Stevenson v. Frontier Florida, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DRASHEA STEVENSON,

Plaintiff,

v. Case No: 8:19-cv-1462-CEH-JSS

FRONTIER FLORIDA, LLC,

Defendant.

___________________________________/

ORDER

In this employment discrimination action, Plaintiff Drashea Stevenson

(“Plaintiff” or “Stevenson”) sues his former employer Defendant Frontier Florida,

LLC (“Defendant” or “Florida”) for alleged sexual discrimination under Title VII of

the Civil Rights Act of 1964, as amended (“Title VII”), Florida’s Civil Rights Act of

1992 (“FCRA”), and the City of Tampa’s Human Rights Ordinance (“THRO”), and

for retaliation in violation of Florida’s Whistle Blower Act, Fla. Stat. § 448.101, et seq.

Doc. 1. This matter is before the Court on Defendant Frontier’s Motion for Summary

Judgment (Doc. 36), Plaintiff Stevenson’s response in opposition (Doc. 43), Frontier’s

reply (Doc. 44), and the parties’ Joint Stipulation of Agreed Material Facts (Doc. 42).

Upon due consideration of the parties’ submissions, including deposition transcripts,

declarations, legal memoranda and accompanying exhibits, and for the reasons that

follow, Defendant’s Motion for Summary Judgment (Doc. 36) will be granted.

I. BACKGROUND1

A. Undisputed Facts2

As part of a 2016 acquisition of another communications company, Frontier

became the employer of the existing employees of that company, including Melanie

Williams (“Williams”), Plaintiff Stevenson, Rhonda Britto (“Britto”), Joe Torch

(“Torch”) and George Vernon Burrell, Jr. (“Burrell”). Doc. 42 ¶ 1. Frontier continued

the same general operations of the predecessor company, providing cable, internet and

other wired and wireless services to commercial and residential customers. Doc. 37-3

¶ 2.

Stevenson began his career with the predecessor company in 2002 as a field

foreman managing installation and maintenance for cable and internet services until

he was transferred to call dispatch in 2004. Doc. 42 ¶ 2. From approximately 2006 to

2008, Stevenson was employed in construction, overseeing cable maintenance for all

Florida facilities. Id. Stevenson’s next position was files installation and maintenance

supervisor for fiber optic cable. Id. Stevenson was promoted to Area Manager for

certain territories within Florida including supervision of largely copper cable

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

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

parties’ Stipulation of Agreed Material Facts (Doc. 42). For purposes of summary judgment,

the Court presents the facts in the light most favorable to the non-moving party as required

by Fed. R. Civ. P. 56.

2 These facts are taken primarily from the parties’ Stipulation of Agreed Material Facts (Doc.

42), and the Declaration of Melanie Williams (Doc. 37-3), unless otherwise indicated.

installation and repair. Id. In 2015, Stevenson was promoted to Area Manager for all

business cable installation for Florida. Id.

In 2016, at the time the Frontier acquisition was announced, Stevenson was

responsible for all business conversions to Frontier’s technology in Florida in

anticipation of the takeover. Id. As a result of Stevenson’s work experience, he was

knowledgeable about both fiber and copper cable installation and repair including

identifying the difference between a splice and a full replacement of a cable. Id. ¶ 3. On

March 1, 2017, Stevenson moved to a service-side director position, overseeing all

non-construction activities, including repair and maintenance of all cable in his

territory. Doc. 41-1 at 84; Doc. 37-3 ¶ 8.

Britto began her career with a Frontier predecessor in 1988 in a call center. Doc.

42 ¶ 4. She earned a promotion to Call Center Manager and moved to Florida for that

position in 2003. Id. She has since held the positions of Marketing Manager, Regional

Sales Manager, Alternate Channel Regional Manager, and Area Manager, which is

the position she held when Frontier acquired her former employer in 2016. Id. As Area

Manager, Britto’s territory used almost exclusively fiber-optic (as opposed to copper)

cable. Id. In mid to late 2016, Britto became a service-side director in an area with

largely copper cable operations. Doc. 37-3 ¶ 9; Doc. 41-5 at 13.3

Williams is responsible for overseeing Frontier’s Florida operations. Doc. 42 ¶

5. Frontier’s Operations division oversees the installation and operation of copper and

3 Williams believed that Britto moved into this new role in December 2016. Doc. 37-3 ¶ 9.

fiber optic cable run which allows provision of internet and other services to

commercial and residential customers. Id.

In Florida, Frontier employed four directors, all of whom report directly to

Williams. Id. ¶ 6. In December 2016, Frontier employed the following individuals as

Directors: Stevenson (male), Britto (female), Geno Flori (male), and Douglas Spurlin

(male). Local Manager Torch (male) reported to Britto, and Local Manager Burrell

(male) reported to Stevenson. Id. ¶ 8. Kyle Perkins (“Perkins”) (male), who was a

“cable splicer” at the time, reported to Burrell and was subordinate to Stevenson. Id. ¶

9.

