Houston v. R.T.G. Furniture Corp.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

TRAVIS HOUSTON,

Plaintiff,

v. Case No. 8:22-cv-2878-VMC-TGW

R.T.G. FURNITURE CORP.

and SE INDEPENDENT DELIVERY

SERVICES, INC.,

Defendants.

______________________________/

ORDER

This matter comes before the Court pursuant to Defendant

R.T.G. Furniture Corp.’s Motion for Summary Judgment (Doc. #

50) and SE Independent Delivery Services, Inc.’s Motion for

Summary Judgment (Doc. # 51), both filed on October 16, 2023,

seeking summary judgment on all claims in this Florida Civil

Rights Act (FCRA) and 42 U.S.C. § 1981 case. Plaintiff Travis

Houston responded on November 20, 2023. (Doc. # 58).

Defendants replied on December 4, 2023. (Doc. ## 59, 60). For

the reasons that follow, the Motions are granted.

I. Background

A. RTG and SEIDS

R.T.G. Furniture Corp. (“RTG”), which has a distribution

center located in Lakeland, Florida, is an American furniture

store chain. (McBride Decl. at ¶ 3). RTG utilizes delivery

companies at its Lakeland distribution center for its

furniture deliveries. One such company is SE Independent

Delivery Services, Inc. (“SEIDS”). (Id.; Crossley Decl. at ¶

3). Both RTG and SEIDS operate out of the Lakeland

distribution center.

As Houston acknowledged during his deposition, SEIDS and

RTG are two separate companies. (Houston Depo. at 69:9-25).

Indeed, SEIDS and RTG have different reporting structures and

different management. (Id. at 131:13-22; McBride Decl. at ¶

4). In addition, RTG and SEIDS do not and cannot (1) hire,

fire, discipline, or direct the work of, (2) pay wages, taxes,

or insurance for, and (3) control any terms and conditions

for each other’s employees. (McBride Decl. at ¶ 4; Crossley

Decl. at ¶ 4). RTG and SEIDS also maintain their own personnel

policies and procedures. (McBride Decl. at ¶ 4; Crossley Decl.

at ¶ 4). “RTG had no control over the terms and conditions of

[Houston’s] employment with SEIDS, and SEIDS had no control

over the terms and conditions of [Houston’s] employment with

RTG.” (McBride Decl. at ¶ 4). That said, both SEIDS and RTG

utilize Retail Management Services Corporation (“RMSC”) for

managerial and administrative services. (Id. at ¶¶ 1, 2).

The employee handbooks for RTG and SEIDS are very similar in

form and content. (Doc. # 58-2; Doc. # 58-3).

“Between 2018 and 2019, the SEIDS loadout department,

which was responsible for loading trucks of ordered RTG

furniture for delivery by independent contractor drivers, was

transitioned from SEIDS to RTG.” (McBride Decl. at ¶ 5). The

transition of this loadout function from SEIDS to RTG was

“nationwide,” which resulted in “the vast majority of SEIDS

employees performing the loadout function” having their jobs

eliminated. (Crossley Decl. at ¶ 5; McBride Decl. at ¶ 5). To

preserve employment for many of the individuals impacted, RTG

extended offers of employment to these individuals. (McBride

Decl. at ¶ 5). These individuals were free to evaluate the

job offers made to them by RTG and accept or decline as they

wished. (Id.).

A small number of employees in loadout, including Tony

Williams (African American), were transitioned into other

positions within SEIDS. (Crossley Decl. at ¶ 6). By the time

the transition was complete, there were few, if any, employees

left in the loadout department of SEIDS. (Houston Depo. at

100:3-16).

Houston, who identifies as Black and African American,

was employed by SEIDS from 1993 until December 29, 2019. (Id.

at 89:8-19, 123:10-19). During the transition of the loadout

department from SEIDS to RTG, Houston was the loadout manager

for SEIDS. (Doc. # 50-3). As Houston was part of the loadout

department, his position was eliminated at SEIDS on or about

December 29, 2019. (Id.).

Prior to his transition to RTG, Houston reached out to

LaShay Crosby (Black, African American), Human Resources

(“HR”) Manager for the Lakeland distribution center and an

employee of RMSC. (McBride Decl. at ¶¶ 1, 6). Houston asked

her why he was offered a position at RTG. (Id. at ¶ 6). Ms.

Crosby explained to Houston that the loadout department at

SEIDS was being absorbed by RTG. While Houston did not have

to accept any position with RTG, there were currently no open

positions at SEIDS so Houston would have to continue

monitoring the internal job bulletin boards for openings at

SEIDS. (Id.). At no point during this conversation did Houston

mention he was being discriminated or retaliated against, or

harassed, based on any protected characteristic. (Id.).

Also at some point prior to his transition to RTG, a

SEIDS employee, Gerry Brennan, told Houston that Houston

needed to go have a meeting with Joe Tipping, SEIDS’s Vice

President of Operations. (Houston Depo. at 66:9-12; Tipping

Depo. at 14:10-14). Houston testified that, when he asked

Brennan why Tipping wanted to meet, Brennan said “I don’t

know. May — may — maybe they want to get rid of the few Black

people that’s left over here.” (Houston Depo. at 66:12-19).

Houston “brushed [the comment] off” as a “sarcastic joke.”

(Id. at 66:17-19). Still, during the meeting with Tipping,

Houston told Tipping about Brennan’s comment. (Id. at 66:19-

23). Tipping responded “don’t even worry about that; you know

how [Brennan] is always making sarcastic jokes.” (Id. at

66:23-25). The purpose of the meeting was for Tipping to

inform Houston that Houston was going to be offered a position

with RTG. (Id. at 67:1-8).

B. Plaintiff Moves to RTG

Houston was offered the position of RTG’s loadout

manager on the mid-shift, which was 11:00 a.m. to 7:00 p.m.

(McBride Decl. at ¶ 7). This offer of employment was extended

to Houston by David Bennett (Caucasian), a Vice President for

RMSC. (Id.; Houston Depo. at 122:6-123:2). At the beginning

of the meeting in which Bennett extended the job offer to

Houston, Bennett said “well, that’s my boy” as Houston walked

in. (Houston Depo. at 115:20-24).

Houston accepted RTG’s job offer and began his

employment with RTG as a loadout manager on December 30, 2019.

(Id. at 122:25-123:9; McBride Decl. at ¶ 7). When asked during

his deposition if Houston believed he was “employed by both

[RTG and SEIDS] together,” Houston replied “No.” (Houston

Depo. at 89:23-90:5). Rather, he agreed that he worked for

SEIDS and then RTG afterwards. (Id.). Although he chose to

accept the new position offered by RTG, Houston considered

the job with RTG to be a “demotion” because he was moving

from a general manager (“GM”) to a “level five” manager

position without an annual GM bonus and he would be working

different hours. (Id. at 116:19-117:11).

In his role as a RTG loadout manager, Houston was

responsible for managing a team that places RTG’s furniture

on trucks to get delivered to customers. (McBride Decl. at ¶

8). Part of that responsibility was ensuring that the

furniture is secured and protected so it arrives to customers

in a satisfactory condition. (Id.). Also, the “Loadout

Manager Expectations” specifically indicated that because

Houston was managing the shipping bays and loading process,

he was required to lead his team, which could include being

physically present with them. (Id.). Overall, in this role,

Houston was expected to demonstrate leadership, good

judgment, accountability, professionalism, and effective

communication. (Id.). Houston reported to Sharick Babb

(Black, African American), the shift manager, and Babb

reported to Chris Hathcock (Caucasian), the operations

manager. (Id. at ¶ 9).

