Graves v. Avis Budget Group, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RAYMOND D. GRAVES,

Plaintiff,

v. Case No: 8:20-cv-270-CEH-JSS

AVIS BUDGET GROUP, INC.,

Defendant.

ORDER

This cause comes before the Court upon Defendant Avis Budget Group, Inc.’s

Motion for Summary Judgment (Doc. 36), Plaintiff Raymond Graves’ Opposition to

Motion for Summary Judgment (Doc. 41), and Defendant’s Reply (Doc. 43).

In this employment discrimination action brought under the Florida Civil

Rights Act, Plaintiff alleges that Defendant retaliated against him for making an

allegation of disability-related harassment in 2014 by terminating his employment in

2016. Defendant now requests that summary judgment be entered in its favor because

it alleges there is no record evidence establishing a causal connection between

Plaintiff’s harassment allegation and his termination, and, in any event, Plaintiff has

not shown that the non-retaliatory reason for the termination was pretextual. Having

considered the motion, the response, and the parties’ Joint Stipulation of Agreed

Material Facts, and being fully advised in the premises, the Court will grant

Defendant’s Motion for Summary Judgment.

I. FACTUAL BACKGROUND1

A. Joint Stipulation of Agreed Material Facts (Doc. 40)

Plaintiff Raymond Graves (“Plaintiff” or “Graves”) became employed by

Defendant Avis Budget Group Car Rental Services (“Avis” or “Defendant”) at the

Tampa International Airport on or about November 19, 2012. Doc. 40 ¶¶ 1, 2. Avis

employees are subject to a Code of Conduct that prohibits threats or acts of violence,

including verbal or physical fighting on company premises. Id. at ¶¶ 5, 6. Violating the

Code of Conduct is grounds for termination of employment. Id.

As a Rental Sales Associate (“RSA”), Plaintiff was required to stand when

assisting customers with rental transactions. Id. at ¶¶ 3, 9. After Plaintiff experienced

an accident in January 2014, he returned to work following a medical leave and was

granted an accommodation that he be allowed to sit as needed. Id. at ¶¶ 7, 10. On

March 29, 2014, Plaintiff contacted the employee hotline to make a complaint that

Operations Manager Wendell Marlon was harassing him about his accommodation,

telling him to stand and kicking and punching the back of his chair. Id. at ¶¶ 11, 13.

He also complained that Airport Manager Ainsworth Pothemont had sanctioned

Marlon’s harassment. Id. at ¶ 13.

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

the parties’ submissions, including declarations and exhibits, as well as the parties’ Joint

Stipulation of Agreed Material Facts Regarding Defendant’s Motion for Summary Judgment

(Doc. 40). For purposes of summary judgment, the Court considers the facts in the light most

favorable to the non-moving party as required by Fed. R. Civ. P. 56.

Plaintiff’s hotline complaint was investigated by a Human Resources (“HR”)

employee named Shayla Wilson, who informed Plaintiff she would investigate the

matter and would speak to management so that everything would stop. Id. at ¶¶ 15,

17. Soon afterward, Marlon and Pothemont spoke with Plaintiff about the hotline

complaint and threatened his job if he could not adhere to management’s rules. Id. at

¶ 18. Plaintiff states that his conversations with Wilson and with Marlon and

Pothemont were the only times anyone spoke to him about the hotline complaint. Id.

at ¶ 19. Plaintiff did not contact the employee hotline again. Id. at ¶ 12.

B. Additional Testimony / Evidence

1. Deposition of Plaintiff Raymond Graves and Related Exhibits (Doc. 36-1)

Plaintiff testified that during his employment at Avis he experienced what he

termed “harassment” by many of his managers, including and at the direction of

Pothemont and Marlon. Doc. 36-1 at 42:157-44:165. Marlon harassed him whenever

he needed to sit down due to his medical condition; Pothemont would back Marlon

up and refuse to discipline Marlon. Id. at 44:167-45:171, 49:186-50:190. Plaintiff made

the hotline complaint about Marlon and Pothemont because he was sick of the

harassment occurring. Id. at 44:168. After meeting with Wilson, Plaintiff did not hear

anything further about her investigation into his complaint. Id. at 47:177. However,

Marlon and Pothemont called him into Pothemont’s office within a month to tell him

he should have gone through the proper channels, and that if he could not adhere to

the rules of management then he could not work at Avis anymore. Id. at 47:178-49:185.

Marlon continued to harass Plaintiff by kicking his chair and telling him to stand up

until Marlon was moved to a different job site a few months later. Id. at 49:188-50:189.

Plaintiff continued to experience harassment by Pothemont and other managers for

the remainder of his time at Avis, which he attributes to retaliation for his hotline

complaint. Id. at 50:191-92, 62:240, 63:242-44. Although no one ever brought up the

hotline complaint, Pothemont and the managers would always give Plaintiff a hard

time. Id. at 42:158-43:164, 52:200-53:201.

Plaintiff was suspended and ultimately terminated from his employment at Avis

after an incident on December 12, 2016. Id. at 58:222, 58:224-59:225. He testified

that a coworker named Caitlin Potter started a verbal dispute with him in the break

room, to which he responded to defend himself. Id. at 56:213-214. He did not yell or

curse at her, raise his arm, or physically approach her. Id. at 56:214-57:217, 58:224.

He only used the “F word” after Potter used it first. Id. at 58:223. When Candace

Murphy came in to tell them to stop arguing, Plaintiff walked away. Id. at 56:216.

Plaintiff said that both Murphy and Potter falsely described the incident. Id. at 57:217.

He noted that it would have been impossible for Murphy to have physically separated

them like she said she did because Plaintiff is much larger than either of the women.

Id. at 57:219-20.

As part of Avis’s investigation into the December 12 incident, Plaintiff wrote a

brief statement describing his version of events. Id. at 129. Plaintiff also met with

Pothemont and another manager named Chris Cunha. Id. at 57:218-19. After Plaintiff

admitted that he and Potter had engaged in a verbal altercation, Pothemont told him

“I’ve got you now.” Id. at 57:218-19, 58:221. Plaintiff interpreted this remark to be a

reference to his 2014 hotline complaint. Id. He believes his termination was

Pothemont’s decision, and that Pothemont had been looking for a reason to terminate

him for the last two and a half years because of the hotline complaint. Id. at 58:221-

22, 59:225-26.

Aside from the December 12 incident, Plaintiff was unaware of any accusation

against him involving Candace Murphy. Id. at 55:209-211. He denied that he had ever

made sexual comments to her, although he did not know why she would submit a false

complaint about him. Id. at 55:211. He also denied being told by a manager named

Ben Oehrig not to make vulgar jokes. Id. at 55:211-12. However, Plaintiff agreed that

there were two other incidents in which he was the subject of complaints or

disciplinary action. On one occasion he was counseled by a manager named Ishwar

Ramnath. Id. at 51:195-52:197. Plaintiff denied Ramnath’s allegations of misconduct

and of raising his voice during the conversation. Id. Plaintiff also described an

accusation of sexual harassment by a manager named Samantha Baez, which he

denied and attributed to Pothemont’s influence over Baez in retaliation for the hotline

complaint. Id. at 52:199-54:205. Responding to Baez’s accusation in writing at the

time it was being investigated, Plaintiff said that he felt he was being attacked for

personal reasons. Id. at 54:205-06; 125-127.