On May 2, 2017, Perkins sent Williams an email alleging he had evidence that

a vendor was overbilling Frontier for work that was not performed. Id. ¶ 10. This was

the first notice that Williams received from anyone at Frontier regarding the vendor

overbilling. Doc. 37-3 ¶ 11. Williams scheduled a conference call (which occurred on

May 18, 2017) with herself, Perkins, Danny Alfonso (Union Representative on behalf

of Perkins), Steve Snedegar (AVP HR) (“Snedegar”), and Joe Starsick (Associate

General Counsel) to address the fraudulent billing raised by Perkins. Id. ¶ 14; Doc. 42

¶ 11. During the call, a discussion was held regarding the concern of Perkins that a

vendor may be billing Frontier for cable replacement instead of cable repair or

performing cable replacement when only cable repair was needed. Doc. 37-3 ¶ 14.

Perkins expressed concern that the problem was widespread and expressed frustration

for having brought this to the attention of his direct (Burrell) and next-level (Stevenson)

managers and Torch and Britto, although nothing had been done. Id. Following the

call, because it was clear to her that Perkins had evidence suggesting significant

revenue loss to Frontier, Williams referred the matter to Frontier’s Security division

for an investigation into the irregularities Perkins had identified. Doc. 37-3 ¶ 15; Doc.

42 ¶ 12.

On May 19, 2017, Anna Hubbartt (“Hubbartt”), Security Manager, began

investigating the alleged improper billing. Doc. 42 ¶ 13. The Security investigation

focused on detecting any potential collusion between Frontier employees and the

vendor at issue and quantifying the alleged overbilling. Id. ¶ 14. Perkins, Stevenson,

Britto, Torch, and Burrell were interviewed as part of the Security investigation. Id. ¶

15. Williams participated in interviews of Stevenson and Britto. Doc. 37-3 ¶ 18.

In the Security investigation, Stevenson told Hubbartt he was confident he

could identify an improper vendor bill because of his prior experience as a technician,

Local Manager, Area Manager and Director. Doc. 42 ¶ 16. In the Security

investigation, Britto stated she recalled Stevenson consulted, via telephone, with

Carlos Bates, Frontier’s administrator for the vendor contract at issue, about the

examples presented to them by Perkins. Id. ¶ 17.

The Security investigation concluded that by late February 2017, Perkins had

notified his supervisor, Burrell, of the proof and of his concern about one of Frontier’s

vendors intentionally overbilling Frontier on two jobs. Doc. 37-3 ¶ 20. The Security

investigation also concluded that Burrell, in turn, alerted his supervisor, Stevenson,

about the problem and Stevenson met with Burrell and Perkins after a town hall

meeting. Id. ¶ 21. According to Williams, the Security investigation reflected that

Stevenson agreed to set up a meeting to gather more information or further investigate

the extent of the billing issue, but never did. Id. ¶ 22. Thereafter, Perkins contacted

Britto about the same concerns, and she scheduled a meeting on March 3, 2017, to

discuss the vendor billing concerns. Id. ¶ 23. Williams was under the impression that

Britto requested Torch, Burrell, and Stevenson to attend the meeting because Britto

did not feel she was seasoned enough in the construction work, particularly with

copper cable, to appreciate the concerns of Perkins. Id. ¶ 24. In Williams’ mind, this

evidenced Britto’s willingness to seek help understanding whether this was a matter

that she needed to act upon. Id.

The investigation revealed that Perkins presented evidence at the March 3rd

meeting of the fraudulent billing, and he suggested someone should audit other

invoices for similar misconduct. Id. ¶ 25. It was Williams’ understanding that by the

end of the meeting, Stevenson minimized the potential problem raised by Perkins as a

“business as usual” discrepancy.” Id. ¶ 26. Stevenson did not dispute this

characterization in his interview, but instead it was corroborated by his continued

attempts to minimize the issue and claim that Perkins had not provided enough

evidence of the over-billing. Id. Williams had the impression that Britto relied upon

Stevenson’s assessment that Perkins had not presented anything more than “business

as usual” inconsistencies. Id. None of the managers took any further action regarding

Perkins’ concerns following the meeting. Id. ¶ 27. The HR investigation concluded

that Torch and Burrell did not take any further action following the March 3rd meeting

because they believed Stevenson and/or Britto, as directors, would take further action.

Id. ¶ 28.

Ultimately, Hubbartt found the vendor at issue had been improperly billing

Frontier for its services for months and the improper billing had occurred in multiple

territories overseen by multiple Directors. Doc. 42 ¶ 18. Hubbartt also concluded half

of the invoices contained sufficient evidence on their face to prove the fraudulent

billing, which meant the invoice approvers should have caught the billing errors solely

upon review of the invoices. Id. The vendor had overbilled Frontier by about $152,000.

Id. The Security investigation found no evidence of collusion or kickbacks between the

vendor and any Frontier employees. Id.

The HR investigation concluded that Britto, who was only two months into her

new role, did not have the experience or knowledge in copper to understand the scope

of the issue or the need to escalate the matter to higher management, but that she did

little to educate herself as to the potential problem and instead relied on Stevenson’s

assessment that it was a “business as usual” discrepancy. Doc. 37-3 ¶ 29. The HR

investigation further concluded that Stevenson had the experience and knowledge to

understand the potential scope of the problem due to his prior experience, and he

should have escalated the situation of potential fraud to higher management. Id. ¶ 30.

