Webb v. City of Venice

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

KENITE WEBB,

Plaintiff,

v. Case No. 8:19-cv-3045-TPB-TGW

CITY OF VENICE,

Defendant.

/

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on “Defendant’s Amended Case Dispositive

Motion for Summary Judgment and Supporting Memorandum of Law,” filed

February 22, 2021. (Doc. 50). Plaintiff responded in opposition on April 28, 2021.

(Doc. 68). Defendant filed a reply on May 11, 2021. (Doc. 69). Upon review of the

motion, response, reply, court file, and record, the Court finds as follows:

Background

Defendant City of Venice is a municipality in Sarasota County, Florida.

Plaintiff Kenite Webb has been an officer with the Venice Police Department

(“VPD”) since 2015. Plaintiff alleges that beginning in November 2017 he was

subjected to racial discrimination, harassment, and retaliation by Defendant and

specifically by the VPD. On December 11, 2019, Plaintiff filed his initial complaint.

On May 5, 2020, Plaintiff filed his amended complaint alleging five counts: (1)

violation of 42 U.S.C. § 1983 – Discriminatory Custom; (2) violation of Title VII –

Discrimination Based on Race; (3) violation of Title VII – Retaliation; (4) violation of

Florida Civil Rights Act of 1992 (“FCRA”) – Discrimination Based on Race; (5)

violation of FCRA – Retaliation. Defendant has moved for summary judgment on

all counts.

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).

Where the moving party will bear the burden of proof on an issue at trial,

demonstrating the absence of a genuine issue of material fact requires the

submission of credible evidence that, if not controverted at trial, would entitle the

moving party to a directed verdict on that issue. Fitzpatrick v. City of Atlanta, 2

F.3d 1112, 1115 (11th Cir. 1993). Only if the moving party meets that burden is the

non-moving party required to produce evidence in opposition. Chanel, Inc. v. Italian

Activewear of Fla. Inc., 931 F.2d 1472, 1477 (11th Cir. 1991). Summary judgment

should be denied unless, on the record evidence presented, a reasonable jury could

not return a verdict for the non-moving party. Id.; see also Fitzpatrick, 2 F.3d at

1115-16.

Analysis

Section 1983 (Count I)

Defendant moves for summary judgment on Plaintiff’s Count I under 42

U.S.C. § 1983. Section 1983 is not an independent source of substantive rights but

“creates a private right of action to vindicate violations of rights, privileges, or

immunities secured by the Constitution and laws of the United States.” Rehberg v.

Paulk, 566 U.S. 356, 361 (2012) (internal quotations omitted). Plaintiff argues that

his § 1983 claim is based on an alleged deprivation of his liberty interest under the

Fourteenth Amendment to the Constitution. He argues that the placing of negative

information in his personnel files relating to internal affairs investigations (“IAs”)

and a 48-hour suspension without pay have rendered him unemployable,

implicating his liberty to engage in work and triggering a right to procedural due

process.

A liberty interest is implicated when the government publishes stigmatizing

information about the plaintiff that is false and does so in connection with

government’s alteration of previously existing rights held by the plaintiff, without

providing an opportunity for the plaintiff to clear his name. See, e.g., Buxton v. City

of Plant City, Fla., 871 F.2d 1037, 1042-43 (11th Cir. 1989). In the Eleventh

Circuit, a “discharge or more” is required to show the requisite alteration of rights,

and Plaintiff has not been discharged. See Cannon v. City of West Palm Beach, 250

F.3d 1299, 1303 (11th Cir. 2001); Armiger v. So. Trial Fire Protection & Rescue

Serv. Dist., No 2:13-cv-825-FtM-38CM, 2014 WL 1877404, at *6 (M.D. Fla. May 9,

2014) (holding that a denial of a promotion is insufficient); Pilver v. Hillsborough

Cty., No 8:15-cv-2327-T-23JSS, 2016 WL 7116208, at *2 n.1 (M.D. Fla. Dec. 7, 2016)

(noting that, under the “discharge or more” standard, even if the plaintiff had

alleged the loss of a day’s pay due to a suspension, it would not state a claim), aff’d,

698 F. App’x 585 (11th Cir. 2017). Additionally, Plaintiff has offered no evidence or

argument showing that he was denied due process in connection with his

suspension without pay. See, e.g., Adamson-James v. Florida Dept. of Corr., 6:11-

cv-628-Orl-36TBS, 2013 WL 6231265, at *17 (M.D. Fla. Dec. 2, 2013) (granting

summary judgment on procedural due process claim where the plaintiff was given

notice of the charges, an explanation of the employer’s evidence, and the

opportunity to present the plaintiff’s side of the story).