On February 1, 2020, Houston received a pay raise and,

at that time, he earned a higher salary at RTG than he did at

SEIDS. (Houston Depo. at 135:11-13; McBride Decl. at ¶ 10).

Although Houston was not eligible to receive an annual bonus

at RTG (like he was eligible to earn at SEIDS), he was

eligible to receive tri-annual bonuses. (Houston Depo. at

132:5-12, 135:16-19, 136:9-15; McBride Decl. at ¶ 10).

In 2020, RTG maintained the following shifts: the day

shift (from 6:30 a.m. to 3:00 p.m.), the mid shift (from 11:00

a.m. to 7:00 p.m.), the second shift (from 4:30 p.m. to 1:00

a.m.), the night shift (from 5:30 p.m. to 4:00 a.m.), and the

weekend shift. The mid shift overlaps with the day, second,

and night shifts. (McBride Decl. at ¶ 11).

In 2020, the loadout managers at RTG were: Houston,

Khayree Simpson (Black, African American), Peter Noel (Black,

Grenadian), and Calvin Peterson (Black, African American).

(Id. at ¶ 12). All loadout managers were required to work

alternating Saturdays, on a rotating schedule. (Id.).

At some point in early 2020, Houston again reached out

to Crosby in HR to address his concern that he believed the

day shift had more staffing resources than the mid shift did,

and also that he felt the way RTG employees were loading the

delivery trucks was inefficient. (Id. at ¶ 13). In response,

Crosby coached him on how he could address these concerns

with his team. (Id.). At no point during this conversation

did Houston mention he was being discriminated or retaliated

against, or harassed, based on any protected characteristic.

(Id.).

At some point during his employment with RTG, Brian

Beckham, RTG’s second shift operations manager, told Houston

and other RTG employees that Beckham “was trying to change

the culture of the operation.” (Houston Depo. at 183:10-18,

299:7-10). Houston testified that another RTG employee named

Matt later told Houston about a conversation Beckham and Matt

had. Beckham told Matt that Beckham was “trying to put more

white people in those manager positions than Black.” (Id. at

184:8-17).

C. August 2020 Offensive Comment

On August 11, 2020, Williams, who was now a returns

manager for SEIDS, asked his supervisor, Angela Cook, to take

an early lunch for his birthday. (Williams Depo. at 129:9-

14, 133:8-13). Cook agreed and allegedly stated “don’t come

back on ‘BPT’ or ‘Black People Time,’” and then proceeded to

laugh. (Id. at 129:15-19). According to Williams, no one else

was a part of this conversation except Williams and Cook.

(Id. at 129:20-23).

Williams testified that he went to Aubrey Henry,

transportation manager for SEIDS, and told him what Cook said

to him. (Id. at 131:25-132:11). Henry directed Williams to go

to HR and make a report. (Id. at 132:11-16). Williams never

went to HR. (Id. at 132:17-24). He also testified that he

told Houston about the “BPT” or “Black People Time” comment.

(Id. at 130:17-18).

Houston has a different recollection of this comment.

Houston testified that Williams told him about the “Black

People Time” comment, but Houston said that Williams reported

to him that Cook said to Williams and “a couple guys in the

breakroom,” “what do you think you are on, you think you are

on Black people time or what, what do you guys think you are

doing.” (Houston Depo. at 185:20-186:3, 328:6-14). Houston

never heard Cook say this comment. (Id. at 186:20-21).

Although RTG policy would require Houston, as a manager,

to report this comment to HR himself or direct the employee

to do so, Houston did not report this comment to HR. (McBride

Decl. at ¶ 14). Instead, he testified that he told RTG’s

operations manager Hathcock about it. (Houston Depo. at

186:3-6). According to Susan McBride, the head of HR for RMSC,

RTG never received any complaint regarding the “Black People

Time” comment. (McBride Decl. at ¶¶ 1, 14). If RTG had

received such a report, RTG would have had the individual

making the report complete an internal complaint form, and

then investigated the allegations. (Id. at ¶ 14).

D. The Flower Game

Scams with various names like the “Mandala Game,”

“Blessing Circle,” “Infinity Loom,” and “Giving Circle” are

recognized by the Federal Trade Commission (“FTC”) as “chain

letter-type pyramid scheme[s].” Seena Gressin, This “Game” Is

A Chain Letter Scam, Fed. Trade Comm’n Consumer Advice (May

21, 2020), https://consumer.ftc.gov/consumer-

alerts/2020/05/game-chain-letter-scam (last visited December

12, 2023).

According to the FTC’s May 2020 consumer warning, these

scams work as follows: an individual receives an invitation

to join a circle and they join by making a cash contribution

to the person who invited them, called a “gift.” Id. The

individual is usually recruited to make the initial “gift” by

being promised large returns on investment. Upon making the

payment, the individual gets placed on the board. The

individual moves towards the center of the board by recruiting

others to join. Once the individual reaches the center, they

begin to collect the money from the new recruits to the board.

As is typical with pyramid schemes, such “games” are dependent

on recruiting new people in order to keep money flowing into

the game. Once a board runs out of new recruits, the money

dries up, and everyone waiting to reach the center of the

board and receive payment, “comes up empty handed.” See Id.

(“What’s the harm? Like other types of pyramid schemes, these

chain letters depend on recruiting new people to keep money

flowing into the enterprise. There are no products sold or

real investments creating profits. Once players run out of

new recruits to bring into the game, the money dries up and

everyone waiting to reach the center comes up empty handed.”).

After the FTC’s May 2020 consumer warning, the FTC

published another consumer warning in August 2020. Karen

Hobbs, A real or fake savings club?, Fed. Trade Comm’n

Consumer Advice (Aug. 10, 2020),

https://consumer.ftc.gov/consumer-alerts/2020/08/real-or-

fakesavings-club (last visited December 13, 2023). This

article explains that “scammers are imitating a type of

informal savings club known as a ‘sou sou’ or ‘susu’ to trick

people into joining what amounts to an illegal pyramid

scheme.” Id. A “sou sou” is “a rotating savings club with

historic roots in West Africa and the Caribbean. It’s a

savings arrangement between a small group of trusted people

– usually family and friends – who regularly pay a fixed

amount into a common fund and take turns getting paid out.”

Id. Importantly, “[i]n a sou sou, you don’t earn interest,

never get out more than you paid in, and there’s no reward

for recruiting people to join.” Id. The FTC cautions that

“scammers are pitching fake sou sou savings clubs and

opportunities like ‘The Circle Game,’ ‘Blessing Loom,’ [and]

‘Money Board.’” Id. “These kinds of illegal pyramid schemes

are the exact opposite of a sou sou: They promise you’ll make

more money than you put in and depend on recruiting new people

to keep money flowing into the fund.” Id.

On August 25, 2020, HR received a complaint from Patrick

Jackson, lifts/bedding supervisor at RTG (Black, African

American), that he was invited to join two “flower game”

boards — one where he was invited by and paid Williams, a

SEIDS employee, $500 to join, and another where he was invited

by, and paid, Houston $1,500 to join. (McBride Decl. at ¶

15). Jackson also stated that he was told by Williams and

Houston that in return for his “investments,” he would receive

a return of $12,000 in 4-6 weeks. Jackson further stated that,

after a while, he noticed that several individuals were

joining these boards, but he was not moving towards the center

of the board, as promised. (Id.). At that point, Jackson asked

for his money back, and Williams told him to “trust the

process.” Eventually, Jackson went to HR and filed his

complaint against Williams and Houston. (Id.).

In response to Jackson’s complaint, on August 27, 2020,

VP of corporate security for RMSC, Jahnu Rodriguez, began his

investigation into these allegations wherein he interviewed

approximately 25-30 witnesses at the Lakeland distribution

center between September 1 and 9, 2020. (Id. at ¶ 16 & Ex.