Plaintiff explained that he knew of two other individuals who had been accused

of similar misconduct to him who were not terminated. At least two women had

accused Marlon of sexual harassment. Id. at 59:226-27. And a woman named

Mercedes had cursed out her bosses (including Ainsworth Pothemont) multiple times

without being subject to disciplinary action. Id. at 59:227-60:229.

2. Testimony of Tiffany Gates and Related Exhibits (Docs. 36-3, 42-2)

Tiffany Gates is Defendant’s HR manager for the state of Florida. Doc. 42-2 at

11. She was one of three individuals who made a “collective” decision to terminate

Plaintiff, along with HR Director Lisa LaMarca and Joshua Striblen, Pothemont’s

direct supervisor. id. at 108; Doc. 36-3 ¶ 17. Gates explained that Plaintiff was

terminated because he violated the Avis Code of Conduct during the December 12

incident by being rude, abusive, and threatening to his coworkers and engaging in

threats or acts of violence, including verbal or physical fighting. Id. ¶ 21. The

termination letter sent to Plaintiff listed the same reason for his termination. Id. at 32.

Gates personally investigated the December 12 incident, which entailed

interviewing Plaintiff and Potter about three to four days later. Doc. 42-2 at 22-23, 25,

33. Potter had made a written statement regarding the incident on the same day it

occurred. Doc. 36-3 at 24-26. Potter stated that she and Plaintiff got into an argument

because he had left the sales counter while a customer was waiting a few minutes

earlier. Id. at 24-25. When Potter told him, “Well that doesn’t mean you have to f---

the rest of us over,” she alleged that Plaintiff “charged at me, hovering over me with

his finger in my face,” while repeatedly cursing at her. Id. at 25. Murphy, who

witnessed the argument, got in the middle of them to tell Plaintiff to “get out of

[Potter’s] face.” Id. Potter explained that she felt “extremely threatened and scared

that he was going to do something more than yell at me just based off how close he

got to my face looking down on me while I was sitting and eating.” Id.

Although there was no video of the incident, Gates found Potter’s account

credible, observing her during the interview to be clearly scared and upset by the

incident. Id. at 34-35, 111. Gates’s interview notes also indicated that, while Plaintiff’s

description of the incident was much less aggressive than Potter’s, he told Gates he

had been so angry that he blacked out. Id. at 33.2

Gates emphasized that Potter’s account was substantiated by the written

statement of another witness, Murphy. Id. at 109. Murphy’s statement explained that

she overheard the argument between Potter and Plaintiff. Doc. 36-3 at 28. After Potter

said “So that means you can f--- other people over,” Plaintiff “went right up to her as

she was sitting at the table and stood over her with a loud voice and raised his arm.”

Id. Murphy intervened, telling Plaintiff “There’s no need for you to yell like that.” Id.

Murphy felt the need to jump in because “[h]e escalated very fast, and I feel like…what

he did was intimidating and over the top. He was yelling the word f--- and it was

enough to make me jump in.” Id. (emphasis in original).

2 Gates referred in her testimony to having consulted the notes she took during her

investigation of the December 12 incident. Id. at 25, 33. However, Gates also explained that

she had lost all her investigative files in 2017 due to a computer crash, although she was able

to recover some material from physical files or her email. Id. at 51-52, 65-66. Gates did not

identify any specific documents from the December 12 incident investigation that she could

not recover.

Gates explained that Potter was not suspended or formally disciplined for the

December 12 incident because her behavior had not been physically threatening or

harmful. Id. at 122. Although she was “spoken to” about her use of inappropriate

language, Gates believed that Potter’s actions had been fairly justified and did not

warrant disciplinary action. Id. at 124-128. Gates explained that there is “flexibility”

in discipline decisions, which are always made on a case-by-case basis. Id. at 128. The

decision regarding whether to discipline Potter was made in the same conversation as

the decision to terminate Plaintiff. Id. at 127.

While the substantiated December 12 incident was the “determining factor[]”

in the termination decision, Gates noted that the decision also would have been

justified by the “pattern of complaints made by women of aggression about him” and

his “history of misconduct.” Doc. 42-2 at 109; Doc. 36-3 ¶ 18, 21. The decisionmakers

reviewed prior complaints that were in his personnel file when making the decision

and considered the situation in light of his “overall work record.” Id. ¶ 17; Doc. 42-2

at 75. However, the prior allegations were not directly considered in the termination

decision because they were not substantiated. Id. at 140.

One prior incident in Plaintiff’s personnel file was a note from Operations

Manager Ishwar Ramnath dated March 23, 2015. Doc. 36-3 at 10. Ramnath stated

that he counseled Plaintiff for frequently disappearing from the sales counter, and that

Plaintiff became verbally combative during the conversation. Id.

In another note, dated December 4, 2016, manager Ben Oehrig stated that he

counseled Plaintiff for his use of vulgar comments and jokes, resulting from remarks

Plaintiff had made on November 28, 2016. Id. at 18. Accompanying Oehrig’s note

was a Voluntary Statement Form written by Candace Murphy on December 6, 2016.

Id. at 20-21. She described an incident that had occurred on November 28 in which

Plaintiff had made a sexual remark to her in front of a group of people. Id. Murphy

explained that Oehrig had reached out to her to express his concern about Plaintiff’s

remark. Id. She stated that Plaintiff sometimes “goes too far” and it made her feel

uncomfortable. Id. Gates described Oehrig’s note as a “documented verbal warning”

in Plaintiff’s file, which is considered a low-level disciplinary sanction. Doc. 42-2 at

78. Gates was not involved in the investigation of this incident, but she believes it was

resolved through Oehrig’s counseling conversation with Plaintiff. Id. at 79. She did

not know whether the incident was substantiated. Id.

Gates was personally involved in the investigation of a sexual harassment

complaint against Plaintiff by a manager named Samantha Baez in December 2015.

Baez reported to her direct supervisors, including Ainsworth Pothemont, that Plaintiff

had made inappropriate comments and gestures toward her on an escalating basis for

about two months. Doc. 36-3 at 12-13. Pothemont notified Gates about the

allegations, which Gates then investigated by interviewing both Baez and Plaintiff.

Doc. 42-2 at 36-40, 56-59. There were no witnesses to the alleged harassment, and

ultimately Gates concluded the allegations could not be substantiated because it was

Baez’s word against Plaintiff’s. Id. at 40, 60-61. Baez resigned soon afterward. Id. at

62.

Gates testified that she did not become aware that Plaintiff had made a

complaint to the employee hotline in 2014 until after the incident on December 12,

2016. On the day that Plaintiff was suspended, he stated that the managers had never

liked him because he made a complaint two years earlier related to a medical

accommodation. Id. at 104, 115, 117-18. At the time he made this comment no

decision to terminate Plaintiff had been made. Id. at 116-118. Although Gates did not

ask him what he meant, she later came across documentation of the hotline

complaint—the complaint itself and the investigation notes of Shayla Wilson, Gates’s

former direct report—when reviewing his personnel file in the course of her

investigation. Id. at 117-119; 97-99. Wilson’s notes from 2014 indicated her

conclusion that the managers had not acted inappropriately, but that coaching and

retraining was needed regarding the company’s accommodation process. Id. at 99.

Gates did not remember telling the other decisionmakers about Plaintiff’s hotline

complaint in the termination discussions. Although she agreed it was “possible” she

told them, she felt that the complaint had been properly resolved and there was “no

need to go down the rabbit hole” by bringing it up. Id. at 119-20.

