# Wilson v. City of St. Petersburg

> District Court, M.D. Florida · January 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10106803

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10106803

## How later opinions describe it (automated extraction)

- holding that a two-month gap is not “very close”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DWIGHT WILSON,

Plaintiff,

v. Case No: 8:19-cv-1868-TPB-SPF

CITY OF ST. PETERSBURG,
CLAUDE TANKERSLEY, and
GARY CORNWELL

Defendants.
/

ORDER DENYING “DEFENDANTS’, CITY OF ST. PETERSBURG,
CLAUDE TANKERSLEY AND GARY CORNWELL’S
DISPOSITIVE MOTION FOR SUMMARY JUDGMENT”

This matter is before the Court on “Defendants’, City of St. Petersburg,
Claude Tankersley and Gary Cornwell’s Dispositive Motion for Summary Judgment
and Memorandum of Law in Support,” filed on November 30, 2020. (Doc. 66).
Plaintiff Dwight Wilson filed a response in opposition on December 28, 2020. (Doc.
77). Upon review of the motion, response, court file, and the record, the Court finds
as follows:
Background1
Plaintiff, an African-American male, alleges numerous incidents of
discrimination that occurred during his nine years of employment with the City of
St. Petersburg. For the majority of his employment, Plaintiff served as the

1 On summary judgment, the Court views the facts in the light most favorable to the
nonmoving party. See Crawford v. Carroll, 529 F.3d 961, 964 n.1 (11th Cir. 2008).
Assistant Director of Water Resources. He details several times that he was passed
over for promotion to the Director of Water Resources Department – from 2012 until
2016 – in favor of less qualified white males. He also alleges that he was ultimately

terminated due to racial discrimination and retaliation.
Legal Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A properly supported motion for summary
judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). Only the existence of a genuine issue of
material fact will preclude summary judgment. Id.
The moving party bears the initial burden of showing that there are no
genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1260 (11th Cir. 2004). When the moving party has discharged its burden, the
nonmoving party must then designate specific facts showing the existence of
genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or
evidence, the nonmoving party’s evidence is presumed to be true and all reasonable
inferences must be drawn in the nonmoving party’s favor. Shotz v. City of
Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003).
Analysis
Plaintiff has brought claims for race discrimination under the Florida Civil
Rights Act (“FCRA”) (Count I), retaliation under the FCRA (Count II), and race

discrimination under 28 U.S.C. § 1983 (Counts III, IV, and V). (Doc. 19). Although
these claims are brought under different statutory schemes, the analysis of each
claim involves similar legal frameworks and tests. See, e.g., Smith v. Vestavia Hills
Bd. of Educ., 791 F. App’x 127, 130 (11th Cir. 2019); Harper v. Blockbuster Ent.
Corp., 139 F.3d 1385, 1389-90 (11th Cir. 1998).
Race Discrimination (Counts I, III, IV, V)

In their motion for summary judgment, Defendants argue that Plaintiff
cannot establish a prima facie case of racial discrimination. Under the McDonnell
Douglas framework, the plaintiff must first make out a prima facie case for racial
discrimination by showing: (1) he belongs to a protected class; (2) he was subjected
to an adverse employment action; (3) he was qualified to perform the job; and (4) his
employer treated “similarly situated” employees outside his class more favorably.
Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220-21 (11th Cir. 2019); see also

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Establishing a prima
facie case creates an initial presumption of discrimination. Flowers v. Troup Cty,
Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015). The burden then shifts to the
defendant to “articulate legitimate, nondiscriminatory reasons for its actions.”
Lewis, 918 F.3d at 1221 (citing Texas Dep’t of Community Affairs v. Burdine, 405
U.S. 248, 253 (1981)). “Once the employer advances its legitimate,
nondiscriminatory reason, the plaintiff’s prima facie case is rebutted and all
presumptions drop from the case.” Flowers, 803 F.3d at 1336 (citing Burdine, 450
U.S. at 255). The burden then shifts back to the plaintiff to demonstrate that the

defendant’s reasons were a pretext for discrimination. Lewis, 918 F.3d at 1221.
Prima Facie Case
Here, the Court finds that Plaintiff has established a prima facie case for
racial discrimination. Plaintiff belongs to a protected class as an African-American.
He was subject to adverse employment actions, including denials of promotions and
termination. Although Defendants vaguely argue that Plaintiff was not qualified to

do the job, they present no evidence or further argument to support their position
that he was not qualified.2 The only element at issue, therefore, appears to be the
fourth element – whether Plaintiff has identified any similarly situated employees
outside of his class that have been treated more favorably.
In his response in opposition, Plaintiff points to four assistant directors –
Robert Danielson (white male), John Armbruster (white male), Shrimatee Ojah-
Maharaj (white female) and Mike McDonald (white male) – who were transferred to

new positions within the City when their positions were eliminated for strictly
organizational purposes in other reorganizations within the past few years. The
Court finds that these employees identified by Plaintiff are similar in all material
respects and agrees with Plaintiff that it would defeat the purpose of the McDonnell
Douglas burden-shifting framework to restrict comparators to only other assistant