B).

“As a result of [] Rodriguez’s investigation, it was

discovered that the flower game had been ongoing at the

Lakeland distribution center since March 2020, and at least

25-30 individuals (but likely many more) were approached for

‘gifts’ ranging from $500 to $3,000.” (McBride Decl. at ¶

17). None of these individuals ever received a payout from

their respective investments, despite being promised

lucrative returns in 4-6 weeks. (Id.). Although the

investigation discovered that numerous individuals

participated in the flower game while at the workplace, only

three individuals were identified as those soliciting the

gifts — Williams, Houston, and Anthony Snead, another SEIDS

employee. (Id.).

When Williams was interviewed about the flower game, he

admitted he was involved and solicited funds, but did not

think he was doing anything wrong because they were “gifts.”

(McBride Decl. at ¶ 18 & Ex. B at 2-3). Williams also provided

a written statement wherein he memorialized his involvement

with the flower game. (Id. at ¶ 18 & Ex. B at 4). During his

deposition, Williams agreed that to move up the board to get

into position at the top to be “gifted,” a person needed to

recruit other people to join the “flower game.” (Williams

Depo. at 137:3-25).

When Houston was interviewed about the flower game, he

denied any involvement or knowledge of it. However, Jackson

provided screenshots of messages about the flower game, which

depicted Houston inviting Jackson and requesting $1,500.

(McBride Decl. at ¶ 19 & Ex. B at 3, 7, 11). At his deposition,

Houston admitted he participated in the flower game and

received money from it. (Houston Depo. at 238:1-3, 239:4-8,

240:5-14, 241:3-18). He also acknowledged that Jackson was

his subordinate employee. (Id. at 239:9-19). Houston did not

claim during his deposition that the “flower game” was

actually a “sou sou” or an investment or savings club. Rather,

he thought of the “flower game” as “like a gamble. Like you

go in the casino and you put money in the slot machine.” (Id.

at 237:15-20).

Finally, when Snead was interviewed about the flower

game, he admitted he was involved, but denied soliciting any

funds. (McBride Decl. at ¶ 20 & Ex. B at 3). However, the

investigation uncovered that Snead sent a video about the

flower game to an associate on May 21, 2020, in an effort to

get the associate to contribute funds. (Id.).

According to McBride, while RTG received a complaint

about the “flower game,” RTG “never received any complaints

from any individual regarding ‘lottery pools’ or ‘sports

betting pools’ at the Lakeland distribution center, such as

being misled to participate by being promised lucrative

returns on investment.” (Id. at ¶ 23). “If RTG had received

such a report, RTG would have investigated, and taken

appropriate action if the investigation substantiated the

allegations.” (Id.).

E. Houston’s Termination

Following Rodriguez’s September 2020 investigation into

the flower game, RTG shared its findings with SEIDS

management, as Williams and Snead were SEIDS employees.

(McBride Decl. at ¶ 21). As a result of their solicitations

for a pyramid scheme, on September 10, 2020, all three

individuals were terminated for “gross misconduct” from their

respective employment: Houston from RTG and Williams and

Snead from SEIDS. (Id.). The decision to end Houston’s

employment was a group decision made by HR and management.

(Id.).

According to McBride, the head of HR for RMSC, “[a]t no

point during his employment did [Houston] complain to RTG

that he was being discriminated or retaliated against, or

harassed, based on any protected characteristic. If he had,

RTG would have had [Houston] complete an internal complaint

form, which he never did, and conducted an investigation.”

(Id. at ¶ 22).

Houston does not appear to dispute that he did not report

any discrimination, harassment, or retaliation to RTG’s HR.

Rather, he points out that he did communicate with HR —

through emails to Crosby — that he was dissatisfied with being

transferred from SEIDS to RTG. (Houston Depo. at 119:4-120:4;

McBride Decl. at ¶ 6). Houston also testified that he reported

two offensive comments to higher-ups: (1) before his transfer

from SEIDS to RTG, Houston told Tipping about Brennan’s

comment that “maybe they want to get rid of the few Black

people that’s left over here” (Houston Depo. at 66:17-25;

160:8-17); and (2) Houston complained about Cook’s “Black

People Time” comment (that was made to Williams) to RTG’s

warehouse manager Hathcock. (Id. at 185:20-186:19).

F. Procedural History

Houston initiated this action in state court on October

31, 2022, asserting claims for race, color, and national

origin discrimination under the FCRA and Section 1981 (Counts

I, II, III, VI, VII, VIII), hostile work environment under

the FCRA and Section 1981 (Counts V, X), and retaliation under

the FCRA and Section 1981 (Counts IV, IX). (Doc. # 1-1). RTG

and SEIDS removed the case to this Court on December 19, 2022.

They filed their answers (Doc. ## 9, 12), and the case

proceeded through discovery.

Now, RTG and SEIDS both seek summary judgment on all

claims. (Doc. ## 50, 51). Houston has responded (Doc. # 58),

and RTG and SEIDS have replied. (Doc. ## 59, 60). The Motions

are ripe for review.

II. Legal Standard

Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the

existence of a genuine issue of material fact will preclude

a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).

An issue is genuine if the evidence is such that a

reasonable jury could return a verdict for the non-moving

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g

Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if

it may affect the outcome of the suit under the governing

law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are

no genuine issues of material fact that should be decided at

trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986)). “When a moving party has discharged its

burden, the non-moving party must then ‘go beyond the

pleadings,’ and by its own affidavits, or by ‘depositions,

answers to interrogatories, and admissions on file,’

designate specific facts showing that there is a genuine issue

for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995) (quoting Celotex Corp., 477 U.S. at

324).

If there is a conflict between the parties’ allegations

or evidence, the non-moving party’s evidence is presumed to

be true, and all reasonable inferences must be drawn in the

non-moving party’s favor. Shotz v. City of Plantation, 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder

evaluating the evidence could draw more than one inference

from the facts, and if that inference introduces a genuine

issue of material fact, the court should not grant summary

judgment. Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s

response consists of nothing “more than a repetition of his

conclusional allegations,” summary judgment is not only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III. Analysis

In his complaint, Houston asserts claims for race,

color, and national origin discrimination under the FCRA and

Section 1981 (Counts I, II, III, VI, VII, VIII), hostile work

environment under the FCRA and Section 1981 (Counts V, X),

and retaliation under the FCRA and Section 1981 (Counts IV,

IX) against both SEIDS and RTG.

A. No Joint Employment

As a preliminary matter, there is no genuine dispute of

material fact as to whether RTG and SEIDS are joint employers.

They were not.

“[W]here two entities contract with each other for the

performance of some task, and one company retains sufficient

control over the terms and conditions of employment of the

other company’s employees, we may treat the entities as ‘joint

employers’ and aggregate them.” Lyes v. City of Riviera Beach,

166 F.3d 1332, 1341 (11th Cir. 1999). “Courts predominantly

apply the standards promulgated by the National Labor

Relations Board when deciding whether two entities should be

treated as a joint employer.” Virgo v. Riviera Beach Assocs.,

Ltd., 30 F.3d 1350, 1359 n.6 (11th Cir. 1994).

The basis of the finding [of a joint employer

situation] is simply that one employer while

contracting in good faith with an otherwise

independent company, has retained for itself

sufficient control of the terms and conditions of

employment of the employees who are employed by the

other employer. Thus, the joint employer concept

recognizes that the business entities involved are

in fact separate but that they share or co-

determine those matters governing the essential

terms and conditions of employment.

Id. at 1360 (quoting N.L.R.B. v. Browning-Ferris Indus. of

Pennsylvania, Inc., 691 F.2d 1117, 1123 (3d Cir. 1982)).

