Williams v. Polk County Board of County Commissioners

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAMES LESTER WILLIAMS, JR.,

Plaintiff,

v. CASE NO. 8:20-cv-2842-WFJ-SPF

POLK COUNTY BOARD OF

COUNTY COMMISSIONERS,

Defendant.

__________________________________/

ORDER

Before the Court is Defendant’s motion to dismiss the amended complaint

(Dkt. 16) and Plaintiff’s response (Dkt. 17). After careful review of the allegations

of the amended complaint (Dkt. 15), the Court denies the motion as to the first

three counts and grants the motion without prejudice on the last count.

ALLEGATIONS1

Plaintiff sues his former employer for race-based discrimination, retaliation,

and hostile work environment under Title VII, and age discrimination under the

ADEA. Dkt. 15.2 The following facts are accepted as true based on the present

1 The allegations are set forth in the light most favorable to Plaintiff. See Hunt v. Aimco Props.,

L.P., 814 F.3d 1213, 1221 (11th Cir. 2016).

2 “Title VII” refers to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Dkt. 15 ¶¶

128–147 (Count One – discrimination), ¶¶ 159–179 (Count Three – retaliation), ¶¶ 180–200

(Count Four – hostile work environment). “ADEA” refers to the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seq. Id. ¶¶ 148–158 (Count Two).

posture of the case. Plaintiff, an African American male, is a U. S. Navy veteran

and holds a master’s degree. Dkt. 15 ¶ 132. Defendant hired Plaintiff at the age of

40 (in October 2016) as a Veteran Services Officer. Id. ¶¶ 9, 23. He held that

position for over two years, and in June 2019, Plaintiff was selected for and

promoted to the position of Veteran Services Supervisor. Id. ¶¶ 23, 27, 132. On

December 13, 2019, Plaintiff was terminated at age 44. Id. ¶¶ 133, 154.

Two of the individuals Plaintiff supervised were Joseph Lesniewicz and

Timothy Kirkhart, both Caucasian men. Dkt. 15 ¶¶ 28, 31. Mr. Lesniewicz had

unsuccessfully interviewed for Plaintiff’s supervisory position, and he immediately

began to refuse consulting Plaintiff on job-related matters. Id. ¶¶ 25, 26, 28.

Shortly thereafter, Mr. Kirkhart began following Mr. Lesniewicz’s lead and soon

stopped accepting any direction from Plaintiff. Id. ¶ 31. Both veteran services

officers bypassed Plaintiff by taking their requests for a varied work schedule and

other issues directly to the Director of Health and Human Services—Marcia

Andreson, a Caucasian woman. Id. ¶¶ 28, 32. Ms. Andreson served as Plaintiff’s

direct supervisor, but she was not Mr. Lesniewicz or Mr. Kirkhart’s direct

supervisor.

The amended complaint alleges that Mr. Lesniewicz and Mr. Kirkhart often

came to work late, left early, took days off, and scheduled community

appointments without approval from Plaintiff. Dkt. 15 ¶¶ 44, 49. Plaintiff

discussed with the two supervisees their failure to follow protocol. Id. ¶¶ 29, 32.

In Plaintiff’s words, the two men simply responded that “the only reason why you

are in charge and working here is because we allow you to.” Id. ¶¶ 33, 50.

Plaintiff alleges the “we” referred to all the Caucasian staff members working

there. Id.

Plaintiff spoke with Ms. Andreson about the failure of Mr. Lesniewicz and

Mr. Kirkhart to follow the chain of command. Dkt. 15 ¶¶ 29, 30, 34, 49. Ms.

Andreson told Plaintiff on more than one occasion to leave them alone and let

them supervise themselves. Id. ¶¶ 30, 34.

Plaintiff received all satisfactory remarks at his three-month evaluation by

Ms. Andreson. Dkt. 15 ¶ 42. Around that same time in August 2019, Ms.

Andreson informed Plaintiff that Mr. Lesniewicz and Mr. Kirkhart were “burned-

out,” and Plaintiff agreed to help with the client load and hold training sessions.

Id. ¶¶ 44, 46. Their poor performance and reduced hours continued, and Plaintiff

began asking Ms. Andreson if he could write up the two subordinates for

violations. Id. ¶ 49, 52. Ms. Andreson always instructed Plaintiff not to do so. Id.

Ms. Andreson’s assistant began asking Plaintiff to manipulate the timecards for

Mr. Lesniewicz and Mr. Kirkhart to reflect that they were working full hours. Id. ¶

53.