Gates also explained that hotline complaints are not contained in the personnel

file that is kept in the employee’s work location, because they are “typically withheld”

from the location. Id. at 145. They are instead maintained at the HR headquarters in

Fort Lauderdale. Id. Gates does not recall where she located Plaintiff’s hotline

complaint, but states that it would not have been in his personnel file in the airport

office. Id.

3. Deposition of Joshua Striblen and Related Exhibits (Docs. 42-3, 42-4)

Joshua Striblen was the District Manager who supervised Ainsworth

Pothemont and Pothemont’s co-airport manager during the time of Plaintiff’s

employment. Doc. 42-3 at 6, 8. He was one of the three decisionmakers in Plaintiff’s

termination decision. Id. at 18. Striblen testified that the termination decision was a

mutual agreement among the three decisionmakers, although “the final decision to

terminate would come from our HR side of the business,” specifically Lisa LaMarca,

Gates’s supervisor. Id. at 19. He did not recall the specific phone conversation in

which the decision was made. Id. at 22.

Striblen did not participate directly in the investigation into the December 12

incident because he was not located on-site; he instead relied on the airport managers’

initial investigation, followed by HR’s review of their investigation. Id. at 21. Striblen

did not recall any reference to retaliation during the investigation. Id. at 32. He was

aware that Plaintiff had received a medical accommodation, and stated that it was

standard practice to keep accommodation documents in personnel files. Id. at 31.

In determining whether to recommend termination, Striblen conferred with his

“team,” which included Pothemont, and “would listen to anyone’s opinion.” Id. at 20-

21. He did not recall whether Pothemont recommended terminating Plaintiff. Id. at

20. Striblen also reviewed all documents in Plaintiff’s personnel file, which included

the report of the November 28 incident and other “past events” in the file. Id. at 23-26.

Ultimately, Striblen relied on the reports of the November 28 incident in addition to

information from the employees involved in the December 12 incident and those who

had investigated that incident, Gates and Pothemont. Id. at 33.

4. Other Evidence (Docs. 36-2, 42-2, 42-4)

Ainsworth Pothemont submitted a declaration in which he denied telling any

employees to make complaints about Plaintiff. Doc. 36-2 ¶¶ 5-7. He also denied

making the decision to terminate Plaintiff’s employment or telling him “I got you

now.” Id. at ¶¶ 8-9.

Defendant’s records indicate that Plaintiff was approved for leave under the

Family Medical Leave Act (“FMLA”) and short-term disability leave on several

occasions. He took medical leave from January 3, 2014 through March 4, 2014,

returning with a doctor’s note indicating that he could not stand for prolonged periods.

Doc. 42-2 at 188. He took leave again from May 19, 2015 to September 8, 2015, and

again in February 2016. Id. at 189.

On October 20, 2016, Plaintiff received a letter notifying him that he was

approved for intermittent FMLA leave from September 22, 2016 through March 21,

2017. Doc. 42-2 at 167-68. Gates did not receive this letter, and she testified that leave

approval documents are not located in an employee’s personnel file because they come

from a third-party vendor. Doc. 42-2 at 134, 136. However, the vendor sent an email

to Striblen and Gates containing the same information on November 6, 2016, and

November 13, 2016. Doc. 42-4 at 23, 27. On each occasion, Striblen forwarded the

email to other individuals including Wendell Marlon and Ainsworth Pothemont. Id.

Defendant’s employment records for Plaintiff indicate that he was hired on

November 19, 2012, and was terminated effective December 23, 2016. Doc. 42-4 at

22. The document includes the notation “(Terminated)” after his name in six out of

eight locations, including the main heading. Id.

C. EEOC Complaint and the Instant Action

Plaintiff filed a Charge of Discrimination with the EEOC in February 2017.

Doc. 36-1 at 131. He alleged that he was retaliated against by management after

reporting harassment due to a reasonable accommodation he had received for his

disability. Id. He had been suspended and terminated for having an argument with a

white female coworker, who was not suspended or terminated. Id. at 133. In addition

to retaliation, he alleged discrimination based on his disability, race, and gender.

Defendant responded to the EEOC Complaint in a letter dated March 20, 2018, in

which it denied the allegations and detailed Defendant’s employment history. Doc.

42-4 at 186-191.

Plaintiff filed the instant action on February 4, 2020. He initially brought one

count of retaliation under the Americans with Disabilities Act (“ADA”) and one count

of retaliation under the Federal Civil Rights Act (“FCRA”), alleging that Defendant

retaliated against him for reporting disability-based harassment by his supervisor (Doc.

1). The count of ADA retaliation was dismissed with prejudice as time-barred (Doc.

19). Defendant now moves for summary judgment on the remaining count.

II. LEGAL STANDARD

Summary judgment is appropriate only when the court is satisfied that “there is

no genuine issue of material fact and that the moving party is entitled to judgment as

a matter of law” after reviewing the “pleadings, the discovery and disclosure materials

on file, and any affidavits[.]” Fed. R. Civ. P. 56(c)(2). 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. Shotz v. City of Plantation, Fla., 344 F.3d

1161, 1164 (11th Cir. 2003). Issues of fact are “genuine only if a reasonable jury,

considering the evidence presented, could find for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material” if it may affect the

outcome of the suit under governing law. Id.

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 Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); 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. “Only when that burden has

been met does the burden shift to the non-moving party.” Clark v. Coats & Clark, Inc.,

929 F.2d 604, 608 (11th Cir. 1991).

“[I]n order to survive summary judgment, the nonmoving party must set forth

specific facts showing there is a genuine issue for trial.” Johnson v. New Destiny Christian

Ctr. Church, Inc., 826 F. App’x 766, 770 (11th Cir. 2020) (citing Anderson, 477 U.S. at

249-50). “[U]nsupported ‘conclusory allegations’ do not suffice.” Middlebrooks v. Sacor

Fin., Inc., 775 F. App'x 594, 596 (11th Cir. 2019). Likewise, “[a] ‘mere existence of a

scintilla of evidence’ cannot suffice to create a genuine issue of material fact.” Johnson,

826 F. App’x at 770 (quoting Anderson, 477 U.S. at 252).

III. DISCUSSION

Under the Florida Civil Rights Act, which is analyzed under the same

framework as the ADA,3 the plaintiff can establish a prima facie case for retaliation by

proving the following elements:

1. he engaged in a statutorily protected expression,

2. he suffered an adverse employment action, and

3. there was a causal connection between the two.

St. Louis v. Fla. Int'l Univ., 60 So.3d 455, 460 (Fla. 3d DCA 2011); see also Frazier-White

v. Gee, 818 F.3d 1249, 1258 (11th Cir. 2016).

Once the plaintiff has established a prima facie case, the burden of proof shifts to

the employer to articulate “a legitimate, non-discriminatory explanation” for taking

the adverse action. See Ring v. Boca Ciega Yacht Club Inc., 4 F.4th 1149, 1163 (11th Cir.

3 See, e.g., Sicilia v. United Parcel Service, 279 F. App’x 936, 939 n.6 (11th Cir. 2008) (FCRA

retaliation claims are analyzed under the same framework as ADA retaliation claims); Holly

v. Clairson Industries, LLC, 492 F.3d 1247, 1255 (11th Cir. 2007) (“disability-discrimination

claims under the FCRA are analyzed using the same framework as ADA claims”); State v.