“Thus, the ultimate focus of the joint employer inquiry

is the degree of control one company exercises over the

employees of another company.” Kingsley v. Tellworks

Commc’ns, LLC, No. 1:15-CV-4419-TWT-JSA, 2017 WL 2624555, at

*17 (N.D. Ga. May 24, 2017), report and recommendation

adopted, No. 1:15-CV-4419-TWT, 2017 WL 2619226 (N.D. Ga. June

15, 2017). “Whether [one company] retained sufficient control

is essentially a factual question.” Virgo, 30 F.3d at 1360.

Here, Houston testified that SEIDS and RTG are separate

companies and that his employment with SEIDS was separate

from his later employment with RTG. (Houston Depo. at 69:9-

25, 89:23-90:5). Thus, Houston understood himself as working

for two separate entities at two separate times.

More importantly, the evidence shows that RTG and SEIDS

do not and cannot (1) hire, fire, discipline, or direct the

work of, (2) pay wages, taxes, or insurance for, and (3)

control any terms and conditions for each other’s employees.

(McBride Decl. at ¶ 4; Crossley Decl. at ¶ 4). As McBride

explained, “RTG had no control over the terms and conditions

of [Houston’s] employment with SEIDS, and SEIDS had no control

over the terms and conditions of [Houston’s] employment with

RTG.” (McBride Decl. at ¶ 4). In short, RTG did not exercise

much control over the employees of SEIDS, and vice versa. See

Wigfall v. Saint Leo Univ., Inc., No. 8:10-cv-2232-SCB-TGW,

2012 WL 717868, at *6 (M.D. Fla. Mar. 6, 2012) (“Nothing in

the record shows that Saint Leo exercised the necessary

control over Sodexo’s employees to be deemed a joint employer.

Saint Leo did not control the hiring and firing of the food

service workers, did not pay them, and did not direct,

supervise, or discipline them.”), aff’d sub nom. Wigfall v.

St. Leo Univ., Inc., 517 F. App’x 910 (11th Cir. 2013); see

also Peppers v. Cobb Cnty., 835 F.3d 1289, 1300 (11th Cir.

2016) (finding that the County and the District Attorney did

not act as joint employers for plaintiff investigator with

the District Attorney’s Office where the County “essentially

[] act[ed] as a paymaster — its role consisted solely and

entirely of issuing paychecks, ensuring investigators

received proper benefits, distributing annual pay raises when

requested and approved by the District Attorney, and

approving the District Attorney’s budget”).

The fact that both RTG and SEIDS employees worked on

furniture delivery in the Lakeland distribution center does

not controvert the sworn statements that RTG and SEIDS did

not exercise control over each other’s employees. Likewise,

the use by both SEIDS and RTG of RMSC as a contracted provider

of HR and other administrative services and the similarity of

the companies’ handbooks do not create a genuine dispute of

fact about whether RTG and SEIDS exercised control over each

other’s employees.

Because RTG and SEIDS are not joint employers, the

actions of one cannot be held to be the actions of the other.

Rather, when considering Houston’s claims against each

Defendant, the Court will only consider that Defendant’s

actions during Houston’s employment with that Defendant. For

example, the actions or comments of SEIDS employees after

Houston had stopped working for SEIDS and began working for

RTG cannot support Houston’s claims against RTG.1

B. SEIDS’s Motion

The Court will analyze the FCRA and Section 1981 claims

together. See Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d

1249, 1256–57 (11th Cir. 2012) (explaining that Title VII and

1 Alternatively, even if SEIDS and RTG were joint employers

such that the conduct or comments of SEIDS employees could be

attributed to RTG and vice versa, all Houston’s claims would

still fail. No reasonable jury could conclude that Houston’s

change of employment from SEIDS to RTG or his termination

from RTG was the result of discrimination or retaliation given

the evidence that SEIDS was eliminating its loadout

department in 2018-2019 and RTG and SEIDS determined in good

faith that the “flower game” in which Houston, Williams, and

Snead participated and solicited funds was a pyramid scheme.

Likewise, even considering all the comments made by both SEIDS

and RTG employees and other evidence, the complained-of

behavior still was not objectively severe or pervasive such

that no hostile work environment claim could survive.

Section 1981 discrimination claims have the same requirements

of proof and use the same analytical framework); Shields v.

Fort James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002) (noting

that Title VII and Section 1981 hostile work environment

claims have the same elements and are subject to the same

analytical framework); Gogel v. Kia Motors Mfg. of Georgia,

Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (noting that

retaliation claims under Section 1981 are analyzed under the

same framework as Title VII claims); Arnold v. Heartland

Dental, LLC, 101 F. Supp. 3d 1220, 1224 (M.D. Fla. 2015)

(“When considering claims brought under the FCRA, Florida

courts look to decisions interpreting Title VII . . . for

guidance.”); Carter v. Health Mgmt. Assocs., 989 So. 2d 1258,

1262 (Fla. 2d DCA 2008) (“Florida courts follow federal case

law when examining FCRA retaliation claims.”).

Houston worked for SEIDS from 1993 until December 29,

2019, and thus the Court confines its analysis for this Motion

to events that occurred during this time. As discussed below,

Houston’s claims against SEIDS fail.

1. Discrimination Claims

In his complaint, Houston asserts claims for race,

color, and national origin discrimination under the FCRA and

Section 1981 (Counts I, II, III, VI, VII, VIII). He contends

that he has both direct and circumstantial evidence for his

claims.

(a) Direct Evidence

“Direct evidence of discrimination is evidence that

reflects a discriminatory or retaliatory attitude correlating

to the discrimination or retaliation complained of by the

employee, and, if believed, proves the existence of a fact

without inference or presumption.” Ossmann v. Meredith Corp.,

82 F.4th 1007, 1015 (11th Cir. 2023) (citation omitted). “This

is a ‘rigorous standard.’” Id. (citation omitted). “[C]ourts

have found only the most blatant remarks, whose intent could

be nothing other than to discriminate on the basis of [a

protected characteristic], to constitute direct evidence of

discrimination.” Carter v. City of Miami, 870 F.2d 578, 582

(11th Cir. 1989). “To constitute direct evidence, a statement

must ‘(1) be made by a decisionmaker; (2) specifically relate

to the challenged employment decision; and (3) reveal blatant

discriminatory animus.’” Castro v. Sch. Bd. of Manatee Cnty.,

903 F. Supp. 2d 1290, 1299 (M.D. Fla. 2012) (quoting Chambers

v. Walt Disney World Co., 132 F. Supp. 2d 1356, 1364 (M.D.

Fla. 2001)).

Here, none of the four statements upon which Houston

relies (Doc. # 58 at 9-10) are direct evidence of

discrimination. At this time, the Court will discuss the two

statements made by SEIDS employees, even though only one of

these statements was made while Houston was a SEIDS employee.

The statement — “I don’t know. . . . [M]aybe they want to get

rid of the few Black people that’s left over here” — was made

by SEIDS employee Brennan while Houston was a SEIDS employee.

(Houston Depo. at 66:12-19). But Brennan was not the

decisionmaker for whether Houston’s role with SEIDS would be

eliminated in the transition of loadout duties to RTG. Rather,

“[b]etween 2018 and 2019, the SEIDS loadout department . . .

was transitioned from SEIDS to RTG.” (McBride Decl. at ¶ 5).

This transition of this loadout function from SEIDS to RTG

was “nationwide,” which resulted in “the vast majority of

SEIDS employees performing the loadout function” having their

jobs eliminated. (Crossley Decl. at ¶ 5).