At that point, Mr. Lesniewicz and Mr. Kirkhart complained to Ms. Andreson

about Plaintiff’s persistent annoyance with their work performance and hours.

Dkt. 15 ¶ 51. The two men began approaching other workers to convince them to

complain to Ms. Andreson about Plaintiff and have him replaced by Mr.

Lesniewicz. Id. ¶ 54. Plaintiff discovered this information from another

supervisee—Harry Clark, an African American man. Id. ¶ 55. Mr. Clark admitted

to Plaintiff that he complied with his fellow employees’ request. Id. ¶ 56. Because

Mr. Clark was aware of the close relationship among Ms. Andreson, Mr.

Lesniewicz, and Mr. Kirkhart, he feared for his job should he not oppose Plaintiff.

Id. ¶¶ 56, 59.

By October 2019, Plaintiff told Ms. Andreson that he could not be an

effective supervisor if Mr. Lesniewicz and Mr. Kirkhart were allowed to come and

go as they pleased. Dkt. 15 ¶ 62. Plaintiff asked Ms. Andreson, “What was so

special about these two guys that they get such special privileges?” Id. ¶ 64.

Plaintiff went so far as to put in writing to Ms. Andreson his intention to start

writing up the two men for violations. Id. ¶¶ 65, 66. Within a week, Plaintiff

received his first negative follow-up work performance memorandum from Ms.

Andreson, which included allegations and “perceptual complaints” from both Mr.

Lesniewicz and Mr. Kirkhart. Id. ¶ 67. On December 13, 2019, Defendant

terminated Plaintiff for cause. Id. ¶¶ 11–12, 95, 133–34. The reason stated was

“Plaintiff’s performance improvement regarding team interaction and development

was not demonstrated during the probationary period.” Id. ¶¶ 12, 134.

DISCUSSION

The Court accepts all factual allegations, not legal conclusions, as true and

construes all reasonable inferences from those alleged facts in the light most

favorable to Plaintiff.3 Ashcroft v. Iqbal, 556 U.S. 662 (2009) (allowing

reasonable inferences to be drawn from factual content). The amended complaint

must contain sufficient facts to state a claim for relief that is “plausible on its face.”

Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). More

than mere “labels and conclusions” or “a formulaic recitation of the elements of a

cause of action” is required. Id. (quoting Twombly, 550 U.S. at 555). The Court

construes a pro se litigant’s pleadings liberally. Campbell v. Air Jam. Ltd., 760

F.3d 1165, 1168–69 (11th Cir. 2014) (holding less stringent standards apply to pro

se pleadings but cautioning courts not to rewrite an otherwise deficient pleading to

permit action to stand).

Count One – Title VII race discrimination

All four separate counts as amended now contain multiple paragraphs with

factual content—an appropriate replacement for the previous single, conclusory

3 Papasan v. Allain, 478 U.S. 265, 286 (1986) (stating legal conclusions “couched” as facts need

not be accepted as true); Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003)

(same).

paragraph comprising each count.4 Count One makes it clear that Plaintiff

compares himself to Greg Alpers, the manager of Housing and Neighborhood

Development (“NHD”). Dkt. 15 ¶¶ 16, 20, 22, 135, 138, 139.5 Both Plaintiff and

Mr. Alpers held supervisory roles and reported to Ms. Andreson or whoever may

have held the position of Director of Health and Human Services at the relevant

times.6 Mr. Alpers is Caucasian, and presumable still employed. Dkt. 15 ¶ 16.

Plaintiff describes himself and Mr. Alpers as similarly situated because both

held a management or supervisory position, and both reported to Ms. Andreson.

He alleges he was terminated for a managerial style similar to Mr. Alpers’. Dkt.

15 ¶¶ 135–136, 139. Specifically, both he and Mr. Alpers were perceived as

“harsh, harassing, controlling, belittling and authoritative” and both were “looking

out for the best interest of [County] policies, internal program policies.” Id. ¶¶ 14,

20, 139.

4 Although the amended complaint continues to incorporate all of the preceding paragraphs into

each of the four counts, the first count is not adversely affected. By incorporating by reference

the preceding paragraphs, Count One, unlike the other three counts, does not contain irrelevant

factual allegations and legal conclusions. See Ross v. Sejin Am., Inc., No. 18-cv-537-ALB-JTA,

2020 WL 1015764, at *3 n.2 (M.D. Ala. Mar. 2, 2020) (noting first count typically does not run

afoul of shotgun pleading rule when it incorporates preceding paragraphs).