Snedegar believed that Stevenson continued to deny he should have taken further

action and he failed to take responsibility for his inaction, whereas Britto

acknowledged her error and demonstrated a willingness to learn from the situation. Id.

¶ 30. Williams perceived and appreciated this distinction in the behavior and

demeanor of the two when she observed their interviews. Id.

Snedegar began his HR investigation with a thorough review of what Hubbartt

provided. Doc. 42 ¶ 19. Snedegar then determined what other information he needed

to determine whether any personnel actions were warranted. Id. Over the course of his

investigation, Snedegar interviewed Stevenson and Britto. Id. ¶ 20. Snedegar

recommended Britto receive an in-person coaching and strongly worded

documentation. Id. ¶ 21. Snedegar recommended Stevenson be demoted. Id. ¶ 22.

Williams agreed with HR’s assessment that both Stevenson and Britto

demonstrated lapses in judgment and that Stevenson’s lapse was more serious than

Britto’s. Doc. 37-3 ¶ 32. In determining what discipline to issue as a result of the

determinations of improper conduct, Williams relied on the findings of both the

security and HR investigations, as well as her own knowledge and determinations

regarding the adequacy of each person’s explanations for their actions and inactions

given their individual role, knowledge, skills, experience, and opportunities to act. Id.

¶ 33. Williams states she did not consider sex when making her decisions regarding

the discipline to be assessed against the respective employees. Id. ¶ 34. Williams

determined independently the appropriate personnel action to be taken as to each

individual. Id.

Williams was most concerned about the lapses in judgment of the directors,

particularly their failure to escalate the issue to her upon their learning of the vendor

billing issue from Perkins. Id. ¶ 35. Given the level of responsibility Directors have to

run operations in Florida, Williams stated she must be able to rely upon their judgment

to protect the interests of Frontier. Id.

In reviewing the interviews of Stevenson and Britto and given Stevenson’s

continued failure to act, despite his admission that he understood the magnitude of

Perkins’ concerns and his having the experience to appreciate and identify the

problem, Williams concluded she could no longer rely on Stevenson. Id. ¶ 36. In

Williams’ view, Stevenson was unwilling to accept responsibility for his failure to

appropriately escalate the issue when he should have. Id. ¶ 37. Williams viewed

Stevenson’s failure to recognize his mistakes and be accountable for his actions as

evidence of a serious lack in judgment warranting termination. Id.

Regarding discipline of Britto, Williams recognized Britto was in a different

situation than Stevenson given that she was new to the role and her lack of significant

prior experience. Id. ¶ 38. While Williams still found that Britto suffered from a lapse

in judgment in failing to escalate the issue, the fact that Britto owned up to her mistakes

and was willing to learn from them distinguished her conduct from Stevenson’s Id.

Williams also credited Britto with setting up the March 3, 2017 meeting and

recognized that she was relying on Stevenson’s assessment of the situation because of

his superior experience, particularly with copper cable. Id.

On August 29, 2017, Williams, with approval of her supervisor Christopher

Levendos, decided Torch and Burrell would receive coaching and documentation,

Britto would receive a serious coaching and documentation, and Stevenson would be

terminated. Doc. 42 ¶ 23.

On September 20, 2017, Williams, with Snedegar in attendance, met with

Stevenson in Williams’ office to notify Stevenson of his termination and to provide

him with a copy of his termination letter. Id. ¶ 24.

Stevenson admits he never complained about discrimination or illegal action

while he was employed with Frontier. Id. ¶ 25. Following his termination, Stevenson

contacted the Equal Employment Opportunity Commission (“EEOC”) to complain

of alleged sex discrimination in connection with his termination. Id. ¶ 26. Prior to his

termination, Stevenson had never been formally disciplined by the Defendant. Id. ¶ 27.

After Stevenson’s termination, Williams was searching for replacements for two

director positions –Plaintiff’s and Geno Flori’s (“Flori”) positions. Williams hired

William Nastasiak, a male, to fill Plaintiff’s former position and Dennis Coyle, also a

male, to fill Flori’s position. Doc. 37-3 ¶ 45.

B. Plaintiff’s Proffer of Evidence of Frontier’s Intent to Advance Women

On December 7, 2016, a Frontier Press Release announces its membership in

the ParadigmSM for Parity coalition and Frontier’s commitment to achieve gender

parity through its corporate leadership by 2030. Doc. 41-7.

In Williams’ profile as a board member for the Hillsborough Area Regional

Transit Authority (“HART”), it notes that she is dedicated to “celebrating the women

who guided and mentored her by paying it forward to the next generation of women

leaders.” Doc. 41-10.