Accordingly, the Court grants summary judgment to Defendant on Plaintiff’s

§ 1983 claim.

Title VII and FCRA – Race Discrimination (Counts II and IV)

Defendant also moves for summary judgment on Plaintiff’s claims for race

discrimination under Title VII and FCRA. Title VII prohibits racial discrimination

against individuals with respect to compensation, terms, conditions, or privileges of

employment. 42 U.S.C. § 2000e-2(a)(1). An employer violates Title VII when it

discriminates against an employee by taking a tangible adverse employment action,

that is, an action that brings about a serious and material change in the terms and

conditions of employment. Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238-

39 (11th Cir. 2001). Alternatively, an employer violates Title VII when it

discriminates against an employee by actions that cumulatively create a hostile

work environment that constitutes a material change in the terms and conditions of

employment. Ng v. Brennan, 8:17-cv-509-T-36AEP, 2019 WL 2436581, at *4 (M.D.

Fla. June 11, 2019). Plaintiff alleges both types of discrimination.

Tangible Adverse Employment Actions

School Resource Officer (“SRO”) Position

Plaintiff complains that Defendant engaged in racial discrimination when it

promoted two non-African American officers, rather than Plaintiff, to two SRO

positions that opened in 2018. Defendant argues that it is entitled to summary

judgment because Defendant offered a non-discriminatory reason for the

promotions and Plaintiff has failed to offer evidence that Defendant’s stated reason

constituted a pretext for discrimination.

Absent direct evidence of discrimination, a plaintiff may establish a prima

facie case that a defendant engaged in discrimination when it failed to promote the

plaintiff by evidence that: (1) the plaintiff was a member of a protected class; (2) the

plaintiff was qualified for and applied for the position, (3) the plaintiff was rejected

despite his or her qualifications; and (4) the position was given to an individual

outside the plaintiff's protected class. See, e.g., EEOC v. Cigar City Motors, Inc.,

8:18-cv-2055-T-CPT, 2020 WL 10058150, at *4 (M.D. Fla. Sept. 23, 2020).1 If the

plaintiff presents a prima facie case, the burden shifts to the defendant to offer a

legitimate, non-discriminatory reason for its actions. Cigar City Motors, 2020 WL

10058150, at *4. If the defendant does so, the burden shifts back to the plaintiff to

demonstrate that the defendant’s proffered reason is merely a pretext for unlawful

discrimination. Id.

As an alternative to the foregoing burden-shifting framework, a plaintiff may

present a “convincing mosaic” of circumstantial evidence by producing evidence of

“(1) suspicious timing, ambiguous statements . . . and other bits and pieces from

which an inference of discriminatory intent might be drawn, (2) systematically

better treatment of similarly situated employees,” and that (3) that the employer’s

reason for its action was merely pretextual. Id. (internal quotations omitted)

Defendant has not challenged Plaintiff’s presentation of a prima facie case

with respect to the SRO decision, and so under either framework the Court’s inquiry

focuses on whether the Defendant’s proffered reason for its decision is pretextual.

In this case, Defendant’s proffered reason is that school board members of an oral

interview board recommended the two other applicants rather than Plaintiff. Chief

Mattmuller has stated that he decided to follow that recommendation. The burden

therefore shifts to Plaintiff to demonstrate that reason is pretextual.

1 Discrimination claims under the FCRA are governed by the same standards as claims

under Title VII. See, e.g., DeBose v. USF Bd. of Trustees, 811 F. App’x 547, 553-54 (11th

Cir. 2020), cert. denied sub nom. DeBose v. Univ. of S. Florida Bd. of Trustees, No. 2020-

1140, 2021 WL 1520827 (U.S. Apr. 19, 2021)

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, 803 F. App’x 295, 303 (11th Cir. 2020);

Langford v. Magnolia Advanced Materials, 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., 805 F. App’x 749, 753 (11th Cir.