5 Mr. Lesniewicz and Mr. Kirkhart are not mentioned in the first count, apart from the wholesale

incorporation of all preceding paragraphs.

6 The amended complaint is unclear as to the precise date Ms. Andreson became the Director of

Health and Human Services. Plaintiff, in connection with a 2014 incident, refers to “the then

Director . . . Ms. Kandis Baker-Buford (the same Director Plaintiff worked for).” Dkt. 15 ¶ 19.

Ms. Baker-Buford is not mentioned again, and the remainder of the amended complaint names

only Ms. Andreson as director.

Plaintiff alleges the preferential treatment lies in “the perception” of Mr.

Alpers who is “white” and “was viewed favorably” by the Director of Health and

Human Services, and the Human Resources Department. Id. ¶¶ 21, 140. Mr.

Alpers introduced Ms. Andreson, the Director of Health and Human Services, to

the man who became Ms. Andreson’s husband. Id. ¶¶ 21, 141. Both Mr. Alpers

and Ms. Andreson are Caucasian. Plaintiff alleges he was not given the same

benefit of the doubt as Mr. Alpers because Mr. Alpers is Caucasian, which was the

“actual motivating factor” for terminating Plaintiff. Id. ¶¶ 22, 142, 146.

Title VII provides two theories of liability for racial discrimination:

disparate treatment and disparate impact. Tex. Dep’t of Hous. & Cmty. Affs. v.

Inclusive Communities Project, Inc., 576 U.S. 519, 524 (2015); Ricci v. DeStefano,

557 U.S. 557, 577 (2009). Disparate treatment requires a plaintiff to establish the

defendant had a discriminatory intent. Id. Disparate impact challenges a practice

that disproportionately adversely affects a protected group. Id.

The amended complaint attempts to allege a disparate treatment, not

disparate impact, claim based on race: “The stated reasons for the Defendant’s

conduct were not the true reasons, but instead were pretext to hide the Defendant’s

discriminatory animus.” Dkt. 15 ¶¶ 129, 147. Liability in a disparate treatment

claim “depends on whether the protected trait actually motivated the employer’s

decision.” Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1345 (2015)

(quoting Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003)); Ricci, 557 U.S. at

577. Disparate treatment may be proven by establishing a pattern or practice of

discrimination. E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286–87 (11th

Cir. 2000).7 As noted in this Court’s prior order, to establish a prima facie case of

disparate treatment under Title VII, Plaintiff must show he was qualified for the

position and a member of a protected class (race); he was subjected to adverse

employment action (termination); and his employer treated similarly situated

employees outside the protected class more favorably. Crawford v. Carroll, 529

F.3d 961, 970 (11th Cir. 2008).

A prima facie case, however, refers to evidentiary proof, not the notice and

plausibility standards applied to allegations of a complaint. See Andrews v. City of

Hartford, 700 F. App’x 924, 925 (11th Cir. 2017) (per curiam) (reiterating that in

Title VII and ADEA cases, a complaint asserting employment discrimination need

not contain specific facts establishing a prima facie case under the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

which is an evidentiary standard).8 In keeping with this distinction, the Court finds

7 As aptly noted by another district court, the pattern or practice terminology applies to disparate

treatment, not disparate impact cases. Smith v. Consol. City of Jacksonville, No. 11-cv-345-J-

32MCR, 2013 WL 1296247, at *2 n.5 (M.D. Fla. Mar. 30, 2013).

8 See also Evans v. Ga. Dep’t of Behav. Health & Developmental Disabilities, No. CV 415-103,

2018 WL 4610630, at *5 (S.D. Ga. Sept. 25, 2018) (noting that plaintiff is not required to allege

facts to make out a classic McDonnell Douglas prima facie case but only enough facts, when

taken as true, to suggest discrimination) (citations omitted).

that Plaintiff’s amended complaint sets forth a somewhat sparse but plausible claim

for disparate treatment, provided the facts as developed can support that Mr.

Alpers is truly a comparator, that Plaintiff and Mr. Alpers were similarly situated,

and that race was the “actual motivating factor” for terminating Plaintiff.9 Of note,

Plaintiff fails to allege race was ever discussed with Ms. Andresen or anyone in the

human resources department. The only discussions alleged to have involved race

occurred between Plaintiff and co-worker Harry Clark (African American) and

among Mr. Clark, Mr. Lesniewicz, and Mr. Kirkhart. Dkt. 15 ¶¶ 55–57.10 At this

stage of the proceedings, the Court will permit the case to proceed to summary

judgment after a factual record is developed.