2 At best, this would be a disputed issue of material fact precluding summary judgment.
directors whose positions were eliminated in the same reorganization, as
Defendants have suggested.
Plaintiff has also identified another similarly situated employee, John Parks

(white male), who was treated differently during this same reorganization.
According to Plaintiff, Director Steve Leavitt originally planned to eliminate Parks’s
manager position in the same reorganization that eliminated Plaintiff’s position,
but when Parks complained, he was allowed to remain in his position. The Court
finds that Parks also qualifies as a similarly situated employee in all material
respects, and Plaintiff has shown that Parks may have been treated more

favorably.3
In addition, Plaintiff identified Andrew Minette (white male) as a suitable
comparator because he was hired to fill the senior manager position over Plaintiff
following Plaintiff’s termination during the reorganization. According to Plaintiff,
Minette possessed the same master’s degree in public works administration, but
Minette’s experience with managing the Water Resources Department paled in
comparison to Plaintiff’s experience. The Court finds that Minette qualifies as a

similarly situated employee in all material respects, and that Plaintiff has shown

3 The Eleventh Circuit has explained that a plaintiff and his comparator do not need to be
doppelgangers. Lewis, 918 F.3d at 1226 (citing Flowers, 803 F.3d at 1340). They do not
need to be identical but for their race or gender. Id. at 1227. They do not need to have
precisely the same job title. Id. (citing Lathem v. Dept’ of Children & Youth Servs., 172
F.3d 786, 793 (11th Cir. 1999)). In addition, minor differences in job function will not
disqualify a would-be comparator. Id. (citing Ercegovich v. Goodyear Tire & Rubber Co.,
154 F.3d 344, 353 (6th Cir. 1998)). Rather, what is important is that the would-be
comparator be similar in “all material respects.” Id.
Minette may have been treated more favorably. As such, Plaintiff has established a
prima facie case of racial discrimination.4
Nondiscriminatory Reason for Action

Because Plaintiff has established a prima facie case, the burden then shifts to
Defendants to provide a valid, nondiscriminatory reason for its actions. The
Eleventh Circuit has held that a defendant’s burden to provide nondiscriminatory
reasons for its actions is “a low bar to hurdle.” Flowers, 803 F.3d at 1336 (quoting
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)) (internal quotations
omitted). The defendant “need not persuade the court that its proffered reasons are

legitimate; the defendant’s burden is merely one of production, not proof.” Vargas v.
Michaels Stores, Inc., No. 8:16-cv-1949-T-33JSS, 2017 WL 2931379, at *14 (M.D.
Fla. June 10, 2017) (quoting Weston-Brown v. Bank of Am. Corp., 167 F. App’x 76,
80 (11th Cir. 2006)).
Defendants contend that reorganization of the senior management in the
Water Resources Department was necessary to enhance fluidity of the decision-
making process. By producing a nondiscriminatory reason for its actions,

Defendants have met their burden of production, and the burden shifts back to
Plaintiff to show that Defendants’ proffered reason is pretextual.

4 The Court notes that even if Plaintiff had not identified any adequate comparators, he
could still survive summary judgment under the facts presented here by relying on “a
convincing mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination.” Lewis, 934 F.3d at 1185.
Pretext
The Eleventh Circuit has observed that “[a] reason is pretextual only if it is
false and the true reason for the decision is discrimination.” Hicks-Washington v.