2020) (quoting Brooks v. Cty. Comm’n of Jefferson County, 446 F.3d 1160, 1163

(11th Cir. 2006)). The plaintiff must “demonstrate ‘such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’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)). Where the defendant provides multiple nondiscriminatory reasons for

its actions, the plaintiff must rebut each reason as pretextual. Hicks-Washington,

803 F. App’x at 303.

Plaintiff’s proffered evidence fails to meet his burden of showing pretext.

Plaintiff suggests that he was basically set up to fail by having his interview with

the school board members scheduled for immediately after he was interrogated by

the VPD in connection with an internal affairs investigation. Chief Mattmuller,

however, testified in deposition that those scheduling the school board interview

would not have known about the scheduling of the IA interview. Plaintiff offers no

contrary evidence and no evidence to support his theory about the interview

schedule.

Plaintiff argues that pretext is also shown by the fact that when the first of

the two SRO positions was initially posted in March 2018, Plaintiff was the only

candidate to submit a letter of interest, yet Defendant failed to promote him

immediately and instead delayed the hiring process to allow other applicants to

come forward. But Chief Mattmuller explained that shortly after the posting of the

first position, he learned there would be at least one more SRO position to fill and

decided it would be more efficient to fill them both by one process, rather than

piecemeal. Plaintiff takes issue with this reasoning, but this is simply quarrelling

with the wisdom of Defendant’s decision rather than demonstrating such

weaknesses and inconsistencies that Defendant’s position is unworthy of credence.

See Davidson v. Chspsc LLC, No. 20-14201, 2021 WL 2550400, at *5 (11th Cir. June

22, 2021) (holding that the plaintiff failed to show that the employer’s proffered

reasons were pretextual where her arguments “essentially quarrel[ed] with the

wisdom of [her employer’s] business decision and fail to show how [the employer]

lacked a good faith belief that [the plaintiff] had committed the misconduct that

formed the basis for her termination”); Chapman v. AI Transp., 229 F.3d 1012, 1030

(11th Cir. 2000) (holding that the wisdom of an employer’s decision is irrelevant as

long as it was not made with a discriminatory motive). Accordingly, Plaintiff has

failed to present a genuine issue for trial as to Defendant’s failure to promote him.

48-hour suspension

Plaintiff argues that a 48-hour suspension constituted a discriminatory

adverse employment action because other non-African Americans who engaged in

similar conduct received no discipline or lighter discipline. In moving for summary

judgment, Defendant argues that Plaintiff has failed to offer evidence of similarly-

situated officers outside Plaintiff’s protected class being treated differently and has

failed to show that Defendant’s proffered reasons for the suspension were

pretextual.

In the context of an employer’s disciplinary actions, a plaintiff can establish a

prima facie case 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 the plaintiff’s class more

favorably. Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220-21 (11th Cir. 2019).

To establish a plaintiff’s prima facie case, the proposed comparators must be

“similarly situated in all material respects.” Id. at 1218.

Once the plaintiff has established a prima facie case the burden then shifts to

the defendant to “articulate legitimate, nondiscriminatory reasons for its actions.”

Lewis, 918 F.3d at 1221 (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

253 (1981)). Once the defendant puts forth a legitimate, nondiscriminatory reason,

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.

Plaintiff’s suspension was based on an incident in which a citizen complained

because Plaintiff improperly arrested him for driving without a license when he had

a temporary permit. Chief Mattmuller stated in his deposition that the disciplinary

action was based on, among other things, the fact that Plaintiff had committed

multiple violations of policy and had involved multiple agencies in addition to the

VPD (court personnel, for example) to correct the mistake. The suspension was

upheld by an independent hearing officer, who found Chief Mattmuller’s reasons for

the 48-hour suspension were not arbitrary or capricious but legitimate and

appropriate.