Jackson, 650 So.2d 24, 27 (Fla. 1995) (“a long standing rule of statutory construction in Florida

recognizes that if a state law is patterned after federal law on the same subject, the Florida

law will be accorded the same construction as given to the federal act in the federal courts”).

2021),4 citing Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999).

Courts have described the employer’s burden as “exceedingly light.” Change v. Midtown

Neurology, P.C., No. 21-11405, 2022 WL 2352339 (11th Cir. June 29, 2022), quoting

Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1060-61 (11th Cir. 1994). “If an employer

clears this ‘low bar’ of production, the plaintiff's prima facie case is rebutted, all

presumptions drop from the case, and the plaintiff is then required to show that the

employer's proffered reason for the action is a pretext for discrimination.” Barber v.

Cellco P'ship, 808 F. App'x 929, 934 (11th Cir. 2020) (citing Flowers v. Troup Cty., Ga.,

Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015). A reason cannot be proved to be a

pretext for retaliation unless it is shown both that the reason was false and that

retaliation was the real reason. See Ring, 4 F.4th at 1163, citing St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 515 (1993).

Here, Defendant first asserts that Plaintiff has failed to establish a prima facie

case of disability retaliation under the FCRA. For the purposes of the summary

judgment motion, the parties agree that Plaintiff engaged in a statutorily protected

expression when he made a complaint in 2014 alleging harassment related to his

disability. Doc. 36 at 12. They also agree that he experienced an adverse employment

4 The Ring Court noted that ADA retaliation claims are evaluated identically to claims under

Title VII of the Civil Rights Act. Ring, 4 F.4th at 1163, citing Stewart v. Happy Herman’s Cheshire

Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997); see also Double v. FedEx Ground Package

System, Inc., 572 F. App’x 889, 895 (11th Cir. 2014) (“We evaluate ADA and FCRA

retaliation cases under [the same framework]”); Hernandez v. King Ocean Svcs., 20-24632-CIV-

ALTONAGA/Torres, 2022 WL 2578652, *4 (S.D. Fla. July 6, 2022) (citing to Stewart and

applying the same framework to FCRA retaliation claims).

action when he was terminated. Id. Finally, they agree, for the purpose of the motion

for summary judgment, that there is no direct evidence of retaliation. Doc. 36 at 11-12;

Doc. 41 at 8. Where they disagree is whether Plaintiff can demonstrate a causal

connection between the two events that would establish retaliation through

circumstantial evidence. Defendant argues that there is no temporal proximity

between the two events, which are separated by 33 months, and that there is no other

evidence that ties the harassment complaint to the termination. Doc. 36 at 15-16. In

response, Plaintiff asserts that there is evidence that the 2014 complaint was brought

to the attention of the decisionmakers before Plaintiff was terminated. Doc. 41 at 10-

11. And he asserts that their actual knowledge of his complaint, coupled with the

“extensive evidence that the two events were not unrelated,” establishes a prima facie

case of retaliation. Id. at 9-11.

In the alternative, Defendant argues that summary judgment is warranted

because Defendant had a legitimate, non-retaliatory reason for terminating Plaintiff:

his violation of company policies on December 12, 2016, as well as his prior instances

of misconduct. Doc. 36 at 16. Defendant contends that Plaintiff has not provided

evidence from which one could reasonably conclude that but for Plaintiff’s protected

act, Defendant would not have fired him, such that the reason Defendant identified

could be considered a pretext. Id. at 17-18. Plaintiff responds that much of the support

for Defendant’s purported reason for the termination is inadmissible hearsay, which

cannot be considered at summary judgment. Doc. 41 at 3, 11. Plaintiff also argues,

inter alia, that the fact that other individuals were not terminated for similar

misconduct demonstrates that the reason was mere pretext. Id. at 12-13.

A. A Reasonable Jury Could Find that There is a Causal Connection Between

the Protected Activity and Plaintiff’s Termination.

First, the Court finds that Plaintiff has established a prima facie case of

retaliation. Although temporal proximity does not exist between the hotline complaint

and the termination, there is no dispute that at least one decision-maker had actual

knowledge of the hotline complaint before terminating Plaintiff. Further, there are

material issues of fact regarding the influence that Plaintiff’s alleged harasser—whom

he alleges began harassing him shortly after learning Plaintiff had made a hotline

complaint about him—had on the termination decision. Accordingly, a reasonable

jury could find that the two events were not wholly unrelated.

Courts in the Eleventh Circuit interpret the causation element of retaliation

broadly. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1278 (11th Cir. 2008). To

demonstrate that there is a causal connection between the protected activity and the

negative employment action, “a plaintiff merely has to prove that [they] are not

completely unrelated.” Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)

(quoting EEOC v. Reichold Chems, Inc., 988 F.2d 1564, 1571-72 (11th Cir. 1993)

(internal quotation marks omitted).

As a threshold step, the plaintiff must demonstrate that the decisionmaker of

the adverse employment action was actually aware of the protected activity. Raney v.

Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997). Conclusory allegations,

speculation, and inferences are insufficient to demonstrate actual knowledge. See

Mohammed v. GHX Global Healthcare Exchange, Inc., No. 21-10108, 2022 WL 1615925,

*3 (11th Cir. May 3, 2022) (rejecting argument that knowledge could be inferred or

that constructive knowledge was sufficient), citing Raney, 120 F.3d at 1197.

A plaintiff can establish causation upon a showing of actual knowledge coupled

with temporal proximity between the protected activity and the adverse action. See

Hughes v. Wal-Mart Stores East, LP, 846 F. App’x 854, 858 (11th Cir. 2021) (citations

omitted). “Absent any other evidence tending to show causation, a claim of retaliation

fails as a matter of law if there is a substantial delay between the protected expression

and the adverse action.” Id. (quoting Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir.

2004)). However, courts have noted that “temporal proximity…is not the only way to

prove causation.” Hughes, 846 F. App’x at 858.

Here, the parties dispute whether there is evidence of actual awareness by the

decisionmakers of Plaintiff’s protected activity, the 2014 hotline complaint. Defendant

argues that Plaintiff cannot prove that two out of the three decisionmakers were

actually aware of his hotline complaint. Doc. 36 at 14-15. Plaintiff contends that the

evidence “unequivocally” shows that all of the decision-makers were “fully-aware” of

the complaint at the time they rendered their decision. Doc. 41 at 10-11.

It is undisputed that one of the decisionmakers, Gates, was actually aware of

the hotline complaint at the time of the decision to terminate Plaintiff. Gates testified

that Graves made a vague comment about it on the day he was suspended, and that

she then came across the complaint and corresponding investigation summary when

reviewing his employment records. Doc. 42-2 at 115, 117-119.

There is no direct evidence that the other two decisionmakers, Striblen and

LaMarca, were aware of the hotline complaint. Contrary to Plaintiff’s arguments, the

evidence does not establish that Gates “expressly brief[ed]” them about “the contents

of Graves’s entire personnel file, including the March 2014 hotline complaint.” Doc.

41 at 10-11. Rather, Gates testified that, while it was “possible” she told them about

the hotline complaint, she did not recall doing so because it appeared to have been

properly resolved and she felt that “there was no…further need to go down a rabbit

hole.” Doc. 42-2 at 119-120. Striblen did not testify that the hotline complaint was

part of the termination discussion, stating only that the decisionmakers “would go

back over any past events” and that he would have reviewed all of the documents in

Graves’ personnel file before making the decision. Doc. 42-3 at 25-26. It is unclear,

however, whether the hotline complaint was contained in the version of the personnel

file that Striblen reviewed. Gates initially testified that she accessed the hotline

complaint and the summary of Wilson’s investigation out of Graves’ personnel file,

both at the time of the termination and as recently as the day before her deposition.