Hous. Auth. of City of Fort Lauderdale, No. 19-12094, 2020 WL 709620, at *6 (11th
Cir. Feb. 12, 2020); Langford v. Magnolia Adv. Mat., Inc., 709 F. App’x 639, 641
(11th Cir. 2017) (“An employer may fire an employee for a good reason, a bad
reason, a reason based on erroneous facts, or for no reason at all, as long as its
action is not for a discriminatory reason.”).
Evidence of pretext must be enough to “allow a reasonable finder of fact to

conclude that the [employer’s] articulated reasons were not believable.” Callahan v.
City of Jacksonville, Fla., No. 19-11432, 2020 WL 914923, at *3 (11th Cir. Feb. 26,
2020) (quoting St. Mary’s Honor Ctr., 509 U.S. at 515). The evidence must,
therefore, be sufficient to render the employer’s nondiscriminatory explanations for
its actions “unworthy of credence.” Burdine, 450 U.S. at 256 (citing McDonnell
Douglas, 411 U.S. at 804-05). “The focused inquiry . . . requires the plaintiff to
demonstrate ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the [defendant’s] proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.’” Rioux v. City of
Atlanta, Ga., 520 F.3d 1269, 1275 (11th Cir. 2008) (quoting Combs v. Plantation
Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (internal quotation omitted)).
Plaintiff argues that Defendants’ explanations are inconsistent and points to
several contradictions in witness testimony that would permit a jury to conclude
that Defendants are lying about why the position was eliminated and by whom.
Specifically, Steve Leavitt, Claude Tankersley, Gary Cornwell, Chris Guella, and
Jessel Millet all offer contradictory testimony about who decided to eliminate the

position and why the position needed to be eliminated. Plaintiff argues that the
jury could infer, based on this evidence, that Tankersley tried to hide his role and
motivation in removing Plaintiff from the Water Resources Department.
Plaintiff also argues that Defendants’ explanations are implausible. He
points to testimony from several City employees that the assistant director
framework worked well, so the explanation that reorganization was necessary to

enhance the fluidity of the decision-making process does not hold water. He also
points to the fact that other assistant directors in prior organizations were
reassigned to different departments to demonstrate that that the decision to remove
Plaintiff without reassigning him was pretextual since the jury could believe, if the
elimination of the position was legitimate, the City would have found a permanent
position for him as it had with the white assistant directors.
Upon consideration of the record and legal arguments, there is a genuine

issue of fact as to whether the proffered nondiscriminatory reason for eliminating
Plaintiff’s position was pretext for discrimination. As such, Defendants are not
entitled to summary judgment on Plaintiff’s racial discrimination claims.
Retaliation (Count II)
Retaliation claims are reviewed under the same McDonnell Douglas burden-
shifting framework discussed above. See Johnson v. Miami-Dade Cty., 948 F.3d
1318, 1325 (11th Cir. 2020); Ceus v. City of Tampa, No. 18-10484, 2020 WL 525559,
at *6 (11th Cir. Feb. 3, 2020). The only difference in the analyses is that the prima
facie case for retaliation requires the plaintiff to establish: (1) he engaged in

statutorily protected activity; (2) he suffered an adverse employment action; and (3)
there was some causal connection between the two events. Johnson, 948 F.3d at
1325. To establish causation, a plaintiff must be able to show “but-for” causation.
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). The Eleventh
Circuit has held that when a plaintiff relies on mere temporal proximity to establish
causation, the proximity must be “very close.” Thomas v. Cooper Lighting, Inc., 506

F.3d 1361, 1364 (11th Cir. 2007); see, e.g., Williams v. Waste Mgmt., Inc., 411 F.
App’x 226, 229-30 (11th Cir. 2011) (holding that a two-month gap is not “very
close”).
Plaintiff engaged in statutorily protected activity when he notified the City
on April 7, 2016, that he intended to file an EEOC complaint based on his belief he
had been the victim of race discrimination. He suffered an adverse employment
action when his position was eliminated four days later. Defendants only argue

that Plaintiff cannot show a causal connection between the two events because the
reorganization plan that Leavitt created was finalized on April 5, 2016 – two days
before Plaintiff notified the City of his intent to file a discrimination complaint.
However, viewing the evidence in light most favorable to Plaintiff, it appears
that Tankersley testified in his deposition that the final decision to eliminate
Plaintiff’s position occurred on April 9, 2016 – two days after Plaintiff notified the
City of his intent to file an EEOC complaint. (Doc. 77-6 at 64; 70-72). Due to the
close temporal proximity of these events, the Court finds that Plaintiff has
established a prima facie case for retaliation. See, e.g., Jefferson v. Sewon America,

Inc., 891 F.3d 911, 926 (11th Cir. 2018) (“But we have explained that an employee’s
termination within days—or at most within two weeks—of his protected activity
can be circumstantial evidence of a causal connection between the two.”).
Defendants again proffer a valid, non-discriminatory reason for the adverse
employment action – that reorganization of the senior management in the Water
Resources Department was necessary to enhance fluidity of the decision-making

process. By producing a nondiscriminatory reason for its actions, Defendants have
met their burden of production, and the burden shifts back to Plaintiff to show that
Defendants’ proffered reasons are pretextual.
For the reasons discussed above, the Court finds that Plaintiff has provided
sufficient evidence to establish that Defendants’ proffered reason to eliminate his
position was pretextual. As such, summary judgment is not warranted upon
Plaintiff’s FCRA retaliation claim.