C. Procedural History

In June 2019, Stevenson filed a four-count Complaint against Frontier alleging

a federal discrimination claim under Title VII and state law claims under Florida’s

Civil Rights Act, Tampa’s Human Rights Ordinance, and Florida’s Whistle Blower

Act. Doc. 1. The Court has federal question jurisdiction under 28 U.S.C. § 1331 and

supplemental jurisdiction pursuant to 28 U.S.C. § 1367. Before the Court is Frontier’s

motion for final summary judgment against Stevenson on all claims. Doc. 36. Frontier

also asserts that even if Stevenson has put forth enough evidence for a jury to find his

sex was a motivating factor in Stevenson’s termination, Frontier has nevertheless

proven its third affirmative defense that it would have made the same decision

regardless of Plaintiff’s sex. In support, Frontier submits several documents: excerpts

of Plaintiff’s deposition (Doc. 37-1); declaration of Steven Snedegar, Frontier’s

Associate Vice President Human Resources (Doc. 37-2); and declaration of Melanie

Williams, Frontier’s Senior Vice President Operations (Doc. 37-3).

Stevenson opposes the motion, arguing the facts and circumstances surrounding

his termination constitute a convincing mosaic of discriminatory intent and that

Frontier cannot meet its burden of proving the same decision defense.4 Doc. 43. In

opposition to the motion, Stevenson files the following depositions: Plaintiff’s (Doc.

41-1); Snedegar (Doc. 41-2), Perkins (Doc. 41-3), Burrell (Doc. 41-4), and Britto (Doc.

41-5). Plaintiff also files Defendant’s Rule 26 disclosures (Doc. 41-6), Frontier’s

4 Stevenson’s memorandum in opposition does not respond to Frontier’s motion directed to

his whistleblower claim

December 7, 2016 press release (Doc. 41-7), Frontier’s September 6, 2017 press release

(Doc. 41-8); Frontier presentation at conference on September 12, 2017 (Doc. 41-9);

Melanie Williams’ profile as Board Member of the Hillsborough Area Transit

Authority (Doc. 41-10); Snedegar email (Doc. 41-11); and Snedegar email with

timeline and annotated chart (Doc. 41-12). Frontier replied (Doc. 44) to Stevenson’s

opposition and filed email communications between Snedegar and Williams (Docs.

45-1, 45-2, 45-3). The parties filed a Stipulation of Agreed Material Facts. Doc. 42.

The motion for summary judgment is ripe for the Court’s consideration.

II. LEGAL STANDARD

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

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

genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). The moving party bears the initial burden of stating the basis for its motion and

identifying those portions of the record demonstrating the absence of genuine issues of

material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1259–60 (11th Cir. 2004). That burden can be discharged if the moving party can show

the court that there is “an absence of evidence to support the nonmoving party’s case.”

Celotex, 477 U.S. at 325.

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

then designate specific facts showing that there is a genuine issue of material fact. Id.

at 324. Issues of fact are “genuine only if a reasonable jury, considering the evidence

present, could find for the nonmoving party,” and a fact is “material” if it may affect

the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248–49 (1986). In determining whether a genuine issue of material fact exists, the

court must consider all the evidence in the light most favorable to the nonmoving

party. Celotex, 477 U.S. at 323. However, a party cannot defeat summary judgment by

relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 F. App’x 852,

858 (11th Cir. 2006).

III. DISCUSSION

Stevenson sues his former employer Frontier for violations of Title VII, the

FCRA, and the THRO, alleging he was discriminated against based on his sex—male.

Additionally, Stevenson sues for retaliation under Florida’s Whistle Blower Act.

Frontier moves for summary judgment in its favor on all claims because no disputed

issue of fact exists that Frontier did not discriminate against Stevenson when it

terminated him. In support of its motion, Frontier submits that Stevenson was

terminated because of a serious lapse in judgment as evidenced by his failure to

recognize fraudulent billing by a Frontier vendor, failure to recognize the significance

of the reported billing issue, and failure to take meaningful steps to act on the reported

billing fraud. Stevenson responds that summary judgment must be denied because he

can establish that his sex was, at least in part, a motivating factor in Frontier’s decision

to terminate his employment.

Frontier additionally moves for summary judgment on Stevenson’s

whistleblower claim, arguing that Stevenson offers no evidence that Frontier retaliated

against him for his post-termination conduct of filing a Charge of Discrimination with

the EEOC. Because Stevenson never opposed this argument in his response, Frontier

submits that Stevenson has waived his whistleblower claim and Frontier is entitled to

summary judgment on the claim. For the reasons that follow, the motion is due to be

granted and Frontier is entitled to summary judgment on all claims.

A. Sex Discrimination Claims under Title VII, the FCRA, and the THRO

Stevenson asserts claims for discrimination on the basis of his sex (male) under

Title VII (Count I), the FCRA (Count II), and the THRO (Count III). The factual

predicate for each of the Counts is the same. See Doc. 1 at 5–8. “Florida courts have

held that decisions construing Title VII are applicable when considering claims under

the Florida Civil Rights Act, because the Florida act was patterned after Title VII.”

Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (citing Ranger

Ins. Co. v. Bal Harbour Club, Inc., 549 So.2d 1005, 1009 (Fla. 1989)). Similarly, the

THRO embodies the policies and purpose of Title VII in that it “secure[s] for all

individuals within the city the freedom from discrimination because of race, color,

religion, national origin, sex, sexual orientation, gender identity or expression, age,

handicap, familial status or marital status, in connection with employment, and

thereby to promote the interests, rights and privileges of individuals within the city.”