Doc. 42-2 at 98-99, 119. She later clarified that hotline complaints “are typically

withheld from” the local office, and are instead retained in the office of the HR director

in Fort Lauderdale. Id. at 145.5 When she accessed the hotline complaint and

investigation summary, then, she must have done so by “collect[ing] files from

whatever I could get,” either from the Fort Lauderdale office or from Wilson’s old

files. Id. at 145-46. The witnesses’ testimony therefore establishes only the possibility

that Striblen and LaMarca were aware of the hotline complaint, rather than their

actual knowledge, which is not sufficient.

However, Defendant does not provide any authority for its implied contention

that Plaintiff must prove the actual knowledge of all participants in the termination

decision. Doc. 36 at 15. While the decision was “mutual,” Doc. 42-3 at 18, there are

indications that Gates, the participant with actual knowledge, had significant influence

over it. Striblen testified that in making the decision he relied on information from

Gates, as the Human Resources investigator of the December 12 incident, and that

ultimately the final decision to terminate came from “our HR side of the business.” Id.

at 19, 33. Plaintiff has provided enough evidence to survive summary judgment on

the issue of actual knowledge.

On the other hand, knowledge alone is not enough to establish causation.

Plaintiff acknowledges that the most common method of proving causation, temporal

proximity, is unavailable because there is insufficient proximity between the 2014

5 The retention of the hotline complaint in the office where LaMarca worked does not, alone,

provide evidence of LaMarca’s actual knowledge of it. See Mohammed, 2022 WL 1615925, *3

(constructive knowledge is not sufficient); cf. Doc. 41 at 11.

hotline complaint and the 2016 termination. Doc. 41 at 9-10;6 see also Doc. 36 at 15-

16. He argues instead that he has established causation by “the Defendant’s ongoing

awareness of the complaint, up to and including the conversation wherein the decision

to terminate Graves was made.” Doc. 41 at 10. As evidence, Plaintiff asserts that

Graves was “persistently poorly treated” during the intervening years, and he

“repeatedly told the Defendant that he felt he was being retaliated against.” Id.

The Court does not agree with Plaintiff’s description of the evidence or its legal

theory. Contrary to Plaintiff’s claim, there is no evidence that Graves brought up the

hotline complaint himself on any occasion besides the suspension discussion in

December 2016. His written statement for the 2015 Baez investigation states only that

he believed he was “be[ing] attacked for personal reasons,” without any hint as to what

those reasons might be. Doc. 42-2 at 158; cf. 41 at 10. In addition, Plaintiff testified

that no one ever brought up the hotline complaint to him after the single conversation

with Pothemont and Marlon that occurred shortly after he made it. Doc. 36-1 at

6 Plaintiff’s Opposition raises an “alternative theory” that Defendant terminated Plaintiff

because it “got tired of accommodating” his disability. Doc. 41 at 13-14. Plaintiff points out

that there is both actual knowledge and temporal proximity between Plaintiff’s receipt of

intermittent FMLA leave in November 2016 and his termination. Id. However, the

Complaint does not allege a count of FMLA retaliation. See Doc. 1. It is “well-settled that a

plaintiff may not amend her complaint through argument in a brief opposing summary

judgment.” Matamoros v. Broward Sherriff’s Off., 2 F.4th 1329, 1337 (plaintiff was not permitted

to change the protected activity she was alleging at the motion to dismiss stage) (quoting

Gilmour v. Gates, McDonald & Co., 382 F.3d 1212, 1315 (11th Cir. 2004)); cf. Ozorowsky v.

Bayfront HMA Healthcare Holdings, LLC, 8:20-cv-2564-VMC-AEP, 2021 WL 3725247, *11

(M.D. Fla. Aug. 23, 2021) (Covington, J.) (although a long period of time separated the

protected activity from the plaintiff’s termination, a reasonable jury could find that a different,

earlier adverse action constituted the retaliation). Here, the action cannot survive summary

judgment based on a new type of protected activity that is alleged for the first time in a brief

opposing summary judgment.

50:190-91. Nor does he point to any statement or conduct by Pothemont or any other

individual that ties the complaint to, or identifies the cause of, either the harassment

he alleges by Pothemont or his ultimate termination. See id. at 43:163 (other managers

never told him why they were allegedly told to harass Plaintiff). Further, Plaintiff’s

position that “Defendant’s ongoing awareness” of the protected activity, alone, is

enough to establish causation is refuted by the caselaw. See Higdon, 393 F.3d at 1220-

21 (where employer had knowledge of protected expression three months before

alleged adverse action, some other evidence of causation was required in the absence

of temporal proximity).

However, a reasonable jury could conclude causation exists because of

Pothemont’s alleged ongoing harassment coupled with his influence on the

termination decision. Plaintiff alleges that Pothemont began harassing him after he

learned Plaintiff had named him in the hotline complaint, and that the harassment

continued until his termination. Doc. 36-1 at 47:180-48:181, 50:190-91, 60:230,

62:240, 63:242-44. Although the purported harassment itself does not rise to the level

of an adverse action, its ongoing nature does create a temporal link between the hotline

complaint and the termination. Moreover, as Plaintiff points out, Pothemont, the

alleged harasser, was involved in the decision to terminate him. Doc. 41 at 11. Striblen

testified that he not only conferred with Pothemont when making the decision to

terminate, but “rel[ied] on” the information given to him by Pothemont—the initial

investigator into the December 12 incident before Gates became involved. Doc. 42-3

at 19-21, 33.

Under a theory of causation known as the “cat’s paw” theory,

“causation may be established in a retaliation case if a plaintiff

shows that the decisionmaker followed a biased recommendation

without independently investigating the complaint against the

employee[, thereby] using the decisionmaker as a mere conduit, or

‘cat’s paw’ to give effect to the recommender’s retaliatory animus.

Blackmon v. Lee Mem’l Health Sys., 2:19-cv-625-JES-NPM, 2021 WL 808848, *6 (M.D.

Fla. Mar. 3, 2021) (citations omitted). Where “the decisionmaker acted in accordance

with the harasser’s decision without herself evaluating the employee’s situation… the

harasser clearly causes the tangible employment action, regardless of which individual

actually signs the employee’s walking papers.” Llampallas v. Mini-Cirs. Lab, Inc., 163

F.3d 1236, 1249 (11th Cir. 1998) (citations omitted).

Crucial to the cat’s paw theory is the lack of an independent review by the

decisionmaker, who instead merely “rubber stamp[s]” the harasser’s recommendation.