Qualified Immunity Defense
The individual Defendants argue that they are entitled to qualified immunity
because Plaintiff has not shown a clear violation of an established constitutional
right. “Qualified immunity offers complete protection for individual public officials
performing discretionary functions ‘insofar as their conduct does not violate clearly
stablished statutory or constitutional rights of which a reasonable person would
have known.’” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “The Equal Protection Clause’s
protection against race discrimination is clearly established.” Potter v. Williford,

712 F. App’x 953, 955 (11th Cir. 2017); see also Busby v. City of Orlando, 931 F.2d
764, 775 (11th Cir. 1991).
In this case, Plaintiff has presented a prima facie case of racial
discrimination and retaliation, and he has provided sufficient circumstantial
evidence to support his claims that Defendants violated his constitutional right to
be free from racial discrimination in public employment. Because Plaintiff has

established a prima facie case for race discrimination and retaliation, the Court
finds that there is an issue of material fact as to the applicability of qualified
immunity. See, e.g., Potter, 712 F. App’x at 954; Smith v. Lomax, 45 F.3d 402, 407
(11th Cir. 1995). The motion for summary judgment is denied as to this ground.
§ 1983 Claims (Counts III, IV, and V)
A municipality cannot be held liable for employee violations of § 1981 under
respondeat superior – rather, “the express action at law provided by § 1983 for the

deprivation of any rights, privileges, or immunities secured by the Constitution and
laws, provides the exclusive federal damages remedy for the violation of the rights
guaranteed by § 1981 rights when the claim is pressed against a state actor.” Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 731-34 (1989) (internal quotations omitted).
In the motion for summary judgment, Defendants argue that Plaintiff has failed to
and cannot prove a §1983 claim against the City. Defendants specifically contend
that neither Tankersley nor Cornwell had “final decision-making authority” over
the reorganization and elimination of Plaintiff’s position.5 Defendants further
argue that Plaintiff has failed to and cannot establish a custom, policy, or practice of

racial discrimination.
Here, Plaintiff has pointed to evidence of discriminatory practices accepted by
the City or a policy of tacitly approving racial discrimination. He has specifically
identified several depositions of current and former City employees where they
testified about an environment of racial discrimination in the water resources
department and recounted several examples of racial discrimination. See, e.g., (Doc.

77-7 King Deposition at 9-10; Doc. 77-8 Askew Deposition at 78; Doc. 77-9
Householder Deposition at 23; 77-10 Marshall Deposition at 11-15). Viewing this
evidence in light most favorable to Plaintiff, the Court concludes that he has
presented sufficient evidence to create a question for the jury as to whether there is
a custom, policy, and practice of racial discrimination. The motion for summary
judgment is due to be denied as to this ground.

5 This argument is not well-developed in the papers. However, the Court notes that it
appears there is some record evidence to support Plaintiff’s allegations that Tankersley had
final decision-making authority over the reorganization and elimination of Plaintiff’s
position, including testimony that Tankersley asked Steve Leavitt to remove Plaintiff from
the new reorganization chart. See (Doc. 77-5 Connors Deposition at 38; Doc. 77-10 Marshall
Deposition at 16-17; Doc. 77-13 Millet Deposition at 106; Doc. 77-17 Guella Deposition at
10). There is also evidence to support the allegation that Cornwell had final decision-
making authority. See (id.). A reasonable jury hearing this evidence could certainly find
that Tankersley and Cornwell had final decision-making authority to support Plaintiff’s §
1983 claims.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
1. “Defendants’, City of St. Petersburg, Claude Tankersley and Gary Cornwell’s
Dispositive Motion for Summary Judgment” (Doc. 66) is hereby DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 29th day of
January, 2021.

a axel fe

TOM BARBER
UNITED STATES DISTRICT JUDGE

Page 13 of 13

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106803. Public record. Not legal advice.