Tampa Code, § 12-16. Indeed, the THRO’s general purpose is to execute policies

consistent with the Federal Civil Rights Act of 1964, as amended. See id. Accordingly,

Frontier contends that the sex discrimination claims under Title VII, the FCRA, and

the THRO are to be analyzed under the same legal framework. The Court agrees.

1. Prima Facie Case of Sex Discrimination

“Title VII prohibits employment discrimination on the basis of sex.” Holland v.

Gee, 677 F.3d 1047, 1054 (11th Cir. 2012) (citing 42 U.S.C. § 2000e–2(a)). To prove

discrimination based on sex, a Title VII plaintiff may rely on direct evidence,

circumstantial evidence, or statistical proof. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d

1253, 1264 (11th Cir. 2010). Stevenson offers no statistical evidence to support his

claim. Nor does he argue any comments or remarks made to him rise to the level of

direct discrimination. Lacking direct evidence, Stevenson must prove his

discrimination claim circumstantially.

In his Complaint, Stevenson asserts that he was treated differently than Britto,

a female, who he alleges is a similarly situated individual outside his protected class.

In his opposition to the motion for summary judgment, Stevenson argues the material

facts form a convincing mosaic of discriminatory intent. Although courts will refer to

these arguments as mixed-motive and single-motive “claims,” the Eleventh Circuit has

explained that “[m]ixed-motive and single-motive discrimination are different theories

of discrimination, as opposed to distinct causes of action. Specifically, they serve as

alternative causation standards for proving discrimination.” Quigg v. Thomas Cty. Sch.

Dist., 814 F.3d 1227, 1235 n.4 (11th Cir. 2016). Because his response references both

single-motive and mixed-motive theories, the Court will address each theory in turn

below.

a. Single Motive

In the Eleventh Circuit, courts evaluate such claims using the framework

established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), Texas Dep’t. of Community Affairs v. Burdine, 450 U.S. 248 (1981), and their

progeny. Under the framework, Plaintiff must first establish a prima facie case of

discrimination. Id. If a prima facie case is established, the burden then shifts to the

employer to rebut the resulting presumption of discrimination by producing evidence

that it acted for a legitimate non-discriminatory reason. McDonnell Douglas, 411 U.S.

at 802. The employer does not need to persuade the court that it was actually

motivated by the proffered reason, but rather, it need only present evidence raising a

genuine issue of fact as to whether it discriminated against the plaintiff. Burdine, 450

U.S. at 254. The burden then shifts back to the plaintiff to show that the employer’s

proffered reason was not its true reason, and instead was a pretext for discrimination.

Id. at 256.

To establish a prima facie case of sex discrimination based on a single-motive

theory, Stevenson must show: (1) he was a member of a protected class; (2) he was

qualified for the job; (3) he suffered an adverse employment action; and (4) he was

treated different than or replaced with someone outside of the protected class. See, e.g.,

Walker v. NationsBank of Fla., N.A., 53 F.3d 1548, 1556 (11th Cir. 1995); Taylor v.

Hudson Pulp & Paper Corp., 788 F.2d 1455,1459 (11th Cir. 1986). At issue is the fourth

element of the analysis. Frontier argues that Stevenson is unable to meet his burden

because he has not identified a similarly situated employee outside his protected class

who was treated more favorably and because he was replaced by a male employee.

Thus, he fails under the fourth prong.

To the extent Stevenson seeks to establish the fourth prong by claiming Britto

was treated more favorably than he was, he would have to establish, at the prima facie

stage of McDonnell Douglas’s burden-shifting framework, that Britto is similarly

situated. The proper test for evaluating comparator evidence is that a plaintiff must

show he and his proffered comparators were “similarly situated in all material

respects.” Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1218 (11th Cir. 2019). The

Eleventh Circuit has identified certain guideposts in making the comparison.

[A] similarly situated comparator–

• will have engaged in the same basic conduct (or misconduct) as the

plaintiff . . . ;

• will have been subject to the same employment policy, guideline, or rule

as the plaintiff . . . ;

• will ordinarily (although not invariably) have been under the

jurisdiction of the same supervisor as the plaintiff . . . ; and

• will share the plaintiff’s employment or disciplinary history. . . .

Lewis, 918 F.3d at 1227–28 (citations omitted). Stevenson and Britto were both

Directors under the supervision of Williams. Both approved fraudulent vendor

invoices,5 had been made aware of the issue months earlier, and had not brought the

matter to the attention of Williams. But the undisputed evidence shows that Williams,

5 Stevenson contends that the record evidence shows that Britto approved the subject invoices,

not him. Doc. 43 at 5. Snedegar’s affidavit reflects that improper billing occurred in multiple

territories overseen by multiple directors. Doc. 37-2 ¶ 13.

in making her decisions regarding the appropriate punishment for Stevenson and

Britto, focused not on the approval of the vendor invoices, but rather on the Directors’

actions taken in response to the incident and conduct going forward. See Doc. 37-3 §§

17, 24, 26, 29, 30.