Count Two – Age Discrimination

The Court agrees that Plaintiff incorrectly incorporates the entirety of Count

One and the preceding 116-paragraph “fact” section into Count Two, thus

rendering it technically a shotgun pleading. The Court finds, however, that it is no

9 It is uncertain whether Mr. Alpers actually held a comparable position to Plaintiff’s, although

both reported to the same supervisor, Ms. Andreson. Moreover, the incident with Mr. Alpers

occurred in 2014, some two years before Plaintiff was hired. Dkt. 15 ¶¶ 16, 17, 19, 135, 136. At

that time, two African American women complained to the Director of Health and Human

Services about Mr. Alpers. Id.

10 Plaintiff claims Mr. Clark told him that Mr. Lesniewicz and Mr. Kirkhart “approached him

[Mr. Clark] about getting rid of the Plaintiff so that Mr. Joseph Lesniewicz can be the

Supervisor, but now needed a black person to complain also to conceal it from looking

discriminatory.” Dkt. 15 ¶ 55. Mr. Clark allegedly told Plaintiff his reason for sharing this

information with Plaintiff was that “it was not right that they are using him (an African American

male), to take down another African American.” Id. ¶ 57. As noted in this Court’s prior order,

Mr. Lesniewicz and Mr. Kirkhart did not make the decision to terminate Plaintiff.

longer “virtually impossible to know which allegations of fact are intended to

support which claim(s) for relief.” See Anderson v. Dist. Bd. of Trs. of Cent. Fla.

Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996). Given the significant improvement

to the form of the complaint, dismissal with leave to amend would serve only to

delay the progression of this case.

To state a prima facie case of age discrimination under the ADEA, Plaintiff

must allege: “(1) he was a member of the protected group between the age of 40

and 70; (2) he was subject to an adverse employment action; (3) a substantially

younger person filled the position from which he was discharged; and (4) he was

qualified to do the job.” Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1298

(11th Cir. 2015) (per curiam) (citation omitted). Plaintiff must also show that his

age was the “but-for” cause of his termination. See Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167, 176 (2009); Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir.

2013).

Plaintiff alleges he was 40 in October 2016 when hired, 43 when promoted,

and 44 when terminated. Dkt. 15 ¶¶ 9, 11, 23, 133, 149, 150, 154, 156. Plaintiff’s

supervisory position was filled six months after discharge by Mr. Lesniewicz, who

was below 40 (“in his 30s”). Id. ¶¶ 149, 150, 156. He also asserts that the

qualifications for his position changed so that Mr. Lesniewicz would qualify. Id. ¶

151.11

Although Plaintiff was already a member of the protected age group when

he was hired, this count may proceed. Defendant may again argue that Plaintiff’s

age was not the “but-for” cause of his termination.

Count Three – Retaliation (“Reprisal for Engaging in Protected Activities”)

To establish a prima facie case of retaliation under Title VII, Plaintiff must

show (1) he engaged in statutorily protected activity; (2) he suffered an adverse

employment action; and (3) the adverse action was causally related to Plaintiff’s

protected activity. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286,

1297 (11th Cir. 2006); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1454

(11th Cir. 1998). Plaintiff alleges the statutorily protected activity was his

contacting the Human Resources Employees Relation Manager (Mr. Velazquez) to

request a meeting about Ms. Andreson giving him a second memorandum titled

“One-Month Probation Extension.” Dkt. 15 ¶¶ 161, 163. He alleges he “engaged

in protected activities when the Plaintiff submitted a written request to Human

Resources requesting an investigation of the Plaintiff’s immediate supervisor, as to

why the Plaintiff was disciplined because he held the Caucasian and African

11 Plaintiff notes that another one of his supervisees, Mr. Clark, interviewed for his vacant

position along with Mr. Lesniewicz. Id. ¶ 153. In age discrimination claims, race is irrelevant.

American employees under his charge to the same attendance and work

performance standard.” Id. ¶ 174. Plaintiff continues that because he opposed Ms.

Andreson’s “racism toward African Americans, whereby she would refuse to

enforce the same rules and regulations upon Caucasian employees . . . and

committed the same to writing, which the Plaintiff delivered to the Human

Resources Department, the Plaintiff opposed a practice protected by Title VII and

thereby engaged in protected activities.” Id. ¶ 175.