Plaintiff argues that the severity of the discipline was inconsistent with the

way other non-African American officers were treated in similar circumstances,

thereby demonstrating disparate treatment and that the proffered explanation for

the discipline was pretextual. In support of this argument, Plaintiff cites incidents

where various officers engaged in such disparate conduct as being late for work,

causing traffic accidents, and undertaking high-speed chases while denying to the

dispatcher they were doing so. Plaintiff points to a few incidents involving arrests

but presents no evidence they were comparable to the incident that led to Plaintiff’s

suspension. In one instance, officers were accused of improperly arresting

individuals for a burglary, but unlike the situation with Plaintiff, the internal

investigation determined that the officers acted properly and within policy

guidelines. In another, officers ordered individuals out of a car at gunpoint

mistakenly believing the car was stolen, but no arrests were made and no other

agencies involved.

In short, Plaintiff has not presented evidence of sufficiently similar incidents

to allow a reasonable jury to conclude that Plaintiff was treated differently from

other similarly situated officers when he was suspended or that Defendant’s

proffered explanation for the suspension was unworthy of credence. Accordingly,

Plaintiff has not shown a genuine issue for trial as to the suspension.

Hostile Work Environment

Plaintiff also alleges that Defendant discriminated against him by creating or

allowing a hostile work environment in violation of Title VII. Defendant moves for

summary judgment on this claim, arguing that Plaintiff has no evidence that the

work environment was sufficiently severe or pervasive to constitute a hostile work

environment, and he has no evidence that Defendant bears responsibility for the

work environment.

To prevail on a hostile work environment claim, a plaintiff must show that

“(1) he is a member of a protected group; (2) who has been subjected to unwelcome

harassment; (3) based on a protected characteristic; (4) that was sufficiently severe

or pervasive to alter the terms and conditions of employment and create a

discriminatorily abusive working environment; and (5) that his employer is

vicariously or directly liable for the environment.” Ng, 2019 WL 2436581, at *6

(internal quotations omitted). Defendant argues that Plaintiff has failed to

demonstrate harassment that was sufficiently severe or pervasive and that

Defendant cannot be held liable because it has established an affirmative defense.

Severe or Pervasive Conduct

In assessing whether alleged actions are sufficiently severe and pervasive,

courts look to the totality of the circumstances, including the frequency of the

conduct, its severity, whether it is physically threatening or humiliating or merely

offensive, and whether it unreasonably interferes with the employee’s job

performance. E.g., Ng, 2019 WL 2436581, at *6 (citing Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002)). Petty office squabbles,

communication issues, and “ordinary workplace tribulations” are insufficient to

create a hostile work environment. Mahone v. CSX Transp., Inc., 652 F. App’x 820,

823 (11th Cir. 2016) (internal quotations omitted); Baroudi v. Sec’y, U.S. Dep’t of

Veterans Affairs, 616 F. App’x 899, 905 (11th Cir. 2015). Instead, the workplace

must be “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 environment.” Tonkyro v. Sec’y, Dep’t of Veterans Affairs, 995

F.3d 828, 836-37 (11th Cir. 2021) (internal quotation omitted). Moreover, the

“intimidation, ridicule, and insult” must have connotations related to the employee’s

protected status (here, Plaintiff’s race) to be actionable. See id. at 837 (holding in a

gender discrimination case that the “intimidation, ridicule, and insult must also

bear ‘the necessary sexual or other gender-related connotations to be actionable sex

discrimination’”) (quoting Mendoza v. Borden, Inc., 195 F.3d 1238, 1247 (11th Cir.

1999) (en banc)).

Plaintiff alleges a number of incidents from November 2017 to July 2018 that

relate or arguably relate to Plaintiff’s race.2 In November 2017, Sergeant

Leisenring visited Plaintiff in the hospital and asked why Plaintiff was dating a

white woman. In late December 2017, Lieutenant Chappa ordered Plaintiff, over

his objection, to remove racist graffiti (specifically, the word “nigger”) from rocks in

a public park. A few days later, when Plaintiff attempted to speak with Sergeant

Leisenring at roll call, Sergeant Gregoire, within the hearing of numerous other

officers at the roll call, used the word “nigger” in reference to Plaintiff and stated,

“When you get done sucking his dick, you can come suck my dick That’s what you

all like to do.” When Plaintiff complained to Leisenring, Leisenring shrugged it off,

telling Plaintiff that that “sometimes we do things in appropriately” and Gregoire

was never disciplined for this public abuse.