Considering Stevenson and Britto’s response to the vendor billing situation,

Williams no longer felt confident in Stevenson’s ability to make reliable decisions that

are in the best interest of Frontier. Specifically, as attested by Williams, the

investigation revealed that Stevenson failed to escalate and appreciate the gravity of

the vendor’s conduct, minimizing Perkins’s concerns as typical “business as usual”

discrepancies. Doc. 37-3 ¶ 26. Stevenson continued to deny he had any reason to act

differently and concluded Perkins did not present enough evidence for Stevenson to

determine whether the vendor was improperly billing notwithstanding that he had the

experience and knowledge to understand the potential scope of the issue. Id. Britto, on

the other hand, took action by scheduling the March 3rd meeting and relied on

Stevenson’s assessment as he had more experience. Id. ¶ 29. Additionally, as part of

the investigation, Britto admitted she should have escalated the billing issue to higher

management, expressed a willingness to learn from the situation, and she was

determined to do better in the future. Id. ¶ 30.

Stevenson disputes that Britto scheduled the March 3, 2017, meeting. He further

responds that he attended the March 3 meeting, during which he contacted a liaison

to the vendor. Additionally, he claims he conducted training, including creating a

PowerPoint for the training meetings, with his team about the proper review and

scrutiny of vendor invoices. Even accepting these facts in a light favorable to

Stevenson, Williams, the decision maker, believed Britto was the one who scheduled

the meeting, and significantly, Williams found Stevenson exercised poor judgment in

not escalating the situation to higher management when Perkins alerted him of the

suspected fraudulent billing. Thus, regardless of whether he communicated with the

vendor or engaged in further training of his team, he failed to alert higher management

of the potential fraud. Even if Williams’ belief was incorrect about who scheduled the

meeting, there is no evidence that her analysis of the situation or her decision to

terminate Stevenson was based on any discriminatory animus due to Stevenson’s sex.

It is undisputed that Britto had less experience with copper cable repairs, having

only been in her new role for two months, whereas Stevenson was knowledgeable

about both fiber and copper cable installation and repair, including identifying the

difference between a splice and a full replacement of a cable.6 Doc. 42 ¶¶ 3, 4. Thus,

their relevant employment history differed, further supporting that Britto was not

similarly situated. On the undisputed material facts and in a light most favorable to

Stevenson, Britto was not a similarly situated comparator because her conduct in

response to the billing issue differed from Stevenson and her relevant employment

experience differed as well. Therefore, in the absence of a comparator—he was

6 The issue of fraud in the vendor invoices involved a vendor billing Frontier for cable

replacement instead of cable repair and/or that the vendor was in fact replacing cable when

only a repair was needed. Doc. 37-2 ¶ 6. If a vendor replaces a cable when only a repair is

needed, this results in the charges being ten times more than they should be. Id.

replaced by a male, not a female, and Britto was not similarly situated—Stevenson is

unable to establish a prima facie case of discrimination based on his sex.

Even if Stevenson could satisfy the elements of a prima facie claim, however, the

burden would then shift to Frontier to provide a legitimate, nondiscriminatory reason

for its action. Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). If

this burden is met, Stevenson must then prove that Frontier’s stated reasons are a

pretext for unlawful discrimination. Id. Here, Frontier has proffered a legitimate non-

discriminatory reason for Stevenson’s termination, specifically Stevenson’s poor

decision-making. The Eleventh Circuit has recognized that an employee’s poor job

performance constitutes a legitimate reason for termination. See, e.g., Pereda v. Brookdale

Senior Living Communities, Inc., 666 F.3d 1269, 1276 (11th Cir. 2012) (employee could

be terminated for legitimate reasons, such as poor performance or dishonesty).

Moreover, an employer may terminate an employee for a good reason, a bad reason

or no reason at all, as long as it is not for an illegal reason. See Damon v. Fleming

Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (“We have repeatedly

and emphatically held that a defendant may terminate an employee for a good or bad

reason without violating federal law.”). Courts “are not in the business of adjudging

whether employment decisions are prudent or fair.” Id. Thus, even if Stevenson could

establish a prima facie case of discrimination, which the Court has not found, Frontier

has stated a legitimate, nondiscriminatory reason for its actions.

The record evidence showed Stevenson had superior knowledge identifying the

difference between a splice and a full replacement of a cable. Doc. 42 ¶ 3; Doc. 37-3

¶¶ 8, 9, 24, 29. Despite Perkins showing him evidence of what appeared to be spliced

instead of replaced cable for which replacement was charged, Stevenson did not

escalate the issue to management. Doc. 37-3 ¶¶ 25, 26; Doc. 37-2 ¶ 10. In so doing, he

minimized the significance of the issue with Perkins and took the position there was

not enough evidence to prove fraud in the billing, except perhaps on one invoice. Doc.

37-2 ¶ 10. And rather than acting on the improperly billed invoice, Stevenson told

Hubbartt that he believed Burrell followed up on it with the vendor. Id. Even given

that one invoice, he did not escalate the issue to his manager. Id. Further, in the

investigation, Stevenson failed to acknowledge or accept how he could have better

handled the situation. Doc. 37-3 ¶ 37. Given Stevenson’s conduct, Williams lost

confidence in his ability to protect the company’s interests in the future. Doc. 37-3 ¶

32.