Furthermore, Brennan’s statement was equivocal, being

prefaced with “I don’t know” and using the word “maybe.” This

is not the sort of blatant statement that proves

discrimination without requiring any inferences. See

Fernandez v. Trees, Inc., 961 F.3d 1148, 1156 (11th Cir. 2020)

(“If the alleged statement suggests, but does not prove, a

discriminatory motive, then it is circumstantial evidence.”

(citation omitted)).

The other statement by a SEIDS employee was made by Cook,

a supervisor with SEIDS, in August 2020 — months after

Houston’s employment with SEIDS had already ended and while

Houston was working for RTG. (Williams Depo. at 129:9-23;

Houston Depo. at 185:20-186:3). “A biased statement, separate

in time from the employment decision under challenge, is not

direct evidence of discrimination.” Williamson v. Adventist

Health Sys./Sunbelt, Inc., 372 F. App’x 936, 940 (11th Cir.

2010). Even considering Cook’s offensive statement about

“Black People Time” to Williams, this statement is not direct

evidence. Cook was not the decisionmaker for Houston’s

termination from either SEIDS or RTG. And, while offensive,

this statement is not a blatant statement connected to

Houston’s termination from either SEIDS or RTG. Compare

Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th

Cir. 1990) (stating that “[o]ne example of direct evidence

would be a management memorandum saying, ‘Fire Earley — he is

too old’”).

Thus, Houston has not established a prima facie case

based on direct evidence.

(b) Circumstantial Evidence

In his response, Houston argues that he has established

a convincing mosaic of discrimination and does not address

the framework established by McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). (Doc. # 58 at 12-13). Thus, the

Court need only address whether a convincing mosaic of

discrimination exists.

“Aside from the McDonnell Douglas framework, an employee

can still survive summary judgment by presenting

‘circumstantial evidence that creates a triable issue

concerning the employer’s discriminatory intent.’” Jenkins v.

Nell, 26 F.4th 1243, 1250 (11th Cir. 2022) (quoting Smith v.

Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)).

“A triable issue of fact exists if the record, viewed in a

light most favorable to the plaintiff, presents a convincing

mosaic of circumstantial evidence that would allow a jury to

infer intentional discrimination by the decisionmaker.” Id.

(citation omitted). “A plaintiff may establish a convincing

mosaic by pointing to evidence that demonstrates, among other

things, (1) suspicious timing, ambiguous statements, or other

information from which discriminatory intent may be inferred,

(2) ‘systematically better treatment of similarly situated

employees,’ and (3) pretext.” Id.

Houston has not shown a convincing mosaic of

discrimination based on race, color, or national origin

against SEIDS. Houston’s employment with SEIDS ended because

the vast majority of loadout positions with SEIDS

“nationwide” were eliminated. (Crossley Decl. at ¶ 5; McBride

Decl. at ¶ 5). These positions were eliminated because RTG

had decided to transition the loadout function for furniture

delivery into RTG. (Crossley Decl. at ¶ 5; McBride Decl. at

¶ 5).

True, Houston testified that a SEIDS employee, Brennan,

remarked sometime around December 2019 that “maybe they

[SEIDS] want to get rid of the few Black people that’s left

over here.” (Houston Depo. at 66:9-19, 70:2-14, 329:24-

330:11). Houston also testified, however, that he had

“brushed [the comment] off” as a “sarcastic joke” rather than

an explanation of his job’s elimination. (Id. at 66:17-19).

Regardless, it is undisputed that the transition of loadout

services to RTG had begun in 2018 and was finishing up in

December 2019, when Houston’s position with SEIDS was

eliminated. (McBride Decl. at ¶ 5).

While Houston takes issue with the fact that he was not

one of the few SEIDS loadout employees who was transitioned

into another position with SEIDS and considered his new job

at RTG a “demotion,” his belief that he should have been

transferred to another position within SEIDS does not

establish pretext. “A legitimate nondiscriminatory reason

proffered by the employer is not a pretext for prohibited

conduct unless it is shown that the reason was false and that

the real reason was impermissible retaliation or

discrimination.” Worley v. City of Lilburn, 408 F. App’x 248,

251 (11th Cir. 2011); see also Gogel, 967 F.3d at 1136 (“Thus,

to establish pretext at the summary judgment stage, a

plaintiff must demonstrate ‘such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons

for its action that a reasonable factfinder could find them

unworthy of credence.’” (citation omitted)). Houston has not

rebutted that most SEIDS loadout employees had their

positions eliminated and this was the result of a transition

of loadout work to RTG. (Crossley Decl. at ¶¶ 5-6). While

Houston also takes issue with Cook (Caucasian) staying with

SEIDS in the position of returns manager, her retention with

SEIDS does not rebut SEIDS’s reason for eliminating Houston’s

loadout position. Furthermore, one of the few loadout

employees who was moved to a different position within SEIDS

was Williams (African American), which undercuts any

inference that SEIDS did not wish to retain any African

American employees. (Id. at ¶ 6). Thus, Houston has not shown

that SEIDS’s reason for eliminating his position was

pretextual and that the real reason was discrimination.

“Under but-for causation statutes, like [Section] 1981,

[courts] ask whether the discriminatory conduct had a

‘determinative influence’ on the injury.” Ziyadat v.

Diamondrock Hosp. Co., 3 F.4th 1291, 1297–98 (11th Cir. 2021).

Here, there is no genuine dispute of material fact as to

whether the elimination of Houston’s position in the loadout

department with SEIDS was motivated by his race, color, or

national origin. Because Houston’s employment with SEIDS

ended in December 2019, any events Houston points to that

occurred after he began working for RTG — such as the

offensive “Black People Time” comment from August 2020 — are

irrelevant to Houston’s claims against SEIDS.

Summary judgment is granted to SEIDS on Counts I, II,

III, VI, VII, and VIII.

2. Hostile Work Environment Claims

“To establish a hostile work environment claim under []

42 U.S.C. § 1981, an employee (or former employee) must show

harassing behavior ‘sufficiently severe or pervasive to alter

the conditions of [his or her] employment.’” Bryant v. Jones,

575 F.3d 1281, 1296 (11th Cir. 2009) (citation omitted). The

Eleventh Circuit has repeatedly instructed that a plaintiff

wishing to establish a hostile work environment claim must

show:

(1) that he belongs to a protected group; (2) that

he has been subject to unwelcome harassment; (3)

that the harassment must have been based on a

protected characteristic of the employee, such as

national origin; (4) that the harassment was

sufficiently severe or pervasive to alter the terms

and conditions of employment and create a

discriminatorily abusive working environment; and

(5) that the employer is responsible for such

environment under either a theory of vicarious or

of direct liability.

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th

Cir. 2002).

“The fourth element requires a plaintiff to prove that

the work environment is both subjectively and objectively

hostile.” Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240,

1249 (11th Cir. 2014). “To evaluate whether a work environment

is objectively hostile, [courts] consider four factors: (1)

the frequency of the conduct; (2) the severity of the conduct;

(3) whether the conduct is physically threatening or

humiliating, or a mere offensive utterance; and (4) whether

the conduct unreasonably interferes with the employee’s job

performance.” Id. at 1250-51 (citation and internal quotation

marks omitted). “‘No single factor is required’ to establish

the objective component. Instead, the court is to judge the

totality of the circumstances.” Nelson v. Keep Smiling

Dental, P.A., No. 8:21-cv-189-VMC-JSS, 2022 WL 485244, at *7

(M.D. Fla. Feb. 17, 2022) (citation omitted).