In April 2018, Plaintiff found an uneaten banana in the trunk of his patrol

car, presumably left there by Officer Long who used the vehicle on an earlier shift.

Given the potentially racist connotations of the banana, Plaintiff complained to

2 Plaintiff cites other incidents in support of his hostile work environment claim. Two of

these – Plaintiff’s failure to be promoted to the SRO position and his 48 hour suspension –

are better addressed as discrete adverse employment actions rather than as part of a

hostile work environment claim, and as discussed above, there is no evidence they were

racially discriminatory. Plaintiff also points to an incident in which a “smiley face” emoji

with a bullet hole in its head appeared on a computer in the patrol car Plaintiff shared with

Officer Long. The undisputed evidence is that Officer Long had used this image, drawn

from the Watchmen graphic novel, on his computer and elsewhere since 2009 in contexts

having nothing to do with Plaintiff. Accordingly, the Court finds that none of these events

contributed to a hostile work environment. Plaintiff refers to numerous other instances of

alleged mistreatment that also facially appear to have nothing to do with his race. Some

decisions have allowed facially neutral conduct to bolster a hostile work environment claim

where evidence of overtly discriminatory treatment also exists. However, the Court has not

determined whether and to what extent these other events will be admissible at trial.

Chief Mattmuller, but no investigation or disciplinary action followed. In May

2018, Sergeant Gregoire became irate because Plaintiff had ticketed Gregoire’s

daughter as being at fault in a traffic accident. Gregoire accosted Plaintiff and told

him he should “fuck him up” and again called Plaintiff a “nigger.” This took place in

front of Lieutenant Resch, who had to pull Gregoire away, but Gregoire was never

disciplined.

In July 2018, a citizen informed Plaintiff that Officer Long had told her that

“Black” (referring to Plaintiff) was going to be fired soon, and Plaintiff has

personally heard Long refer to him as “Black” rather than by his name on other

occasions as well. Plaintiff asserts that other officers, including supervisors, have

also referred to him as “Black” in a derogatory manner. Plaintiff says that as a

result of his treatment, he feels isolated and ostracized, has lost confidence in

himself, and does not receive the cooperation and respect needed to perform his job.

These events do not constitute mere “ordinary office tribulations.” The Court

finds particularly disturbing the use of a racial slur and offensive sexual language

by Sergeant Gregoire, uttered at a roll call before other officers in a context likely to

embarrass and humiliate Plaintiff, followed by a cavalier dismissal of Gregoire’s

conduct by another superior officer as merely “inappropriate.” See, e.g., Cooler v.

Layne Christensen Co., 710 F. App’x 842 (11th Cir. 2017) (holding that supervisor’s

use of the slur “nigger” in a context arguably intended to humiliate the plaintiff,

together with other evidence of racial hostility, created an issue of fact as to

whether a hostile work environment existed.). 3 Taking into account the time

frame, the number of events, their nature, frequency and severity, and the impact

on Plaintiff’s ability to work, Plaintiff has presented sufficient evidence to create a

fact issue on whether the alleged misconduct was sufficiently severe or pervasive to

create a hostile work environment. See Adams v. Austal, 754 F.3d 1240, 1250-54

(11th Cir. 2014) (finding that plaintiffs who experienced racial slurs targeting them

personally, combined with other evidence, created an issue of fact on hostile work

environment); Jones v. UPS Ground Freight, 683 F.3d 1283, 1302-04 (11th Cir.

2012) (concluding that seven incidents of racist acts over one year period, including

incidents involving the placing of banana peels on the plaintiff’s truck, raised an

issue of fact on the existence of a hostile work environment).

Accordingly, Defendants’ motion for summary judgment is denied to the

extent Plaintiff alleges a hostile work environment.