Godby v. Marsh USA, Inc., 346 F. App’x 491, 493 (11th Cir. 2009); Seal v. Todd Gen.,

6:20-cv-1690-WWB-DCI, 2022 WL 1689179, *8 (M.D. Fla. May 26, 2022). In Godby,

for example, the Eleventh Circuit rejected the cat’s paw theory when the

decisionmaker conducted his own review of all individuals selected for termination,

who were then further vetted by three other individuals to examine how they were

selected, what criteria were used, and whether there was a legitimate reason for their

termination. 346 F. App’x at 493; see also Graham v. Fanatics Retail Grp. Fulfillment, LLC,

3:19-cv-1358-HES-JRK, 2021 WL 2868463, *9 (M.D. Fla. June 16, 2021) (no evidence

that decisionmaker followed harasser’s advice where decisionmaker testified that she

alone decided to end plaintiff’s employment); Blackmon, 2021 WL 808848 at *6

(evidence demonstrated decisionmaker alone made the decision to discharge plaintiff,

although he “tr[ied] to keep his supervisors in the loop on these type of decisions”).

Here, there is evidence that one of the three decisionmakers in Plaintiff’s

termination was influenced by the individual Plaintiff alleges harassed him for two

years after Plaintiff named him in the hotline complaint. Although Striblen said he

reviewed Plaintiff’s employee records himself, a material issue of fact exists regarding

the extent to which he relied on Pothemont’s investigation—and that of Gates, another

individual with actual knowledge of the hotline complaint—rather than his own

independent review of the December 12 incident when recommending Plaintiff’s

termination. See Hyde v. Storelink Retail Grp., Inc., No. 8:07-cv-240-T-30MAP, 2009 WL

259392, *2–4 (M.D. Fla. Feb. 3, 2009) (Moody, J.) (summary judgment was not

warranted where there was a material issue of fact regarding whether an influential

non-decision-maker’s discriminatory animus led to the plaintiff’s termination); Sparks

v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1565 (11th Cir.1987) (reversing summary

judgment for employer where an issue of material fact remained as to whether an

alleged harasser “influenced” a decision-maker to fire the plaintiff); see also Schoenfeld

v. Babbitt, 168 F.3d 1257, 1268 (11th Cir.1999) (considering that although individual

accused of discriminatory animus was not a final decision maker, he was “an integral

part of [a] multi-level hiring process,” and evidence regarding his conduct suggested

“a discriminatory animus was at work that tainted the entire hiring process”).

Although it is a close question, a reasonable jury could find that Plaintiff’s

termination was not “wholly unrelated” to his hotline complaint. Given courts’ broad

interpretation of the causal link element, see Olmsted, 141 F.3d at 1460, the Court finds

that Plaintiff has established a prima facie case of retaliation.

B. A Reasonable Factfinder Would Not Find that Defendant’s Legitimate,

Non-Retaliatory Reason for Termination Was Pretextual.

Nevertheless, Plaintiff cannot survive summary judgment as to the remaining

elements of the analysis. Under the framework provided by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), once a plaintiff has established

a prima facie case of retaliation, the burden shifts to the employer to articulate a

legitimate, non-retaliatory reason for the adverse action. See, e.g., Ring v. Boca Ciega

Yacht Club Inc., 4 F.4th 1149, 1163 (11th Cir. 2021) (applying McDonnell Douglas

framework to ADA retaliation claim). If the defendant meets that burden, to avoid

summary judgment the plaintiff must produce sufficient evidence for a reasonable

factfinder to conclude that the proffered reason is a pretext for retaliation. Id.

Here, Plaintiff has failed to provide evidence that would allow a reasonable

factfinder to conclude that the legitimate, non-retaliatory reason for Plaintiff’s

termination was a pretext for retaliation for his 2014 hotline complaint. Summary

judgment is therefore warranted in Defendant’s favor.

1. Legitimate Non-Retaliatory Reason

Plaintiff first argues that Defendant cannot establish a legitimate, non-

retaliatory reason for Plaintiff’s termination without relying on inadmissible hearsay.

Doc. 41 at 11. Specifically, Plaintiff asserts that several paragraphs of Gates’s

declaration and accompanying exhibits constitute inadmissible hearsay. Id. at 3.7

These paragraphs and exhibits relate to the reports alleging misconduct in April 2015,

November 2016, and the December 12 incident. See Doc. 36-3 ¶¶ 8, 12, 13, 14, Exhs.

C, E, F, G, H. Without these reports, Plaintiff contends that Defendant cannot proffer

a non-retaliatory reason for terminating Plaintiff. In response, Defendant argues that

the reports at issue are not hearsay because they are not offered for their truth, but

rather for their effect on the listener; receiving the reports is what led to Plaintiff’s

termination, whether or not the factfinder believes the reports were actually true. Doc.

43 at 5-7. Defendant also notes that the statements in Plaintiff’s personnel file would

also be admissible for their truth as business records and statements that could be

authenticated at trial by the individuals who made them. Id. at 5 n.8.

Under Rule 56(e) of the Federal Rules of Civil Procedure, evidence that is

offered in support for or opposition to a motion for summary judgment must be based

on personal knowledge and contain facts that would be admissible in evidence.

Accordingly, the “general rule” is that inadmissible hearsay cannot be considered on

a motion for summary judgment. Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir.

1999). The Eleventh Circuit has recognized, however, that district courts may

consider hearsay statements that can be “reduced to admissible form”; the “most

7 Although Plaintiff noted that a motion to strike was “forthcoming,” none has been filed.

Doc. 41 at 3 n.2. The Court will consider the admissibility of the statements only to the extent

that they impact the determination of the motion for summary judgment. See Atlantic Marine

Fla., LLC v. Evanston Ins. Co., 3:08-cv-538-HES-JBT, 2010 WL 19330977, *3 (M.D. Fla. May

13, 2010).

obvious way” to do so is by calling the affiant as a witness at trial. Id. (collecting cases);

Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012); Pritchard v. S. Co.

Servs., 92 F.3d 1130, 1135 (11th Cir. 1996). In addition, if the statement is not hearsay

because it is not offered for the truth of the matter, or if it falls within an exception to

the hearsay rule, then the district court may consider it on a motion for summary

judgment. Macuba, 193 F.3d at 1323-24.

Statements that are not offered for their truth are not hearsay. See Fed. R. Evid.

801(c). For example, a prior inconsistent statement that is offered for the sole purpose

of impeachment is admissible. Macuba, 193 F.3d at 1324. Similarly, if a statement is

being offered to show its effect on the person hearing it, it does not qualify as hearsay.

See, e.g., United States v. Harris, 886 F.3d 1120, 1129-30 (11th Cir. 2018). Courts have

therefore considered out of court statements for these limited purposes in a motion for

summary judgment. See, e.g., Blash v. City of Hawkinsville, 856 F. App’x 259, 261 n.2

(11th Cir. 2021) (out-of-court statements that are introduced to show effect on the

listener could be considered on summary judgment); Goode v. Wild Wing Café, 588 F.

App’x 870, 874-75 (11th Cir. 2014) (evidence of complaints about plaintiff was offered

to show employers’ rationale for terminating him, rather than for the truth of the

matter asserted); Dierdorf v. Advanced Motion Therapeutic Massage, Inc., 19-CIV-62609-

RAR, 2021 WL 65067, *3 n.1 (S.D. Fla. Jan. 6, 2021) (considering statement by

deceased witness for limited purpose of its effect on the listener rather than its truth).

On the other hand, the court found that testimony about a statement heard

secondhand by the witness that was offered to prove the speaker’s discriminatory

intent was inadmissible hearsay that could not be considered on a motion for summary

judgment, because it was being offered for its truth. Shockley v. Barbee, 747 F. App’x

754, 757 (11th Cir. 2018).