“[T]o avoid summary judgment [the plaintiff] must introduce significantly

probative evidence showing that the asserted reason is merely a pretext for

discrimination.” Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir.1993)

(citation omitted). A reason is not pretext for discrimination “unless it is shown both

that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Taking the facts in a light most favorable to

Stevenson, nothing about these facts suggests that Stevenson’s termination was a

pretext for sex discrimination.

b. Mixed Motive

To overcome summary judgment, Stevenson relies on cases that recognize the

presentation of a “convincing mosaic” of circumstantial evidence that raises a

reasonable inference that Frontier discriminated against him. Doc. 43 at 3 (citing Lewis

v. City of Union City, Georgia, 934 F.3d 1169, 1185 (11th Cir. 2019)) In Lewis, the

Eleventh Circuit held that “[a] ‘convincing mosaic’ may be shown by evidence that

demonstrates, among other things, (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 (3) that

the employer’s justification is pretextual. Id. (citations omitted). The Lewis court found

that a mosaic of circumstantial evidence may be used to raise a genuine issue of

material fact. Id.

Stevenson submits that in April 2016 Frontier was in a financially troubled

position and an investigation revealed that one of Frontier’s vendors overbilled it by

$152,000. Stevenson argues that someone had to be held accountable and thus one of

the two managers had to be fired to make a point. Stevenson theorizes that Frontier

chose the male—him—over Britto, a female, because of “optics.” In his mind, it

looked better to fire a man versus a woman. The facts he offers to back this theory are

speculative at best.

The evidence Stevenson offers as creating a “convincing mosaic” is Frontier’s

membership in the ParadigmSM for Parity coalition and the company’s commitment

to achieving gender parity throughout Frontier’s corporate structure by 2030. To

suggest that a policy that promotes gender equality is discriminatory is unpersuasive.7

Additionally, he relies on Williams’ statements in her HART profile in which she

references paying it forward to the next generation of women leaders. Stevenson offers

no evidence of a connection between Williams’ HART profile statement and her

decision to terminate him. “Regardless of whether a Title VII plaintiff invokes

McDonnell Douglas or presents a convincing mosaic of circumstantial evidence, the

record must permit the inference of a ‘causal link’ between the ‘discriminatory animus’

and the ‘discharge or other significant change in the terms or conditions of

employment.’” Lewis, 934 F.3d at 1196 (Tjoflat, J., concurring in part) (citing Stimpson

v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999) (per curiam)). As a

preliminary matter, these statements do not demonstrate a discriminatory animus by

Williams or Frontier, and even if they did, there is no evidence on the record before

the Court as to a causal link between the statements and the decision to terminate

Stevenson.

In his response, Stevenson references other material facts he submits form a

convincing mosaic of discriminatory intent, including Human Resources Vice

President Angela Christian’s question to Snedegar as to whether Britto was qualified

for her position if she was not as knowledgeable in this area and Snedegar’s

recommendation to Williams that Stevenson be demoted as termination would be too

severe given Stevenson’s time with the company. Stevenson suggests discriminatory

7 Plaintiff does acknowledge that “supporting the professional advancement of other women

is admirable and not problematic in and of itself.” Doc. 43 at 10.

animus in Williams’ decision not to follow Snedegar’s suggestion to demote Stevenson

as opposed to fire him. However, as Frontier points out, Stevenson never even deposed

Williams to ask the reasons for her departure from Snedegar’s recommendations. Doc.

44 at 5 n. 5. Thus, Stevenson’s speculation that Williams’ decision to terminate, rather

than demote, him was for a discriminatory basis is not supported by any record

evidence.

In contrast, Frontier provides the unrefuted declaration of Williams who

explains the reasons Stevenson was terminated. Doc. 37-3. Williams attests that

Stevenson was terminated due to his continued excuses for failing to act despite

admitting he understood Perkins’ concerns of the fraudulent billing issue and despite

his experience that allows him to identify such problems. Doc. 37-3 ¶ 36. Stevenson

continued to claim he did all that he could do and that no further action was required,

and yet he never appropriately escalated the issue to management, never took

responsibility for his mistakes, nor was he accountable for his actions or inaction. Id.

¶ 37. In light of these failures, Williams believed she could no longer rely on

Stevenson’s judgment. Id. ¶ 36. Based upon the investigation conducted by H.R.,

Williams did not perceive Britto to be in the same situation as Stevenson because Britto

was new to her role and did not have the significant prior experience with copper

cables that Stevenson did. Doc. 37-3 ¶ 38. Williams credited Britto with setting up the

March 3, 2017, meeting after Perkins raised the billing issue with her. Id. During the

investigation, Britto acknowledged her failure to appropriately escalate the issue to

management and was willing to learn from her mistakes. Id. Thus, despite Britto’s

lapse in judgment, Williams believed Britto accepted responsibility for her failure to

act and was willing to learn from the situation to prevent such mistakes from

happening again. Id.