3 “‘The use of the slur “nigger” is severe.’” Cooler, 710 F. App’x at 848 (quoting

Adams v. Austal, USA, LLC, 754 F.3d 1240, 1250 (11th Cir. 2014)). It has been

observed that “perhaps no single act can more quickly alter the conditions of

employment and create an abusive working environment than the use of an

unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his

subordinates.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d

Cir. 2014) (internal quotation omitted). To be clear, however, the Court is not

ruling that a single use or a few uses of such language is necessarily sufficient to

create a jury issue on the existence of a hostile work environment. See Cooler, 710

F. App’x at 848 (noting that “we have held that, in isolation, the use of a racial

epithet on one occasion is not enough evidence of severe or pervasive harassment to

make a hostile work environment claim.”) The Court rules only that the totality of

the specific record evidence in this case, including but not limited to the racial

epithets and the context in which they were used, creates a jury issue on hostile

work environment.

Vicarious or Direct Liability

A Title VII plaintiff must establish a basis for holding the defendant

responsible for the hostile work environment. Ng, 2019 WL 2436581, at *6.

Defendant argues that it has demonstrated as an affirmative defense that it had

adequate anti-harassment policies and complaint procedures in place and that

Plaintiff unreasonably failed to take advantage of them, citing Faragher v. City of

Boca Raton, 524 U.S. 775 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S.

742 (1998). Defendant argues that when Plaintiff reported alleged misconduct by

Officer Long to Lieutenant Chappa, Plaintiff failed to properly follow up. The

record, however, presents issues of fact on whether Plaintiff acted with due care in

providing information to Chappa, or whether Chappa could be faulted for failing to

pursue the investigation further when, according to Plaintiff, he had provided her

all the information she needed.

More fundamentally, the Faragher-Ellerth defense applies where the

harasser is a “supervisor.” Beckford v. Dep’t of Corr., 605 F.3d 951, 960-61 (11th

Cir. 2010) (district court correctly declined to instruct jury on employer’s reasonable

care and employee’s failure to take advantage of harassment complaint process

where alleged harassment was not by a supervisor). In such cases, the employer

may be held vicariously liable, that is, liable without any further proof of negligence

by the employer in allowing the harassment. The employer may assert as an

affirmative defense that it used reasonable care to prevent and promptly correct

any harassing behavior – typically by showing the existence of appropriate anti-

harassment policies and complaint procedures – and that the plaintiff failed to take

advantage of them. See Vance v. Ball State Univ., 570 U.S. 421, 424 (2013). For

purposes of this analysis, a “supervisor” is defined as one who has the power to

make tangible employment decisions with respect to the plaintiff such as hiring or

firing. Id. at 450. But neither side has presented evidence or argument on the

VPD’s and the City’s management and reporting structure sufficient to allow the

Court to reach a conclusion as a matter of law on whether the individuals allegedly

involved in harassing Plaintiff were supervisors as defined in Vance, and therefore

whether the defense applies.

When the alleged harassers are non-supervisors, the plaintiff bears the

burden of showing that the employer is directly liable by showing the employer

knew or should have known of the harassment but failed to take prompt and

effective remedial action. Smith v. City of New Smyrna Beach, 6:11-cv-1110-Orl-37,

2012 WL 6721002, at *8 (M.D. Fla. Dec. 27, 2012). The Court is also unable to

conclude as a matter of law whether Plaintiff’s reporting matters to various

individuals, including sergeants, lieutenants, and Chief Mattmuller, was reasonable

or sufficient to charge Defendant with notice or actual knowledge of the

harassment. See Farley v. Am. Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th Cir.

1997) (holding that, when “there is evidence from which a jury reasonably could

infer that the employer did know of the harassment . . . the existence of a policy –

no matter how well-designed – will not absolve an employer of liability under Title

VII”). The Court also notes that while Defendant’s anti-harassment policy provides

that complaints should be made to the employee’s supervisor and to the human

resources director, it also provides that “[m]anagers who know or become aware of

potential harassment have an affirmative duty to report all complaints of

harassment to the director of human resources, to ensure that they are resolved

promptly and effectively.” See Torres v. Pisano, 116 F.3d 625, 637 (2d Cir. 1997)

(holding that employer is charged with knowledge of person who has a duty to

inform the company of harassment); Nuri v. PRC, 13 F. Supp. 2d 1296, 1304 n.8

(M.D. Ala. 1998) (citing Torres with approval); see also Price v. Roanoke City Bd. of

Educ., No. 3:06-cv-742-MEF, 2007 WL 3171376 (M.D. Fla. Oct. 26, 2007) (holding

that an issue of fact was presented as to whether employee reasonably believed the

person she complained to was her “supervisor” within the meaning of the anti-

harassment policy provided to her).4

Accordingly, Defendant’s motion for summary judgment is denied as to this

ground.