Here, the Court agrees with Defendant that the misconduct allegations

recounted in Gates’s declaration and accompanying exhibits are primarily offered for

their effect on the decisionmakers in Plaintiff’s termination, rather than for the truth

of the allegations themselves. The Court will therefore consider these allegations for

this limited purpose.

Defendant also contends in a footnote that the witness statements attached to

Gates’s declaration (Doc. 36-3, Exhs. C, E, F, G, H) are admissible for their truth

because they qualify as business records. Doc. 43 at 5 n.8. The Court does not agree.

Gates’ declaration does attest that the attached statements are true and accurate copies

of records that were maintained in the regular course of business. See Doc. 36-3; Fed.

R. Evid. 902(11), 803(6)(B), (D). It is not clear, however, that statements were made

as a regular practice of their car rental business; nor were all of the statements written

down at or near the time the alleged events occurred. See id. at 803(6)(C), (A); cf. Lewis

v. Residential Mortgage Solutions, 800 F. App’x 830, 833 (11th Cir. 2020)

(contemporaneous documents of the type regularly produced in the regular course of

loan business were admissible on summary judgment as business records). On this

record the Court cannot conclude that misconduct reports are admissible for their truth

under the business records exception.

However, as Defendant also notes, the witness statements are capable of being

reduced to admissible form at trial by calling the authors to testify. See Doc. 43 at 5

n.8; Jones, 683 F.3d at 1294; Lewis, 800 F. App’x at 834. For example, Defendant

states that Murphy, the author of two of the statements at issue, was deposed for this

matter. Doc. 43 at 5 n.8. While “the possibility that unknown witnesses will emerge

to provide testimony…is insufficient to establish that the hearsay statement[s] could

be reduced to admissible evidence at trial,” Jones, 683 F.3d at 1294, here the authors’

identities are known and there is no reason to believe they would be unavailable at

trial. See Lewis, 800 F. App’x at 834. Further, their statements are largely comprised

of their personal observations. See McMillian v. Johnson, 88 F.3d 1573, 1585 (11th Cir.

1996) (“that the letter at issue was based on the writer’s personal knowledge indicates

that there was no impediment to the writer testifying at trial as to the facts described

in the letter.”).

In any event, whether or not the allegations within the witness statements are

considered for their truth, it is clear that Defendant has provided a legitimate, non-

retaliatory reason for Plaintiff’s termination. The employer’s burden at this stage is a

“low bar to hurdle” that does not involve any credibility assessments. Flowers v. Troup

Cnty., Ga., School District, 803 F.3d 1327, 1336 (11th Cir. 2015). Although Plaintiff

contests the veracity of the witness reports, it is undisputed that two witnesses provided

consistent statements in which they accused him of violating company rules during

the December 12 incident. See Doc. 36-1 at 57:217-219; Doc. 36-3 at 24-28. Further,

the Avis Code of Conduct states that the violation of company rules may lead to

termination. See Doc. 36-1 at 38:143-40:151; 116-123. Defendant has therefore met its

burden of demonstrating a legitimate, non-retaliatory reason for the termination.

2. Pretext

Once the employer has provided a non-retaliatory reason for the adverse action,

“the plaintiff’s prima facie case is rebutted, all presumptions drop from the case, and

the plaintiff is then required to show that the employer’s proffered reason for the action

is a pretext for discrimination.” Flowers, 803 F.3d at 1336. To survive summary

judgment, then, Plaintiff must offer “enough probative evidence so that a reasonable

jury might conclude” the reason for the termination was a pretext for retaliation. See

Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir. 1999). In

considering this question, “[w]e must avoid weighing conflicting evidence or making

credibility determinations,” instead accepting as true all evidence of the non-movant

and drawing all justifiable inferences in his favor. Id. (citations omitted).

As the Eleventh Circuit has “repeatedly and emphatically held, employers may

terminate an employee for a good or bad reason without violating [the] law.” Flowers,

803 F.3d at 1338, citing Damon, 196 F.3d at 1361 and Elrod v. Sears, Roebuck & Co., 939

F.2d 1466, 1470 (11th Cir.1991) (quotations omitted). “We are not in the business of

adjudging whether employment decisions are prudent or fair. Instead, our sole concern

is whether unlawful discriminatory animus motivates a challenged employment

decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th

Cir.1999). “The inquiry into pretext centers on the employer's beliefs, not the

employee's beliefs and...not on reality as it exists outside of the decision maker's

head.” Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). The

question is whether the employer was dissatisfied with the plaintiff for “non-

discriminatory reasons, even if mistakenly or unfairly so” or whether it instead merely

used this incident “as cover” for retaliating against him. Id.

Here, Defendant alleges that it terminated Plaintiff because he violated the Avis

Code of Conduct by “[b]eing rude, abusive or threatening to customers or coworkers,”

and through “[t]hreats or acts of violence, including verbal or physical fighting on

Company premises[.]” Doc. 36-3 at 32. Gates explained that the December 12

incident alone constituted grounds for termination, and that the fact that it was

substantiated by another witness was a determining factor in the termination decision.

Doc. 42-2 at 74, 109, 140.

Plaintiff points to several pieces of evidence in the record to demonstrate that

Defendant’s proffered reason for the termination was pretext. These arguments will

be taken in turn. First, in support of an “alternative scenario” that he was actually

fired for taking FMLA leave,8 Plaintiff claims Defendants’ records reveal that the

termination was planned well before the December 12 incident, because they

purportedly state that Defendant “initiated the change of Graves’ employment status

to ‘terminated’” at 8:45 PM on December 3, 2016. Doc. 41 at 14, citing to Doc. 42-4

at 22. But this view is not supported by the evidence, even making all reasonable

8 As noted supra, n. 5, a claim of FMLA retaliation is not before the Court.

inferences in Plaintiff’s favor. In the document Plaintiff highlights, the only business

process that corresponds with the date and time entry of 8:43 PM on December 3,

2016, is called “ID Change.” Doc. 42-4 at 22. In contrast, the business process called

“Terminate” was not initiated until January 3, 2017. Id.9 Even viewing this record in

the light most favorable to Plaintiff, it does not provide evidence of pretext or create a

genuine dispute of fact.

Plaintiff further contends that the loss of some of Defendant’s records about

Graves merits an adverse inference in the Court’s consideration of pretext because it

“contributes to the general untrustworthiness of the Defendant’s conduct and

explanations[.]” Doc. 41 at 15. However, Plaintiff does not assert that the loss

constituted spoliation that was the result of bad faith, such that the sanction of an

adverse inference would be warranted. See, e.g., Tesoriero v. Carnival Corp., 965 F.3d

1170, 1183-84 (11th Cir. 2020). Nor does Plaintiff identify any relevant records that

are missing because of the computer crash that destroyed Gates’s electronic files. The

Court therefore declines to infer that a document may have existed that would have

provided evidence of pretext.

