience that provided her with

those job-related competencies. See id. In fact, Plaintiff explained at her deposition that she

indicated in the application that she did not meet the minimum requirement because she did not

have one year of experience supervising a staff of four or more. (Doc 29, 68: l. 13 – 70: l. 10).

Even though she stated in her application that she helped to “train personnel on the front counter

and in court,” she acknowledged that this was not considered towards qualification for the manager

position. See id. at 70: l. 5 – 71: l. 2. She also acknowledged that the manager position was usually

filled by a person occupying the Court Clerk III position, a position she had unsuccessfully applied

for before, and all the Managers in the Plant City office that she worked with had previously

worked in the Court Clerk III position.10 See id. at 19: l. 10 – l. 24, 32: l. 5 – l. 8. After review of

the applications for the position, the Board determined that Plaintiff was not qualified. (Doc. 30-

4). The record is clear that the position required supervisory experience or equivalent skills that

Plaintiff did not have. In light of this, Plaintiff cannot prove that she was a qualified individual and

her prima facie claim of discrimination crumbles. Summary judgment in favor of Defendant is

proper for this reason.

This conclusion is buttressed by scores of cases in our jurisprudence. For example, in

Childress v. Caterpillar Logistics Servs., Inc., 369 F. App'x 95, 96 (11th Cir. 2010), the Eleventh

Circuit affirmed a grant of summary judgment for the employer in an action alleging race and age

discrimination under Title VII. There, the court reasoned that the employee “concede[d] she had

no previous work experience in a human resources department; and thus, she could not show that

10 Plaintiff further admitted at her deposition that the successful candidate had also worked in this

position. (Doc. 29, 33: l. 11 – l. 14).

she was qualified for the job.” Id. at 2. Likewise, in Suarez v. Sch. Bd. of Hillsborough Cty., Fla.,

No. 8:13-CV-1238-T-17MAP, 2015 WL 3628268, at *3 (M.D. Fla. June 10, 2015), aff'd, 638 F.

App'x 897 (11th Cir. 2016), this Court held that the plaintiff did not establish a prima facie case

of discrimination for the Elementary Supervisor/Generalist positions because he did not have the

requisite experience as an elementary administrator to qualify for the position. In doing so, the

court rejected the plaintiff’s explanation that “because of his ‘successful academic teaching and

management consultant experience around the world’ he possesse[d] the ‘minimum requirements’

to have been offered an interview” for the position. Id. The Court further explained that the

“[p]laintiff's own belief in the superiority of his credentials and quarrelling with the wisdom of the

School District's job requirements [wa]s insufficient as a matter of law to establish pretext or prove

intentional discrimination.” Id.; Brooks v. CSX Transportation, Inc., No. 3:09-CV-379-J-25TEM,

2013 WL 12091685, at *8 (M.D. Fla. Mar. 29, 2013) (finding that “Plaintiff did not meet the

requirements for the PACS Management position,” because among other things, she could only

perform one of the five functions required), aff'd sub nom. Brooks v. CSX Transp., Inc., 555 F.

App'x 878 (11th Cir. 2014). Here, Plaintiff cannot establish a prima facie case and her own belief

in the superiority of her credentials is not enough to satisfy this element of the prima facie case.

Summary judgment is proper for this reason and the Court need not venture to the other steps in

the McDonnell Douglas Corp. framework.

Legitimate, nondiscriminatory reason and Pretext

Even if Plaintiff could show that she was qualified for the position, there is not a scintilla

of evidence to create an issue of fact as to the legitimate, nondiscriminatory reason offered by

Defendant. The legitimate, nondiscriminatory reason offered by Defendant is that the Hillsborough

County Civil Service Board, and not Defendant, conducted the recruitment of applicants and

determined which applicants met the minimum qualifications. (Doc. 30 ¶¶ 3, 4, 5, 6). Defendant

did not conduct an independent review of the Board’s determination. The Board decided that

Plaintiff did not meet the minimum qualifications for the position and Plaintiff was not named on

the qualified applicant list. See id. at ¶ 6; Doc. 30-3. For this reason, Defendant did not consider

Plaintiff for the promotion. Defendant used the certified list created by the Board to identify

candidates to interview. Plaintiff has presented no evidence on this point and no argument as to

why this reason was pretext. It is undisputed that it was the Board’s determination as to who was

and was not minimally qualified.

Because the burden shifts to Plaintiff to rebut the reason proffered by Defendant, this Court

has repeatedly granted motions for summary judgment where Plaintiff has failed to refute the

legitimate, nondiscriminatory reason and show pretext. See, e.g., Campbell v. Shinseki, No. 8:11-

CV-0377-T35-TBM, 2013 WL 11320224, at *7 (M.D. Fla. Apr. 1, 2013) (granting Defendant’s

motion for summary judgment as to Plaintiff’s claims of gender and race discrimination since

Plaintiff failed to rebut at least one of the employer’s legitimate nondiscriminatory reasons for his

termination), aff'd, 546 F. App'x 874 (11th Cir. 2013); Taylor v. Teakdecking Sys., Inc., No. 8:11-

CV-02709-T-24, 2013 WL 1437741, at *4 (M.D. Fla. Apr. 9, 2013) (holding that summary

judgment was warranted because termination of Plaintiff because of unsatisfactory performance

of his human resources function was a legitimate, nondiscriminatory reason and Plaintiff failed to

establish that this reason was false and that discrimination was the real reason), aff'd, 571 F. App'x

767 (11th Cir. 2014).