Title VII and FCRA – Retaliation (Counts III and V)

Defendant moves for summary judgment on Plaintiff’s retaliation claims,

which are reviewed under the same burden-shifting framework discussed above for

discrimination claims. See Johnson v. Miami-Dade Cty., 948 F.3d 1318, 1325 (11th

Cir. 2020); Ceus v. City of Tampa, 803 F. App’x 235, 244, at *6 (11th Cir. 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

4 Plaintiff points to evidence of isolated events involving other employees, to Defendant’s

settlement of a discrimination claim by another individual, and to historical ordinances or

policies enacted in 1927 and 1947. To the extent such evidence might be admissible, Court

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”).

Defendant argues that Plaintiff has shown no causal connection between any

protected activity and adverse employment actions, nor has Plaintiff shown that the

reasons given for the complained-of actions were pretextual. Plaintiff offers

virtually no response to these arguments. He simply refers to the actions as

“retaliatory” and argues that “temporal proximity” is shown by Plaintiff’s “quick

opposition” to adverse employment actions. Showing the requisite temporal

connection, however, involves showing that the adverse action followed the

complaint or other protected activity with sufficient closeness. It cannot be shown

by adverse events that occurred before the protected activity. See, e.g.,

Giakoumakis v. Maronda Homes, Inc. of Fla., 5:08-cv-487-Oc-10GRJ, 2010 WL

11507432, at *11 (M.D. Fla. Mar. 26, 2010).

Plaintiff complained to Sergeant Leisenring about Gregoire’s offensive

comments at roll call on December 29, 2017. The next alleged adverse event

occurred almost three months later when an allegedly fabricated citizen complaint

initiated an IA investigation regarding Plaintiff’s conduct. Four months later,

Plaintiff found a banana in the trunk of his patrol car, followed by Gregoire’s

outburst against Plaintiff for ticketing his daughter about three weeks after that.

While Plaintiff found a banana in the trunk of his patrol car a little over a week

after he mentioned to Lieutenant Resch that he believed he was experiencing a

hostile work environment, this event by itself cannot support a retaliation claim

since standing alone it did not constitute a materially adverse employment action.

See McQueen v. Alabama Dep't of Transp., 769 F. App’x 816, 823-24 (11th Cir. 2019)

(“An adverse employment action in the context of retaliation is one that harmed the

plaintiff and ‘might well have dissuaded a reasonable worker from making or

supporting a charge of discrimination.’”) (quoting Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 68 (2006)). To the extent Plaintiff seeks to show a retaliatory

hostile work environment, rather than discrete adverse acts, there is no evidence to

support a causal connection between the totality of events that allegedly created the

hostile environment and any protected activity by Plaintiff.

Plaintiff has failed to demonstrate a genuine issue of fact as to whether any

materially adverse employment action was causally connected to protected activity.

Accordingly, summary judgment is granted on Plaintiff’s claims for retaliation.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

1. “Defendant’s Amended Case Dispositive Motion for Summary Judgment

and Supporting Memorandum of Law” (Doc. 50) is GRANTED IN PART

and DENIED IN PART.

2. The motion is GRANTED with respect to Plaintiff’s claim in Count I

under 42 U.S.C. § 1983, as to Plaintiff’s claims in Counts II and IV for

discrimination based on tangible adverse employment actions, and as to

Plaintiffs claims for retaliation in Counts III and V.

3. The motion is DENIED as to Plaintiffs claims in Counts II and IV for

discrimination based on hostile work environment.

4. The Court will enter a final judgment once all claims have been resolved.

DONE and ORDERED in Chambers, in Tampa, Florida, this 30th day of

September, 2021.

Co. eee

f i be 3) Aa

—_ 1 jou | | Naat

TOM BARBER

UNITED STATES DISTRICT JUDGE

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