Next, Plaintiff argues that the reasons Defendant has provided for Graves’

termination—specifically, which factors or events the decisionmakers considered—are

9 Plaintiff may be relying on the notation “(Terminated)” that follows Raymond Graves’s

name after “ID Change”; however, this notation follows his name in nearly every business

process entry regardless of date or topic, including the process called “Compensation Change”

that was effective on July 16, 2016. Id. The Court finds that no reasonable juror would

conclude this notation indicates his termination was initiated on December 3.

inconsistent. Doc. 41 at 12. Gates and Striblen each testified about the factors that

went into their decision. Striblen said that he considered both the November 28

allegation that was witnessed by a manager and the December 12 incident when he

recommended that Plaintiff be terminated. Id. at 23-24, 33. Gates said that, although

she viewed the situation in light of Plaintiff’s “overall work record,” including the prior

allegations, the December 12 incident was ultimately the only one that had bearing on

her decision. Doc. 42-2 at 72, 74-75, 109, 140. Given that the termination decision

was made from the collective input of three individuals, see Doc. 42-2 at 108; 42-3 at

18, the Court does not find it inconsistent or incredible that slightly different rationales

would underlie their individual recommendations. In addition, both of their

individual rationales were consistent with the reason provided in the termination

letter. Cf. Hurlbert v. St. Mary’s Health Care System, Inc., 439 F.3d 1286, 1298-99 (11th

Cir. 2006) (inconsistent evidence of reason for employee’s discharge was evidence of

pretext where termination documents stated one reason for the discharge while

witnesses gave a different reason). This evidence does not create a genuine dispute of

material fact regarding the credibility of the stated termination reason.

Plaintiff also challenges the credibility of the reason for Plaintiff’s termination

because of the timing of his suspension, which demonstrated that Defendant “could

not possibly have been terribly concerned about Graves being an actual danger to

anyone else, seeing as it allowed Graves to work for the three days after the incident.”

Doc. 41 at 14-15. The records before the Court do not indicate whether Plaintiff

actually worked on the days between December 12 and 15. But, in any event,

Defendant was not required to believe that Plaintiff presented a “danger” to anyone in

order to terminate his at-will employment because of a rule violation. After all, 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 [retaliatory]

reason.” Jones v. Bessemer Carraway Medical Center, 151 F.3d 1321, 1324 n.16 (11th Cir.

1998). Defendant was entitled to conclude that a serious rule violation on a single

occasion warranted termination, regardless of whether Defendant believed it would be

repeated.

Finally, Plaintiff points to evidence of “comparators,” other employees whom

it alleges were treated differently despite committing the same conduct, arguing that

these individuals’ treatment demonstrates pretext. Doc. 41 at 12-13, 4. Plaintiff states

it is “undisputed that Potter violated the same policy Graves did,” and “it is also

undisputed that another individual named Mercedes was not terminated for

substantially similar conduct.” Id. However, Plaintiff’s claims are neither

“undisputed” nor supported by the evidence, because neither individual was accused

of the same conduct as Plaintiff.

A plaintiff may demonstrate that the stated reason for an adverse employment

action was a pretext for unlawful activity by showing that the employer treated

similarly situated individuals, or “comparators,” differently. Johnson v. Miami-Dade

Cnty., 948 F.3d 1318, 1325-26 (11th Cir. 2020); see also Damon, 196 F.3d at 1363

(violation of work rule may be a pretextual reason for termination where other

employees who engaged in similar acts were not similarly treated). To be a

“comparator,” an individual must be “similarly situated in all material respects.” Lewis

v. City of Union City, Ga. (“Lewis I”), 918 F.3d 1213, 1226 (11th Cir. 2019). “This

determination relies on the individuals’ substantive likenesses, and a comparator may

be sufficiently similar if she has engaged in the same basic conduct (or misconduct) as

the plaintiff, was subject to the same employment policies as the plaintiff, had the same

supervisor, and shared the plaintiff’s employment or disciplinary history.” Lewis v.

Secretary of U.S. Air Force, No. 20-12463, 2022 WL 2377164 (11th Cir. June 30, 2022),

citing Lewis I, 918 F.3d at 1226-27 (quotations omitted).

Here, neither Potter nor Mercedes is a valid comparator. With respect to Potter,

the parties agree that she and Graves had a verbal dispute on December 12 in which

they both used profanity. Plaintiff denies raising his voice or physically threatening

Potter during the dispute, and the Court assumes this to be true for the purpose of

summary judgment. However, Potter and another witness both made written reports

stating that Plaintiff did raise his voice and his hand while standing very closely to

Potter. Doc. 36-3 at 24-28. There were no reports that Potter engaged in the same

physical behavior or any conduct that could be considered physically threatening.

Because Potter was not accused of the same misconduct, she is not a valid comparator.

See Lewis I, 918 F.3d at 1226.

Plaintiff also testified that an employee named Mercedes cursed out her

manager on more than one occasion. Doc. 36-1 at 59:227-28. It is unclear whether

Plaintiff himself ever witnessed these incidents or if he was relying on unidentified

secondhand reports, which would constitute inadmissible hearsay. See Section B(1),

supra. Regardless, Plaintiff does not allege that Mercedes engaged in behavior that

could be described as physically threatening during these incidents. She therefore

cannot be considered a valid comparator either.

Nor does the evidence support Plaintiff’s characterization that “flexibility [in

disciplinary sanctions] only extends to RSAs who are not Graves.” Doc. 41 at 12

(emphasis in original); see Doc. 42-2 at 128 (Gates explains that there is flexibility upon

violations of the rules). Over the course of Graves’ employment Defendant received

multiple reports of his misconduct, including actions that were allegedly witnessed by

managers. As an at-will employee, Plaintiff could have been subject to termination

for any of these alleged violations. See Doc. 36-1 at 119-122. Instead, however, the

evidence shows that Defendant investigated the more serious allegations to determine

whether they were substantiated before taking any adverse action against Plaintiff.

Doc. 42-2 at 60-61, 72; 36-3 at 12-16, 24-32. For the other allegations, Defendant

chose the lesser sanction of verbal counseling. Id. at 10, 18-22; Doc. 42-2 at 77-79.

Moreover, throughout this time Defendant was accommodating Plaintiff’s disability.

See Doc. 41 at 13; Jones v. Aaron’s Inc., 748 F. App’x 907, 915 (11th Cir. 2018) (“Jones

has also failed to show that her disability was the real reason for her termination. If

anything, the record evidence demonstrates that Aaron’s had no problem with Jones’s

disability…fully adher[ing] to Jones’s medical restrictions” on all but one occasion).

Despite the prior allegations and the accommodations Plaintiff had been receiving

since 2014, Defendant terminated Plaintiff only when a serious allegation of

misconduct was supported by two consistent witness accounts.

“An employer who fires an employee under the mistaken but honest impression

that the employee violated a work rule is not liable for discriminatory conduct.”

Damon, 196 F.3d 1354, 1363 n.3. Plaintiff does not dispute that Defendant received

consistent reports from two individuals that he physically threatened Potter during the

December 12 incident, even though Plaintiff denies doing so. Defendant was entitled

to credit these reports in making the decision to terminate Plaintiff, whether or not the

reports were accurate. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.

1991 (in evaluating pretext, the court must focus on whether the decisionmakers

believed that the employee was guilty of the act and whether that belief was the reason

for termination). Plaintiff has failed to provide evidence with which a reasonable jury

could conclude the reason for his termination was a pretext for retaliation.

As no genuine issues of material fact exist, Defendant is entitled to summary

judgment in its favor. Accordingly, it is ORDERED:

1. Defendant’s Motion for Summary Judgment (Doc. 36) is GRANTED.

2. The Clerk is directed to enter judgment in favor of Defendant, terminate any

pending motions, and close this case.

DONE and ORDERED in Tampa, Florida on August 15, 2022.

Chav aries duJtarndea ho TDA pi ed Q_

Charlene Edwards Honeywell

United States District Judge

Copies furnished to:

Counsel of Record

Unrepresented Parties