In support of these claims, Houston cites the four

comments he relied upon to establish his discrimination

claims: (1) Brennan’s comment “I don’t know. May — may —

maybe they want to get rid of the few Black people that’s

left over here.”; (2) Bennett’s “well, that’s my boy” comment;

(3) Cook’s “Black People Time” comment to Williams, which

Williams relayed to Houston; and (4) Beckham’s comment about

“changing the culture” of the warehouse to Houston and others

and, as relayed by another SEIDS employee, Beckham’s alleged

comment that Beckham wanted to put more white managers in

place. (Doc. # 58 at 11).

Houston’s hostile work environment claims against SEIDS

fail because the conduct alleged here is not objectively

severe or pervasive. As to SEIDS, only Brennan’s comment was

made by a SEIDS employee during Houston’s employment with

SEIDS. The Court only treats SEIDS as responsible for whether

this comment created a hostile work environment for Houston.

Brennan’s comment is one stray remark in which no racial slurs

or humiliating language was used. This comment was not

physically threatening or humiliating. Nor did the remark

unreasonably interfere with Houston’s job performance:

Houston “brushed [the comment] off” as a “sarcastic joke” and

went to his meeting with Tipping, who he told about the

comment. (Houston Depo. at 66:17-25); see also Nelson, 2022

WL 485244, at *7 (“[T]he fourth factor – interference with

job performance – does not weigh in Nelson’s favor as she

testified that she tried to brush off these comments and get

on with her work duties.”).

Additionally, even if the Court considers Bennett’s

“well, that’s my boy” comment, which was made during Houston’s

employment with SEIDS but in the context of RMSC Vice

President Bennett’s offering Houston a job with RTG, the

aggregation of Brennan’s and Bennett’s comments still are not

severe or pervasive. Here, Bennett’s brief statement of

“well, that’s my boy” was made in the context of Houston

entering a meeting during which Bennett offered Houston a job

with RTG. (Houston Depo. at 115:6-24). While Houston was

offended by this choice of words, given that the word “boy”

historically has racial overtones, this one-time comment was

not severe. The comment was not physically threatening. Nor

did it unreasonably interfere with Houston’s job performance:

Houston ultimately accepted the job with RTG that was offered

to him.

The conduct cited by Houston is far less significant

than that held sufficient to survive summary judgment by other

courts. See, e.g., Hedgeman v. Austal, U.S.A., L.L.C., 866 F.

Supp. 2d 1351, 1364 (S.D. Ala. 2011) (holding that hostile

work environment claim based on racial harassment survived

summary judgment where Caucasian co-workers and supervisors

referred to African Americans by racial slurs “on an almost

daily basis during [plaintiff’s] employment,” plaintiff

“regularly encountered racial graffiti” in the workplace

bathrooms, and “images of the Confederate flag . . . permeated

the workplace as regularly displayed and/or worn on Caucasian

co-workers’ t-shirts”); Nelson, 2022 WL 485244, at *6

(hostile work environment claim survived summary judgment

where plaintiff’s supervisor called plaintiff a “‘stupid

black bitch’ on more than five occasions and ‘possibly’ on

more than 10 occasions over a two-year period,” “taunted

[plaintiff] about being late, saying that was the ‘colored

people time that they talk about,’” and “made comments about

[plaintiff’s] eating habits, telling [plaintiff] ‘You better

stop eating that n----- food. You’re going to get too fat’”).

Thus, Houston’s hostile work environment claims against

SEIDS (Counts V and X) fail.

3. Retaliation Claims

“A plaintiff [] establishes a prima facie case of

retaliation under [Section] 1981 by demonstrating that: ‘(1)

[he] engaged in statutorily protected activity; (2) [he]

suffered a materially adverse action; and (3) there was a

causal connection between the protected activity and the

adverse action.’” Johnson v. Fam. Prac. & Inj. Ctr., Inc.,

437 F. Supp. 3d 1108, 1120 (M.D. Fla. 2020) (quoting Chapter

7 Trustee, 683 F.3d at 1259). As for the third element, “a

plaintiff bringing a [Section 1981] retaliation claim ‘must

establish that his or her protected activity was a but-for

cause of the alleged adverse action by the employer.’” Id. at

1121 (quoting Univ. of Texas Sw. Med. Ctr. v. Nassar, 570

U.S. 338, 362 (2013)).

In his response’s section on the retaliation claims,

Houston relies on only one act of protected activity: his

reporting Cook’s “Black People Time” comment to Hathcock in

August 2020. (Doc. # 58 at 19). He emphasizes that he was

terminated from RTG one month later in September 2020. (Id.).

Thus, Houston reasons, the close temporal proximity between

his complaint about Cook’s comment and his termination

creates a genuine issue of material fact about the causal

connection between the two events.

This argument fails as to SEIDS because in August 2020

Houston was not working at SEIDS. Indeed, his employment with

SEIDS ended in December 2019 and Houston was an RTG employee

in 2020. (Houston Depo. at 89:8-19, 123:10-19; Doc. # 50-3).

Thus, SEIDS could not have retaliated against Houston for

making a complaint to his RTG supervisor in August 2020.

Again, the only protected activity Houston raises in his

response’s section on retaliation is the August 2020

complaint to Hathcock about Cook. (Doc. # 58 at 19). Thus,

although he mentions in his statement of material facts and

other portions of his response that he told Tipping about

Brennan’s comment before his employment with SEIDS ended,

Houston has not argued that his reporting Brennan’s comment

to Tipping was protected activity for the purposes of his

retaliation claims. “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.”

Resol. Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.

1995); see also Fils v. City of Aventura, 647 F.3d 1272, 1284

(11th Cir. 2011) (“[D]istrict courts cannot concoct or

resurrect arguments neither made nor advanced by the

parties.”). Thus, the only protected activity the Court will

consider is the August 2020 report about Cook’s comment.2

Summary judgment is granted on Houston’s retaliation

claims against SEIDS (Counts IV and IX).

C. RTG’s Motion

Houston worked for RTG from December 30, 2019, until his

termination on September 10, 2020. Thus, the below analysis

relates only to Houston’s employment with RTG during this

time. As explained below, Houston’s claims against RTG fail.

2 Even if Houston had argued that his reporting Brennan’s

comment to Tipping was protected activity, his retaliation

claims against SEIDS would still fail. No reasonable jury

could find a causal connection between Houston’s reporting

Brennan’s comment and the elimination of Houston’s job with

SEIDS. Notably, the nationwide transition of all loadout work

from SEIDS to RTG had begun in 2018 and continued through

2019. (McBride Decl. at ¶ 5; Crossley Decl. at ¶ 5). Thus,

essentially all loadout jobs were being eliminated from

SEIDS, with only a few SEIDS employees being transitioned to

other positions. (Crossley Decl. at ¶ 6; McBride Decl. at ¶

5). This transition was the reason for Houston’s job being

eliminated — not his reporting Brennan’s comment to Tipping

at the end of 2019. Indeed, Brennan made his comment in the

context of telling Houston that Tipping had asked to meet

with Houston. (Houston Depo. at 66:9-16). The purpose of the

meeting with Tipping was for Tipping to tell Houston that

Houston was being offered a position with RTG. (Id. at 67:1-

8).

1. Discrimination Claims

(a) Direct Evidence

Again, “only the most blatant remarks, whose intent

could be nothing other than to discriminate on the basis of

[a protected characteristic], [] constitute direct evidence

of discrimination.” Carter, 870 F.2d at 582.

Just as with SEIDS, there is no direct evidence of

discrimination by RTG. The two statements made by SEIDS

employees Brennan and Cook are not direct evidence of

discrimination by RTG. Nor do the two other statements invoked

by Houston constitute direct evidence.