In a light favorable to Stevenson, even if Williams’ beliefs were incorrect, the

evidence fails to support that her decision to terminate Stevenson was based on any

discriminatory intent. But even if the facts could create an inference of discriminatory

intent, Stevenson fails to argue systematically better treatment of similarly situated

employees. And, neither Britto nor the male employee hired to replace Stevenson are

similarly situated. Moreover, as discussed above, Stevenson cannot establish

Frontier’s reason for terminating him—due to his poor business judgment—was

pretextual. Accordingly, Stevenson’s mixed-motive theory of discrimination fails, and

Frontier is entitled to summary judgment on Stevenson’s discrimination claims.

B. Florida’s Whistle Blower Act

In Count IV, Stevenson sues Frontier for violating Florida’s Whistle Blower Act

(“FWA”), by giving a negative review about Stevenson to a prospective employer in

retaliation for Stevenson filing a Charge of Discrimination with the EEOC. Doc. 1 at

9–10. Under Florida Statute § 448.102(2), an employer may not take retaliatory

personnel action against an employee because the employee “[p]rovided information

to, or testified before, any appropriate governmental agency, person, or entity

conducting an investigation, hearing, or inquiry into an alleged violation of a law, rule,

or regulation by the employer.” Whistleblower claims under this statute are analyzed

by courts under the same framework used in Title VII retaliation claims. Sierminski v.

Transouth Fin. Corp., 216 F.3d 945 (11th Cir. 2000).

Frontier argues it is entitled to summary judgment on Plaintiff’s whistleblower

claim because Stevenson cannot establish a prima facie case under the FWA. In its

reply, Frontier further argues Stevenson has abandoned this claim as he wholly failed

to respond to Frontier’s motion directed to the whistleblower count. In general,

arguments not developed on summary judgment are waived. See Resol. Tr. Corp. v.

Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden upon the district

court to distill every potential argument that could be made based upon the materials

before it on summary judgment. Rather, the onus is upon the parties to formulate

arguments[.]” (citation omitted)). Notwithstanding Stevenson’s lack of response, the

Court will address the merits of the claim.

Here, it is undisputed that no direct evidence of sexual discrimination exists. To

establish a prima facie whistleblower case in the absence of direct evidence of retaliatory

intent, a plaintiff must show: (1) there was a statutorily protected participation; (2) an

adverse employment action occurred, and (3) a causal link exists between the

participation and the adverse employment action.8 Olmsted v. Taco Bell Corp.. 141 F.3d

1457, 1460 (11th Cir. 1998). As a preliminary matter, Stevenson did not complain to

8 Once a prima facie case is established, the employer may proffer legitimate, non-retaliatory

reasons for the adverse employment actions. If the employer carries this burden, the plaintiff

must then come forward with evidence sufficient to create a genuine issue of fact that each of

the proffered reasons are merely pretext for unlawful retaliation. Combs v. Plantation Patterns,

106 F.3d 1519, 1528 (11th Cir. 1997). Stevenson fails to establish a prima facie case and thus

the burden never shifts back to Frontier on this claim.

Frontier or the EEOC before his termination. Doc. 41-1 at 151. Thus, he cannot claim

his termination was caused by his statutorily protected activity of filing a Charge of

Discrimination.

As for the second element, Stevenson alleges that Frontier gave his prospective

employer a negative review. On the facts of this case, it is doubtful that a negative

review would qualify as an adverse employment action. Even if it does, however,

Stevenson fails to proffer record evidence of the negative review. To the contrary, the

record evidence shows that while Stevenson identified jobs with Spectrum and

Comcast that he claims he was denied in retaliation for his EEOC charge, Stevenson

testified that he never applied to either job at Spectrum or Comcast. Doc. 41-1 at 201–

202. Moreover, there is no record evidence that any potential employer contacted

Frontier about Plaintiff. Thus, in the absence of any evidence of post-termination

adverse action,9 Stevenson’s claim under the FWA fails as a matter of law.

IV. CONCLUSION

The Court finds no unlawful sex discrimination. But even if Stevenson could

establish a prima facie case, Frontier has provided a legitimate, nondiscriminatory

reason for Stevenson’s termination and Stevenson fails to show the reason given was

a pretext for discrimination. The Court further finds no evidence of retaliation or

violation of the FWA. As no genuine issues of material fact exist, Frontier is entitled

9 Stevenson admits he did not make any complaint about discrimination or illegal action at

Frontier until he submitted his EEOC charge of discrimination, which occurred after he was

terminated.

to summary judgment in its favor on Stevenson’s discrimination claims under Title

VII, the Florida Civil Rights Act, and the City of Tampa’s Human Rights Ordinance

and on his retaliation claim under Florida’s Whistle Blower Act. Accordingly, it is

ORDERED AND ADJUDGED:

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

2. The Clerk is directed to enter Judgment in favor of Defendant Frontier

Florida, LLC, and against Plaintiff, Drashea Stevenson.

3. The Clerk is further directed to terminate any pending motions and

deadlines and CLOSE this case.

DONE AND ORDERED in Tampa, Florida on March 28, 2023.

Chaken -_— Aiwarda Mn TDA pl el

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record and Unrepresented Parties, if any

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