This Court addressed a situation similar to that presented here in Reynolds v. Miller, No.

97-1-CIV-ORL-22B, 1998 WL 1048375, at *2 (M.D. Fla. Oct. 28, 1998), where the Plaintiff—a

Deputy Sherriff in Brevard County, Florida—sued the Brevard County Sheriff's Office and two

Sheriffs she served under, alleging that she was subjected to a hostile work environment and was

passed over for a promotion based on her gender in violation of Title VII of the Civil Rights Act

of 1964. In the complaint, she sought to hold Sherriff Claude Miller liable in his individual capacity

for the hostile environment and for his failure to remedy the situation after she brought the issues

to his attention. Id. at 11. In finding that she did not meet her burden, the court reasoned among

other things that Sherriff Miller “did not make the decision not to include Plaintiff on the ‘short

list’ for a promotion.” Id. While Sherriff Miller did in fact determine who would be promoted, the

short list of candidates most qualified to be promoted was developed by the commanders of the

three precincts and Plaintiff was never named on the short list. Id. at 2. See also Browdy v. Synovos,

Inc., No. 8:18-CV-79-T-17CPT, slip op. at 8 (M.D. Fla. June 17, 2019) (noting that plaintiff failed

to offer competent evidence that the outside consultant engaged to conduct an initial screening of

candidates for the two RLT Manager positions was not the one to disqualify him for consideration

for position; however, the consultant was not aware of plaintiff’s race). As with these cases,

Plaintiff has not argued or raised any evidence tending to suggest that the Board did not truly or

independently determine which candidates were qualified, or that discrimination was the real

reason behind the decision that she was not minimally qualified for the position. Hence, the

legitimate, nondiscriminatory reason offered by Defendant has not been rebutted.

Intentional Discriminataion

Moreover, evidence presented by both Plaintiff and Defendant precludes the inference that

Plaintiff was not offered an interview and promotion because of her race. Defendant’s Director of

Human Resources, Manuel Mangual Jr., testified by affidavit that the Hillsborough County Civil

Service Board determined that five Black candidates—four females and one male—met the

minimum qualifications for the position. (Doc. 30 ¶7; Doc. 30-3). An exhibit attached to

Mangual’s affidavit indicates that at least one of these candidates—a Black female—was

interviewed by Defendant. (Doc. 30 ¶ 9; Doc. 30-5). Importantly, because Plaintiff is a Black

female the fact that another Black female was interviewed for the position hits at the very heart of

Plaintiff’s claim. Additionally, based on sworn testimony in support of Plaintiff’s response, one of

the persons allegedly promoted to manager, in the past, without having supervisory experience

was a Black female. (Doc. 36 ¶ 9; Doc. 35-4, 35: l. 24 – 37: l. 1). Supervisory experience may not

have been required at that time—around July 2013.11 However, the fact of promotion of a Black

female to the very same position at issue just over a year before is contrary to Plaintiff’s claim that

she was discriminated against because of her race. Taken together, these undisputed factual

assertions show that at least one Black employee had been recently promoted to the manager

position and that other Black employees had been found to meet the minimum qualifications,

negating Plaintiff’s claim that race was the driving factor in the decision on her application.

IV. CONCLUSION

Summary judgment is proper in the case. There is no genuine issue of material fact that

Plaintiff was not qualified for the Court Manager position because she did not have the requisite

supervisory experience or equivalent education and experience. As such, she did not establish a

prima facie case of discrimination and further inquiry was not required. But even if Plaintiff was

qualified, Defendant provided a legitimate, nondiscriminatory reason for its failure to promote,

which Plaintiff did not refute.

Accordingly, it is hereby ORDERED:

1. Defendant’s Motion for Summary Judgment (Doc. 28) is GRANTED.

11 Defendant has provided record evidence that the minimum requirements for the position have

changed over the years. (Doc. 28 n.5). There is no contrary evidence.

2. The Clerk is directed to enter judgment in favor of Defendant Hillsborough County Clerk

of the Circuit Court and against Plaintiff Angel V. Demps.

3. The Clerk is further directed to close this case.

DONE AND ORDERED in Tampa, Florida on July 13, 2020.

Chal tare t AiJarnda Wo Tua gl yell □□

Charlene Edwards Honeywell

United States District Judge

COPIES TO:

COUNSEL OF RECORD AND UNREPRESENTED PARTIES, IF ANY

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