As for Vice President for RMSC Bennett’s saying “well,

that’s my boy” as Houston walked into the meeting during which

Bennett offered Houston a job at RTG in approximately December

2019 (Houston Depo. at 115:20-24), this is not direct evidence

that discriminatory animus motivated Houston’s termination by

RTG months later in September 2020. Even setting aside that

Bennett is an employee of RMSC rather than RTG, Bennett’s

calling Houston “boy” is not a blatant statement connected to

Houston’s termination. See Williamson, 372 F. App’x at 940

(“A biased statement, separate in time from the employment

decision under challenge, is not direct evidence of

discrimination.”).

The last statement upon which Houston relies is RTG’s

second shift operations manager Beckham’s comment that he

“was trying to change the culture” of the distribution center.

(Houston Depo. at 183:10-18, 299:7-10). This is a race-

neutral comment by itself. Even taking as true RTG employee

Matt’s alleged statement to Houston that Beckham told Matt

that Beckham was “trying to put more white people in those

manager positions than Black” (Id. at 184:8-17), this

statement is not direct evidence of discrimination. First, it

is unclear when during Houston’s multi-month employment with

RTG that Beckham supposedly made this comment to Matt. Also,

there is no evidence that Beckham was involved in the decision

to terminate Houston. Thus, this statement does not prove

without any inference that Houston’s termination was based on

discrimination.

No direct evidence of discrimination exists here.

(b) Circumstantial Evidence

In his response, Houston argues that he has established

a convincing mosaic of discrimination. (Doc. # 58 at 12-13).

Again, “[a] plaintiff may establish a convincing mosaic by

pointing to evidence that demonstrates, among other things,

(1) suspicious timing, ambiguous statements, or other

information from which discriminatory intent may be inferred,

(2) ‘systematically better treatment of similarly situated

employees,’ and (3) pretext.” Jenkins, 26 F.4th at 1250.

Houston has not established a convincing mosaic of race,

color, or national origin discrimination by RTG. The comments

Houston points to that were made related to his employment

with RTG are insufficient to enable a reasonable jury to find

that Houston was terminated for discriminatory reasons.

First, although the word “boy” often is evidence of

discriminatory animus, it does not appear that Vice President

of RMSC Bennett was expressing animus when he once referred

to Houston as “boy” during the meeting about Houston’s

becoming a RTG employee. Notably, Bennett’s brief statement

of “well, that’s my boy” was made in the context of Houston’s

entering a meeting during which Bennett offered Houston a job

with RTG. (Houston Depo. at 115:6-24). Thus, this one-off

comment made while hiring Houston does not suggest that RTG

decided to fire Houston months later based on his race, color,

or national origin.

Second, the comment about “Black People Time” is not

evidence against RTG because that comment was made by Cook,

an employee of SEIDS during Houston’s employment at RTG.

(Williams Depo. at 129:9-23; Houston Depo. at 185:20-186:3).

A SEIDS employee’s offensive statement does not suggest that

RTG possessed discriminatory animus. As for Beckham’s

statement that he wanted to “change the culture” of the

warehouse, that statement makes no reference to race, color,

or national origin. (Houston Depo. at 183:10-18). The comment

that best supports the existence of discriminatory animus is

RTG employee Matt’s alleged statement to Houston that Beckham

told Matt that Beckham was “trying to put more white people

in those manager positions than Black.” (Id. at 184:8-17).

Even accepting this hearsay statement, there is no evidence

that Beckham played a role in Houston’s termination. Rather,

the employee who complained to HR about Houston and the

“flower game” was African American and the investigation into

that complaint was not performed by Beckham. (McBride Decl.

at ¶¶ 15-16).

Even if the Court thought these three comments lent some

support for Houston’s claims, Houston still could not

establish a convincing mosaic of discrimination. Houston has

not shown that the given reason for his termination — his

participation in the “flower game” and soliciting money from

co-workers for that pyramid scheme — was pretextual.

The Eleventh Circuit has “repeatedly emphasized that

‘[p]rovided . . . the proffered reason [for an adverse

employment action] is one that might motivate a reasonable

employer, an employee must meet that reason head on and rebut

it.’” Gogel, 967 F.3d at 1136 (quoting Chapman v. AI Transp.,

229 F.3d 1012, 1030 (11th Cir. 2000)); see also Worley, 408

F. App’x at 251 (“A legitimate nondiscriminatory reason

proffered by the employer is not a pretext for prohibited

conduct unless it is shown that the reason was false and that

the real reason was impermissible retaliation or

discrimination.”). “Thus, to establish pretext at the summary

judgment stage, a plaintiff must demonstrate ‘such

weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable

factfinder could find them unworthy of credence.’” Gogel, 967

F.3d at 1136 (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.’”

Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344,

1349 (11th Cir. 2007) (citation omitted). The Court cannot

second guess the defendant’s business judgment or inquire as

to whether its decision was “prudent or fair.” Damon v.

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

Cir. 2003).

Here, Houston admits he participated in the “flower

game” and received money from it. (Houston Depo. at 238:1-3,

239:4-8, 240:5-14, 241:3-18). He also acknowledged that

Jackson was his subordinate employee. (Id. at 239:9-19).

Houston’s attempt in his response to cast the “flower game”

as a legitimate “sou sou” savings club favored by Black and

African American people is both disingenuous and

unpersuasive. (Doc. # 58 at 14-16). The “flower game” engaged

in by Houston was not a legitimate “sou sou” because many

employees who “invested” never got their money back. (McBride

Decl. at ¶¶ 15, 17 & Ex. B). This failure to return money

“invested” was the reason Jackson complained about the

“flower game” and Houston’s involvement in it to HR. (Id. at

¶ 15). Rather, just like the fake sou sous that the FTC warned

were pyramid schemes in August 2020, the “flower game”

promised large returns on investment and failed to deliver.

(Id. at ¶¶ 15, 17 & Ex. B); see also Karen Hobbs, A real or

fake savings club?, Fed. Trade Comm’n Consumer Advice (Aug.

10, 2020), https://consumer.ftc.gov/consumer-

alerts/2020/08/real-or-fakesavings-club (last visited

December 13, 2023) (“These kinds of illegal pyramid schemes

are the exact opposite of a sou sou: They promise you’ll make

more money than you put in and depend on recruiting new people

to keep money flowing into the fund.”). Finally, Houston did

not consider the “flower game” to be a “sou sou”; rather, he

considered it another form of gambling. (Houston Depo. at

237:15-20).

Thus, Houston has not rebutted RTG’s conclusion that

Houston had solicited money from employees, including his

subordinate Jackson, to participate in a pyramid scheme.

While Houston notes that lottery or sports betting pools

existed at the Lakeland distribution center (Doc. # 58 at 15-

16), RTG “never received any complaints from any individual

regarding ‘lottery pools’ or ‘sports betting pools’ at the

Lakeland distribution center, such as being misled to

participate by being promised lucrative returns on

investment.” (McBride Decl. at ¶ 23).

Even if the “flower game” had been a legitimate sou sou,

Houston still cannot show pretext because there is no evidence

that RTG did not believe in good faith that the “flower game”

was a pyramid scheme. “The relevant inquiry is [] whether the

employer in good faith believed that the employee had engaged

in the conduct that led the employer to discipline the

employee.” Gogel, 967 F.3d at 1148. “The inquiry into pretext

centers on the employer’s beliefs, not the employee’s beliefs

and, to be blunt about it, 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).

Again, RTG had an investigator — Rodriguez — investigate

Jackson’s complaint about the “flower game.” (McBride Decl.

at ¶¶ 17-21 & Ex. B). Rodriguez, after conducting multiple

interviews and reviewing evidence including screen shots of

messages from Houston, determined that the “flower game” was

a pyramid scheme. (Id.). All three employees of RTG or SEIDS

who were found to have solicited money for the “flower game”

— Houston, Williams, and Snead — were terminated based on

their participation. (Id. at ¶ 21). There is no reason to

doubt that RTG relied in good faith on Rodriguez’s

investigation in deciding to terminate Houston.