The Court finds these allegations sufficient, though vague, that he opposed

Ms. Andreson’s alleged differential treatment of employees based on race. While

Plaintiff may proceed past the dismissal stage, he must ultimately show that any

protected activity was more than a “motivating factor” for his termination. See

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013). He must

affirmatively establish that he would not have been terminated but for his protected

activity. See id. at 362 (noting causation in retaliation claims is established by

showing the protected activity was the “but-for” cause of the adverse action).

Count Three therefore stands.

Count Four – Hostile Work Environment

Plaintiff alleges that he was subjected to “sufficiently severe or pervasive”

harassment that created an abusive working environment. Dkt. 15 ¶¶ 195, 197. He

supports this allegation by stating Ms. Andreson called him “into her office at least

three times in three months, when she would scold the Plaintiff for holding

Caucasian employees under his charge to the same rules and regulations that

applied to all employees regardless of their race, and would threaten to create a

disciplinary ‘paper trail’ and ultimately terminate the Plaintiff if he did not, for

lack of better term, give the Caucasian employees impunity.” Dkt. 15 ¶ 195. At

best, Plaintiff alleges that his authority was undermined by Ms. Andreson and he

was treated unprofessionally and unfairly reprimanded for trying to implement

proper company protocol with respect to employees reporting to work. Although

Plaintiff subjectively believed her actions were based on his skin color, the

amended complaint is devoid of any allegations of racial slurs or name-calling, let

alone any that occurred with such frequency and severity as to interfere with

Plaintiff’s job performance.

Plaintiff must plead facts to establish “the workplace is permeated with

discriminatory intimidation, ridicule, and insult, that is sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive

working environment.” Fernandez v. Trees, Inc., 961 F.3d 1148, 1152 (11th Cir.

2020) (citation omitted); Henderson v. City of Birmingham, 826 F. App’x 736, 743

(11th Cir. 2020) (citing Fernandez and affirming dismissal of complaint with

prejudice).12 None of the allegations paint a picture of an actionable hostile work

environment based on race. The allegation that Mr. Lesniewicz and Mr. Kirkhart

told Plaintiff “the only reason why you are in charge and working here is because

we allow you to” does not involve race or rise to the level of a plausible racially

hostile work environment under Title VII. See Dkt. 15 ¶¶ 33, 50. That Mr. Clark

told Plaintiff he was asked to complain about Plaintiff to Ms. Andreson because

Mr. Lesniewicz and Mr. Kirkhart wanted support from an African American, does

not amount to a workplace permeated with “discriminatory intimidation, ridicule,

and insult.” See Wilkerson v. H & S, Inc., 438 F. App’x 769, 770 (11th Cir. 2011)

(citation omitted).13 There is no indication that anyone at the workplace ever

uttered a racial slur. Plaintiff was given the opportunity to amend his complaint to

add factual allegations to support a claim for hostile work environment and has

failed to do so. The Court does not suggest Plaintiff attempt to replead this thin

12 A prima facie claim for hostile work environment requires a plaintiff to allege that: (1) he

belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment

was based on his membership in the protected group; (4) the harassment was severe or pervasive

enough to alter the terms and conditions of employment and create a hostile work environment;

and (5) the employer is responsible for the environment either vicariously or directly. Jones v.

UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012); Miller v. Kenworth of Dothan, Inc.,

277 F.3d 1269, 1276 (11th Cir. 2002) (enumerating factors to be evaluated objectively in

determining whether conduct constitutes harassment).

13 Cf. Charles v. Underhill Staffing Health Serv., No. 20-cv-341-J-34PDB, 2021 WL 825881, at

*21 (M.D. Fla. Jan. 28, 2021) (dismissing hostile work environment claim in which plaintiff

alleged her St. Lucian accent was made fun of and references were made to “these people” who

were unable to speak understandable English), report and recommendation adopted, 2021 WL

859955 (M.D. Fla. Mar. 8, 2021).

count, but he may make one more attempt if he wishes. Count Four is dismissed

without prejudice.

Accordingly, the motion to dismiss (Dkt. 16) is granted in part and denied in

part. Plaintiff's claim for hostile work environment under Title VII in Count Four

is dismissed without prejudice. The case will proceed on Counts One, Two, and

Three. If no amended Count Four is refiled within fourteen (14) days, Defendant

shall file its answer and defenses within fourteen (14) days thereafter.

DONE AND ORDERED at Tampa, Florida on June 21, 2021.

me,

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of record and unrepresented parties

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