Because there is no convincing mosaic of discrimination

here, the Court grants summary judgment to RTG on Houston’s

discrimination claims (Counts I, II, III, VI, VII, and VIII).

2. Hostile Work Environment Claims

As discussed before, “[t]o establish a hostile work

environment claim under [] 42 U.S.C. § 1981, an employee (or

former employee) must show harassing behavior ‘sufficiently

severe or pervasive to alter the conditions of [his or her]

employment.’” Bryant, 575 F.3d at 1296 (citation omitted).

“To evaluate whether a work environment is objectively

hostile, [courts] consider four factors: (1) the frequency of

the conduct; (2) the severity of the conduct; (3) whether the

conduct is physically threatening or humiliating, or a mere

offensive utterance; and (4) whether the conduct unreasonably

interferes with the employee’s job performance.” Adams, 754

F.3d at 1250-51 (citation and internal quotation marks

omitted).

In support of these claims, Houston cites the four

comments he relied upon to establish his discrimination

claims: (1) Brennan’s comment “I don’t know. May — may —

maybe they want to get rid of the few Black people that’s

left over here.”; (2) Bennett’s “well, that’s my boy” comment;

(3) Cook’s “Black People Time” comment to Williams, which

Williams relayed to Houston; and (4) Beckham’s comment about

“changing the culture” of the warehouse to Houston and others

and, as relayed by another SEIDS employee, Beckham’s alleged

comment that Beckham wanted to put more white managers in

place. (Doc. # 58 at 11).

As with SEIDS’s Motion, the conduct about which Houston

complains as to RTG is not objectively severe or pervasive.

Both Brennan’s and Bennett’s comments were made before

Houston began working at RTG, so cannot support a hostile

work environment claim against RTG. Even considering the

Bennett comment, it was a stray offensive utterance that did

not unreasonably interfere with Houston’s job performance.

Next, Cook was a SEIDS employee who made the racist

comment about “Black People Time” to another SEIDS employee,

Williams. (Williams Depo. at 129:9-23). As Cook was not an

RTG employee, there is no reason why her comment should be

attributed to RTG. But, even if the comment was relevant to

whether RTG created a hostile work environment, the comment

was a one-time offensive remark that was not directed at

Houston and that Houston did not personally hear. Rather,

Williams simply relayed the comment to Houston. See Williams

v. JPI Jones Pharm., No. 8:03-cv-2561-JSM-MAP, 2005 WL

1863402, at *2 (M.D. Fla. July 29, 2005) (granting summary

judgment where racially discriminatory incidents occurred

outside of plaintiff’s presence and were simply relayed to

her by other employees because such incidents are “less

severe, threatening, and humiliating than any that involved

Plaintiff personally or that she actually observed take

place”). Thus, while offensive and unacceptable, this comment

was less severe.

Finally, Beckham’s comment directly to Houston and

others that Beckham “wanted to change the culture” of the

Lakeland distribution center was a one-time race-neutral

comment. This comment was not severe. The only racial comment

Beckham allegedly made was to another RTG employee named Matt.

Matt then relayed to Houston that Beckham said he was “trying

to put more white people in those manager positions than

Black.” (Houston Depo. at 184:8-17). While certainly

offensive, this comment was not made directly to Houston. Nor

is this comment physically threatening or humiliating. There

is no evidence that this comment unreasonably interfered with

Houston’s job performance.

Taken together and considered under the totality of the

circumstances, the comments and conduct about which Houston

complains that occurred over a 9 or 10-month span were not

severe or pervasive. Compare Jones v. UPS Ground Freight, 683

F.3d 1283, 1303–04 (11th Cir. 2012) (“Here, there were seven

incidents of racist acts over a year, four of which — the

last two banana incidents, the Confederate clothing and what

reasonably could be perceived as a threatening confrontation

— occurred within a two-week period of time near the end of

Mr. Jones’s employment with UPSF. It is this escalation of

incidents, with a possibly threatening confrontation as its

centerpiece, that makes the issue of racial harassment, as

that term is used in the statute, one for the trier of

fact.”). Summary judgment is granted on Houston’s hostile

work environment claims against RTG (Counts V and X).

3. Retaliation Claims

Again, “[a] plaintiff [] establishes a prima facie case

of retaliation under [Section] 1981 by demonstrating that:

‘(1) [he] engaged in statutorily protected activity; (2) [he]

suffered a materially adverse action; and (3) there was a

causal connection between the protected activity and the

adverse action.’” Johnson, 437 F. Supp. 3d at 1120 (citation

omitted). “The burden of causation can be met by showing close

temporal proximity between the statutorily protected activity

and the adverse employment action. But mere temporal

proximity, without more, must be ‘very close.’” Thomas v.

Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)

(citations omitted).

As mentioned before, in his response’s discussion of the

retaliation claims, Houston relies on only one act of

protected activity: his reporting Cook’s “Black People Time”

comment to Hathcock in August 2020. (Doc. # 58 at 19). He

emphasizes that he was terminated from RTG one month later in

September 2020. (Id.). According to Houston, the close

temporal proximity between his complaint about Cook’s comment

and his termination creates a genuine issue of material fact

about the causal connection between the two events.

But “close temporal proximity between two events,

standing alone, is not a panacea, absent any other evidence

that the employment decision was causally related to the

protected activity.” Hankins v. AirTran Airways, Inc., 237 F.

App’x 513, 520-23 (11th Cir. 2007) (holding that plaintiff

failed to show a genuine dispute as to causation or pretext

for the allegedly retaliatory termination where plaintiff

threatened violence against a co-worker — an “intervening act

of misconduct” — five days after reporting suspected racial

discrimination). “Intervening acts of misconduct can break

any causal link between the protected conduct and the adverse

employment action.” Henderson v. FedEx Express, 442 F. App’x

502, 506 (11th Cir. 2011). Even considering that Houston told

Hathcock about Cook’s “Black People Time” comment in August

2020, the HR investigation determining that Houston was

involved in the “flower game” and had solicited money from

Jackson breaks any causal link between Houston’s protected

activity and his termination. See Fleming v. Boeing Co., 120

F.3d 242, 248 (11th Cir. 1997) (holding that the plaintiff

had failed to establish causation, even though the employer

refused to hire her for a permanent position shortly after

she had filed a complaint of sexual harassment, because it

was clear from the record that the plaintiff failed to meet

the employer’s qualifications for permanent employment —

namely, she had failed to pass a required typing test).

In short, given RTG’s discovery of Houston’s misconduct

in participating in the “flower game,” no reasonable jury

could conclude that Houston’s complaint about the comment by

Cook (a SEIDS rather than RTG employee) was the cause for his

termination. Thus, summary judgment is granted to RTG on

Houston’s retaliation claims (Counts IV and IX).

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant R.T.G. Furniture Corp.’s Motion for Summary

Judgment (Doc. # 50) is GRANTED.

(2) Defendant SE Independent Delivery Services, Inc.’s

Motion for Summary Judgment (Doc. # 51) is GRANTED.

(2) The Clerk is directed to enter judgment in favor of

Defendants R.T.G. Furniture Corp. and SE Independent

Delivery Services, Inc. and against Plaintiff Travis

Houston on all counts of the complaint.

(3) Thereafter, the Clerk is directed to terminate all

pending deadlines and CLOSE the case.

DONE and ORDERED in Chambers in Tampa, Florida, this 3rd

day of January, 2024,

VIR! IA M. HERNANDEZ’*COVINGTON

UNITED STATES DISTRICT JUDGE

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